Difference between revisions of "Family Court (No. 110)"

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{{DEMOWARNING}}
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{{REVIEWEDPLS | reviewer = Ling Wong, Fasken Martineau DuMoulin LLP |date= July 2018}} {{Dial-A-Law TOC|expanded = disputes}}
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{{Dial-A-Law Blurb}}
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If you’re dealing with a family law issue, you may end up in '''Family Court'''. (There are advantages to this court over Supreme Court.) Learn what’s involved at each stage.  
−
==What is Family Court?==
 
−
Family Court is a division of the British Columbia Provincial Court. Other divisions of the Provincial Court deal with criminal, traffic and small claims cases. Provincial Court judges hear family law cases, youth and adult criminal cases, and small claims cases. Depending on your community, there might be a separate courtroom where family law cases are heard, or family law cases might be heard in one of the regular courtrooms on a particular day of the week. Usually there is a day each week or every other week when the court will hear family law and child protection cases.
 
  
−
To find your nearest Provincial Court, look in the blue pages of your phone book under Province of British Columbia. You’ll find it under “C” for courts.
+
==Understand the legal framework==
  
−
==What does Family Court handle?==
+
===Family Court is one of two courts that deal with family issues===
−
Family Court deals with a limited number of family law issues under the provincial ''Family Law Act'', including:
+
'''Family Court''' is a division of the [http://www.provincialcourt.bc.ca/types-of-cases/family-matters British Columbia Provincial Court]. Other divisions of the Provincial Court deal with criminal, traffic, and small claims cases.
  
−
*guardianship of children
+
Family Court deals with most legal issues that impact families, but not all of them. It deals with these issues under the BC ''[http://canlii.ca/t/8q3k Family Law Act]'':
−
*parental responsibilities and parenting time
+
*guardianship of a child and parental responsibilities
−
*contact with a child
+
*parenting time and contact with a child
 
*child support and spousal support
 
*child support and spousal support
 
*protection orders
 
*protection orders
  
−
Family Court also deals with child protection cases with the Ministry for Children and Family Development under the provincial ''Child, Family and Community Service Act''.
+
Family Court also deals with child protection cases.
  
−
Family Court does not deal with family law issues under the federal ''Divorce Act'', including divorce orders, or make orders about family property and family debt.
+
Family Court '''cannot''':
 +
*grant a divorce  
 +
*divide property or debts, or make orders about family property
 +
*change an order that was made under the ''[http://canlii.ca/t/7vbw Divorce Act]''
 +
*make adoption orders
  
−
==Who can apply to Family Court?==
+
To deal with these issues, you have to go to [https://www.courts.gov.bc.ca/supreme_court/index.aspx British Columbia Supreme Court].
−
Family Court is available to everyone who has a family law problem, including couples who are married, couples who aren’t married, people who have had a child together and anyone, such as a relative, who has an interest in a child.
 
  
−
==What issues have to go to Supreme Court?==
+
===Advantages of Family Court===
−
Family Court cannot give you a divorce, it cannot divide property or debts, it cannot make orders about children’s property, it cannot change an order that was made under the ''Divorce Act'' and it cannot make adoption orders. These matters have to be taken to Supreme Court if an order has to be made. The Supreme Court can deal with all family law issues, including all of the issues that the Provincial Court deals with.
+
The Supreme Court can deal with all family law issues, including all of the issues the Provincial Court deals with.  
  
−
Although both courts can make orders about the care of children and support, the Supreme Court will generally not make an order about an issue that has already been decided by the Provincial Court, except where the Provincial Court decision is being appealed to the Supreme Court.
+
Given that, why would you want to go to Family Court?
  
−
==Do you need a lawyer in Family Court?==
+
Family Court has some advantages over Supreme Court:
−
There is no rule that people have a lawyer when they are going to court. The Family Court Rules are written in plain language and the court’s forms are easy to fill out.
+
*The court forms are easier to fill out than Supreme Court forms.
 +
*No court fees are charged.
 +
*The rules of court are simpler than the rules of the Supreme Court.
 +
*The atmosphere of Family Court is more informal.
 +
*Family Courts have '''family justice counsellors''' available. These are specially trained government workers who can help people resolve some family law issues, including through mediation. Their services are free. 
 +
*Family Courts sometimes have '''family duty counsel''' available. These are lawyers who provide free legal advice to help people with low incomes deal with their family law problems.  
  
