Family Justice Reform in British Columbia and the Northern Navigator Initiative: A Preliminary Review

by Nicole Garton
April 2017 Nicole Garton

Introduction 

This is a story about leaders.  Visionaries, thinkers, researchers and soldiers in the trenches, all working towards the cause of better outcomes for British Columbian families facing marital breakdown: Wayne Plenert, Kari D. Boyle, Chief Judge Thomas Crabtree, M. Jerry McHale, Q.C., Dan VanderSluis, Dr. Julie Macfarlane, Chief Justice Robert J. Bauman, Jane Morley, Q.C., Nancy Cameron Q.C. and many others. 

This is story about families.  Every day people interfacing with a largely unaffordable and inaccessible justice system at one of the most difficult junctures of their lives: marital breakdown and family restructuring

This is a story about a system.  Long studied and long lamented, too expensive, too complex, too slow and too inaccessible. A family justice system in need of fundamental reform yet inexorably resistant to change. 

This is a story about a time.  An age of accelerating technological change, the proliferation of online information, a reduced deference to institutions and authority figures and a zeitgeist of anxiety over where our society is headed.

This is a story about a place.  A landscape of rolling hills dotted with grain and cattle farms, the Peace River flowing west to east, severe mountain wilderness terrain West of the Rockies and a boom/bust economy subject to the variable fortunes of the oil and gas industry.  A place with rugged, individualist residents and a greater transience of family relationships, possibly due to the harsh landscape and variable fortunes of the Peace River region.

This is a story about hope for a better family justice system for all.

Table of Contents 

  1. The Access to Justice Problem... 3
  2. The Family Justice System in British Columbia. 6
  3. Family Law in British Columbia. 9
  4. The British Columbia Family Justice Innovation Lab: a New Approach to Dispute System Design.. 13
  5. The Northern Navigator Initiative. 16
  6. The Northern Navigator, Dispute System Design and the Cultural Divide. 18
  7. Bibliography. 21

The Access to Justice Problem

People are more likely to have a family law dispute than any other type of serious legal problem.[2] Due to financial limitations, a reduced deference to lawyers and the justice system generally, increased access to legal information online and other factors, in some family courts the number of self represented litigants now reaches 80% and is consistently 60-65% at the time of filing.[3]

“Access to Justice” (or “A2J”) has been described as "equal justice under law”, meaning the equal ability to access legal institutions and services such as Courts and legal representation.[4]  A2J has similarly been defined as the ability of disputants to seek and obtain a remedy through formal (e.g., the Courts) or informal (e.g., mediation) institutions and services for resolving disputes.[5]  Canada is admired around the world as a model of democracy, grounded in the rule of law, whereby justice is available readily and equally to all.  Yet, in practice, A2J is easier for some than for others, and for those unable to afford legal services, justice often remains elusive.

Indeed, there are stark differences between the wealthy and the rest of the population in terms of their ability to access the family justice system.[6]  Families with resources are able to retain interdisciplinary teams of professionals to assist them, often in a collaborative law or mediation context, including lawyers, mental health coaches, child specialists and financial specialists, as required.[7]  Further, higher income families have budgets to engage multiple professionals in more adversarial processes, including experienced litigators, financial experts, mental health experts, parenting coordinators, private arbitrators, and the like.  Unfortunately, many people lack the financial means to obtain even basic services required to address critical legal, mental health and dispute resolution issues facing their families upon marriage breakdown.[8]

Given the empirical evidence that unresolved legal problems tend to generate additional legal, social, economic and health problems, the prevalence of unmet need for family law legal services in particular is troubling.[9]  Unresolved family issues tend to trigger further legal problems, resulting in complex clusters of interrelated civil and criminal legal problems.  Where the unmet legal need is as widespread and pervasive as it is in family law, these problems are downloaded onto the most vulnerable individuals among us, including children caught in the crossfire.

