Knowing What to Expect in Family Court for Parenting Matters
This past year in Calgary, the Alberta Court of King’s Bench enacted a new procedure for family law court called Family Docket Court. It is important for litigants to know that this is generally the first step now to get before a Justice. However, litigants are encouraged to first try to resolve their matter through an alternate dispute resolution prior to attending (with the exception of urgent cases or cases where it would be inappropriate such as cases involving family violence or child abduction).
Family Docket Court is not a forum where you will receive a significant or final parenting order post-separation. Rather, it is considered a scheduling court, like a triage system. The Justice will hear from both parties or their counsel, and determine which type of Court hearing it needs to go to. It may be set down in regular Family Morning Chambers, the parties may be directed to a new process called Resolution Counsel, the parties may decide to go to mediation/arbitration or it may be set down for a viva voce hearing, or special hearing. As well, your matter may eventually have to be set for a trial.
It is important to be aware though that the final remedy you are seeking, such as shared parenting or primary parenting, will not be dealt with during that initial stage in court, and you will not be given a final determination of the matter at Regular Family Chambers either (unless it is done by consent), but rather an interim order. The reason for this was set out in an important Alberta Court of Appeal case, HG v RG 2017 ABCA 89. In that case, the Mother was appealing an interim order given from a Chambers Justice who only had affidavit evidence available to make an interim determination for parenting. The Court of Appeal explained (at para 8-10),
8 Regular chambers is not the optimal place to decide a parenting order when there is conflicting evidence. Family Law Practice Note No. 2 provides that: “9. Applications for a change of custody or substantial changes to a parenting arrangement will not be heard in Morning Family Law Chambers; rather, these applications must go to Special Chambers.”
9 There is a good reason for the rule that substantial changes to parenting arrangements are not to be made in regular chambers: children deserve better than that. A judge in regular chambers does not have the opportunity to read the affidavits in advance, is not in receipt of written submissions, and is ill positioned to resolve competing affidavit material. The chambers judge acknowledged these challenges stating that counsel was “arguing very complex issues that are not appropriate for chambers … this is not the forum for that”. She clearly stated that this was an interim order and the issue of parenting would be revisited at a special chambers application or trial, perhaps after a Practice Note 7 evaluation was conducted.
10 We recognize that there are cases that must be decided on an urgent and interim basis without a full and proper hearing. Sometime an interim parenting order may need to be made in regular chambers in the face of conflicting affidavit evidence to determine what parenting regime is in the best interest of the children pending a viva voce hearing or trial.
As all Justices are focused on a child-centered best interest approach for any parenting matter, they are not able to make final parenting orders in a forum like morning chambers because, like the Court of Appeal explained, they want to make the right decision for the children and for the sake of the children, which means finding an appropriate forum and hearing to allow for the time and understanding to be able to do that.