Judges in Saskatchewan are offering to settle legal disputes, including divorce-related matters, by making binding decisions – without the need for a costly trial.
The decisions would come after the judge meets with parties to a dispute who voluntarily sign up for a binding decision, and who agree to accept that decision as final. Both need to sign on for the process to go ahead.
“If it’s something that parties think would work, we would like to accommodate them as much as we can,” Chief Justice Martel Popescul of the province’s Court of Queen’s Bench, the top trial court, told The Globe and Mail in an interview.
Family and civil courts in much of Canada have for years been beset by delay, high costs and the emotional anguish that comes with drawn-out legal battles. The new approach is aimed at alleviating the time and cost burdens associated with receiving due process.
For that reason, David Sterns, a former president of the Ontario Bar Association, called Saskatchewan’s approach intriguing. “It sounds like someone has thrown out the rule book and said, ‘Let’s stop worrying about what could go wrong and start fixing these problems that have been plaguing the system for years,’" he said.
One alternative, mediation, works only when there are “two people who want to dance.” Otherwise, cases head for costly trials. “This sounds like a way to head off those cases before they get to that level where everybody loses." He added: "I think this is probably the way of the future.”
Saskatoon lawyer Gregory Walen, who has practised family law for more than 40 years, explained that the process still requires lawyers to put together a brief setting out facts and evidence for those facts.
“I think it’s exciting. I guess it just requires a bit of courage to fill in that form,” he said.
The new approach was created by the judges, and took effect last Thursday. It was modelled on similar offerings in Alberta, Newfoundland and Labrador, and Yukon, Chief Justice Popescul said.
For the past four decades in Saskatchewan, parties to disputes have sat down with judges for what are known as pretrial settlement conferences. Roughly 60 per cent to 80 per cent of cases are settled by mutual agreement in those conferences, the Chief Justice said.
But the judges felt that with a bit of a nudge, an even higher proportion could be resolved. He mentioned as an example a case in which separated parents are conflicted over which school their child should attend. Rather than a trial of two to three days, costing thousands in court and legal fees, it could be better settled by the judge after a meeting.
Another example: a wrongful dismissal case in which the parties agree the employer is liable, but disagree over the damages. Or they disagree over liability, but the amount of damages is not expected to be enough to justify a trial.
“People want to tell their story to a judge and be heard," Chief Justice Popescul said.
He said in cases where judges decide it is inappropriate to render a binding decision – for instance, where there is not enough evidence presented – the judge can decline to do so.
Judy Boyes, a Calgary lawyer with four decades in family law, said the approach has worked well in Alberta.
In most cases of binding pretrial decisions she has been involved in, "people are generally very happy, mostly to get it done and quit paying the legal fees, and secondly with the outcome. They might not like one aspect or another but they’re just really happy to have a day or two days of the court’s time, instead of waiting for a year or two years.”
With the COVID-19 pandemic, however, judges are not available for these binding pretrial decisions, she said, as their time is being put into criminal cases.
Mr. Sterns said he can see one possible drawback: “What could go wrong is you get strong-armed by a judge who has a lot of gravitas, speaks with a great deal of authority, and people’s rights get short-circuited.” Much of it would come down to the skill and sensitivity of the judge, he said.
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