Court Procedures in Family Law (3:XV)

A. Limitation Dates

Spousal support can be claimed under the Divorce Act in a divorce proceeding or in a proceeding for corollary relief alone (ss 3, 4 and 15.2). There is no limitation period within which spouses or divorced spouses must bring a spousal support application.

Under FLA, unmarried spouses have two years to bring an application for division of assets or support after the separation, and married spouses have two years to do so after the divorce or declaration of nullity. Despite this, a spouse may make an application after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.

The limitation period for setting aside an agreement is delayed in that it does not run until the spousediscovers or ought to have discovered grounds for the application.

B. Supreme Court

The Supreme Court is the only court that hears actions under the DA. Under the FRA and FLA, the Supreme Court has both statutory and inherent jurisdiction to decide all support, division of property, custody, and access matters. Therefore, all FRA and FLA issues can be incorporated into a divorce action.

All Supreme Court procedures in family law proceedings are governed by the Supreme Court Family Rules effective July 1, 2010. (The Supreme Court Family Rules replace the former Rules of Court in respect of family law matters). Unless a client is familiar with these rules and able to strictly adhere to the formal procedures, this person should appear in Supreme Court with representation.

Actions are started when a claimant files a Notice of Family Claim or a Petition to Court. Matters may be decided through interlocutory applications or by trial. Interlocutory applications are hearings held in chambers. No witnesses are called. Instead, all evidence is taken from sworn affidavits. If the judge ormaster is satisfied with the credibility and substance of the evidence presented, then an interim order can be granted. A final order may be obtained at trial or by way of a summary trial on affidavit evidence ifthere are no serious issues of credibility.

C. Small Claims Court

Clients can enforce agreements concerning the division of assets between persons in a common law relationship and between those in other relationships in Small Claims Court. See Chapter 20: Small Claims Procedure for more details. Also, one may be able to make a trust claim in Small Claims Court.

D. Provincial (Family) Court

1. Jurisdiction

Provincial (Family) Court has jurisdiction under the FLA over matters of custody, access, support and guardianship, subject to the jurisdiction of the superior courts and the federal government. The FLA provides greater powers for the enforcement of Orders which are available to the Provincial Court. Provincial (Family) Court has jurisdiction over the enforcement of support orders whether made in Supreme Court or Provincial (Family) Court (Butler v Butler (1981), 27 BCLR 268 (BCCA)) and has original jurisdiction to make support orders and to vary or rescind its own orders. Provincial(Family) Court can also make, vary, rescind, or enforce its own custody/access orders, but does not have the power to make orders regarding occupancy of the family home (Polglase v Polglase (1982), 1 SCR 62). Where the Supreme Court has made an order respecting custody, access, support, or child support, Provincial (Family) Court will be unable to vary that order, although the Court can enforce the order.

The Provincial Court offers free counselling and mediation services to family members considering separation or divorce. The Family Justice Counsellors (who may also be probation officers) will try to help the parties reach agreement on contentious matters.

2. Contacting Provincial (Family) Court

Clients should phone Provincial Court (and ask for the Family Court Division) in advance to arrange an interview. An Intake Officer will speak with the client, and if the problem is something the Provincial Court deals with, the client will be assigned to a Counsellor and an appointment will be arranged.

For a list of Family Courts in the Lower Mainland, see Chapter 22: Referrals.

3. Family Justice Counsellors

One should understand that Family Justice Counsellors are not lawyers and do not necessarily know what the client’s rights and obligations are. Clients should seek legal advice before signing any agreement.

The Family Justice Counselling Service helps people seeking remedies for their family problems through the Court or through counselling and mediation services. The aim of the counsellors is not reconciliation. Where a couple indicates a willingness to restore the marriage, they will be referred to a marriage counsellor. There are also clerks who help clients understand and implement child support guidelines.

Counselling is non-adversarial. The counsellors are impartial third parties who will assist both spouses in coming to an out-of-court settlement, although the counsellors are not of a uniform quality and expertise. After gathering minimal information, the Counsellor will normally send a letterto the other spouse to advise him or her of the situation and try to set up a meeting with the first spouse and the counsellor. All information received from a spouse is private and confidential and willnot be given out except with the express permission of that person, or as required by law.

Counsellors attempt to avoid court disputes by obtaining a Consent Order. If this is not possible, pertinent details regarding custody and support will be obtained, and forms will be prepared for court.

The counsellors will:

• provide information regarding the court processes, available options, and current legislation;
• offer conciliation and mediation services;
• investigate the matters under dispute;
• help with court applications and general preparation for court; and
• screen for family violence situations and direct parties to the appropriate services.

The client can choose to avoid the counselling service and appear in court directly. The counsellor towhom the client has been assigned will still offer assistance with the application forms, etc. The Family Justice Counsellors can be reached at (604) 660-6828 (Vancouver) or (604) 660-8636 (Burnaby).

Family Justice Counsellors deal exclusively with issues of children and support. In limited circumstances, and for clients with assets or debt less than $25,000, a Family Justice Counsellor can mediate an agreement.

