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| {{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-rapoport/ Samantha Rapoport], Brown Henderson Melbye |date= May 2021}} {{Dial-A-Law TOC|expanded = disputes}} | | {{REVIEWED LSLAP | date= August 10, 2021}} |
| If you’re dealing with a family law issue, you may end up in Provincial Court (often called '''Family Court'''). There are advantages to using this court instead of BC Supreme Court. Learn what’s involved at each stage.
| | {{LSLAP Manual TOC|expanded = wills}} |
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| {| class="wikitable"
| | == A. Generally == |
| |align="left"|'''Alert!'''
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| This information has been updated to reflect [https://www.provincialcourt.bc.ca/enews/enews-27-04-2021 new Provincial Court Family Rules] that took effect on May 17, 2021.
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| |}
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| ==What you should know==
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| ===Family Court can deal with many family law issues===
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| '''Family Court''' is a division of the [https://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.)
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| Family Court deals with many, but not all, of the legal issues that affect families. It handles the following issues under the BC [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html ''Family Law Act'']:
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| * guardianship of a child and parental responsibilities
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| * parenting time and contact with a child
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| * child support and spousal support
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| * protection orders
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| Family Court also deals with child protection cases.
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| Family Court '''cannot''' make orders under the federal [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html ''Divorce Act'']. It can’t:
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| * grant a divorce
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| * divide property or debts, or make orders about family property
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| * change an order that was made under the ''Divorce Act''
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| * make adoption orders
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| For these issues, you have to go to the [https://www.bccourts.ca/supreme_court/ British Columbia Supreme Court]. This is the other court in BC that also deals with family law issues.
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| ===Advantages of Family Court===
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| {{PLSStorybox
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| | image = [[File:Annika.png|link=]]
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| | text = "My spouse and I ended our 16-year relationship. After separating, we couldn’t reach an agreement about spousal support and who our three children should live with. So I started a court action in the Family Court near me. I didn’t have to pay court filing fees, and I found the process easier to follow than I expected. At our family case conference, we ended up with a consent order that resolved our family law issues." <br>– Annika, Maple Ridge, BC
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| }}
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| The BC Supreme Court can deal with all family law issues, including all of the issues Family Court deals with. So why would you want to go to Family Court?
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| Family Court has some advantages over Supreme Court:
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| * The Family Court forms are easier to fill out than Supreme Court forms.
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| * No court fees are charged in Family Court.
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| * The rules of court are simpler than the rules of the Supreme Court. Plus, the Family Court rules encourage people to try to resolve their issues by agreement earlier on in the court process.
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| * Family Courts have '''family justice counsellors''' available. These are specially trained government workers who can help people resolve certain types of family law issues, including through mediation. Their services are free and confidential.
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| * The atmosphere of Family Court is more informal.
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| * Many Family Courts 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.
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|
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| ===The court process varies depending on the registry and order involved===
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| There are registries at various [https://www.provincialcourt.bc.ca/locations-contacts Provincial Courts throughout BC]. How the Family Court process works depends on the registry location and the type of court order you need.
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| Many Family Court registries have certain requirements you have to meet before you can get a date to appear in front of a judge. We explain these below, under stages in a Family Court matter.
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| But there are exceptions. In certain circumstances, you can fast forward the process. For example:
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| * If you’re experiencing family violence, you can apply for a '''protection order'''. This a court order to protect one person from another.
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| * If the other parent wants to move with the children or is refusing to agree to you taking them abroad on a planned holiday, you can apply for an '''order in a priority parenting matter'''.
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| {| class="wikitable"
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| |align="left"|'''Self-help guides'''
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| The Family Law in BC website from Legal Aid BC has step-by-step guides on [https://family.legalaid.bc.ca/abuse-family-violence/protecting-yourself-your-family/apply-family-law-protection-order-without#0 applying for a protection order] and [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/provincial-court/get-order-about-priority-parenting applying for a priority parenting matter order].
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| |}
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| ===Options to resolve a case outside the courtroom===
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| Even after a family law case has been started, you can still try to resolve your issues without going to a hearing before a judge.
