Provincial (Family) Court

What is Family Court?

Family Court is a division of the British Columbia Provincial Court. Other divisions of the Provincial Court deal with criminal, traffic and small claims cases. Provincial Court judges hear family law cases, youth and adult criminal cases and small claims cases. Provincial Court might have a separate courtroom where family law cases are heard, or family law cases might be heard in one of the regular courtrooms on a particular day of the week. Usually there is a day each week or every other week when the court will hear family law and child protection cases.

To find the nearest Provincial Court, look in the blue pages of the phone book under “C” for courts.

What does Family Court handle?

Family Court deals with a limited number of family law issues under the provincial Family Law Act, including:

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

Family Court also deals with child protection cases with the Ministry for Children and Family Development under the provincial Child, Family and Community Service Act.

Family Court does not deal with family law issues under the federal Divorce Act, including divorce, family property, custody, adoption and family debts.

Who can apply to Family Court?

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

What issues have to go to Supreme Court?

Family Court cannot give a divorce, it cannot divide property or debts, it cannot make orders about family property, it cannot change an order that was made under the Divorce Act and it cannot make adoption orders. These matters have to be taken to Supreme Court if an order has to be made. The Supreme Court can deal with all family law issues, including all of the issues that the Provincial Court deals with.

Although both courts can make orders about child care and child support, the Supreme Court will generally not make an order about an issue that has already been decided by the Provincial Court, except where the Provincial Court decision is being appealed to the Supreme Court.

Appearing without a lawyer in Family Court

There is no rule that people have a lawyer when they are going to court. The Family Court Rules are written in plain language and the court’s forms are easy to fill out.

Why go to Family Court?

Family Court can make orders about child care, child support, spousal support and protection orders. Family Court has other advantages:

• Family Justice Counsellors are available to help to resolve some family law issue. Their services are free.
• The court forms are easier to fill out than Supreme Court forms.
• No court fees are charged.
• The rules of court are much simpler than the rules of the Supreme Court.
• Duty counsels are sometimes available to help people who don’t have their own lawyer.

The first step is to go to the courthouse and talk to the clerk at the family law counter

Different registries of the Family Court have different rules about how cases get started. Some registries require that parties meet with a Family Justice Counsellor before they can see a judge. Other registries require parties to take the Parenting After Separation course before they can see a judge. The clerk at the family law counter can provide valuable information how start a case and what to do to see a judge.

Family Justice Counsellors aren’t lawyers, but they are trained to deal with family law issues in Family Court. They can help families with guardianship of the child, parental responsibilities and parenting time, contact and support issues, and can help to resolve issues through negotiation and mediation. The counsellor may refer a party to a Legal Aid office or suggest hiring a lawyer. Contact information for the Family Justice Counsellors is given at the end of this script.

The Parenting After Separation program teaches parents how to make careful and informed decisions about their separation and to ensure that these decisions take into account the best interests of their child. Contact information for the Parenting After Separation program is given at the end of this script. It's a good idea to take the program whether the court requires it or not.

What to do if it’s an emergency?

There is a waiting time for an appointment to see a Family Justice Counsellor or for the next Parenting After Separation program. Be sure to tell the court clerk if the spouse or partner is violent. The clerk will explain how the Family Court can make a protection order without an appointment with a Family Justice Counsellor or the Parenting After Separation program.

How are Family Court cases resolved?

There are a few ways that family law cases are resolved.

• If the parties to the family law case can talk to each other, they may be able to settle their dispute through negotiation, mediation or a collaborative process. The settlement might be recorded in a written agreement or it might be recorded in an order that the parties agree the judge will make, called a consent order.
• If the parties cannot make a decision for themselves, a Family Court judge will make a decision following a hearing.
• The Family Law Act also allows people to resolve family law cases through arbitration. The decisions of arbitrators are called awards and are legally enforceable.

What is negotiation?

Negotiation is a bargaining process in which the parties try to reach an agreement about their dispute. People can negotiate with each other with lawyers helping them or without lawyers. Sometimes other family members, elders or other respected community members may help with the negotiation process.

What is mediation?

In mediation, an independent person meets with the parties to help them discuss their issues and find a settlement. Mediators don’t make decisions for people. They help them make decisions for themselves. Mediation may require two or more meetings to reach a settlement.

Family Justice Counsellors are trained mediators. Thus, parties can use a Family Justice Counsellor as their mediator or they can hire a private mediator. Family Law Mediators are lawyers with special training in mediation and can also be hired privately.

For more information on mediation, refer to Script 111 on “Mediation and Collaborative Settlement Processes”.

What are collaborative settlement processes?

Collaborative settlement processes are a kind of negotiation where the parties work with lawyers and agree that they will do everything possible to reach a settlement without going to court. The parties and the lawyers work together to find a settlement. Specialists like counsellors, child psychologists and financial experts may be used to help find a settlement. Collaborative processes are centered on the parties’ unique circumstances and the child’s best interests. The communications are open and transparent.

For more information on collaborative processes, refer to Script 111 on “Mediation and Collaborative Settlement Processes”.

If a settlement is reached, it should be put in writing

A settlement is an agreement. Agreements that resolve a family law issue must be written down. This helps people remember exactly what the settlement was and helps to stop people from changing their minds later on.

Written agreements that record the terms of settlement are usually called separation agreement. The terms of settlement can also be recorded by minutes of settlement, which are usually much shorter than separation agreements.

Agreements that are put into the form of a court order are called consent orders. Both parties must sign their written agreement or consent order. In the case of consent orders, an additional court form must be signed to show that the parties agree to the court making the order.