At its core, this is fundamentally a dispute system design (“DSD”)[10] failure: many people facing legal problems report they are forced to represent themselves because they do not have enough money to retain a lawyer and are not eligible for legal aid, but modern court systems in Canada are too complex for all but the most sophisticated non-lawyer.[11]  Although the great majority of cases filed by self-represented litigants (or “SRLs”) are factually and legally uncomplicated, many lay litigants struggle to navigate through an unfamiliar and procedurally complex court system.  Court systems employ difficult, often arcane terminology and impose highly technical requirements to advance or defend cases. Despite many conferences held and reports written on the topic, justice reform in Canada has so far failed to adequately address the problems faced by court users in their efforts to obtain meaningful access to the justice system.

As Justice Cromwell has stated:

In general terms, members of our society would have appropriate access to civil and family justice if they had the knowledge, resources and services to deal effectively with civil and family legal matters. I emphasize that I do not have a "court–centric" view of what this knowledge in these resources and services include. They include a range of out-of-court services, including access to knowledge about the law and the legal process and both formal and informal dispute resolution services, including those available through the Courts. I do not view access to justice...as simply access to litigation or even simply as access to lawyers, Judges and Courts, although these are, of course, aspects of what access to justice requires.[12]

Having "the knowledge, resources and services to deal effectively with civil and family legal matters” would ideally entail providing people with the knowledge and skills to allow them to take responsibility—or as much responsibility as is possible and appropriate—for the resolution of their own disputes.[13]

Much of the efforts to address A2J issues to date has adopted a traditional paradigm of “unmet legal needs,” assuming that the needs of court users are exclusively “legal.”[14] The overall goal appears to be to accommodate or assimilate court users into the existing system, with strategies including the increased availability of duty counsel, increased access to legal aid, online information systems, online dispute resolution, simplifying court forms and procedures and unbundled legal services, with varying degrees of success.  The issue with the family justice system, as noted by M. Jerry McHale Q.C., is “this is not a legal system with some social elements, it is a social system with some legal elements.”[15]  Rather than a pure legal event, separation and divorce involves the re-structuring of a family, with social, emotional, developmental, logistical, health and economic components.  Perhaps the DSD question should be reframed as: what would the family justice system look like if it were adjusted to the needs of court users, instead of the other way around?

The Family Justice System in British Columbia

Approximately 25,000 family law cases are filed in BC Provincial and Supreme Courts every year and 56% involve dependent children.[16]  The provincial government, pursuant to s. 92 of Constitution Act, 1867, 30 & 31 Victoria, c. 3., has the power and responsibility to administer the justice system on behalf of these families, in conjunction and in practice with the judiciary and members of the Bar.  In attempting to address A2J challenges, the province has three strategies available: to invest more resources, to reduce case volumes or to create efficiencies within existing justice services.[17] 

Acknowledging that the A2J problem is deep, complex and will not be solved purely by the infusion of additional resources, M. Jerry McHale, Q.C. has proposed the following service delivery principles for the province to fulfill its justice mandate more effectively:

  • “justice service planning should include a greater emphasis on dispute prevention and dispute avoidance;
  • enhanced and easily-located information, education and triage services need to be available at the front-end (point of entry) of the justice system to accommodate people seeking preliminary advice, orientation and direction respecting legal problems;
  • the justice system should be organized to provide effective early intervention and resolution of disputes. This principle is premised on the assumption that the longer a dispute survives in the system the more complex it is likely to become, the more resources it is likely to consume and the more likely the parties are to become polarized and entrenched in their conflict;
  • Cases should be managed to settlement, not to trial. Traditionally, each new case is treated as a potential trial and managed as if it will be resolved at trial, notwithstanding that only 2 to 5 per cent of disputes are resolved this way. We built into the design of our systems the implicit assumption that cases are destined for our most expensive dispute resolution process - trial. Systems should in fact be designed on the presumption of resolution and overtly managed toward early settlement;
  • One size does not fit all; different disputes require different kinds and quantities of process. Because access to justice is more than a matter of access to courts and formal legal proceedings, a fully developed range of proportional, interest based and rights-based services and resources should be available to litigants. Generally, early, informal and collaborative approaches to problem-solving are preferred over formal, procedurally complex and adversarial approaches;
  • Systems and services should be client-centered, that is, systems should be designed around the needs of the citizens who use them, not around the needs of the professionals who run them; and
  • Justice services should be integrated and coordinated with human services across the health, welfare, social, and educational ”[18]

McHale proposes the implementation of these principles into practice through the organization and delivery of legal services as part of a multi-option justice system, where early settlement is the focus, trial is regarded as a valued but last resort, and parties to a dispute can utilize a range of both interest and rights-based dispute resolution processes.[19]  In McHale’s model, levels of service delivery for court users will proceed through stages of prevention, early intervention, diversion and finally, court efficiencies, if required.  The Northern Navigator initiative falls within the purview of McHale’s proposed early intervention and diversion strategies.

