How to Break the Family Litigation Backlog
Canada, and many other developed countries besides, is struggling under a backlog of criminal and civil cases awaiting their date in court. This has had a knock-on effect for family law, adding unneeded stress to couples and parents during some of the most difficult times of their lives.
This month, we have the pleasure to hear from Laura Bruyer and Tiffany Stokes of Bruyer & Mackay LLP, who have a vision for how the legal profession can rise to meet this challenge. In this article they explore the factors behind the case backlog and how its adverse effects on families in Canada can be mitigated, while also drawing upon Laura’s own career development and Bruyer & Mackay’s plans for future progress.
Even before 2020 there was an immense glut of family law cases in the Canadian legal system, with years-long pipelines for custody trials in some provinces. How did this backlog come about?
There is no one cause that you can blame for the backlog. Changes in the economy, whether good or bad, create work for family lawyers. Many of our clients are competing for limited trial time at the courthouse because there are also other areas of law that need it. Many cases that go to trial require several days of trial time, which adds to the time it takes to get before a judge. Hiring a family lawyer is an expensive step, and there may be times when a client has to self-represent, which can cause delays as they try to navigate a complex system on their own. Our courts have done an excellent job of reviewing family law and trying to implement processes to address the backlog, but it is very challenging because the wave of clients is unrelenting.
What impact have escalating trial delays had on the parents and spouses caught up in them?
More than anything, it contributes to animosity between parents and spouses. Litigation is stressful and overwhelming at the best of times, much less when it is dealing with your everyday life – your children, your finances, and your property. Many clients feel the need to continue to “gather evidence” and be hyper-vigilant toward the other parent or party. Families have trouble healing and working together positively when they have a “litigation cloud” hanging over their heads.
Many of our clients are competing for limited trial time at the courthouse because there are also other areas of law that need it.
In what way has the COVID-19 pandemic and the rise of remote hearings affected the backlog?
The pandemic brought a number of challenges for our clients. First, many clients were navigating the ever-changing public policies and trying to co-parent. This is very difficult if the parents do not agree on how to interpret or implement said public health protocols, and the constant messaging of “creating a bubble” and limiting social contacts was confusing to parents who had custody or parenting schedules in place. This created a lot of litigation because there were so many unknowns, and many parents felt the need to go to court to try and change their parenting schedules to reflect the messaging they received from public health.
In addition to parenting issues, we also had a number of clients who were suddenly out of work. Many clients lost high-earning jobs and therefore needed an urgent adjustment to child or spousal support. This created more and more cases before the court to adjust support, particularly if that support was being enforced through the Maintenance Enforcement Program, as it could only be changed with a court order.
There was a rocky start in getting remote systems in place for hearings. This was to be expected; our generation had never grappled with a pandemic, and it caught so many of us off-guard. Our courts did their best in assessing the need for remote hearings and implemented that technology quickly, but it still limited how fast you could proceed to court and there were definitely delays in the beginning. You had more people competing for fewer spots. Also, appearing before a judge now requires more steps than it used to, which means it takes longer to get into court and is more costly to clients.
In Ontario’s Unified Family Court, family law cases are typically given a court date within 20 weeks after they are deemed ready to procced to trial. Would a wider implementation of this system help to address the litigation backlog in other provinces?
Many of those in our judiciary and members of the family profession have worked hard on implementing a unified family court in Alberta, and we hope that one day it will come to fruition. We believe a unified family court would help streamline systems, which will in turn reduce backlogs. During the pandemic, there were several new procedures implemented that changed rapidly. The rules for the provincial court and our superior court were different. With a unified system, the rules and procedures would be consistent for all families and would be more predictable for lawyers and the public in general. This would avoid missteps and create a lot of certainty and consistency. It would help save costs for clients, and more importantly, it would create greater public confidence in our system.
What advice would you give to families facing a lengthy struggle to have their case heard?
