A month has now passed since the Alberta Court of Queen’s Bench and Provincial Court made the decision to suspend all but emergency and urgent court appearances, indefinitely. We previously outlined what matters would qualify to be heard in court. Over the past month, approximately half of the applications that were brought before the court were deemed to be of an emergency or urgent nature and were allowed to proceed. The full extent of the impact that the pandemic has had on the Alberta judicial system remains unknown.
In a recent discussion between the Bench and the Family Bar, we are advised that the Court plans to take steps to address the backlog of adjourned and cancelled applications, hearings, Early Intervention Case Conferences, Judicial Dispute Resolutions, Pre-Trial Conferences, Case Management bookings and Trials. Over the past month, the Court has continued to work on the IT necessary for remote hearings however virtual hearings are not yet available.
The Court of Queen’s Bench is currently working through four (4) phases to address the backlog of matters waiting to be heard. These phases are as follows (and are presumably subject to change as the current state of affairs continues to evolve):
- Phase 1 – This phase has already occurred and represents the Court’s decision to hear only emergency and urgent matters.
- Phase 2 – The Court is planning to devise a triage system to deal with adjourned matters. This phase is currently in process.
- Phase 3 – Implement a docket system to family cases with processes in place to refer cases to.
- Phase 4 – By the final phase, the intention is that the judicial system and services have resumed regular operations.
In addition, the Court plans to resume Judicial Dispute Resolutions the week of April 27, 2020, with priority given to JDR’s and Trials that were cancelled as a result of the pandemic. We anticipate that these JDR’s will be completed via audio or videoconference.
The Court has also provided updates for Notice to Disclose and simple desk applications. A Notice to Disclose Application is often the starting point for a party to obtain financial information from another person involved in matter involving issues of support or matrimonial property . Responding to a Notice to Disclose Application can be a tedious and time consuming process but it is necessary to ensure everyone has all of the necessary information to proceed. If a party fails to comply with a Notice to Disclose Application voluntarily, the Applicant may apply to the Court for assistance to compel financial disclosure. These Applications are commonly heard in Family Morning Chambers. In effort to reduce the backlog of Applications, the Court will implement the following process for Notice to Disclose Applications:
- Notice to Disclose Application forms will include an option that removes a court date and replaces it with a notice provision. The notice provision requires the Respondent to complete and provide their disclosure statement within thirty (30) days of receiving it. An additional template document will also be served with the Notice to Disclose to provide the Respondent an opportunity to explain why they have not provided their full disclosure if they fail to do so within the thirty (30) days.
- If the Respondent’s disclosure is incomplete or not provided within the thirty (30) days, the Applicant may electronically submit a “Notice of Incomplete Response” and a draft Disclosure Order to the Court. This advises the Court that the Respondent’s disclosure is incomplete. Application must also include proof of service of the Application on the Respondent. These steps may be completed without further notice to the Respondent.
- The Court may then grant the draft Disclosure Order directing the Respondent to provide his or her financial disclosure by a date certain. The Disclosure Order may also order that costs by payable by the party who fails to provide his or her disclosure.
A desk process for other simple Applications is also being explored by the Courts. Simple matters may include (but have not yet been determined) the following: consent to travel, dispensing with signature on passport applications, table child support based on line 150 income, a determination of a section 7 expense, holiday parenting time, stay of enforcement, exclusive possession of the family home, listing price for sale of a home, access to a child’s health or other records, enrollment of a child in an activity; change of name, filing deadline extensions, adjournments, or simple child support variations. This is a non-exhaustive list. Therefore, it isanticipated that the Court will assess each Application on a case by case basis. This will mean that certain simple Applications can proceed without the need for a personal appearance in chambers. The necessary application and evidence will be submitted to the courthouse and, if it is possible to do so, a Judge will make a decision based on that submitted information.
The proposed process for these desk applications is similar to a regular Family Chamber’s Application. It requires the Applicant to put forward an Application, Affidavit and proposed Order. Once the Respondent is served, the Respondent will have five (5) days to respond by filing a Response Affidavit. If no response is received within five day deadline, the Application will proceed to a Justice for their review. If a response is received, the Applicant may file a Reply Affidavit responding to the evidence put forward by the Respondent. These documents will then be provided to the Justice for their consideration. The Justice may grant the proposed Order, refuse the Order and provide short reasons for same or grant an amended Order. If it is determined that the matter is too complicated, it may be directed to Regular Chambers when that process resumes.
The Court’s goal is to have both the Notice to Disclose and Simple Application processes running by May 1, 2020.
It is reassuring to see that the Courts are being flexible and creative in ensuring that there are still options for parties to ensure their matter continues to move forward. If you require assistance with your Family Law matter, please contact one of the Family Law Lawyers at SVR Family Law.