Family Law Litigation in Supreme Court

The Resolving Family Law Problems out of Court chapter tells you about the various options for resolving your family law dispute without having to go to court, including collaborative negotiation, mediation, arbitration.

If you have decided to start a court action, the general chapter on Resolving Family Law Problems in Court provides an overview of the two courts (BC Provincial Court or BC Supreme Court). That chapter explains which court is appropriate for specific kinds of family law dispute, and the pros and cons of each court. Deciding which court to start your action in is an important decision because once you have started in one court, you may not be able to move your family law action to the other court.

If you have decided to start in the BC Supreme Court, or if the other side has already started an action there, read this chapter to learn what the overall court process looks like, from start to finish.

A few definitions

Before going further, it will help if you learn some of the terminology used in family law litigation. (You can also find more definitions in the Common Legal Words and Phrases part of this resource.)

• Family law action: In general 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 to resolve a family law dispute. A family law action can still include other civil claims related to that family law dispute, but the BC Supreme Court treats family law actions differently from other general civil actions. A specific set of procedural rules (called the Supreme Court Family Rules) are applied, the forms are unique, and the court records are not as open to the public.

• Claimant: The person who starts a BC Supreme Court family law action is called the claimant. There can be more than one claimant, but we will use the singular for simplicity.

• Respondent: Any person a claimant names and seeks orders against in a BC Supreme Court family law action is called a respondent. There can be more than one respondent, but we will use the singular for simplicity.

• Parties: The claimant and the respondent are, together, called the parties to the court action (no matter how many actual claimants or respondents there might are).

• Claim: A claimant who wants to start a BC Supreme Court family law action files a Notice of Family Claim in that court. In some very specific circumstances, the claimant needs to file a Petition to the Court or a Requisition to start their court action instead of a Notice of Family Claim. In this section, "claim" refers to all of these documents (Notice of Family Claim, Petition to the Court, or Requisition). The claim usually includes a summary of the relevant facts alleged by the claimant, the laws the claimant says are relevant, and the claimant's list of the orders they want the court to make.

• Reply: A respondent who objects to all or some of the orders sought by a claimant in the BC Supreme Court will file a Response to Family Claim (if they were served with a Notice of Family Claim) or a Response to Petition (if they were served with a Petition to the Court). In this chapter, reply refers to either of these documents (Response to Family Claim, or Response to Petition). In their reply, the respondent states if they agree or disagree with (some or all of) the facts alleged by the claimant, and if they agree or disagree with (some or all of) the orders the claimant is asking for.

• Counterclaim: A respondent can give the court their own list of orders they want the court to make. In order to do this, they file a Counterclaim in addition to their Response to Family Claim (for claims started by a Notice of Family Claim). If they were served with a Petition to Court, the respondent will need to apply to court to convert the claim from a petition-based proceeding into a full action (typically the Petition to Court would then be deemed to be a Notice of Family Claim, and the respondent could then file a Response to Family Claim in addition to a Counterclaim). A counterclaim is similar to a claim: it provides a summary of the relevant facts of the family law action, the laws the respondent says are relevant, and the respondent’s wish list of the orders the respondent will want the court to make in the court action.

• Response to Counterclaim: A claimant who objects to all or some of the orders requested in the counterclaim will file a Response to Counterclaim. This document is also a reply. In their Response to Counterclaim, the claimant states if they agree or disagree with (some or all of) the facts contained in the counterclaim, and if they agree or disagree with (some or all of) the orders the respondent is asking for.

• Pleadings: The documents that a claimant and a respondent file in BC Supreme Court to start or reply to a BC Supreme Court action are called pleadings. In most BC Supreme Court family law actions, the pleadings are the Notice of Family Claim, the Response to Family Claim, Counterclaim, and Response to Counterclaim.

• Judicial Case Conference (or JCC): In most cases this is the first court appearance where the parties must attend. A JCC happens early on, takes about an hour and a half, and is a somewhat informal process. The parties and their lawyers (if they have them) sit down at a table with a judge to discuss a possible resolution of some or all of the orders requested in the claim and counterclaim. A JCC is like a mini mediation. The judge cannot make any orders (other than some procedural orders) unless the parties agree, and what is discussed is confidential and cannot be used outside of the JCC proceedings.

• Interim Application: An interim application is an application that a claimant or respondent brings to court, when they want the court to make a temporary (interim) order. Interim applications are made after the court action has been started and the parties attended the JCC, and before trial. A party can apply for an order that allows them to bring their interim application before the JCC is held. Interim applications can be made by filing a Notice of Application, or a Requisition (not the same Requisition as the one that starts a BC Supreme Court action).

• Affidavit: A legal document in which a person provides evidence of certain facts and events in writing. Affidavits are important in interim applications and summary trials because written testimony is generally the only form of evidence that the BC Supreme Court will accept from parties and witnesses outside of a proper trial setting. The person making the affidavit (called the deponent) must confirm that the statements made in the affidavit are true, and they must be signed in front of a commissioner for taking oaths (usually a lawyer, a notary public, or a court official) who takes the oath or affirmation of the deponent. Affidavits are used as evidence, and as a substitute for having the person make the statements in court before a judge. An affidavit often includes documents (that are attached to the affidavit as exhibits) to support the facts stated in the affidavit. For example, if the deponent says that they received a text message from one of the parties stating their plan to move to Alberta, a printed copy of the text message can be printed and attached to the affidavit as an exhibit. Depending on the type of interim application a party brings, they will usually need to file an affidavit together with their application.

