Resolving Family Law Problems in Court

What's the court process going to be like?

If you need the court to make an order about something, even about something you might agree to, like a divorce, you must start a court proceeding. Court proceedings are also called cases, lawsuits, and actions. There are two types of court proceedings, criminal matters and civil matters. Criminal matters concern the government's claim that someone has broken a criminal law, like the Criminal Code or the Controlled Drugs and Substances Act. Civil matters concern claims between people, companies and governments. Family law cases are civil matters.

A few definitions

Before going further, it'll help to learn some of the terminology used in litigation. (You can call find more definitions in the Common Legal Words and Phrases chapter of this resource.)

• Family law proceeding: A court proceeding that is started to resolve a family law dispute, and other civil claims related to that dispute.
• Claimant or Applicant: The person who starts a court proceeding in the Supreme Court is the claimant. In the Provincial Court, this person is the applicant. (In this section, "claimant" refers to both claimants and applicants.)
• Respondent: The person or people against whom a court proceeding is brought are the respondents.
• Parties: The claimant and the respondent are, together, called the parties to the court proceeding.
• Claim or Application: The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family Claim or, less often, a Petition. In the Provincial Court, court proceedings are started with an Application About a Family Law Matter. (In this section, "claim" refers to all of these documents.)
• Reply and Counterclaim: A respondent who objects to all or some of the orders sought by a claimant in the Supreme Court will file a Response to Family Claim and sometimes a Counterclaim: A Counterclaim lets a respondent make claims of their own against a claimant. In the Provincial Court, a respondent will file a Reply to an Application about a Family Law Matter, which includes a section to make a counterclaim against an applicant. (In this section, "reply" refers to all of these documents.)
• Pleadings: The basic documents that are used to start and reply to a court proceeding are called the pleadings. In most Supreme Court family law proceedings, the pleadings are the Notice of Family Claim, the Response to Family Claim, and, usually, a Counterclaim. In most Provincial Court proceedings, the pleadings are the Application About a Family Law Matter and the Reply to an Application about a Family Law Matter.
• Trial: The formal hearing of a claim, a response to a claim and a counterclaim by a judge, following which the judge makes an order resolving all of the claims and counterclaims made in the court proceeding.

The court process in a nutshell

Visit Legal Aid BC's Family Law website to learn about the current Provincial Court process. Proceedings in the Supreme Court, other than proceedings in criminal matters, work more or less as follows.

The claimant starts the proceeding. The person who wants a court order, the claimant, starts a court proceeding by filing a claim in court and serving the filed claim on the respondent. The claims says what orders the claimant wants the court to make. Serving the filed claim involves having the claim hand-delivered to the respondent by someone other than the claimant.

The respondent files a response. The respondent has a certain amount of time after being served to reply to the court proceeding by filing a response in court. (The number of days is set out in the document filed by the claimant to start the court proceeding.) The response says which of the orders sought by the claimant are agreed to by the respondent and which are opposed. The respondent can also ask the court for orders they want. If the respondent wants a court order, the respondent will file a claim of their own, called a counterclaim. The response and any counterclaim must be delivered to the claimant.

The claimant files a reply. The claimant has a certain amount of time after receiving the counterclaim to reply to any claim made by the respondent by filing a reply in court. The reply says which of the orders sought by the respondent are agreed to by the claimant and which are opposed. The claimant's reply must be delivered to the respondent.

The parties exchange information. Next, the parties gather the information and documents they need to explain why they should have the orders they are asking for. Because trials are not run like an ambush, the parties must exchange their information and documents well ahead of trial. This way everyone knows exactly what is going on and how strong each person’s case is. There are different processes in Supreme Court and Provincial Court for exchanging information. For more details, see the section Starting a Court Proceeding in a Family Matter in this chapter.

The parties attend case conferences. Case conferences are meetings with judge to talk about the court proceeding. They often provide an opportunity to talk about settlement option and to ask for orders about steps in the court proceeding as the proceeding heads to trial. For more about case conferences, see the section about Case Conferences in this chapter.