Family Law in British Columbia

In response to research suggesting that non-adversarial approaches provide better outcomes for many family disputes, the BC Ministry of Justice has implemented various legislative initiatives that make it mandatory for family disputes to go through non-adversarial processes prior to entering the court system.

In 1998, in response to the increasing concern over issues regarding the accessibility and timeliness of the family court process, the Ministry of Justice introduced new Provincial Court (Family) Rules in an effort to improve case management and provide more opportunities for early settlement.  Rule 5 requires parties to meet with a Family Justice Counsellor (FJC) for a triage (initial assessment) appointment prior to a first appearance before a Judge to clarify the options available for resolving their disputes.  The FJC exposes the parties to alternative processes outside of court, including mediation free of charge for families of limited income.  The FJC assists each party in understanding and clarifying the issues so they can more effectively seek out alternative options that would be suitable to their specific needs or, if desired, more effectively navigate the Court system.  At any time after meeting with a FJC, a party can request to appear before a Judge or seek a consent order under Rule 14 of the Provincial Court (Family) Rules.  There are some exemptions to this requirement, for example, if parties are seeking a protection order.[20]

Results of an evaluation of Rule 5 were that it significantly reduces the number of cases coming before the Court and, when cases did reach appearing before the Court, the parties were more effectively able to articulate their issues and move more quickly through the process.  Both clients and Judges who were a part of the evaluation indicated that the triage process was useful in educating and exposing the family to alternative dispute resolution options.[21]

Mandatory Parenting After Separation (MPAS) is another compulsory initiative put in place by the Ministry of Justice with a goal to assist parents in making informed decisions during the separation process, especially with respect to their children, and to provide support for the emotional and legal aspects of separation.  MPAS strives to reduce the conflict between the parents and educate them on the advantages of alternatives to court while upholding the best interests of their children.[22]  Attendance of the Mandatory Parenting After Separation course is outlined in Rule 21 of the Provincial Court (Family) Rules and is required in a number of Provincial Court registries throughout British Columbia.

In 2007, British Columbia implemented the Notice to Mediate (Family) Regulation pilot program pursuant to section 68 of the Law and Equity Act, RSBC 1996, c 253.  Under the Notice to Mediate (Family) Regulation, a party to a family law matter in the Supreme Court can compel mediation by filing a Notice to Mediate form and sending it to the other party.  Parties may file a Notice to Mediate no earlier than 90 days after the filing of the first response to a family claim and no later than 90 days before the scheduled trial date.  The parties must mutually select an acceptable mediator within 14 days of filing a Notice to Mediate.  If the parties cannot agree to a mediator within the 14-day period, the parties must apply to the Mediate BC Family Roster and request that a mediator be appointed by the Society.  In 2012, the Notice to Mediate (Family) pilot project expanded to all registries of the Supreme Court, although few parties are currently using this process.

An emphasis on early resolution and out of court processes is evident in the British Columbia Family Law Act (the “FLA”) which came into force on March 18, 2013, and explicitly encourages family law litigants to resolve their disputes through agreements and appropriate “family dispute resolution”[23] before making an application to a Court.[24]  After screening for the presence of family violence and assessing the extent to which it may adversely affect the safety of a party or family member and the ability of a party to negotiate a fair agreement, a “family dispute resolution professional”[25] must discuss the advisability of using various types of family dispute resolution to resolve the matter.  Other notable duties imposed on family dispute resolution professionals under the FLA involve the duty to provide full and transparent financial disclosure[26], and to consider only the best interests of the child in making an agreement or order respecting guardianship, parenting arrangements or contact with a child.[27] 

Of particular note is section 9 of the FLA which states:

The parties to a family law dispute must comply with any requirement set out in the Regulations respecting mandatory family dispute resolution or prescribed procedures.