Our advice is to “focus on the big picture”. Litigation is not always the answer, and in fact, we always review settlement and alternative dispute resolution options with our clients before going to court. We offer mediation, collaborative family law, and arbitration in our firm to meet these needs. Sometimes a small gain in property or support does not justify the cost and effort that is expended in court to get there. For parenting, we always tell clients that the most important rule is to do what is in the children’s best interests. Our lawyers and courts are well-versed in the work done by the Alberta Family Wellness Initiative to teach us how conflict and toxic stress harms the development of children’s brains. Lengthy and drawn-out litigation is not in children’s best interests, and it is important that we try to avoid that if at all possible.
Do you expect to see any regulatory changes to address the continuing build-up of cases?
At the superior court level, we have seen may changes implemented, including the introduction of a docket system to triage cases. The goal is to have clients attend an early intervention alternative dispute process, particularly when there are parenting issues, in order to reduce conflict between the parties. The benefit of the docket system is to get each matter into the most appropriate system that can meet the parties’ needs.
In addition, our courts have implemented strict timelines regarding the filing of materials. This is a concerted effort to ensure that scheduled matters proceed in a fair and timely manner. As with most new processes, there is a significant learning curve. Throughout the course of the pandemic, judges, courthouse support staff, lawyers, and clients have had to adapt to ever changing technology and lengthier wait times.
Litigation is not always the answer, and in fact, we always review settlement and alternative dispute resolution options with our clients before going to court.
What do you feel the legal sector could do to ease the burden of the ongoing backlog on the courts and the families affected?
Lawyers can play a major role in this. We all need to work together in reviewing settlement options with our clients, helping them focus on the big picture, giving them confidence in the system, and advising to proceed with litigation only when necessary. The work that you do not see is that, outside of the courthouse, our family law bar is actively working on settling cases and supporting families. Our work is deeply rooted in the law and jurisprudence, but at the end of the day, we recognise that we are helping real families who make up the fabric of our society. Quite often our clients’ goals and interests are not “being right in law” or “winning”, but rather supporting their children’s needs, ensuring their financial stability, and reducing their stress.
Litigation is a useful tool that is sometimes needed, but first and foremost, lawyers must support their clients in finding alternatives to court in order to achieve their goals and interests. One of the best ways to do so is to identify the issues at the outset of a file, direct clients to agencies that can provide support to them (i.e. psychologists, parenting experts, coaches) and encourage them to focus on the future after the initial trauma of separation.
About Laura Bruyer
Can you tell us about your journey into law and how Bruyer Mackay came about?
When I was in middle school, my father asked me what my plans were with respect to my post-secondary education. At that time, and without really considering it to any great extent, I indicated that I was going to be a lawyer. I was a huge fan of the British television series Rumpole of the Bailey and had read all of John Mortimer’s stories growing up.
Upon graduating high school, I entered University in a Bachelor of Arts Program majoring in Honours Sociology. At that time, you could still get into law school after two years in an undergraduate program. I entered university at 17 and by the age of 19, I was starting my first year of law at the University of Alberta.
Following graduation, I articled at a large downtown firm in Edmonton, Alberta, before going to work as a general practitioner in a small firm. It was there that I gained significant experience in all matters related to litigation. I originally thought that I would practice primarily in criminal defence work; however, I quickly realised that any contribution I could make was best suited for family law. I dealt with a number of clients that were devasted by separation, ongoing parenting battles, and concerns over their financial security.
In 2005, I met Michelle Mackay when we were on the opposite sides of a very difficult family law file. We decided following that file that we wanted to work together as opposed to opposite each other. In November 2005, I joined Michelle at her firm Gordon Zwaenepoel. Upon the retirement of Marie Gordon and Susan Zwaenepoel, Bruyer & Mackay was formed.
The firm has more than doubled in size since its inception in 2019; we currently have 17 lawyers and an equal complement of support staff. In terms of the workplace, we have taken significant steps to ensure that not only our clients are supported but our staff are as well. This includes counselling support for staff, bringing in a psychologist on a quarterly basis to address issues that affect our staff (i.e., dealing with difficult clients, regular firm outings and team building endeavors, and stressing the importance of time off).