Each party answers questions out of court. In court proceedings before the Supreme Court, each party is usually required to attend an examination for discovery. This is an opportunity for each party to ask the other parties questions about things that are relevant to the legal issues so that everyone knows the evidence that will be given at the trial. This is also an opportunity to ask each party to provide more documents.

Go to trial. Assuming that settlement isn't possible, court proceedings are resolved by trials. At trial, each of the parties presents their evidence and explains to the judge why the judge should make the orders they're asking for. The judge may make a decision resolving the decision on the spot; most often, however, the judge will want to think about the evidence and the parties' arguments and will give a written decision later, often weeks or even months later.

Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process. You can even decide to try mediation in the middle of a court proceeding, and, if you are getting tired of the court process or are worried about how long it will take to have a trial, you can abandon the court process altogether and go to arbitration.

While working your way through the court process, you may find that it's sometimes necessary to ask for interim orders. These are temporary orders that address a short-term problem or need, or that help the court proceeding get to trial. In family law cases, people often ask for interim orders to protect someone when family violence is an issue, to deal with the payment of child support or spousal support, to get a parenting schedule in place, to determine how the children will be cared for, or to protect property while waiting for the trial.

The process for interim orders is a miniature version of the larger process for getting a claim to trial.

The applicant starts the application. The person who wants the interim order, the applicant, starts the application process by filing an application and an affidavit in court, and delivering the filed application and affidavit on the other party, called the application respondent. The application describes the orders the applicant wants the court to make. The affidavit describes the facts that are relevant to the application and the orders the applicant is looking for. For more information about affidavits, see the page, How Do I Prepare an Affidavit?, in the Helpful Guides & Common Questions part of this resource.

The application respondent files a response. The application respondent, the person who is responding to the application, has a certain amount of time after receiving the application and affidavit to file a response and an affidavit in court. The response says which orders the person agrees to and which they object to. The affidavit describes any additional facts that are important to the application. The response and affidavit must be delivered to the applicant.

The applicant may file another affidavit. The applicant has a certain amount of time after receiving the application respondent's materials to file another affidavit in court. This affidavit is a response to the application respondent's affidavit and describes any additional facts that are important to the application. This affidavit must be delivered to the application respondent.

Go to the hearing. Assuming that settlement isn't possible, the only way to resolve the application is to have a hearing. At the hearing, each of the parties will present the evidence set out in their affidavits and explain to the judge why the judge should, or shouldn't, make the orders asked for. Most of the time the judge will make a decision resolving the decision on the spot; sometimes, however, the judge will want to think about the evidence and the parties' arguments, and will give a written decision later.

For more details see the section Interim Applications in this chapter.

There are lots of details we've skipped over in this brief overview, including details about important things like experts, case conferences, and the rules of evidence, but this is the basic process in a nutshell. These other details are governed by each court's set of rules. The rules of court are very important, and the rules of the Provincial Court are very different than the rules of the Supreme Court.

You can probably guess that getting a court proceeding to trial can be a long and involved process, and that if you have a lawyer representing you, it'll cost a lot of money to wrap everything up. Making these procedural delays worse, trial dates are often in short supply. In Vancouver, for example, you may not be able to get dates for a one-week trial any sooner than 18 months.

It's important to remember that you and the other party can agree to resolve your dispute out of court at any time in this process. If you haven't done so already, please read the chapter Resolving Family Law Problems out of Court.

Rules promoting settlement

Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial; in fact, the number of civil court proceedings in the Supreme Court of British Columbia that are resolved by trial is less than 5%! There are a few reasons why this is the case. First, trials are time-consuming and expensive. Second, you can never be absolutely sure what the result is going to be. You're always rolling the dice when you go to trial. Third, you can usually find a way to settle a dispute sooner than the first available trial date.

It also helps that the rules of court — both the Provincial Court Family Rules and the Supreme Court Family Rules — are written to promote settlement and find ways of pushing litigants toward the offramps that lead away from trial. (It says something, I think, that the rules of the province's two trial courts are designed to discourage trials.) This section talks about these offramps, the rules that are intended to encourage people to propose settlement options, the rules that provide judges to help people negotiate settlements, and the rules that penalize people for going to trial without fully thinking things through.

