New BC Family Rules Introduce Proportionality
Experienced BC Family Lawyer Examines New Family Law
The British Columbia Supreme Court has introduced a new set of family laws which began on July 1, 2010. The new family law is focused on the idea of proportionality – meaning that family law cases will be conducted in proportion to the interests of the child affected. For example, if a child were sick, the amount of medicine should be proportionate to the severity of the illness. Now, the family law case will be proportionate to the issues and complexity of the case. These new rules will minimize conflict and reduce the impact the case will have on the child.
If you are from BC and about to enter a family law case, you will need a family lawyer who is familiar with the recent changes to the province’s policies. Seasoned family lawyers who have practiced before and after the new BC policies have gained valuable experience in this crucial transitional phase. Search through our British Columbia Lawyer Directory to find a lawyer now.
For a Family Lawyer Who Is Familiar with New Rules of Proportionality, Search the British Columbia Lawyer Directory on Canadian-lawyers.ca
The change in British Columbia’s family law system has introduced new language, documents and forms to common family law procedures. A BC family lawyer can help you understand the changes and ensure you capitalize on the province’s new set of rules. A family lawyer can use the new rules to promote cooperation between parties and secure a quick and cost efficient way to end disputes.
If you or someone you know is in need of a family lawyer, search through our British Columbia lawyer directory to find someone suitable in your area.
David Dundee is the author of the New BC Family Rules Introduce Proportionality. Below is his article from The Lawyers Weekly
, which outlines the benefits of the new family law rules in British Columbia.
November 13, 2009
You have heard the expression, "The wheels of justice grind slowly but exceedingly fine." A few years ago, the B.C. Justice Review Task Force wondered whether grinding a little less finely might result in faster decision making, lower cost and better access to justice. This summer, British Columbians will get a chance to see if they were right.
Starting July 1, 2010, the B.C. Supreme Court will have a new set of civil rules and, for the first time, a completely stand-alone set of family rules. The family rules have also been re-organized, use plainer language and include what the drafters hope will be more user-friendly forms. To encourage settlement, the new rules also waive some filing and hearing fees for litigants who have attempted mediation without success.
The central theme for both rules is the idea of proportionality - that the amount of medicine should be proportionate to the severity of the ailment. It is an attempt to eliminate waste and inefficiency, but also to address the very real possibility of abuse. Court process is a tool, but it can also be a cudgel.
Consequently, reforms common to both rules include vigorous case management and limits on both discoveries and the use of experts.
For the family rules, the new objects go a little farther. Rule 1-3 reads:
"(1) The object of these Supreme Court Family Rules is to
(a) help parties resolve the legal issues in a family law case fairly and in a way that will
(i) take into account the impact the family law case may have on a child, and
(ii) minimize conflict and promote cooperation between the parties, and
(b) secure the just, speedy and inexpensive determination of the every family law case on its merits.
(2) Securing the just, speedy and inexpensive determination of a family law case on its merits includes, so far as practicable, conducting the family law case in ways that are proportionate to
(a) the interests of any child affected,
(b) the importance of the issues in dispute, and
(c) the complexity of the family law case."
Few would argue the merits of considering the impact of litigation on children, trying to reduce conflict or promoting cooperation. Those family lawyers who were involved in the consultation process last year, though, wondered what these goals will mean in practice - especially as the Law Society is also following up on an earlier Justice Review Task Force recommendation that there be a family law practitioners' code of conduct.
Does this mean family lawyers will owe a separate duty to children? Will more child advocates be needed? Will lawyers be chastised for not being "cooperative" ? Will the same standards apply to litigants - particularly unrepresented litigants?
One of the enumerated factors for proportionality in an earlier draft was "the family's financial resources." Likely, the drafters felt this would be redundant.
Certainly, financial issues and resources are the most easily quantifiable elements in a case. What will be harder for courts - and litigants - to assess is the comparative weight of the interests of any child affected or the importance of non-financial issues. We have no ready yardsticks for such matters, and developing them will be a key task.
The doorway to the family court remains the judicial case conference, introduced in 2002. Part settlement conference, part case management, the judicial case conference has revolutionized family practice in B.C.
The new rules add a few more tools to the toolbox, including the power to: (a) refer the parties to mediation; (b) refer them to a government education seminar called "Parenting After Separation" ; and (c) make any procedural order or direction "that the court considers will further the object of" the rules.
That last provision is also echoed in the trial management conference rule, so the rules clearly intend that the new objects, however they are subsequently defined and refined, will drive the ultimate shape of the proceeding. Smaller matters will be directed to summary or expedited proceedings. More complex matters will have the benefit of greater time and preparation.
But deciding the correct proportions of a family case may prove a more challenging task than the drafters anticipated. There comes a point when procedural and substantive issues collide - when deciding the relative size of an issue, or the procedures available to address it, may affect the outcome.
Surely, many cases will benefit from a little judicial tailoring. But deciding the relative size of a case involves assessing it, and in a summary manner at that. The danger is that "proportionality" could replace the oppression of too much process with the oppression of too little. Starting next summer, this concept will challenge the ingenuity and creativity of both B.C.'s Bench and Bar.
The full text of the rules and information about how they came about can be found at: www.bcjusticereviewforum.ca.
David Dundee is a family lawyer and family law mediator, practising with Paul & Company in Kamloops, B.C.