Manitoba chief justice promises to speed up court process for divorces

Manitoba Court of Queen's Bench Chief Justice Glenn Joyal is leading a reform of family proceedings in court he hopes will move cases along more quickly and get couples who can't negotiate a settlement to a trial and a judgment faster.

The reforms are happening in Manitoba's courts in concert with other changes coming to the administration of family law in Manitoba.

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Joyal says there are two primary goals for the reforms, which he hopes will start to roll out in September and be completed by 2019.

"The first one is to ensure that all cases that can be resolved will be resolved at the earliest opportunity," he said in an interview with CBC News.

"The second objective is where those cases can't be resolved, even when they are going to be contested, the litigants know the case will end with a trial date or some kind of adjudication within 12 to 15 months."

The federal government is also pursuing legislative changes to family law alongside the Manitoba government's initiative to keep as many couples out of court as possible.

There will be now, for litigants, a finite, predictable period for which they will know they will have an adjudication.- Chief Justice Glenn Joyal

The province will implement a three-year pilot project this year that will direct Winnipeg-based family law matters away from court and instead into an appropriate type of mediation.

Joyal says the reforms inside the court need to go hand in hand with those other initiatives.

"Our experience was, litigants were finding the process just seemed too uncertain. They had no idea when it was going to end and they had no idea when the costs would stop," he said.

"It was not uncommon and not atypical to find cases in case management for three, four, five years without a trial date being set."

Reforms include triage forum

The chief justice says the changes will require both sides going through court to have several things in motion before seeing a judge, including early attempts at resolution, parenting plans for shared custody and financial disclosure.

"We're saying to litigants and we're saying to the legal profession, 'Don't come to the Court of Queen's Bench, if you are intending to proceed through court, until you are ready. Take as much time as you need. We are not rushing you. We are not forcing you to come here. But if you want to come here, understand that the prerequisites will have to be met,'" Joyal said.

The reforms include assigning four sitting judges to a triage forum, scheduled for Mondays, where contested issues can be resolved or discussed.

At the very least, Joyal says, those judges will refer the matter to a case conference with a judge in 30 days or less and at that case conference, the presiding judge will set a trial date no more than 12 to 15 months away, if the two sides don't have an agreement before that.

"So you are looking at a date within 12 to 15 months. It's coming at you. And there will be now, for litigants, a finite, predictable period for which they will know they will have an adjudication," Joyal said.

'May do more harm than good'

Manitoba's family lawyers have been aware of the reforms since around last June, and two of three planned consultation and information sessions have been held since then.

Jurgen Feldschmid, a partner with  Duboff, Edwards, Haight & Schachter and chair of the family section of the Manitoba Bar Association, says there are some good things he sees in the changes but warns some "may do more harm than good."

Feldschmid says he admires Joyal as perhaps the most activist and progressive chief justice in Manitoba's history, but has some serious concerns about how the reforms will ultimately affect people seeking a divorce.

Part of the criticism is on the emphasis the changes place on getting a court date within a certain timeframe.

"'Once you are in court we want you done in 12 to 18 months.' That's basically what the idea is here, but divorce for individuals is a lot more than what happens in court," Feldschmid said. 

"What these reforms are missing is that there is a very valuable role the court can give once the parties are already in the door but not necessarily heading to trial."

He believes there is value in what judges bring to the process of case conferences under the current system.

"People need to hear it from a judge. I can give advice to a client sometimes and it just doesn't carry the same weight as hearing it from a judge," Feldschmid says.

When the court is saying to parties, ' Look, you need to spend more effort on resolving things on you own' … how is that going to work when the main public provider of those services has been so drastically cut by the current provincial government?- Family lawyer Jurgen Feldschmid

Both Feldschmid and Chief Justice Joyal take the position that adding new judges to the court system could ease some of the backlog, but the lawyer isn't so sure that assigning existing judges to a new layer of triage in the court process is effective.

"All I can tell you for sure is getting ready for those two triage steps are not inconsequential steps," Feldschmid said.

"They weren't there before … so those are additional processes your lawyer is going to have to negotiate on your behalf, in order to move your case forward."

Strain on family mediators

Another concern Feldschmid raises is pressure on the Manitoba government's family mediation department, which he says is not currently adequately staffed.

Family mediators provide services to splitting couples that can keep them out of disputes in court.

"When the court is saying to parties, ' Look, you need to spend more effort on resolving things on you own, in meetings with your lawyers, with mediators and so forth,' how is that going to work when the main public provider of those services has been so drastically cut by the current provincial government?" Feldschmid said.

He is also unsure if the path Chief Justice Joyal has taken to "consult" with family lawyers is as robust as it could be.

"What the chief justice has favoured is coming up with the reforms that he has come up with and then having these three consultation/seminar sessions where we are told, 'These are not set in stone yet. The cement is still moist. We could still make some changes,'" Feldschmid said.

A broader, more consultative process in advance, he says, might have reduced the "skepticism" he's hearing in the legal community.

Feldschmid also says the absence of associate Chief Justice Marianne Rivoalen at the two consultation session so far has been noted by lawyers practising family law and has led to speculation about support for the reforms at the bench.

Rivoalen is responsible for the family division at Manitoba's Court of Queen's Bench.

Joyal acknowledges consensus for the reforms is not universal, either in the legal community or among judges, but is convinced the reforms, as part of an ongoing series of changes to criminal and civil court proceedings, are necessary.