Introduction to rules promoting settlement

There are many reasons why it's important to resolve family law disputes other than by trial. From the court's point of view, when separated spouses or parents are able to reach a settlement of their legal problems, their agreement:

1. helps to protect the children from their ongoing conflict
2. frees up valuable judicial and administrative resources for other cases, and,
3. decreases the likelihood that the dispute will require ongoing court hearings in the future.

From the point of view of the spouses or parents involved in the dispute, making an agreement:

1. is cheaper and faster than going to trial,
2. is more likely to give you more of what you want than a judicial decision,
3. shows you and your ex that you can resolve even difficult disputes on your own, and
4. resolves disputes and lets you move on with your life more quickly.

Settling a family law dispute gives spouses or parents a lot more personal control and creativity about the resolution of their dispute than is possible in court. It also gives everyone the best chance of being able to work together in the future.

(Lawyers also have an interest in settling matters, believe it or not, for all of the same reasons as the courts and the parties. As well, lawyers have a professional and an ethical duty to pursue settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This duty is so important that it has been written into lawyers' Code of Professional Conduct.)

The legislation on family law and the rules of court for family law proceedings have evolved over the last two or three decades to provide additional opportunities and incentives for settlement, and steer people out of court and away from trial whenever possible. In fact, the first division of Part 2 of the provincial Family Law Act is titled "Resolution Out of Court Preferred," and begins with a statement in section 4 which says that the purposes of the Part are to:

(b) to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court;

(c) to encourage parents and guardians to

(i) resolve conflict other than through court intervention, and

(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.

Under section 8(2), lawyers are required to "discuss with the party the advisability of using various types of family dispute resolution to resolve the matter." (That awful, clumsy term family dispute resolution is defined in section 1(1) as including mediation, arbitration, and collaborative negotiation.) Lawyers have the same sort of obligation under section 7.7 of the federal Divorce Act:

(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

(b) to inform the person of the family justice services known to the legal adviser that might assist the person

(i) in resolving the matters that may be the subject of an order under this Act, and

(ii) in complying with any order or decision made under this Act; and

(c) to inform the person of the parties’ duties under this Act.

Whether or not your lawyer gives you this encouragement or information, section 7.3 of the Divorce Act requires you, and the other parties to your court proceeding, to at least try to resolve your disagreements out of court:

To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

In general, you should try to resolve a court proceeding without going to trial if you can. However, your settlement, whether it's reached with the help of a judge or not, must be fair and reasonable and roughly within the range of what would have happened if the issues in your proceeding had been resolved at trial. While it's always a relief to wrap up a court proceeding, if the settlement is really unfair to either party a return to court may be inevitable!

The Provincial Court

In 2021, BC received a complete overhaul of its Provincial Court Family Rules. Visit Legal Aid BC's Family Law website for more guidance on what the new rules require you to do, and how this can change depending on where you are located. The purpose of the revamped Rules is aimed at promoting settlement, helping parties resolve their case by agreement, or to help them obtain a fair outcome in way that minimizes conflict and promotes cooperation between parties.

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, Vancouver (Robson Square) is a Family Justice Registry, and Abbotsford is a Parenting Education Program Registry. For more information of each of these types of registry, see the section on Starting a Court Proceeding in a Family Matter, 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.

A notable difference between Supreme Court and Provincial Court is that costs are not payable in Provincial Court. That said, a word of caution: if a judge decides that cross examining an expert witness was unnecessary, then the party who decides to cross examine that expert can be responsible for the costs associated with that, which can be in the thousands of dollars.

The Supreme Court

The rules of the Supreme Court allow the court to refer people to other dispute resolution services, much like the rules of the Provincial Court. In addition to offering carrots like this, the Supreme Court Family Rules also include a stick or two. The biggest stick is the court's jurisdiction to make an order about costs. An order for "costs" is an order that one party pay for some or all of the expenses another party incurred dealing with the court proceeding. Costs are usually, but not always, awarded to the party who is most successful at trial. They can also be awarded to punish bad behaviour in the course of a court proceeding, or to penalize a party who failed to accept a reasonable settlement proposal.

