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{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge | |||
| | |CoAuthor = [[Kendra Marks]] and [[Iris Turaglio]] | ||
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]] | |||
}} | }} | ||
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Before going further, it'll help to learn some of the terminology used in litigation. (You can find more definitions in the [[Terminology|Common Legal Words and Phrases]] chapter of this resource.) | Before going further, it'll help to learn some of the terminology used in litigation. (You can find more definitions in the [[Terminology|Common Legal Words and Phrases]] chapter of this resource.) | ||
*'''Family law action''' or '''Family law proceeding:''' A general term for any kind of family law issue that is brought before the courts. A family law action is a type of ''civil action'' (i.e. it's not a criminal case), and is started by a person (or persons) seeking the court's help in resolving questions or disputes about their legal rights, obligations, or status in relation to other family members. A family law action can include other civil claims related to family law issues, but both the BC Supreme Court and Provincial Court treat family law actions differently from general civil claims. Each level of court has specific sets of court rules related to family law actions, which include unique forms for family law matters. Court records for family law actions are not as open to the public as general civil claims, and are treated differently by the courts' records access policies. | *'''Family law action''' or '''Family law proceeding:''' A general term for any kind of family law issue that is brought before the courts. A family law action is a type of ''civil action'' (i.e. it's not a criminal case), and is started by a person (or persons) seeking the court's help in resolving questions or disputes about their legal rights, obligations, or status in relation to other family members. A family law action can include other civil claims related to family law issues, but both the BC Supreme Court and Provincial Court treat family law actions differently from general civil claims. Each level of court has specific sets of court rules related to family law actions, which include unique forms for family law matters. Court records for family law actions are not as open to the public as general civil claims, and are treated differently by the courts' records access policies. | ||
* | *'''Cases''', '''proceedings''', '''matters''', etc.: | ||
** '''Family law matter''' is defined in the Provincial Court Family Rules and does not appear in the Supreme Court Family Rules, the ''Family Law Act'', or the ''Divorce Act''. A ''family law matter'' is narrowly defined as a "case" before the Provincial Court about: parenting arrangements (including parental responsibilities and parenting time), child support, contact with a child, guardianship of a child, spousal support, and/or property division in respect of a companion animal. | **'''Provincial Court''': | ||
**'''Family law case''' is defined in the Supreme Court Family Rules and does not appear in the Provincial Court Family Rules, the ''Family Law Act'', or the ''Divorce Act''. A ''family law case'' is broadly defined as a "proceeding" (including ''joint'' or ''undefended'' ones) before the BC Supreme Court where the claims relate to: orders under the ''Divorce Act'' or the ''Family Law Act'', orders for adoption, common law claims based on ''unjust enrichment'' (if in a marriage-like relationship), and/or orders under ''FHRMIRA'' (legislation dealing with family homes on First Nations reserve land). | *** '''Family law matter''' is defined in the Provincial Court Family Rules and does not appear in the Supreme Court Family Rules, the ''Family Law Act'', or the ''Divorce Act''. A ''family law matter'' is narrowly defined as a "case" before the Provincial Court about: parenting arrangements (including parental responsibilities and parenting time), child support, contact with a child, guardianship of a child, spousal support, and/or property division in respect of a companion animal. Applications for ''family law matters'' are dealt with in Part 3 of the Provincial Court Family Rules, and the definition is narrow because other types of matters — such as ''protection orders'' (for family violence), ''priority parenting matters'', ''relocation'' (of a child) — are dealt with differntly under those rules. The Provincial Court has a totally different set of rules for ''child protection'' and ''adult guardianship'' matters, so even though these are areas of family law, they are not included in the definition of ''family law matter''. Lastly, the term does not include ''Divorce Act'' claims, adoption matters, or (most) claims for property or pension division, since the Provincial Court has no jurisdiction over those kinds of cases. | ||
**'''Family law dispute''' is a defined term from the ''Family Law Act'' meaning any dispute respecting a matter to which the ''Family Law Act'' itself relates. The term does not really show up in the Supreme Court Family Rules or the Provincial Court Family Rules. It should not be confused with ''family dispute resolution process'' | ***'''Priority parenting matter''' is defined in the Provincial Court Family Rules and does not appear in the Supreme Court Family Rules, the ''Family Law Act'', or the ''Divorce Act''. A ''priority parenting matter'' is brought before the Provincial Court by a party wanting to resolve a specific and time-sensitive issue regarding a child. These are distinct from other ''family law matters'', and are brought to the