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| You might try '''negotiating''' with each other to try to reach an agreement. You could do this with or without the help of lawyers. You could also get help from other family members, elders, or other community members.
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| You could try '''mediation'''. This involves meeting with a neutral person (a mediator) who helps find a solution everyone can agree on. The mediator doesn’t make decisions, but instead helps the parties make decisions for themselves.
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| You can use a family justice counsellor as a mediator. Their services are free. (At some Provincial Court locations, parties are ''required'' to meet with a family justice counsellor as one of the first steps in the court process.) Or you can hire a private mediator.
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| Or you could try '''collaborative negotiation'''. This is also known as “collaborative family law.” It’s a kind of negotiation where each party has their own lawyer and agrees to 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.
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| For more on these approaches, see our information on [https://dialalaw.peopleslawschool.ca/mediation-and-collaborative-practice/ mediation, collaborative negotiation, and arbitration].
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| ===If you can agree on the issues===
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| If you can work out your issues, you and the other people involved can put your agreement into writing. Or you might want a judge to make a court order that reflects your agreement. This is called a '''consent order'''. Most family law cases are settled by an agreement or consent order.
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| Both parties must sign the written agreement or consent order.
| | If a person dies intestate (without a valid will), their assets are distributed to intestate successors in accordance with ''WESA''. Where a will exists but does not cover all assets, there will be a partial intestacy and those assets outside the will that do not pass by contract or survivorship will pass according to ''WESA's'' intestacy distribution scheme. |
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| 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 legal advice. A lawyer can explain:
| | === 1. Spouses === |
| * what the agreement means
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| * what rights and obligations the agreement gives to each party
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| * how the agreement affects other legal options that might otherwise be available
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| See who can help, below, for options to get legal advice.
| | Under ''WESA'', it is possible to have more than one spouse by having a spouse by marriage in addition to a common-law spouse. It is also possible to have multiple common-law spouses. However, it is not possible to have more than one spouse by marriage. |
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| ==Stages in the court process==
| | The spouse of the deceased is always entitled to a preferential share of the estate, as well as the “household furnishings” defined as the personal property usually associated with the enjoyment by the spouses of the spousal home (''WESA'', s 21(1)). |
| ===Starting a matter in Family Court===
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| How you start a matter in Family Court depends on the court registry location and the type of court order you seek.
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| In the Victoria and Surrey registries, you have to [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/family/pfa710.pdf file a notice with the court], meet with a family justice counsellor, and satisfy certain requirements ''before'' you can start a court matter. In other court registries in the province, you can start a court matter and then (depending on the registry location) you may have to meet with a counsellor and complete an education program before getting a court date. More on these requirements in a moment.
| | If there are two or more spouses, they must agree as to how to divide the preferential share, otherwise, it will be determined by the courts (''WESA'', s 22). See ''[https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc325/2021bcsc325.html Boughton v Widner Estate]'', 2021 BC2C 325 for an example of the court dividing a deceased’s estate among two spouses. |
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| In any court registry, if there’s been family violence or you have an urgent parenting issue, you can apply to get into court right away.
| | === 2. Spousal Home === |
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| {| class="wikitable"
| | In intestacy, the surviving spouse no longer has a right to the spousal home but has a right to acquire it under section 31 of ''WESA''. Section 33 allows the surviving spouse to make an application to retain the spousal home, considering factors such as whether requiring the surviving spouse to purchase the spousal home would be a significant hardship, and whether a greater prejudice would be imposed on the surviving spouse by being unable to continue to reside in the spousal home than would be imposed on the descendants entitled to share in the intestate estate. |
| |align="left"|'''Self-help guides'''
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| In [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution early resolution registries in Surrey and Victoria], you have to meet with a family justice counsellor, take a parenting course, and complete a session of consensual dispute resolution (if appropriate) ''before'' you can start a matter in Family Court.
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| |}
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| ====The paperwork==== | | === 3. Preferential Share === |
| To start a Family Court matter, you fill out an [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/courthouse-services/court-files-records/court-forms/family/pfa712.pdf?forcedownload=true application about a family law matter]. You make three copies of the application, and file it with the court registry. There is no fee involved. Depending on what kind of orders you’re asking for, other forms and documents may also be required.