Further, at s. 245(3) the FLA provides:

(3)        The Lieutenant Governor in Council may make regulations requiring parties to a family law dispute to engage in family dispute resolution or undertake prescribed procedures, and for this purpose, may make regulations respecting one or more of the following:

  • the nature or type of mandatory family dispute resolution or procedures;
  • limits or conditions on engaging in mandatory family dispute resolution or undertaking procedures;
  • steps that a person must take before engaging in or during mandatory family dispute resolution or before undertaking or during procedures;
  • requiring that a person do something, or prohibiting a person from doing something, before the person engages in mandatory family dispute resolution or undertakes procedures, or during mandatory family dispute resolution or mandatory procedures;
  • exempting a person or class of persons, with or without conditions, from engaging in mandatory family dispute resolution or undertaking procedures, or respecting the circumstances in which a person or class of persons may be exempted;
  • any other matter in relation to engaging in mandatory family dispute resolution or undertaking procedures as necessary for the purposes of section 9 [duties of parties respecting dispute resolution] or 197 [complying with duties respecting family dispute resolution].

The existence of s. 9 and s. 245(3) of the FLA provide an opening for the Ministry of Justice to introduce court connected family mediation in BC in the future.

The British Columbia Family Justice Innovation Lab: a New Approach to Dispute System Design

Designing new conflict processes and systems is “designing justice”[28] and falls under the category of a “complex problem.”  Simple problems (such as following a recipe), may encompass some basic issues of technique and terminology, but once these are mastered, following the recipe carries with it a very high assurance of success. Complicated problems (like making a new smart phone) are different.  Their complicated nature is often related not only to the scale of the problem, but also to their increased requirements around coordination or specialized expertise.  However, smart phones are similar to each other and because of this, one success can be replicated with a relatively high degree of outcome certainty.

In contrast, complex problems are based on relationships and their properties of self-organization, interconnections and evolution. Research into complex systems demonstrates that they cannot be understood solely by simple or complicated approaches. Expertise can contribute but is neither necessary nor sufficient to assure success.  A number of interventions can be expected to fail as a matter of course.  Uncertainty of the outcome remains.  The most useful solutions usually emerge as an iterative, or trial and error process.[29]

This complex task of designing a better family justice system focuses on how we understand justice, including concepts of fairness, durable outcomes and cost efficiency, and reflects different perspectives of different parties, including lawyers, Judges, court users, regulators and policy makers, working in various conflict resolution contexts.[30]  The entrenched A2J issue has been clear for some time.  The challenge is how to engage in more innovative DSD within the existing regulatory, legal, stakeholder, economic and social context to try to build a better system for families facing disputes.

The idea for a BC Family Justice Innovation Lab approach to family justice DSD grew out of a two-day workshop held in June 2014, funded by the BC Law Foundation/Legal Services Society Research Fund and facilitated by Adam Kahane and Monica Pohlmann of Reos Partners.  Kari D. Boyle, Coordinator of the BC Family Justice Innovation Lab, among many other leadership roles, defines an Innovation Lab as a “multi-stakeholder platform through which a diverse team of stakeholders works together to address a complex challenge.”[31]  An Innovation Lab has three key elements:

  • “It is systemic – it addresses structural causes not just symptoms or effects.  It recognizes that we cannot deal with complex problems in a fragmented way.  We need to look at the “system” as a whole;
  • It is participatory – it involves a diverse group of participants from across the system and is not composed only of experts or authorities;
  • It is experimental – it nurtures iterative prototyping through a portfolio of promising solutions.

In addition, a Social Lab:

  • does not result in a report telling other people what to do.  Instead, it focuses on solving the problematic situation;
  • is an ongoing, coordinated platform that delivers results over time on multiple initiatives and is not only a one-off project; and
  • focuses on robust evaluation but uses a unique method of evaluation that is supportive of innovation.”[32]

The Northern Navigator Pilot program is one of the BC Family Justice Innovation Lab’s first initiatives.  The Lab adopted the Northern Navigator initiative to provide support, particularly on the evaluation side, using a “developmental evaluation” approach which acknowledges the importance of experimentation (particularly in complex adaptive systems), ongoing monitoring of information, learning from mistakes as well as successes and careful tweaking of the initiative based on that information.[33]

