Judge warns of more delays as vacancies continue

A top judge in New Brunswick is warning of more court delays, due in part to judicial vacancies unfilled by the federal government.

Court of King's Bench Chief Justice Tracey DeWare sent a memo Wednesday to judges, lawyers and the province's justice minister warning of anticipated delays that will affect the family court system.

King's Bench trial division handles criminal cases like murder trials and civil lawsuits, while its family division handles child protection and divorce proceedings.

It has 24 full-time and nine supernumerary, or part-time, judges who are appointed by the federal government. However, three of the full-time positions are vacant, one since 2021. Another vacancy is expected in December.

"The vacancies at the New Brunswick Court of King's Bench consistently challenge our ability to manage the docket in a manner that would ensure matters are heard expeditiously," DeWare wrote.

Court of King's Bench Chief Justice Tracey DeWare is pictured here at her swearing-in ceremony with New Brunswick Court of Appeal Chief Justice Marc Richard. DeWare's memo says there has been a King's Bench vacancy in Miramichi since October 2021. (Submitted by Tracey DeWare)

DeWare said the court frequently adjourns non-urgent cases to accommodate child protection hearings and criminal cases, which have strict timelines.

"While the matters that are adjourned may, objectively speaking, be less urgent than [a] child protection hearing or jury trial, we are nevertheless acutely aware that they are extremely urgent for the individuals involved."

DeWare's memo says there has been a King's Bench vacancy in Miramichi since October 2021, a vacancy in Moncton since January this year, and another in Moncton since April.

A vacancy will open in Woodstock in December after a judge there moves to Fredericton to replace Justice Terrence Morrison, who will become supernumerary in December.

A spokesperson says Minister of Justice and Attorney General of Canada Arif Virani is working to fill the openings 'in due course.' (Justin Tang/The Canadian Press)

Chantalle Aubertin, a spokesperson for Minister of Justice and Attorney General of Canada Arif Virani, said in a statement that the minister is working to fill the vacancies "in due course."

"Minister Virani has spoken with members of the judiciary as well as the bar to encourage more people to apply for the bench, and he will continue to make high quality appointments that reflect the diversity of Canada," Aubertin said.

The statement did not address why some of the positions have been left vacant for years.

Judges to consider changes to family court

Sheila Cameron, a Moncton lawyer who practises family law, read the memo and knew it would mean more difficult calls with clients, many who already wait a year or more for a trial date.

"Obviously people in court cases are living in a stressful situation that they'd like to have an end to," Cameron said.

However, Cameron welcomed part of DeWare's memo.

DeWare said an associate chief justice position announced by the federal government in April 2022 has yet to be filled. That role was expected to help carry out reforms to family court.

"However, given the continued uncertainty regarding the timing of such appointment, I have determined that the work must begin without further delay," DeWare wrote.

DeWare said two judges will be reassigned for about three months to work on ways to deal with the family court challenges.

"I'm very happy with that and agree with our chief justice that it's long overdue that the New Brunswick family court system be overhauled and moved to a less adversarial model," Cameron said.

Cameron said other provinces have systems focused on trying to help people settle their disputes before they end up in court.

Carley Parish practises family law in the Saint John area and is a former law society president. Parish also sees the need for changes to the family court system.

"We need more judges," Parish said. "And we need to start thinking out-of-the-box — so whether the lawyers start doing mediation or we start having four-party meetings ... to try to resolve things outside of court."

Carley Parish, a Hampton-based lawyer, says by the time cases reach trial children are several years old and family circumstances may have changed. (Submitted/Lutz Longstaff Parish)

Parish said positions called masters, which first hear family law cases in Moncton and Saint John, needs to be expanded. Cameron said the master system, while not staffed with full King's Bench judges, has the power to issue orders.

"What we like about that is that clients and families can get that first order and that gets them into a routine of what time the children have in both households, what's the financial sharing of expenses, what's the amount of child support and spousal support.

"So it settles everything down. It's really important to have that happen in a separated family as soon as possible. Otherwise there's a lot of pushing and pulling and nasty texts and emails and a lot of stress, obviously."

Marc Richard, executive director of the Law Society of New Brunswick, said the court system has been double booking some cases in the hope that one would be settled by the time the trial comes up. But if not, one trial ends up getting delayed again.

"So it creates all of those delays, which it's not the fault of the judges, it's basically the federal government," Richard said.

He said the problems aren't limited to New Brunswick.

In August, CBC reported there were 86 vacancies for federally appointed judges across Canada.

Supreme Court Chief Justice Richard Wagner warned in June of an "alarming" shortage of judges.

Coreen Enos, a spokesperson for the provincial justice department, says it is aware of DeWare's memo and plans to meet with her to discuss the issues it raises.

Enos said there are no provincial court vacancies.