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| You then arrange to have a copy of the filed documents '''served''' on the other party in the case. There are strict rules about how to give court documents to the other party.
| | If all the descendants of the will-maker are also the descendants of the surviving spouse, the preferential share of the spouse is $300,000 (''WESA'', s 21(3)). If all the descendants of the will-maker are '''not''' also those of the surviving spouse, the preferential share of the surviving spouse is $150,000 (''WESA'', s 21(4)). |
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| {| class="wikitable" | | {| class="wikitable" |
| |align="left"|'''To complete the forms'''
| | ! Situation |
| Legal Aid BC’s Family Law in BC website has a free step-by-step guide for [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/provincial-court/get-new-family-order-provincial-court-if#0 applying for a family order] in Provincial Court. For blank court forms, see the [http://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms BC government website] or go to your local [https://www.provincialcourt.bc.ca/locations-contacts Family Court registry].
| | ! ''WESA'' Section |
| | ! Distribution |
| | |- |
| | | Intestate dies leaving a spouse but no descendants. |
| | | 20 |
| | | Entire estate passes to surviving spouse. |
| | |- |
| | | Intestate dies leaving one or more descendants, all of whom are descendants of the surviving spouse. |
| | | 21(3) |
| | | Household furnishings plus preferential share of $300,000 to the spouse. One half of remainder distributed to the spouse, the other half distributed equally to the descendants. |
| | |- |
| | | Intestate dies leaving one or more descendants, some of whom are '''NOT''' descendants of the surviving spouse. |
| | | 21(4) |
| | | Household furnishings plus preferential share of $150,000 to the spouse. One half of remainder distributed to the spouse, the other half distributed equally to the descendants. |
| | |- |
| | | Intestate dies, leaving descendants but no spouse. |
| | | 23(2)(a) |
| | | Estate distributed equally to descendants. |
| | |- |
| | | Intestate dies leaving no spouse or descendants. |
| | | 23(2) |
| | | Order of Priority: Parents, siblings, nieces/nephews, grandparents, aunts/uncles, etc. See section 23(2) for complete order of priority. If there are no beneficiaries entitled to the estate, the estate passes to the government subject to the escheat act. |
| |} | | |} |
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| ===Next steps=== | | == B. Separated Spouse == |
| Depending on the court registry you start your matter in, you may have to complete certain steps before you can get a date to go before a judge.
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| In [https://family.legalaid.bc.ca/bc-legal-system/provincial-court-registries/parenting-education-program-registries these 12 registries], if you’re a parent, you have to complete a parenting education program.
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| In [https://family.legalaid.bc.ca/bc-legal-system/provincial-court-registries/family-justice-registries family justice registries in Kelowna, Nanaimo and Vancouver], you have to meet with a family justice counsellor and take a parenting education program (if you’re a parent).
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| In the [https://family.legalaid.bc.ca/bc-legal-system/provincial-court-registries/all-other-registries other BC Family Court registries], you don’t have to meet any special requirements before getting a date to go in front of a judge. But steps like talking to a family justice counsellor and taking a parenting program are always a good idea.
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| ===Your first court appearance===
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| Unless you have an urgent family matter, the first time you go before a judge will usually be at a '''family management conference'''. This is a 20- to 60-minute meeting with the other party and a judge. The judge will try to help you and the other party reach an agreement. If that’s not possible, the judge will help you get organized for a hearing or a trial.
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| At a family management conference, a judge can make court orders. If you and the other party agree about your family law issues, the judge will make a '''consent order'''. If you can’t agree, the judge may still make important '''interim (temporary) orders''' that can last at least until you have a hearing. Because of this, you must be prepared to tell the judge what orders you want and why. You can provide spoken and affidavit evidence to support your position.
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| If issues aren’t resolved at the family management conference, the judge can decide on the next steps in your case. This can include participating in mediation, attending a '''family settlement conference''' (an informal meeting with a judge to try to resolve the dispute), or setting a hearing date.
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| If a hearing is needed, the judge can make '''case management orders''' about timing, witnesses, documents, and other evidence to make sure the trial is conducted efficiently.