Northern Navigator Pilot Program

Spearheaded by veteran (now retired) lawyer and mediator Wayne Plenert and administered by the South Peace Community Resources Society ( “SPCRS”), with support from the Mediate BC Society and the BC Family Justice Innovation Lab, the Northern Navigator initiative is an early intervention and diversion process for parties filing a family law application in the Dawson Creek, Fort St. John and Chetwynd Provincial Court Registries.[34]  The stated goal is the improved well-being of families and children transitioning through separation who have filed an application in Provincial Court.[35]  The stated purpose is to provide couples going through family transition, separation, and divorce stability while accessing the courts and mediation simultaneously, and offering more community support.[36] Finally, through the leadership of a skilled and experienced local Lead mediator (currently Mr. Plenert), the initiative provides the experience opportunities local mediators need to hone their skills, to obtain admission to the Mediate BC Family Roster, and to provide valuable mediation services to families in an underserved community.

At the first scheduling of a Court hearing (Remand Day), a Provincial Court Judge in one of the three registries may, if appropriate and based on the Judge’s assessment of what is fair and just in the circumstances, and pursuant to the BC Family Law Act,[37] direct the parties to meet with an intake coordinator (called the “Navigator”).  The Navigator conducts a detailed separate interview with each party, conducts a high level screening, provides the parties with information, resources and referrals to community and legal services, and then provides the Court with a report to assist the Judge in considering whether to order the parties to engage in private mediation, paid for by the parties on a sliding scale depending on their incomes.  If the parties are unable to pay for private mediation, they are directed to free mediation via a Family Justice Counselor located in Prince George using distance mediation.[38]  The parties are required to attend pre-mediation sessions plus a minimum of two two-hour joint sessions with the mediator.   The mediator ensures a full violence screen is conducted prior to mediation and ensures full financial disclosure as part of the process.  Upon finishing or terminating the mediation process, the parties return to Court to have agreements recorded in a Court Order and to deal with any unresolved issues in the usual court process.[39] 

Northern Navigator was launched on January 4, 2016, resulting in immediate questions and concerns raised about the initiative, largely from the local Bar.  In response, a Joint Court Users Meeting was convened on January 28, 2016 in Fort St. John, linking by video the Courts in Dawson Creek and Fort Nelson and providing a telephone link for other interested parties.  As a result of that meeting, the Northern Navigator initiative was halted while Mediate BC and the South Peace Community Resources Society coordinated a consultation process involving written feedback.  On June 2, 2016, Chief Judge Crabtree of the Provincial Court of BC wrote a letter to concerned parties and stakeholders advising the 11 submissions had been fully considered, provided a summary of the revisions and clarifications made to the Northern Navigator process and workflow as a result of the consultation feedback and issued a Notice to Profession – South Peace Family Mediation Initiative (Northern Navigator) (NP 09), effective June 1, 2016 until August 31, 2016.[40]  Shortly thereafter, the Northern Navigator initiative was re-commenced.

The Law Foundation provided a further grant to SPCRS to extend the initiative, contingent upon the Chief Judge’s approval to extend the Notice to Profession.  The Provincial Court of British Columbia issued an amended Notice to Profession extending Northern Navigator until August 1, 2017.[41]  A comprehensive external evaluation process is currently under way. 

Northern Navigator, Dispute System Design and the Cultural Divide

The meetings in the latter part of 2015 regarding the design of Northern Navigator included many interested parties including Wayne Plenert, SPCRS, Mediate BC, the local Judges, the Bar including local lawyers, the Office of the Chief Judge and the Ministry of Justice.[42]  Clearly, based on their feedback, some lawyers (and to some extent their representative organizations) as a stakeholder group were concerned about the potential impact of the project, which became an immediate and continuing barrier to their support.  Concerns raised about the Northern Navigator initiative included adequate financial disclosure, screening for violence, interference with the solicitor/client relationship, compelling parties to mediate (an oxymoron?), ordering parties to pay for mediation and other issues.  These concerns will be considered as part of the formal external evaluation process currently under way.