court on a priority basis. They include claims about: consents for health-related treatment where delay poses a risk to child; consents or documents (e.g. passport) related to travel or activity where delay poses a risk to child; relocation of a child (where no agreement or court order exists and move could harm child's relationships); orders resolving the wrongful removal of a child (including international child abduction). Unlike regular ''family law matters'', ''priority parenting matters'' may be heard in any registry, without a Family Management Conference, before Early Resolution Registry requirements or other registry conditions are satisfied (e.g. a parenting education course, or a needs assessment meeting), and much sooner in time (7 days). | ||
**'''BC Supreme Court''': | |||
***'''Family law case''' is defined in the Supreme Court Family Rules and does not appear in the Provincial Court Family Rules, the ''Family Law Act'', or the ''Divorce Act''. A ''family law case'' is broadly defined as a "proceeding" (including ''joint'' or ''undefended'' ones) before the BC Supreme Court where the claims relate to: orders under the ''Divorce Act'' or the ''Family Law Act'', orders for adoption, common law claims based on ''unjust enrichment'' (if in a marriage-like relationship), and/or orders under ''FHRMIRA'' (legislation dealing with family homes on First Nations reserve land). | |||
**'''Family law dispute''' is a defined term from the ''Family Law Act'' meaning any dispute respecting a matter to which the ''Family Law Act'' itself relates. The term does not really show up in the Supreme Court Family Rules or the Provincial Court Family Rules. It should not be confused with ''family dispute resolution process'' (which appears in the ''Divorce Act''), or ''family dispute resolution professional'' (which appears in the ''Family Law Act'' and the family rules of both courts). | |||
**'''Divorce proceeding''' is defined in the ''Divorce Act'' and means a "proceeding" where either or both spouses seeks a divorce order, either on its own or along with a child support order, a spousal support order, or a parenting order. The Provincial Court cannot hear ''Divorce Act'' proceedings, so this term is only applicable in BC Supreme Court. | **'''Divorce proceeding''' is defined in the ''Divorce Act'' and means a "proceeding" where either or both spouses seeks a divorce order, either on its own or along with a child support order, a spousal support order, or a parenting order. The Provincial Court cannot hear ''Divorce Act'' proceedings, so this term is only applicable in BC Supreme Court. | ||
**'''Corollary relief proceeding''' is defined in both the ''Divorce Act'' and the Supreme Court Family Rules and means a "proceeding" where either or both ''former spouses'' (i.e. people who are already divorced) seek a child support order, a spousal support order, or a parenting order under the ''Divorce Act'' (so not the ''Family Law Act''). The Provincial Court cannot hear ''Divorce Act'' proceedings, so this term is only applicable in BC Supreme Court. | **'''Corollary relief proceeding''' is defined in both the ''Divorce Act'' and the Supreme Court Family Rules and means a "proceeding" where either or both ''former spouses'' (i.e. people who are already divorced) seek a child support order, a spousal support order, or a parenting order under the ''Divorce Act'' (so not the ''Family Law Act''). The Provincial Court cannot hear ''Divorce Act'' proceedings, so this term is only applicable in BC Supreme Court. | ||
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* '''Trial:''' The court makes its final decision about the orders the parties request in their claim and counterclaim at trial. A trial is a formal hearing where the parties and their lawyers (if they have them), appear before a judge and present their evidence by calling on live witnesses to give testimony. The parties or their lawyers provide their argument (submissions) which tells the court why it should make the orders listed in their claim or counterclaim. In BC Supreme Court, a summary trial is the same as a trial except that the evidence from parties and their witnesses is given by affidavit, as opposed to each person appearing in-person to tell the court their evidence. A BC Supreme Court summary trial can resolve some or all of the orders the parties are asking for in their claim or counterclaim. For simplicity, when we use the term ''trial'', we refer to both summary trials and traditional trials. | * '''Trial:''' The court makes its final decision about the orders the parties request in their claim and counterclaim at trial. A trial is a formal hearing where the parties and their lawyers (if they have them), appear before a judge and present their evidence by calling on live witnesses to give testimony. The parties or their lawyers provide their argument (submissions) which tells the court why it should make the orders listed in their claim or counterclaim. In BC Supreme Court, a summary trial is the same as a trial except that the evidence from parties and their witnesses is given by affidavit, as opposed to each person appearing in-person to tell the court their evidence. A BC Supreme Court summary trial can resolve some or all of the orders the parties are asking for in their claim or counterclaim. For simplicity, when we use the term ''trial'', we refer to both summary trials and traditional trials. | ||