4. Provincial (Family) Court Proceedings

a) Application to Obtain an Order

Most proceedings in Provincial Court are commenced by filing an Application to Obtain an Order (Form 1). The application commences an action in Provincial Court, and requests a specific remedy. The application can be filed at either the court registry or in a family justice registry. For procedure see Provincial Court (Family) Rules.

The application must be filed with the registry, and must be personally served on the respondent by someone other than the applicant unless the judge orders otherwise. The following documents must be served with the filed copy of the application when it is served on the respondent:

• a blank reply form (Form 3);
• a blank financial statement form (Form 4), if the applicant is seeking an order for child, spousal or parental support or a variation of child, spousal or parental support; and
• a filed copy of the applicant’s financial statement and applicable documentation under Rule 4 (2), if applicable.

b) Reply

The respondent must file a reply within 30 days of being served with a copy of the application, or a default judgment may be sought in favour of the applicant. If the respondent disagrees with the remedy sought, he or she should be advised to obtain legal counsel to dispute the applicant’s claim.

The respondent must:

• complete a reply in Form 3, following the instructions on the form;
• file that reply, together with three copies of it, in the registry where the application was filed; and
• if applicable, file the original and three copies of the respondent’s financial statement and applicable documentation referred to in Rule 4 (2)(b).

In the reply, the respondent may:

• consent to one or more of the orders in the application;
• disagree with anything claimed in the application, stating the reasons for the disagreement;
• apply to the Court for child access, spousal support, or a restraining order prohibiting interference under the Family Relations Act; and/or
• apply to the Court for an order to change existing orders or agreements.

c) Family Justice Registries

Family Justice Registries are designated by Rule 1 of the Provincial Court (Family) Rules. Under the definitions in the Rules, "family justice registry" means the Vancouver (Robson Square), Surrey, Kelowna or Nanaimo registry. Under Rule 5, at these registries, the parties will be obliged to comply with additional requirements before the application is heard (unless the parties fall into the exception outlined in Rule 5(2)). Both parties will meet with a Family Justice Counsellor. If a settlement cannot be reached with the assistance of the counsellors, the matter will be referred to court.

For more information, see the website: http://www.ag.gov.bc.ca/family-justice/help/counsellors/index.htm.

d) Parenting After Separation Program

Pursuant to Rule 21 of the Provincial Court (Family) Rules, parties who file at a “designated registry” must also attend a Parenting After Separation Program if there is a dispute over issues respecting children. These include the following registries: Abbotsford, Chilliwack, Kamloops, Kelowna, Nanaimo, New Westminster, North Vancouver, Port Coquitlam, Prince George, Richmond, Surrey, Vancouver (Robson Square) and Victoria.

The program is a free three-hour session and open to all parents and others (for example, grandparents) where custody, guardianship, access, and support issues are involved. For more information, see: http://www.ag.gov.bc.ca/family-justice/help/pas/index.htm.

e) First Appearance

If the application is filed with the court registry, the clerk must serve the parties with notice of the time and place they are to attend court for a first appearance to fix a date for the hearing of the application. Note that this notice is titled “Trial Notice” although the matter is set for a fix-date hearing.

f) Pre-Trial Conferences

The parties may be ordered to hold a pre-trial conference during which the judge may rule on any issues not requiring evidence, make an order, discuss the procedure that will be followed at trial, order that certain evidence be produced, or make arrangements for disclosure of one party’s evidence to the other.

g) Family Case Conference

A judge may order a family case conference, or one may be requested. The conference is informal and off the record. The meeting is between the relevant parties and a judge and is intended to reach a settlement. Note that the judge has the authority to make orders whether or not the parties agree to the order. Rule 7 of the Provincial Court (Family) Rules governs Family Case Conferences.

h) Witnesses

Witnesses are summoned to the Court by subpoena. However, a subpoena is not necessary if the witness is prepared to appear in court voluntarily. If a subpoenaed witness does not appear in court, a warrant may be issued for his or her arrest. To require the attendance of a witness, a party must complete a subpoena in Form 15, and serve a copy of the subpoena on the witness personally at least seven days before the date the witness is required to appear.

In Provincial (Family) Court, the person who subpoenas the witness is responsible for that witness’ reasonable estimated travel expenses.

i) Affidavit Evidence

At trial, evidence may be given orally or by sworn affidavit. Evidence may be given by affidavit at a trial or hearing only if permission is granted by a judge (Rule 13), either on application brought by notice of motion under Rule 12 or under Rule 8(4)(g). This evidence must be in Form 17.

j) Notices of Motion

Three copies of a notice of motion (Rule 12) must be filed in the court registry and one copy must be served on the other parties at least seven days before the date for hearing the notice of motion in court when a party wishes:

• an interim order to be made (FLA s216);
• to file documents in another registry;
• to have a pre-trial conference;
• to cancel a subpoena;
• an order to produce documents;
• an order requiring that paternity tests be taken;
• to use another method of service (no notice required);
• to settle the terms of an order;
• to extend a time limit;

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