Sunday, March 27, 2016

How Alberta Family Courts Function

Provincial or Queens Bench Courts

I came across this online article from 2010 that - for the starry-eyed and inexperienced - gives a pretty good overview of what to expect in Family Court (should you find yourself there - self-represented or not).  I have excerpted the final paragraph below.

PROCEDURAL FAIRNESS PERSPECTIVE FROM A FORMER ALBERTA LAWYER

There is a lot of talk among bloggers about how Human Rights Tribunals are "kangaroo courts", and that what goes on there would never be allowed to happen in "real courts." I have news for them. So-called "real courts" are in fact kangaroo courts; human rights tribunals are just gong shows. And the worst of the "real courts" are family courts.
However that does not mean you are screwed to self-represent in Court just be very careful what you wish for - and whatever you do - do not expect any quarter to be given you if you hope to be lead through the process by a kindly judge.  You will just end up being road-kill.

Residential Tenancies Dispute Resolution Service (RTDRS)

Another case does show that Courts are available to properly prepared litigants to correct other, lower "tribunals" as in this recent situation I reviewed in the Alberta Law Blog in a terrible mix-up at the Residential Tenancies Dispute Resolution Service (RTDRS).  Here a tenant found himself not called into a Hearing by mistake of the RTDRS - yet was not afforded any way to remedy the error.  It took a legal challenge to gain some degree of common-sense over a trival mistake that could have been dealt with fairly quickly if the RTDRS had exhibited some degree of initiative or introspection on the matter - but clearly felt no need.

The real concern was why they were so cavalier in their treatment of a tenant.

Remedy for Contempt of Court

This is a difficult topic for Judges and they generally do not like to exercise it - which is a pity as many SRL's expect that when faced with a recalcitrant ex-spouse they can go to Court and get some help in enforcing compliance with a Court Order that has been egregiously and repeatedly breached.

Mostly we find no such luck in Family Court.

However, if you are interested in learning more about the nature and extent of Contempt of Court remedies - here is an extensive discussion about them.

In this 2001 Study of Mandatory DV Arrest Policies by the Canada Department of Justice an exchange between a Judge and Witness over providing testimony was instructive of how weak the Judiciary actually can be - even when faced with a pressing need.

THE COURT: Answer the question, please, Ms. Moore.
Witness: I refuse to talk about it, I said.
THE COURT: Well, I’m directing you to answer the question , Ms. Moore. You’ve taken the stand, you’ve been sworn.
Witness: Well, I already told him before I came in here I wasn’t going to testify.
Crown: Your Honour, Perhaps your Honour could direct the – or advise the witness as to her susceptibility to contempt charges if she refuses to answer a question that is a proper question.
THE COURT: Ms. Moore, you’ve taken the stand, you’ve allowed yourself to be sworn; you’ve sworn to tell the truth.
.......
THE COURT: Well, Ms. Moore, I’m really not anxious nor am I particularly desirous of citing you for contempt; but something has – at least the Crown is alleging that something has occurred, something that’s serious and something that the court should be looking at. The matter is before the court. And if people aren’t going to testify, it destroys the whole system of justice that we have. 

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