If a separation agreement or consent order is prepared without a lawyer, each party should get an independent legal advice from a lawyer before signing the agreement or order. It is very important that each party understands exactly what the agreement means and how it affects the legal rights and obligations. Having legal advice can help to protect a settlement if a party challenges the agreement in the future.

What is arbitration?

Arbitration is like going to court, except that parties choose and hire the arbitrator and they decide how the arbitration hearing will work. In other words, a family law arbitrator will make a binding decision to resolve family law issues out of court. Although parties will have to pay for the arbitrator, arbitration hearings are private and can often be scheduled sooner than court hearings.

Sometimes parties have to go to trial

If the parties cannot settle their family law issues and have to go to a trial, they will have a hearing before a Family Court judge where witnesses will give evidence and documents or other evidence will be presented. Often, the parties themselves are the only witnesses. After all of the evidence has been given to the judge, parties will make arguments to the judge and explain why the judge should make a particular order. The judge will then make an order resolving the issues.

What is a “family case conference”?

Before trial, the judge may ask the parties to attend a Family Case Conference to see if the dispute can be resolved without a trial. Family law cases are often resolved at these conferences, and when the parties are able to reach an agreement, the judge will make a consent order at the conference.

What is a “needs of the child assessment”?

If issues about the child care are disputed, the Judge may ask a Family Justice Counsellor or another person, like a social worker, a psychologist or a counsellor, to prepare a Needs of the Child Assessment. The assessor will write a report to the Judge about the needs of the child, the views of the child if the child is old enough, and the ability of the parties to meet the child’s needs.

These reports often describe the parenting arrangements that the assessor believes are in the best interests of the child. Because of high demand, reports prepared by Family Justice Counsellors can take a year or more to complete.

What is a “views of the child report”?

If issues about the care of a child who is at least six years old are disputed, the Judge may ask a Family Justice Counsellor or another person, like a lawyer with special training, a social worker, a psychologist or a counsellor, to prepare a Views of the Child Report. These reports describe the child’s views and wishes about their circumstances and their future. Views of the Child Reports prepared by Family Justice Counsellors, lawyers and social workers describe just what the child has told the counsellor or lawyer in a private meeting. Reports prepared by psychologists and counsellors may also give an opinion about the child’s wishes and views.

More information:

• For information about Family Court or to make an appointment with a Family Justice Counsellor, call Service BC at 604.660.2421 in Metro Vancouver, 250.387.6121 in Greater Victoria, and 1.800.663.7867 elsewhere in BC, and ask to be connected with the nearest Family Justice Centre.
• See the Family Justice website at www.justicebc.ca/en/fam/.
• Check on Parenting After Separation (PAS) program at www.justicebc.ca/en/fam/help/pas/. Call Service BC at 1.800.663.7867 for the nearest Family Justice Centre that can find the closest session.
• Also check online PAS course at http://parenting.familieschange.ca. This program, available in English, Chinese and Punjabi, is provided by Justice Education Society of BC.
• For more information about mediation or other alternatives to court see the Justice Access Center website at www.supremecourtselfhelp.bc.ca/alternatives.htm#family.

[updated February 2015]

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A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

In law, in British Columbia a person under the age of 19.

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

A term under the Family Law Act which describes the various rights, duties, and responsibilities exercised by guardians in the care, upbringing, and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "decision-making responsibility" and "guardian."

Under the Family Law Act, a term which describes the time a guardian has with a child and during which is responsible for the day-to-day care of the child. Under the Divorce Act, a term which describes the time a spouse has with a child and during which is responsible for the day-to-day care of the child. See "guardian" and "spouse."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

A term under the Family Law Act referring to property acquired by either or both spouses during their relationship, as well as after separation if bought with family property. Both spouses are presumed to be entitled to share equally in any family property. See "excluded property."

In family law, an antiquated term used by the old Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. Replaced in the new Divorce Act with the term decision-making responsibility." See "access," "decision-making responsibility" and "parenting time."

In family law, the act or process of taking another person's child as one's own. The child becomes the adopting parent's legal child as if the child were the adopting parent's natural child, while the natural parent loses all rights and obligations with respect to the child. See "natural parent."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

Something which can be owned. See "chattels" and "real property."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

The mandatory guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court.

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

In family law, the process by which an agreement is formed between the parties to a legal dispute resolving that dispute, usually requiring mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements."

A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."

In law, a person named as an applicant, claimant, respondent, or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."

In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

An order available under the Family Law Act for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting, or stalking a person, as well as orders restraining someone from going to a person's home, place of employment, or school. See "application," "ex parte" and "restraining order."

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

An order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make.

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

A dispute resolution process in which an arbitrator hears the evidence and arguments presented by the parties to a legal dispute and makes an award that resolves the dispute and is binding on the parties. The arbitration of family law disputes is governed by rules set out in Part 2, Division 4 of the Family Law Act. See "alternative dispute resolution" and "family law arbitrator."

A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."

A document setting out the essential terms of an agreement reached between two or more parties to a court proceeding, produced after negotiations and signed by the parties and their lawyers. Minutes of settlement are normally used as a guide to the preparation of a formal final agreement or final order, and are often attached to that agreement order as a schedule. See "consent order," "family law agreements," "litigant" and "order."

A lawyer or another person with special training in the arbitration of family law disputes who meets the training and experience requirements set out in the provincial Family Law Act Regulation. See "arbitration."

(1) In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time."