* '''Costs:''' This has a specific meaning in BC Supreme Court. ''Costs'' are what one party must pay another party based on a formula set out in the Supreme Court Family Rules. Costs are usually payable by the unsuccessful party, but costs orders can also be made against parties that behave poorly or act unreasonably. Since a party might receive a costs award in one application where they were successful, have mixed success in another application, then be unsuccessful at trial, etc., costs are usually tallied up and sorted out after litigation has ended. Parties may then settle costs by agreement, or go before the Registrar to have them determined for them. Costs mean that there are some financial consequences for pursuing a weak claim (or resisting a stronger one), but costs will almost never compensate even the most successful party for what they actually spent on legal fees and other expenses. Judges retain a lot of discretion to decide costs consequences for specific hearings, deprive or reward costs for parties, and use costs as a mechanism to discourage unreasonable behaviour. | * '''Costs:''' This has a specific meaning in BC Supreme Court. ''Costs'' are what one party must pay another party based on a formula set out in the Supreme Court Family Rules. Costs are usually payable by the unsuccessful party, but costs orders can also be made against parties that behave poorly or act unreasonably. Since a party might receive a costs award in one application where they were successful, have mixed success in another application, then be unsuccessful at trial, etc., costs are usually tallied up and sorted out after litigation has ended. Parties may then settle costs by agreement, or go before the Registrar to have them determined for them. Costs mean that there are some financial consequences for pursuing a weak claim (or resisting a stronger one), but costs will almost never compensate even the most successful party for what they actually spent on legal fees and other expenses. Judges retain a lot of discretion to decide costs consequences for specific hearings, deprive or reward costs for parties, and use costs as a mechanism to discourage unreasonable behaviour. | ||
* '''Judge:''' Both levels of court have their own judges. In the BC Supreme Court there are a few different judicial roles relevant to family law actions. In BC Supreme Court, the term ''judge'' typically refers to a full ''Justice'' of the court, someone with the power to make final or interim decisions for any type of claim, and under any kind of procedure. An ''Associate Judge'' (formerly called a ''Master'' of the court) has more restricted jurisdiction, but is an important judicial officer especially for family law | * '''Judge:''' Both levels of court have their own judges. In the BC Supreme Court there are a few different judicial roles relevant to family law actions. In BC Supreme Court, the term ''judge'' typically refers to a full ''Justice'' of the court, someone with the power to make final or interim decisions for any type of claim, and under any kind of procedure. An ''Associate Judge'' (formerly called a ''Master'' of the court) has more restricted jurisdiction, but is an important judicial officer especially for family law cases in the BC Supreme Court. Associate judges can hear and decide on ''interim applications'' (where interim and procedural orders are made) but they cannot preside at trial or issue a ''final judgment''. The other judicial role within the BC Supreme Court to be aware of is that of the ''Registrar'', who can preside over limited and specific types of hearings (e.g. hearings to settle costs). The kind of BC Supreme Court judge that might hear your application depends on the orders you are asking the court to make. In the litigation chapters "judge" is used to refer to all types of judges in both courts. | ||
===The court process in a nutshell=== | ===The court process in a nutshell=== | ||
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Section 8 of the Rules clearly states that “parties may come to an agreement or otherwise reach resolution about family issues at any time”. That means that even if it’s the morning of your trial and you’re all ready to go, you and your ex can decide to settle without going to trial. | Section 8 of the Rules clearly states that “parties may come to an agreement or otherwise reach resolution about family issues at any time”. That means that even if it’s the morning of your trial and you’re all ready to go, you and your ex can decide to settle without going to trial. | ||
The new Rules have also divided various courthouse registries into different categories. For example, Victoria is an ''Early Resolution Registry'', Nanaimo is a ''Family Justice Registry'', and Prince George is a ''Parenting Education Program Registry''. Each type of registry has different requirements and for Early Resolution Registries, parties have to try mediation before proceeding to court (unless the court agrees that mediation isn’t appropriate). For more information about each type of registry, see the section on [[Starting | The new Rules have also divided various courthouse registries into different categories. For example, Victoria is an ''Early Resolution Registry'', Nanaimo is a ''Family Justice Registry'', and Prince George is a ''Parenting Education Program Registry''. Each type of registry has different requirements and for Early Resolution Registries, parties have to try mediation before proceeding to court (unless the court agrees that mediation isn’t appropriate). For more information about each type of registry, see the section on [[Starting and Responding to Provincial Court Family Law Proceedings]], under the heading Early Resolution Registries. | ||