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| Preparing for a family management conference
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| {| class="wikitable"
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| |align="left"|'''Preparing for a family management conference'''
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| The Provincial Court explains [https://www.provincialcourt.bc.ca/enews/enews-11-05-2021 what to expect at a family management conference], and Legal Aid BC has more on [https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/fcc-provincial-court how to prepare for one].
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| |}
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| ===If the case goes to trial===
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| If you can’t settle your issues and have to go to a trial, you’ll have a '''hearing''' before a judge.
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| In your community, the 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’s one day each week or every other week when the court will hear family law cases.
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| 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.
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| After all of the evidence has been given to the judge, each side will make arguments to the judge. They’ll explain why they think the judge should decide in their favor. The judge will then make an order resolving the issues.
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| ==Common questions==
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| ===Do I need a lawyer to appear in Family Court?===
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| You '''don’t''' have to have a lawyer when you go to court. Over a third of people bringing a case in Family Court represent themselves. The rules and forms in Family Court are simpler than in Supreme Court and the atmosphere is more informal.
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| {| class="wikitable"
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| |align="left"|'''Consider getting legal advice or unbundling'''
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| If you’re planning to represent yourself in Family Court, consider getting legal advice about your case 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 [https://unbundlinglaw.peopleslawschool.ca/ unbundlinglaw.ca].
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| |}
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| ===What if my case started before the new court rules came into effect?===
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| New Provincial Court Family Rules came into effect on May 17, 2021. If a family law case you’re involved in started before that, the new rules apply and the [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms new court forms] (with a couple of short-term exceptions) must be used.
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| ==Who can help== | |
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| ===With your case===
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| To make an appointment with a family justice counsellor, contact the nearest '''Family Justice Centre''' by calling Service BC.
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| * Call 1-800-663-7867 (toll-free)
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| * [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors Visit website]
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| 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 lawyers who offer these services.
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| * [http://unbundlinglaw.ca/ Visit website]
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| For options for '''legal advice''', [[Free and Low-Cost Legal Help|see our information on free and low-cost legal help]]. It explains options such as legal aid, pro bono services, legal clinics, and advocates.
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| ===With more information===
| | Under ''WESA'', two persons cease being spouses if: |
| The '''BC Provincial Court website''' provides information about family law, rules, and court processes as well as links to resources.
| | # In the case of a marriage, they live separate and apart for at least two years, with '''one or both of them''' having formed the intention during that time to live separate and apart '''permanently''', or an event occurs that causes an interest in family property, as defined in Part 5 [''Property Division''] of the ''Family Law Act'', to arise pursuant to section 2(2)(a) of ''WESA'', '''or''' |
| | # In the case of a marriage-like relationship, one or both persons terminate the relationship. |
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| * https://www.provincialcourt.bc.ca/types-of-cases/family-matters Visit website]
| | :'''NOTE:''' See ''[https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc219/2008bcsc219.html?autocompleteStr=Gosbjorn%20v.%20Hadley%2C%202008%20BCSC%20219%20&autocompletePos=1 Gosbjorn v. Hadley]'', 2008 BCSC 219 and more recently ''[https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc200/2019bcsc200.html?autocompleteStr=Mother%201%20v%20Solus%20Trust%20Company%2C%202019%20BCSC%20200%20&autocompletePos=1 Mother 1 v Solus Trust Company]'', 2019 BCSC 200 at paras 149-151 for a discussion of when a marriage-like relationship ceases. |
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| Legal Aid BC’s '''Family Law in BC website''' has self-help guides that include step-by-step instructions and blank forms you’ll need for going to Provincial (Family) Court.
| | == C. Miscellaneous Provisions == |
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| * https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/get-order-provincial-court Visit website]] | | *Children conceived before the intestate's death but born after the intestate's death and living for at least 5 days, inherit as if they had been born in the lifetime of the intestate and had survived the intestate., (''WESA'', s 8). |
| | *Adopted children are the children of the adopting parent (''Adoption Act'', s 37). |
| | *Adopted children are not entitled to the estate of their natural parent except through the will of the natural parent (''WESA'', s 3). |
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