−
==Why go to Family Court?==
+
===Starting a case in Family Court===
−
Family Court can make orders about the care of children, child support, spousal support and protection orders. Family Court has other advantages:
+
Family Court is available to everyone who has family law issues, including couples who are married, couples who aren’t married, people who have had a child together, and anyone (such as a relative) who has an interest in a child.
  
−
*Family Justice Counsellors are available to help and may be able to help you resolve your family law issue. Their services are free.
+
A case is started in Family Court by '''filing an application''' with the court. Depending on what kind of orders are being sought, other documents may also be required.
−
*The court forms are easier to fill out than Supreme Court forms.
+
 
−
*No court fees are charged.
+
The applicant makes three copies of the documents, and files the documents at a Family Court registry. There’s no fee for filing the documents.
−
*The rules of court are much simpler than the rules of the Supreme Court.
 
−
*Duty counsel are sometimes available to help people who don’t have their own lawyer.
 
  
−
==Your first step is to go to the courthouse and talk to the clerk at the family law counter==
+
The applicant then '''serves''' a copy of the filed documents on the other party. There are strict rules about how to give court documents to the other party.  
−
Different registries of the Family Court have different rules about how cases get started. Some registries require that you meet with a Family Justice Counsellor before you can see a judge. Other registries require parents to take the Parenting After Separation course before they can see a judge. The court clerk will tell you what steps you have to take to begin your case and see a judge.
 
  
−
Family Justice Counsellors aren’t lawyers, but they are trained to deal with family law problems in Family Court. They can help families with guardianship of children, parental responsibilities and parenting time, contact and support issues, and can help you resolve your problems through negotiation and mediation. The counsellor may refer you to a Legal Aid office or suggest that you hire a lawyer. Contact information for the Family Justice Counsellors is given at the end of this script.
+
{| class="wikitable"
 +
|align="left"|'''Tip'''
 +
Blank Family Court forms are on the [http://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms BC government website]. You can also get free printed forms from the [http://www.provincialcourt.bc.ca/locations-contacts Family Court registry] in the town or city where you live.
 +
|}
  
−
The Parenting After Separation program will teach you about how separation can affect your children and teach you better ways to communicate with the other parent and how to protect the children from your dispute. Contact information for the Parenting After Separation program is given at the end of this script. It's a good idea to take the program whether the court requires you to take it or not.
+
===After the case is started===
 +
Different registries of the Family Court have different rules about what happens next. Some registries require that parties meet with a '''family justice counsellor''' before they can see a judge. Family justice counsellors can help families resolve issues relating to the care and support of children, including through providing mediation.  
 +
 +
Other registries require parties to take a “'''Parenting After Separation” course''' before they can see a judge. This free course helps parents with how to make decisions in the best interests of their child. It's a good idea to take the course whether the court requires it or not.
  
−
==Tell the court clerk if it’s an emergency==
+
The parties may be asked to attend a '''family case conference''' to see if the dispute can be resolved without a hearing. This is an informal meeting with a judge to talk about the claims each party has made, see what can be agreed to, and talk about how the claims will be resolved. Family law cases are often resolved at these conferences. When the parties can agree, the judge will make a '''consent order''' at the conference.
−
You may have to wait for an appointment to see a Family Justice Counsellor or for the next Parenting After Separation program. But if your spouse or partner has physically harmed you or your children, or you’re afraid you might be hurt, be sure to say so when you talk to the court clerk. The clerk will tell you how the Family Court can make a protection order for your safety or the safety of your children quickly, without waiting for you to see a Family Justice Counsellor or take the Parenting After Separation program.
 
  
−
==How are Family Court cases resolved?==
+
===Options to resolve a case outside the courtroom===  
−
There are a few ways that family law cases are resolved.
+
Once a family law case has been started, the parties can try to resolve their issues without going to a hearing before a Family Court judge.  
  