Judicial case conferences

Rule 7-1 requires that the parties to a court proceeding attend a judicial case conference before they can send a Notice of Application or an affidavit to another party. This usually has the effect of making judicial case conferences a mandatory part of all family law cases in the Supreme Court. A judicial case conference, usually referred to as a "JCC," is a relatively informal, off-the-record, private meetings between the parties, their lawyers, and a master or judge in a courtroom.

Rule 7-1(15) gives the court a broad authority to take steps and make orders to promote the settlement of the court proceeding. Among other things, the master or judge may:

1. identify the issues that are in dispute and those that are not in dispute and explore ways in which the issues in dispute may be resolved without recourse to trial;
2. mediate any of the issues in dispute; and,
3. without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

What's really cool about JCCs is that, under Rule 7-1(1), "a party may request a judicial case conference at any time, whether or not one or more judicial case conferences have already been held in the family law case." If there's a chance of settlement as you head toward trial, take advantage of this rule and book another JCC!

JCCs are discussed in more detail in the Case Conferences section of this chapter.

Settlement conferences

Settlement conferences are available under Rule 7-2 at the request of both parties. Settlement conferences are are relatively informal meetings between the parties, their lawyers, and a master or judge that are solely concerned with finding a way to settle the court proceeding.

Settlement conferences are private and are held in courtrooms that are closed to the public. Only the parties and their lawyers are allowed to attend the conference, unless the parties and the judge all agree that someone else can be present. They are held on a confidential, off-the-record basis, so that nothing said in the conference can be used against anyone later on.

Offers to settle

You can make a formal offer to settle at any time during a court proceeding. An "offer to settle" is a proposal about how all of the claims made in the claimant's Notice of Family Claim and in the respondent's Counterclaim will be wrapped up. A party receiving an offer to settle can decide to accept the offer or to refuse it. There are, however, important consequences for refusing a reasonable offer under Rule 11-1 that we'll talk about in a second.

It's important to know, first, that offers to settle are private and confidential. The point of this is to let someone make an offer to resolve a court proceeding without being held to that position if the offer is rejected and the case goes to trial. You want to be able to make a serious proposal that offers to compromise your position without being stuck with that compromise at trial. In fact, Rule 11-1 expressly states that no one can tell a judge that offer has been made until the case is wrapped up:

(2) The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the family law case, until all issues in the family law case, other than costs, have been determined.

The stick shows up in subrules (5) and (6) when comparing the results of the trial against the terms of an offer to settle that was refused. These parts of Rule 11-1 say that:

(5) In a family law case in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle;

(b) award double costs of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle;

(c) award to a party, in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d) if the party who made the offer obtained a judgment as favourable as, or more favourable than, the terms of the offer, award to the party the party's costs in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle.

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

Let's break this down a bit. What these subrules essentially say is that even if you were successful at trial, you may have to pay costs to the other side if their offer to settle was better than, or as good as, the result of the trial! The court may decide to:

1. withhold an award of costs that you would normally be entitled to;
2. make you pay some or all of the costs of the other side; and,
3. make you pay double the normal costs of the other side after the date the offer was delivered to you.

Ouch. It pays to pay attention to an offer to settle.

To qualify as an offer to settle under Rule 11-1 an offer must:

1. be in writing;
2. be served on all parties to the court proceeding; and,
3. include this sentence

"The [Claimant or Respondent], [name of party], reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."

An offer to settle must meet these requirements if the party making the offer is going to ask the court for a costs order under Rule 11-1(5).

Costs

In the Supreme Court, a party may ask for their costs of an application, of a trial or of the whole of a court proceeding under Rule 16-1. "Costs" are a partial payment of the expenses and legal fees incurred by a party to a court proceeding, and are calculated under a schedule included in the Supreme Court Family Rules. Costs normally don't amount to more than approximately 30% of a party’s actual legal fees.

Normally, the party who gets most of what they asked gets an order that the other side pay their "costs," but there are exceptions. In general, costs are a sort of idiot tax designed to punish a litigant who has unreasonably started or defended a court proceeding. Say, for example, you were hit by a car and you sue the driver for $10,000. Here are some possible outcomes and how costs might work if the driver refuses to pay and defends your claim.

