Christine Doucet – April 2020
The Nova Scotia Supreme Court (Family Division) will open its doors a crack this week by introducing new methods to resolve family matters.
On March 23, 2020, the court removed most scheduled matters from its docket unless they fell into a very narrow list of urgent or emergency matters. Due to multiple uncertainties caused by the current public health crisis, they did not reschedule the cancelled matters at that time, leaving many families without a plan or timeline for resolving their legal issues.
In a communication to lawyers on March 27, 2020, the court stated, “Please be assured the Court is considering novel role(s) it may assume as parties continue to manage important family issues that do not meet the threshold of being urgent or an emergency.”
Last week, the court announced three new options that will soon be available to families: proceeding by documents alone; a non-binding judicial recommendation; or a telephone settlement conference. It also announced that staff will contact lawyers and parties, commencing May 1st to schedule telephone appearances for some matters that were removed from the docket in March and April.
Matters may not be rescheduled in their previous form (for example, the court does not have the capacity to reschedule trials due to staffing restraints and distancing requirements) but they may be rescheduled as one of the new processes. The new processes will be available beginning in late May or early June.
It appears that the new processes will be available mainly to parties who are represented by lawyers. The court stated in a notice to the bar on April 20, 2020, “Priority will be given to rescheduling matters where all parties are represented by lawyers given the efficiencies the involvement of lawyers is expected to achieve. Clearly, any reduction in the Court’s back log of files will facilitate the Court’s return to full operation and will result in more timely access for persons not represented by a lawyer.”
The “document only” proceeding will be available to both new and existing matters. This is a significant development as, to date, new filings have been limited to matters that the court determines to be urgent or emergencies. If parties wish to proceed with a “document only” motion or application, they must both agree to the process and must file all evidence and submissions electronically. They must comply with page limits and cross examination is not allowed. Judges will consider the materials and make orders or non-binding recommendations.
The court states in its April 20th notice that the following matters may be appropriate for “document only” proceedings:
- Initial requests for child or spousal support;
- Requests to terminate or suspend child support on the basis that a child is no longer dependent or primary care has changed;
- Requests to suspend support where a payor’s income has changes, for example, because of unemployment;
- Requests to terminate or suspend collection of support arrears;
- Preservation orders;
- Requests to suspend MEP’s enforcement of arrears.
All of the above issues are arising frequently as a result of the current pandemic situation. Opening up the court for adjudication on such matters, even on a limited basis, is a much-needed development.
The “non-binding judicial recommendation” is another interesting option that will now be available to some parties (likely, again, those who are represented by lawyers). This will provide one of the most useful aspects of a settlement conference – the opportunity to get an opinion of a judge who will not be hearing the case – without the necessity of parties gathering together at the courthouse. Again, this is a welcome development and balances the necessity of judicial intervention with the reality of social distancing.
Finally, parties will soon be able to request settlement conferences or binding settlement conferences by telephone. It is not yet clear whether this option will be available to new matters or will be limited to existing matters. From our perspective, as family lawyers, we hope it will be available to parties who are facing the types of pandemic-related issues set out above, as well as more traditional family law issues.
The court has had to come up with creative ways to open up its dispute-resolution capacity while keeping its physical doors largely closed. The above options appear to be a good start.
For information on the court process or your family law matters, please contact MDW Law at info@mdwlaw.ca or 902.422.5881.