−
*If the parties to the family law case can talk to each other, they may be able to settle their dispute through negotiation, mediation or a collaborative process. The settlement might be recorded in a written agreement or it might be recorded in an order that the parties agree the judge will make, called a consent order.
+
The parties might try '''negotiating''' with each other. This involves discussing the issues to try to reach an agreement. They could negotiate with the help of lawyers or without lawyers. They could also get help from other family members, elders or other community members.
−
*If the parties can’t make a decision for themselves, a Family Court judge will make a decision following a hearing.
 
−
*The ''Family Law Act'' also allows people to resolve family law cases through arbitration. The decisions of arbitrators are called awards.
 
  
−
==What is negotiation?==
+
The parties could try '''mediation'''. This involves meeting with a neutral person (a mediator), who helps them find a solution they agree on. The mediator doesn’t make decisions, but rather helps the parties make decisions for themselves.  Parties can use a family justice counsellor as their mediator (their services are free) or they can hire a private mediator.
−
Negotiation is a bargaining process in which the parties try to reach an agreement about their dispute. People can negotiate with each other with lawyers helping them or without lawyers. Sometimes other family members, elders or other respected community members may help with the negotiation process.
+
 +
Or the parties could try '''collaborative practice'''. Also known as “collaborative family law”, this is a kind of negotiation where each party has their own lawyer and agree they will do everything possible to reach a settlement without going to court. The approach emphasizes full disclosure, communication, and a safe and respectful environment to help the parties negotiate a settlement collaboratively.
  
−
==What is mediation?==
+
For more on these approaches, see our information on [[Mediation and Collaborative Practice (No. 111)|mediation and collaborative practice (no. 111)]].
−
In mediation, an independent person meets with the parties to help them discuss their problems and find a settlement. Mediators don’t make decisions for people. They help them make decisions for themselves. Mediation may require two or more meetings to reach a settlement.
 
  
−
Family Justice Counsellors are trained mediators and you can use a Family Justice Counsellor as your mediator. There are also private mediators you can meet with. Family Law Mediators are lawyers with special training in mediation and can also be hired privately.  
+
===If the parties can agree on the issues===
 +
If the parties can work out their issues, their agreement can be recorded in writing. Or it might be recorded in an order the parties agree the judge will make, called a '''consent order'''. Most family law cases are settled by an agreement or consent order.
  
−
For more information on mediation, refer to Script 111 on “Mediation and Collaborative Settlement Process.”
+
Both parties must sign the written agreement or consent order.  
  
−
==What are collaborative settlement processes?==
+
Each party should get '''independent legal advice''' from a lawyer before they sign the document. This involves each party meeting with their own lawyer to get advice about what the agreement means, what rights and obligations the agreement gives to each party, and how the agreement affects other legal options that might otherwise be available.  
−
Collaborative settlement processes are a kind of negotiation where the parties work with lawyers and agree that they will do everything possible to reach a settlement without going to court. The parties and the lawyers work together to find a settlement. Specialists like counsellors, child psychologists and financial experts may be used to help find a settlement. Collaborative processes are centered on your needs and your children’s needs, and communications are open and transparent.
 
  
−
For more information on collaborative processes, refer to Script 111 on “Mediation and Collaborative Settlement Process.”
+
===Going to Family Court===
 +
If the parties cannot settle their issues and have to go to a trial, they will have a '''hearing''' before a Family Court judge.  
  
−
==If a settlement  is reached, it should be put in writing==
+
In your community, Provincial Court might have a separate courtroom for family law cases, or family law cases might be heard in one of the regular courtrooms on a particular day of the week. Usually there is a day each week or every other week when the court will hear family law cases.
−
A settlement is an agreement. Agreements that resolve a family law issue must be written down. This helps people remember exactly what the settlement was and helps to stop people from changing their minds later on.
 
  
−
Written agreements that record the terms of settlement are usually called separation agreement. The terms of settlement can also be recorded by minutes of settlement, which are usually much shorter than separation agreements.
+
At the hearing, witnesses give oral testimony (they tell the court their side of the case) and present documents or other evidence. Often, the parties themselves are the only witnesses.  
  