While the stated concerns raise legitimate and serious design considerations, it also bears noting that many other jurisdictions including Ontario, California, Florida, Maine, etc. have successfully built accessible, affordable and high-quality court-connected family mediation services that have effectively addressed these issues.  DSD is often messy, conflictual and an iterative process of trial and error.  An existing system is perfectly designed to produce the results it is now producing, and it will resist change.  Barriers can be deeply buried and will not surface until change begins to create conflict.  There are deep cultural divides and interests at play in justice system reform.  Kari D. Boyle has aptly noted the Peter Drucker warning that “culture eats strategy for breakfast”.[43]

Dr. Julie Macfarlane, in her seminal book The New Lawyer, sets out three core professional beliefs and values of the "old lawyer" that shaped the identity of the legal profession and are resistant to change: 1) a belief in the primacy and superiority of rights-based conflict resolution; 2) a belief in the authority of the formal legal process, or justice as process; and 3) a belief in the lawyer in charge model.[44]  Multi-disciplinary participation in an interest-based initiative such as the Northern Navigator, which may inspire and inform future justice system changes, local as well as province-wide, certainly pushes all of Macfarlane’s defined cultural buttons. 

The difficulty is that remaining in the old cultural paradigm stifles the innovation, creativity, and adaptability that is needed to effect change.  It is trite to point out again that the existing family justice system is not working for many of its users.  It is also true that many lawyers working in the trenches of an old-school, binary system of win or lose have outcomes that are not much better in terms of depression, substance abuse, burnout and other stressors. 

Finally, the unique culture of the Peace River region is at play.  The rugged individualism of the North, a population reliant on a boom/bust resource economy resulting in more transient family relationships and a dearth of resources and continuity of professionals available to assist families creates unique needs.  A significant percentage of parties appearing in Provincial Court in the region have no or limited duty counsel representation, the closest Family Justice Counselor is 400 kilometers away, and vulnerable parties, including children, are underserved. 

The Northern Navigator is a frontier dispute resolution system designed for a frontier community.  How fitting if it helps lead the way into a new frontier of family justice for British Columbia.

 

Bibliography

Action Committee on Access to Justice in Civil and Family Matters. Access to Civil & Family Justice: A Roadmap for Change (Ottawa, ON, 2013), online: www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf

Action Committee on Access to Justice in Civil and Family Matters. Meaningful Change for Family Justice: Beyond Wise Words (2013), online: http://cassl.ca/reports/meaningful-change-for-family-justice-beyond-wise-words/

Birnbaum, Rachel & Bala, Nicholas. Experiences of Ontario Family Litigants with Self-Representation, online: http://www.probonostudents.ca/wp-content/uploads/2011/08/Jan-13-Birnbaum-Bala-Family-Litigants-Access-to-Justice-NJI-Feb-20121.pdf.

Boyle, Kari D. A Social Lab for BC Family Justice System?, (2014) online: http://www.slaw.ca/2014/07/14/a-social-lab-for-bc-family-justice-system/.

Boyle, Kari D. The Social Lab: A Bridge Over the Implementation Gap for Justice Reform? (2014) online: http://www.slaw.ca/2014/02/28/the-social-lab-a-bridge-over-the-implementation-gap-for-justice-reform/.

Cabaj, Mark “Evaluating collective impact: Five simple rules” (2014) 26:1 The Philanthropist 109.

Crabtree, The Honourable Thomas J, Chief Judge of the Provincial Court of BC. Northern Navigator Initiative Consultation (2016).

Cromwell, Thomas A. Access to Justice: Towards a Collaborative and Strategic Approach Univ N B Law J (2012), online: https://www.highbeam.com/doc/1G1-302776655.html.

Knox, Bethany. A consideration of a mandatory family mediation model under section 9 of the British Columbia Family Law Act University of Victoria (2014 [unpublished].

Macfarlane, Dr Julie & Kleefeld, John. Dispute Resolution: Readings and Case Studies, 4th edition, Emond Montgomery Publications (2015).

Macfarlane, Julie. The New Lawyer: How Settlement is Transforming the Practice of Law, first edition, Vancouver: UBC Press, (2008).

Macfarlane, Julie. ADR and the Courts: Renewing our Commitment to Innovation, 95 Marq Rev 927 (2011).

Macfarlane, Julie. The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (2013), online: http://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2014/Self-represented_project.pdf.