With respect to firm values, we pride ourselves on the following:
- Courage – to be leaders in family law taking on the tough issues;
- Excellence – in client service, advocacy and professionalism;
- Compassion – truly caring about our clients and members of our firm;
- Integrity – doing what is right even when it goes against the norms; and,
- Trust – we have each other’s back and treat each other as equals as opposed to a traditional hierarchy.
What motivated you to specialise in family law?
When I was approximately eight years old, my parents separated for a period of time. Fortunately for me, they were able to work out their differences and have been married for over 50 years. However, I believe that that experience, which was traumatic at the time, helped shape me into the lawyer I am today. I can empathise with children whose parents are going through a separation, as well as the parties themselves.
In my early days as a young lawyer struggling to build a practice, most of the matters I dealt with were family law in nature. After approximately 8 years of a general practice, I determined that I would focus on family law, given there was a significant need and I felt my skills could best be utilised there.
Since doing so, I have run a significant number of family law trials and appeared many times in front of our Court of Appeal. I have discovered that, if anything, over the last nearly 30 years of practice, the need for competent, caring family law practitioners has only grown. I am very proud that our partnership created a firm to fill that need.
I can empathise with children whose parents are going through a separation, as well as the parties themselves.
Which of your career achievements do you feel most proudly about?
I have been involved in a number of trials in which I felt very strongly about my client’s position, the wrongs he/she had suffered, and the need to see justice done. It is those matters that I feel most proud of with respect to my professional achievements.
However, as a whole, my proudest achievement has to be the formation of Bruyer & Mackay. We have been able to attract a high calibre of lawyers wanting to practice at our firm. We can offer the public every available service for their family law matters. Despite exponential growth over the last year, we have maintained a close and cohesive group of lawyers and staff. Significant mentoring of associates ensures that quality client services will be provided for a long time to come.
What plans do you have for the coming 12 months?
Given the changes over the last 18 months, which included:
- Moving to a new location;
- Addressing issues with respect to the COVID-19 pandemic; and
- Doubling our workforce,
the partners are hoping for a period of relative calm over the next few months. However, we will be continuing to present at the Legal Education Society of Alberta (LESA), teach family law at the University of Alberta, act for children, ensure that each lawyer of our firm carries at least 3 pro bono files, provide free legal information and advice through the Edmonton Community Legal Center, sit on the board of the Association of Family and Reconciliation Courts to improve the lives of children and families through resolution of family conflict, participate on various community fundraising efforts including Habitat for Humanity and the Kids Kottage, and ensure that quality family law services continue to be provided throughout Alberta.
Laura H Bruyer, Barrister & Solicitor
Tiffany S Stokes, Barrister & Solicitor
Address: Suite 201, 11611 107 Avenue, Edmonton, Alberta T5H 0P9
Telephone: +1 780 425 9777
Bruyer & Mackay LLP is one of the largest family law firms in Alberta. We pride ourselves on being the leader in family law and offering superior client service and representation. We offer a breadth of family law services including litigation, arbitration, collaborative family law, as well as supporting services.
In addition to the services we provide our clients, we consider ourselves “ambassadors” of family law. We want the public, the judiciary, members of the profession, and those considering law as a career to know that family law is an extraordinary, challenging, and critical area of law. Family law touches upon almost every other area of law – corporate/commercial, real estate, immigration, criminal, human rights and bankruptcy (to name a few) are all areas that impact our cases. You need to be a highly skilled and competent lawyer to do an effective job for your clients and to uphold the administration of justice. You also have to be able to work well with different personalities and support clients who are often in crisis. Our lawyers publish papers, contribute to continuing education efforts, teach as sessional instructors at the University of Alberta Faculty of Law, sit on boards, and provide countless hours of pro bono work. We work to elevate the status of family law.
We are striving to make Bruyer & Mackay a “one stop shop” so that clients, who are going through perhaps one of the most difficult times in their lives, can benefit from a lawyer knowledgeable in separation and divorce and a firm that can also handle their real estate transactions, as well as will and estate planning. In time, we hope to team up with counselling services to ensure clients are fully supported from the outset of their separation.