−
Agreements that are put into the form of a court order are called consent orders. Both parties must sign their written agreement or consent order. In the case of consent orders, an additional court form must be signed to show that the parties agree to the court making the order.
+
After all of the evidence has been given to the judge, each side will make arguments to the judge and explain why the judge should make a particular order. The judge will then make an order resolving the issues.
  
−
If you don’t have a lawyer prepare your separation agreement or consent order, you should get advice from a lawyer before you sign it. It is very important that you understand exactly what your agreement means and how it affects your legal rights and obligations. Having legal advice can help to protect a settlement if a party challenges the agreement in the future.
+
==Common questions==
  
−
==What is arbitration?==
+
===Do I need a lawyer to appear in Family Court?===
−
Arbitration is like going to court, except that you choose and hire the arbitrator yourself and you decide how the arbitration hearing will work. Although you will have to pay for the arbitrator, arbitration hearings are private and can often be scheduled sooner than court hearings.
+
There is no rule that people have a lawyer when they are going to court. The rules and forms in Family Court are simpler than in Supreme Court, and the atmosphere is more informal in Family Court. If you are planning to represent yourself in Family Court, consider getting legal advice beforehand. Or you could explore hiring an “unbundled lawyer” to help coach you or help with part of your case. To find a lawyer who offers unbundled services, see [http://unbundlinglaw.ca unbundlinglaw.ca].
  
−
==What if you have to go to trial?==
+
===What to do in an emergency?===
−
If you and the other party can’t settle your family law issue and you have to go to a trial, you’ll have a hearing before a Family Court judge where witnesses will give evidence and documents or other evidence will be presented. Often, the parties themselves are the only witnesses. After all of the evidence has been given to the judge, you and the other party will make arguments to the judge about why the judge should make the order you each want. The judge will then make an order resolving your dispute.
+
After a case is started in Family Court, there is a waiting time for an appointment to see a family justice counsellor or take the “Parenting After Separation” course. If you’re experiencing family violence, tell the court clerk. The clerk can explain how the Family Court can make a '''protection order''' in an emergency. This is a court order to protect one person from another. For more on this option, see our information on [[Family Violence (No. 155)|family violence (no. 155)]].
 +
 +
==Get help==
  
−
==What is a “family case conference”?==
+
===With your case===
−
Before trial, the judge may ask the parties to attend a Family Case Conference to see if the dispute can be resolved without a trial. Family law cases are often resolved at these conferences, and when the parties are able to reach an agreement, the judge will make a consent order at the conference.
+
To make an appointment with a family justice counsellor, contact the nearest '''Family Justice Centre''' by calling Service BC.
 +
:Telephone: 604-660-2421 in Metro Vancouver or 250-387-6121 in Victoria
 +
:Toll-free: 1-800-663-7867
 +
:Web: [http://www.justicebc.ca/en/fam/ justicebc.ca/en/fam]
  
−
==What is a “needs of the child assessment”?==
+
Unbundling allows you to hire a lawyer for specific parts of your case or to coach you through the court process. '''Unbundled Legal Services''' lists family law lawyers who offer these services.
−
If issues about the care of children are a part of your dispute, the Judge may ask a Family Justice Counsellor or another person, like a social worker, a psychologist or a counsellor, to prepare a Needs of the Child Assessment. The assessor will write a report to the Judge about the needs of the child, the views of the child if the child is old enough, and the ability of the parties to meet the child’s needs.
+
:Web: [http://unbundlinglaw.ca unbundlinglaw.ca]
  
−
These reports often describe the parenting arrangements that the assessor believes are in the best interests of the children. Because of high demand, reports prepared by Family Justice Counsellors can take a year or more to complete.
+
===More information===
 +
The Legal Services Society’s '''Family Law in BC website''' features guides that include step-by-step instructions and blank forms you’ll need for going to Family Court.
 +
:Web: [https://familylaw.lss.bc.ca/legal_issues/legalSystemDIY.php familylaw.lss.bc.ca]
  