Martin, Carmel M & Sturmberg, Joachim P. General practice-chaos, complexity and innovation, 183:2 Med J Aust 106 (2005).

McHale, M Jerry. Access to Justice: A Government Perspective, 63 UNBLJ 352 (2012).

Mediate BC Society. Brief Summary of Navigator Initiative, (2016).

Mediate BC Society. Northern Navigator FAQ, (2016).

Northern Navigator Initiative (NP 09) Summary of Input & Consequential Process Revision (October 2016).

Notice of the Profession: South Peace Family Mediation Initiative (Northern Navigator) (2016).

Rhode, Deborah L. Access to Justice, 51044th edition ed, Oxford etc.: Oxford University Press (2005).

Rogers, Nancy H et al. Designing Systems and Processes for Managing Disputes, pap/dvd edition ed, New York: Aspen Publishers (2013).

Salem, Peter & Saini, Michael. A Survey of Beliefs and Priorities About Access to Justice of Family Law: The Search for A Multidisciplinary Perspective, 55:1 Fam Court Rev 120 (2017).

Trebilcock, M, Duggan, Anthony & Sossin, Lorne. Middle Income Access to Justice, Toronto; Buffalo: University of Toronto Press, Scholarly Publishing Division (2012).

 

ENDNOTES

[1] Nicole Garton, lawyer, mediator, parenting coordinator and collaborative practitioner, is the principal of Heritage Law.  This paper was submitted to the Faculty of Graduate Studies at York University in partial fulfillment of the requirements for a Masters of Law in Dispute Resolution at Osgoode Hall Law School.

[2] M Trebilcock, Anthony Duggan & Lorne Sossin, Middle Income Access to Justice (Toronto?; Buffalo: University of Toronto Press, Scholarly Publishing Division, 2012).

[3] Julie Macfarlane, The National Self-­-Represented Litigants Project: Identifying and Meeting the Needs of Self-­-Represented Litigants (2013).

[4] Deborah L Rhode, Access to Justice, 51044th edition ed (Oxford etc.: Oxford University Press, 2005) at 5.

[5] Peter Salem & Michael Saini, “A Survey of Beliefs and Priorities About Access to Justice of Family Law: The Search for A Multidisciplinary Perspective” (2017) 55:1 Fam Court Rev 120.

[6] The term “family justice system” has been defined broadly as including public and private services that help families with issues pertaining to separation, divorce, or child protection; public institutions such as the Courts, government ministries, and the Legal Services Society; individual professionals, including lawyers, mediators, social workers and counselors who work in these areas. See the Family Justice Reform Working Group Report – A New Justice System for. Families and Children by the Justice Review Task Force, June 2005.

[7] Ibid.

[8] Ibid.

[9] Action Committee on Access to Justice in Civil and Family Matters, Meaningful Change for Family Justice: Beyond Wise Words (2013) at 19.

[10] DSD focuses on systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis.  Nancy H Rogers et al, Designing Systems and Processes for Managing Disputes, pap/dvd edition ed (New York: Aspen Publishers, 2013).

[11] Rachel Birnbaum & Nicholas Bala, “Experiences of Ontario Family Litigants with Self-Representation”, online: <http://www.probonostudents.ca/wp-content/uploads/2011/08/Jan-13-Birnbaum-Bala-Family-Litigants-Access-to-Justice-NJI-Feb-20121.pdf> at 6.

[12] Thomas A Cromwell, “Access to Justice: Towards a Collaborative and Strategic Approach” (2012) Univ N B Law J, online: <https://www.highbeam.com/doc/1G1-302776655.html>.

[13] Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa, ON, 2013) at 2.

[14] Julie Macfarlane, “ADR and the Courts: Renewing our Commitment to Innovation” (2011) 95 Marq Rev 927.

[15] “The Social Lab: A Bridge Over the Implementation Gap for Justice Reform? – Slaw”, online: <http://www.slaw.ca/2014/02/28/the-social-lab-a-bridge-over-the-implementation-gap-for-justice-reform/>.

[16] Bethany Knox, A consideration of a mandatory family mediation model under section 9 of the British Columbia Family Law Act University of Victoria, 2014) [unpublished] at 13.

