B.C.’s informal court process pilot a flawed approach | Kim Hawkins and Pamela Cross

By Kim Hawkins and Pamela Cross

Law360 Canada (August 30, 2022, 11:06 AM EDT) --
Kim Hawkins
Kim Hawkins
Pamela Cross
Pamela Cross
B.C.’s provincial government has recently announced a new family law informal court pilot in Kamloops. Parties can consent to participate in an informal process where the trial judge takes a facilitative role and manages the conduct of the case. Lawyers are permitted to attend but not to ask questions (except of expert witnesses). The rules of evidence are not followed. Objections are not allowed.

This process, it is claimed, will be easier for people without a lawyer, will allow people to tell their story in their own way, without interruptions by the opposing party or a lawyer, and will make the parties feel more comfortable. 

The design premise of the informal court process seems to be that the traditional court process is rife with too many lawyers, too much procedure and too many evidentiary rules. Lawyers have been cast as barriers that get in the way of litigants telling their stories to the court. As those of us who represent survivors of violence know, this is a flawed and potentially dangerous approach to family justice.

For survivors of interpersonal violence (IPV), lawyers are not the mere window dressing of court processes. More than any other family court litigants, survivors of IPV benefit from legal representation throughout their case.  

Many survivors are afraid to even be in the same room as their ex-partners. The power imbalances that develop in relationships over many years or decades of abuse are not undone simply because the partners have separated or because a judge is present. Many survivors don’t speak up about past abuse because they fear retribution and disbelief. They agree to consent orders, mediated agreements and court processes that do not adequately protect their rights or serve their longer-term interests because they feel pressured and “just need to get it over with.” The insidiousness and subtlety of long-established patterns of coercive and controlling behaviours are often hard for lawyers and judges to identify and difficult for survivors to describe clearly.

In the best-case scenario presented by the B.C. government, the parties will be questioned by a patient and understanding judge. But the reality is that not all judges have the necessary training or skills in screening for family violence, because there is no mandatory judicial education about family violence. Unlike some provinces that have specialized unified family courts, B.C. does not. Research by Rise Women’s Legal Centre found that women in B.C. consistently felt that legal system professionals, including judges, did not understand the impacts of violence and threats made against them, or the safety risks they take by engaging the legal system.

Relaxing courtroom procedure would be a welcome change for many litigants, as would a move towards greater flexibility for survivors when testifying. We would support reforms that give survivors a greater say in how they want to engage with the legal system; for example, choosing whether they wish to appear in person or virtually; being able to access support people, animals and screening devices during testimony; and choosing whether to engage in mediation or settlement and, if so, on what terms.

But that is not what is contemplated here.

Lawyers working with survivors spend significant time building relationships of trust and trying to understand multilayered and complex histories of violence. They carefully prepare questions during both direct and cross-examination to establish a basis for our clients’ legal remedies, remedies that a lawyerless litigant may not know she should present or that a presiding judge may not appreciate the survivor is seeking or entitled to. Objections to evidence are infrequent in family court, but may be necessary where evidence is irrelevant, unreliable, or prejudicial.

Moreover, appeals of errors made in the informal court are anticipated to be conducted according to the normal rules, but what are the “normal rules” when no rules of evidence applied, counsel could not lead evidence that was available and relevant, and no objections could be made to inadmissible evidence?

The informal court process doesn’t just remove legal formalities that may impede the ability of self-represented litigants to participate in the court process, it also removes legal protections that may be necessary to achieve fair results. The litigants most likely to be adversely impacted are, once again, survivors of family violence.

The informal court pilot comes 20 years after drastic cuts were made to B.C.’s family law legal aid services. Women continue to disproportionately bear the impacts of those service cuts. B.C.’s lack of access to family law legal aid has been identified in numerous reports, including in an external review of legal aid service delivery recently commissioned by the B.C. government, as a gender equality issue. However, efforts to address access to justice gaps in family law are limited to pilot projects that chip away at the core of the “justice” that survivors are expected to access instead of ensuring that survivors have adequate access to counsel.

We are supportive of innovation and acknowledge the need to think outside the box to address the access to justice crisis in B.C. However, given the totality of current government initiatives, we can’t help but observe that the informal court process pilot yet again focuses primarily on removing lawyers from the picture, despite the inevitable negative impact on survivors, instead of emphasizing safety, agency and fairness for the people who most need the court’s protection.

Kim Hawkins is the executive director of Rise Women’s Legal Centre in Vancouver. Pamela Cross is a feminist lawyer who works on issues related to violence against women and the law. One of her key roles is as the legal director of Luke’s Place in Ontario.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients,
The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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