−
==What is a “views of the child report”?==
+
The '''“Parenting After Separation” course''' is provided by Justice Education Society of BC and can be done online or in-person.  
−
If issues about the care of children who are at least six years old are a part of your dispute, the Judge may ask a Family Justice Counsellor or another person, like a lawyer with special training, a social worker, a psychologist or a counsellor, to prepare a Views of the Child Report. These reports describe the children’s views and wishes about their circumstances and their future. Views of the Child Reports prepared by Family Justice Counsellors, lawyers and social workers describe just what the child has told the counsellor or lawyer in a private meeting. Reports prepared by psychologists and counsellors may also give an opinion about the children’s wishes and views.
+
:Web: [http://parenting.familieschange.ca/ parenting.familieschange.ca]
  
−
==Where can you get help or more information?==
+
{{Dial-A-Law_Navbox|type=families}}
−
*For more information about Family Court or to make an appointment with a Family Justice Counsellor, call Service BC at 604.660.2421 in Metro Vancouver, 250.387.6121 in Greater Victoria, and 1.800.663.7867 elsewhere in BC, and ask to be connected with the Family Justice Centre nearest to you.
+
{{Dial-A-Law Copyright}}
−
*See the Family Justice website at www.justicebc.ca/en/fam/.
 
−
*Check on Parenting After Separation (PAS) program at www.justicebc.ca/en/fam/help/pas/. Call Service BC at 1.800.663.7867 for the nearest Family Justice Centre that can find you the session closest to you.
 
−
*Also check online PAS course at http://parenting.familieschange.ca. This program, available in English, Chinese and Punjabi, is provided by Justice Education Society of BC.
 

Latest revision as of 22:37, 29 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Ling Wong, Fasken Martineau DuMoulin LLP in July 2018.
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If you’re dealing with a family law issue, you may end up in Family Court. (There are advantages to this court over Supreme Court.) Learn what’s involved at each stage.

Understand the legal framework

Family Court is one of two courts that deal with family issues

Family Court is a division of the British Columbia Provincial Court. Other divisions of the Provincial Court deal with criminal, traffic, and small claims cases.

Family Court deals with most legal issues that impact families, but not all of them. It deals with these issues under the BC Family Law Act:

  • guardianship of a child and parental responsibilities
  • parenting time and contact with a child
  • child support and spousal support
  • protection orders

Family Court also deals with child protection cases.

Family Court cannot:

  • grant a divorce
  • divide property or debts, or make orders about family property
  • change an order that was made under the Divorce Act
  • make adoption orders

To deal with these issues, you have to go to British Columbia Supreme Court.

Advantages of Family Court

The Supreme Court can deal with all family law issues, including all of the issues the Provincial Court deals with.

Given that, why would you want to go to Family Court?

Family Court has some advantages over Supreme Court:

  • The court forms are easier to fill out than Supreme Court forms.
  • No court fees are charged.
  • The rules of court are simpler than the rules of the Supreme Court.
  • The atmosphere of Family Court is more informal.
  • Family Courts have family justice counsellors available. These are specially trained government workers who can help people resolve some family law issues, including through mediation. Their services are free.
  • Family Courts sometimes have family duty counsel available. These are lawyers who provide free legal advice to help people with low incomes deal with their family law problems.

Starting a case in Family Court

Family Court is available to everyone who has family law issues, including couples who are married, couples who aren’t married, people who have had a child together, and anyone (such as a relative) who has an interest in a child.

A case is started in Family Court by filing an application with the court. Depending on what kind of orders are being sought, other documents may also be required.

The applicant makes three copies of the documents, and files the documents at a Family Court registry. There’s no fee for filing the documents.

The applicant then serves a copy of the filed documents on the other party. There are strict rules about how to give court documents to the other party.

Tip

Blank Family Court forms are on the BC government website. You can also get free printed forms from the Family Court registry in the town or city where you live.

After the case is started

Different registries of the Family Court have different rules about what happens next. Some registries require that parties meet with a family justice counsellor before they can see a judge. Family justice counsellors can help families resolve issues relating to the care and support of children, including through providing mediation.