[17] M Jerry McHale, “Access to Justice: A Government Perspective” (2012) 63 UNBLJ 352.

[18] Ibid. at 365.

[19] Ibid.

[20] (Provincial Court Family Rules, B.C. Reg. 417/98, 2013).

[21] (Ministry ofAttorney General Justice Services Branch Family Justice Services Division, 2002 [Summary Report], p. 8).

[22] Ministry of Attorney General Policy, Planning and Legislation Branch Corporate Planning Division, 2000, p. 2

[23] Family Law Act, SBC 2011, c 25, s. 1: "family dispute resolution" means a process used by parties to a family law dispute to attempt to resolve one or more of the disputed issues outside Court, and includes

(a) assistance from a family justice counsellor under Division 2 [Family Justice Counsellors] of Part 2,

(b) the services of a parenting coordinator under Division 3 [Parenting Coordinators] of Part 2,

(c) mediation, arbitration, collaborative family law and other processes, and

(d) prescribed processes;

[24] Family Law Act, SBC 2011, c 25.

[25] Family Law Act, SBC 2011, c 25, s. 1: "family dispute resolution professional" means any of the following:

(a) a family justice counsellor;

(b) a parenting coordinator;

(c) a lawyer advising a party in relation to a family law dispute;

(d) a mediator conducting a mediation in relation to a family law dispute, if the mediator meets the requirements set out in the regulations;

(e) an arbitrator conducting an arbitration in relation to a family law dispute, if the arbitrator meets the requirements set out in the regulations;

(f) a person within a class of prescribed persons;

[26] Family Law Act, SBC 2011, c 25, s. 5.

[27] Family Law Act, SBC 2011, c 25, s. 37.

[28] Dr Julie Macfarlane & John Kleefeld, DISPUTE RESOLUTION: READINGS AND CASE STUDIES, 4TH EDITION, 4th edition ed (Emond Montgomery Publications, 2015) at 816.

[29] Carmel M Martin & Joachim P Sturmberg, “General practice-chaos, complexity and innovation” (2005) 183:2 Med J Aust 106.

[30] Ibid.

[31] “A Social Lab for BC Family Justice System? – Slaw”, online: <http://www.slaw.ca/2014/07/14/a-social-lab-for-bc-family-justice-system/>.

[32] Ibid. Note the original name was BC Family Justice Social Lab but has since changed to BC Family Justice Innovation Lab.

[33] Mark Cabaj, “Evaluating collective impact: Five simple rules” (2014) 26:1 The Philanthropist 109.

[34] SPCRS applied for funding from the Law Foundation and received a onetime grant of $35,000. The balance of the cost of the initiative has been funded through private donations.

[35] Mediate BC Society, Brief Summary of Navigator Initiative (2016).

[36] Northern Navigator Program Manual: Policies, Procedures and Guidelines (South Peace Community Resource Society, 2016) at 6.

[37] Rule 6 of the Provincial Court (Family) Rules; Part 2 and sections 222, 223 and 224 of the Family Law Act

[38] There are currently no Family Justice Counsellors available to assist parties located in Dawson Creek, Fort St. John and Chetwynd area.  The closest FJCs are located in Prince George, 400 kilometers away.

[39] Northern Navigator FAQ (Mediate BC, 2016).

[40] The Honourable Thomas J Crabtree, Chief Judge of the Provincial Court of BC, Northern Navigator Initiative Consultation (2016). Mediate BC Society, Northern Navigator Initiative (NP 09) Summary of Input & Consequential Process Revision (October 2016).

[41] The Honourable Thomas J Crabtree, Chief Judge of the Provincial Court of BC, Notice of the Profession: South Peace Family Mediation Initiative (Northern Navigator) (2016).

[42] Kari D. Boyle, Coordinator, BC Family Justice Innovation Lab, supra note 32.

[43] Supra note 14.

[44] Julie Macfarlane, The New Lawyer: How Settlement is Transforming the Practice of Law, first edition edition ed (Vancouver: UBC Press, 2008).

Biography


Nicole L. Garton, B.A., LL.B./J.D. is a Lawyer, Mediator and Parenting Coordinator of Family Law, Wills and Estate Matters.

 



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