No matter the registry in which you find yourself, there are certain steps you have to take before you’ll be able to argue before a judge. In most cases, the first time that parties will be before a judge will be at what’s called a ''Family Management Conference'' (also called an “FMC”), which is a settlement-focused appearance. If settlement isn’t possible at the FMC, the judge can make orders (by consent or not), make interim orders to address needs until resolution is reached, and determine next appropriate steps. Parties can also attend settlement conferences, where a judge can help the parties see if any or all issues can be settled before trial. | No matter the registry in which you find yourself, there are certain steps you have to take before you’ll be able to argue before a judge. In most cases, the first time that parties will be before a judge will be at what’s called a ''Family Management Conference'' (also called an “FMC”), which is a settlement-focused appearance. If settlement isn’t possible at the FMC, the judge can make orders (by consent or not), make interim orders to address needs until resolution is reached, and determine next appropriate steps. Parties can also attend settlement conferences, where a judge can help the parties see if any or all issues can be settled before trial. | ||
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===Legislation=== | ===Legislation=== | ||
* [ | * [https://canlii.ca/t/b8rn Provincial Court Family Rules] | ||
* ''[ | * ''[https://canlii.ca/t/849w Provincial Court Act]'' | ||
* [ | * [https://canlii.ca/t/8mcr Supreme Court Family Rules] | ||
* ''[ | * ''[https://canlii.ca/t/84d8 Supreme Court Act]'' | ||
* [ | * [https://canlii.ca/t/85bg Court of Appeal Rules] | ||
* ''[ | * ''[https://canlii.ca/t/84h4 Court of Appeal Act]'' | ||
* ''[ | * ''[https://canlii.ca/t/84h8 Court Rules Act]'' | ||
===Resources=== | ===Resources=== | ||
* [ | * [https://legalaid.bc.ca/services/family-law-legal-advice Legal Aid BC's Family LawLINE and duty counsel] information page | ||
* [https://www. | * Legal Aid BC's Family Law website information on Provincial Court process: | ||
* [https://www. | ** [https://family.legalaid.bc.ca/bc-legal-system/court-orders/get-order-bc/provincial-court/get-new-family-order-provincial-court-if Get a new family order in Provincial Court if you can’t agree] | ||
* [https://www. | ** [https://family.legalaid.bc.ca/bc-legal-system/provincial-court-registries Provincial Court registries] | ||
* ''[ | ** [https://www.familylawinbc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial Complete a Provincial Court Financial Statement (Form 4)] | ||
** [https://www.familylawinbc.ca/finances-support/child-spousal-support/what-financial-disclosure What is financial disclosure?] | |||
* Legal Aid BC's Family Law website information on BC Supreme Court process: | |||
** [https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court Trials in Supreme Court] | |||
** [https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/schedule-and-prepare-your-supreme-court Going to trial in Supreme Court] | |||
** [https://www.familylawinbc.ca/bc-legal-system/court-orders/change-order-or-set-aside-agreement-made-bc/change-order-or-set-aside Change an order or set aside an agreement in Supreme Court] | |||
** [https://www.familylawinbc.ca/bc-legal-system/court-orders/enforce-order-or-agreement-made-bc/enforce-parenting-agreement-or Enforce a parenting agreement or order in Supreme Court] | |||
* [https://www2.gov.bc.ca/gov/content/justice/courthouse-services/documents-forms-records/court-forms/prov-family-forms Provincial Court Family Forms and Guidebooks] from the Ministry of Attorney General | |||
* [https://provincialcourt.bc.ca/navigating-court-case/family/family-orders-picklists Family Orders Picklist], with standard terms for Provincial Court orders | |||
* [https://justice.gov.bc.ca/apply-for-family-order/ Family Law Act Online Forms Service], a guided pathway for completing Provincial Court family law forms | |||
* [https://www.clicklaw.bc.ca/resources/memorandum-court-self-represented-litigants-trial-procedure-civil-and-family-cases Memorandum from the Court to Self-Represented Litigants: Trial Procedure in Civil and Family Cases] from the BC Supreme Court | |||
* [https://cjc-ccm.ca/en/what-we-do/initiatives/representing-yourself-court Canadian Judicial Council (CJC)'s online guides], especially the ''Family Law Handbook'' | |||
* ''[https://www.worldcat.org/oclc/436259309 Tug of War]'' by Mr. Justice Brownstone | |||
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF) by John-Paul Boyd | * "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF) by John-Paul Boyd | ||
* [https://www.bccourts.ca/supreme_court/self-represented_litigants/ Self-Represented Litigants] information page from BC Supreme Court | |||
===Links=== | ===Links=== | ||
* [https://provincialcourt.bc.ca/news-notices-policies-and-practice-directions/notices-policies-practice-directions Provincial Court Practice Directions] | |||
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions] | |||
** [https:// | * [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices] | ||
* [https://www.bccourts.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives] | |||
* [https://www.bccourts.ca/ Courts of British Columbia website] | * [https://www.bccourts.ca/ Courts of British Columbia website] | ||
* [https://www.provincialcourt.bc.ca/ Provincial Court website] | * [https://www.provincialcourt.bc.ca/ Provincial Court website] | ||
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* [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling] | * [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling] | ||
* [https://www.bccourts.ca/Court_of_Appeal/ Court of Appeal website] | * [https://www.bccourts.ca/Court_of_Appeal/ Court of Appeal website] | ||