Other registries require parties to take a “Parenting After Separation” course before they can see a judge. This free course helps parents with how to make decisions in the best interests of their child. It's a good idea to take the course whether the court requires it or not.

The parties may be asked to attend a family case conference to see if the dispute can be resolved without a hearing. This is an informal meeting with a judge to talk about the claims each party has made, see what can be agreed to, and talk about how the claims will be resolved. Family law cases are often resolved at these conferences. When the parties can agree, the judge will make a consent order at the conference.

Options to resolve a case outside the courtroom

Once a family law case has been started, the parties can try to resolve their issues without going to a hearing before a Family Court judge.

The parties might try negotiating with each other. This involves discussing the issues to try to reach an agreement. They could negotiate with the help of lawyers or without lawyers. They could also get help from other family members, elders or other community members.

The parties could try mediation. This involves meeting with a neutral person (a mediator), who helps them find a solution they agree on. The mediator doesn’t make decisions, but rather helps the parties make decisions for themselves. Parties can use a family justice counsellor as their mediator (their services are free) or they can hire a private mediator.

Or the parties could try collaborative practice. Also known as “collaborative family law”, this is a kind of negotiation where each party has their own lawyer and agree they will do everything possible to reach a settlement without going to court. The approach emphasizes full disclosure, communication, and a safe and respectful environment to help the parties negotiate a settlement collaboratively.

For more on these approaches, see our information on mediation and collaborative practice (no. 111).

If the parties can agree on the issues

If the parties can work out their issues, their agreement can be recorded in writing. Or it might be recorded in an order the parties agree the judge will make, called a consent order. Most family law cases are settled by an agreement or consent order.

Both parties must sign the written agreement or consent order.

Each party should get independent legal advice from a lawyer before they sign the document. This involves each party meeting with their own lawyer to get advice about what the agreement means, what rights and obligations the agreement gives to each party, and how the agreement affects other legal options that might otherwise be available.

Going to Family Court

If the parties cannot settle their issues and have to go to a trial, they will have a hearing before a Family Court judge.

In your community, Provincial Court might have a separate courtroom for family law cases, or family law cases might be heard in one of the regular courtrooms on a particular day of the week. Usually there is a day each week or every other week when the court will hear family law cases.

At the hearing, witnesses give oral testimony (they tell the court their side of the case) and present documents or other evidence. Often, the parties themselves are the only witnesses.

After all of the evidence has been given to the judge, each side will make arguments to the judge and explain why the judge should make a particular order. The judge will then make an order resolving the issues.

Common questions

Do I need a lawyer to appear in Family Court?

There is no rule that people have a lawyer when they are going to court. The rules and forms in Family Court are simpler than in Supreme Court, and the atmosphere is more informal in Family Court. If you are planning to represent yourself in Family Court, consider getting legal advice beforehand. Or you could explore hiring an “unbundled lawyer” to help coach you or help with part of your case. To find a lawyer who offers unbundled services, see unbundlinglaw.ca.

What to do in an emergency?

After a case is started in Family Court, there is a waiting time for an appointment to see a family justice counsellor or take the “Parenting After Separation” course. If you’re experiencing family violence, tell the court clerk. The clerk can explain how the Family Court can make a protection order in an emergency. This is a court order to protect one person from another. For more on this option, see our information on family violence (no. 155).

Get help

With your case

To make an appointment with a family justice counsellor, contact the nearest Family Justice Centre by calling Service BC.

Telephone: 604-660-2421 in Metro Vancouver or 250-387-6121 in Victoria
Toll-free: 1-800-663-7867
Web: justicebc.ca/en/fam

Unbundling allows you to hire a lawyer for specific parts of your case or to coach you through the court process. Unbundled Legal Services lists family law lawyers who offer these services.

Web: unbundlinglaw.ca

More information

The Legal Services Society’s Family Law in BC website features guides that include step-by-step instructions and blank forms you’ll need for going to Family Court.

Web: familylaw.lss.bc.ca

The “Parenting After Separation” course is provided by Justice Education Society of BC and can be done online or in-person.

Web: parenting.familieschange.ca
v • d • e
 
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