• You are successful at trial and get an award of $10,000. You would get your costs because the driver was an idiot for refusing to pay the money you asked for and making both of you go through a trial.
• You are successful at trial and get an award of $1,000. Even though you were successful, the driver would probably get their costs because you had demanded an unreasonable amount and the driver was right to defend your claim. You were an idiot for asking for too high an amount of money, which forced the driver to go through a trial.
• You are unsuccessful at trial. The driver would get their costs because you were an idiot for suing the driver in the first place. Your unreasonable behaviour forced the driver to go through a trial.

The schedule that is used to calculate the amount of costs payable is in Appendix B of the Supreme Court Family Rules. Under that schedule, you get a specific amount of money for specific steps taken in a court proceeding. The amount you get varies depending on whether the court proceeding was of less than ordinary difficulty, of ordinary difficulty, or of more than ordinary difficulty. "Ordinary difficulty" is the default if the court that makes a costs order makes no order about the difficulty of the court proceeding. Here's the list of those steps and the amounts payable depending on difficulty:

In addition to costs calculated under the schedule, a party who gets their costs also usually gets reimbursed for the money they spent on reasonable and necessary disbursements as well. Disbursements are out-of-pocket expenses for things like court filing fees, witness fees, transcripts, experts’ fees, photocopies, couriers, postage, and the like.

The likelihood of a cost award being made after a hearing or trial can provide a strong incentive for people to try and settle their court proceeding. It can encourage parties to be more reasonable in their positions and try to reduce the number of issues that need court intervention.

For more information about costs, see the Legal Services Society's Family Law website's information page If you have to go to court under the section "Costs and expenses."

The Notice to Mediate Regulation

Under the Notice to Mediate (Family) Regulation, someone who is a party to a court proceeding in the Supreme Court can make the other parties go to mediation by serving a Notice to Mediate on them.

A Notice to Mediate must be served at least 90 days after the Response to Family Claim is filed but at least 90 days before the scheduled trial date. Once the Notice is served, the parties must attend mediation unless:

1. a party has triggered a mediation meeting using a Notice to Mediate;
2. there is a protection order against a party;
3. the mediator decides that the mediation is not appropriate or will not be productive; or,
4. the court orders that a party is exempt because, in the court’s opinion, it is "impracticable or materially unfair" to require the party to attend.

The Notice to Mediate (Family) Regulation provides the guidelines for proceeding with the mediation. In a nutshell:

1. the parties must jointly appoint a mediator within 14 days after service of the Notice to Mediate, and if they can't agree on a mediator, any of them may apply to a roster organization for the appointment of a mediator;
2. the mediator must have a pre-mediation meeting with each party to screen for power imbalances and family violence, and talk about preparing for the mediation;
3. the parties sign the mediator's participation agreement; and,
4. the parties attend a mediation meeting, which concludes when the legal issues are resolved or when "the mediation session is completed and there is no agreement to continue."

It seems unlikely that a mediation that people are forced to attend could produce a settlement. However, even compulsory mediation sometimes works. While no one is going to be happy being compelled to do something they'd rather avoid, if the process results in a settlement, it's probably worth it. The time and money spent on the mediation process will be a fraction of the time and money you'll spend on trial.

Resources and links

Legislation

• Provincial Court Family Rules
• Provincial Court Act
• Supreme Court Family Rules
• Supreme Court Act
• Court of Appeal Rules
• Court of Appeal Act
• Court Rules Act

Resources

• Provincial Court Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Court of Appeal Practice Directives
• Tug of War by Mr. Justice Brownstone
• "The Rights and Responsibilities of the Self-Represented Litigant" (PDF) by John-Paul Boyd

Links

• Legal Aid BC's Family Law website information on Provincial Court process:
  • Get a new family order in Provincial Court if you can’t agree
  • Provincial Court registries
• Courts of British Columbia website
• Provincial Court website
• Supreme Court website
• Supreme Court Trial Scheduling
• Court of Appeal website
• Guidebooks from the BC Supreme Court website
• Justice Education Society's Court Tips for Parents (videos)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 3 April 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.