• Financial statement: A financial statement is an affidavit specifically tailored to provide financial information about the party who swears or affirms it. The Supreme Court Family Rules include a specific form for the financial statement. A party in a family law action that involves child support, spousal support, the division of property, or the division of debt will need to prepare a financial statement, and fill in information and provide specific documents according to the orders being requested by the parties.

• 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. 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 summary trial can resolve some or all of the orders the parties are asking for in their claim or counterclaim. The section on Trials and Supreme Court Family Law Proceedings provides more information about the differences between trials and summary trials. 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.

• Judge: In the BC Supreme Court there are a few different judicial roles. 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 matters. They 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 to be aware of is that of the Registrar, who can presides over only limited and specific types of hearings (e.g. hearings to settle costs). The kind of judge that might hear your application depends on the orders you are asking the court to make. In this section judge is used to refer to all types of judges.

The court process in a nutshell

This chapter breaks down family law litigation in BC Supreme Court into six stages, and the sections in this chapter reflect this structure. While the laws and court rules don't actually refer to there being "stages", it's a convenient way to explain the litigation process. Parties will also typically experience litigation in stages, and generally in the order summarized below. Be sure to read and reference the definitions above, as these terms are used in the descriptions below.

Stage 1: Starting and replying to a claim

The section on Starting and Responding to Supreme Court Family Law Proceedings in this chapter talks about how a family law claim begins with the parties filing and serving their first court documents. This is also called the pleadings phase.

The claimant starts the court action

The claimant starts a BC Supreme Court action by initiating pleadings at one of the court's registries. This is done by filing a claim at the registry. Once the action is filed at one registry, all further court documents must be filed at the same registry unless there is a court order transferring the court action to another registry. After the claim is filed, the claimant must serve a copy on the respondent. Serving the filed claim involves having it hand-delivered to the respondent by someone other than the claimant. Remember that the claim only lists the claimant's wish list for court orders. The claim by itself is not an actual court order. It is up to the judge to decide, at an interim application or at a trial, if the orders contained in the claim will be granted.

The respondent files their reply

The respondent has a certain amount of time after being served with the claim to respond to the court proceeding by filing their reply and, if applicable, their counterclaim. The number of days that the respondent has to file their reply is set out in the claim they were served with. The respondent must deliver their reply and any counterclaim to the claimant at the claimant's address for service, which will have been listed in the claim. Remember that a respondent's counterclaim, just like the claimant's claim, is only a list of the orders that the respondent wants. It is not an actual court order. It is up to the judge to decide, at an interim application or at trial, whether the orders that the respondent asks for in their counterclaim will be granted.

If the respondent does not file a reply the claimant must file an affidavit of personal service. The affidavit of personal service is sworn or affirmed by the person who hand-delivered the claim to the respondent (i.e. not the claimant themself). If the service period as stated in the claim has run out and the respondent has not filed a reply, the claimant could obtain orders without the respondent's knowledge or participation.

The claimant files their reply to any counterclaim

If the respondent filed and served a counterclaim, the claimant has a fixed amount of time after receiving it to file their own reply (using the Response to Counterclaim form). The claimant must deliver their filed reply to the respondent's address for service, which will have been listed in the respondent's counterclaim.

Generally speaking, once the parties have filed, delivered, and received each other's claim, counterclaim, and replies, the pleadings phase is concluded. There can be other opportunities for the parties to amend their pleadings, however.

Stage 2: The parties exchange documentation and information

Once pleadings are filed and served, the parties should gather the documents that are relevant to the orders either party is asking for, whether those documents help or hurt their case. For more details, see the section on Disclosure and Discovery in Supreme Court Family Law Proceedings in this chapter.

Disclosure refers to the process for revealing the what documents each party has, and for exchanging these documents with the other party. What matters during disclosure is that parties disclose and share all relevant documents relevant to any of the issues raised in the claim or counterclaim. Here are a few examples:

1. If the claim is asking for orders to divide property, the respondent has to gather banking and investment statements even if their counterclaim did not ask for an order to divide property.
2. If the counterclaim is asking that the claimant pay child support, the claimant has to gather income documentation and produce a financial statement.
3. If the counterclaim is asking only for parenting orders, the claimant has to provide relevant documentation about the children even if their claim did not request any parenting orders.

Family law actions are not supposed to be an ambush. The BC Supreme Court has very strict rules that require both parties to exchange a list of documents, and share these documents, well ahead of trial and according to timelines in the BC Supreme Court Family Rules. This ensures each party gets a chance to see what kind of evidence exists, and what documents the other side has. This also helps each party know how strong the other party's case is, and in many cases reach a settlement without the need to go to trial.

Parties file and serve their financial statements

If the claim or counterclaim contains any request for financial orders (e.g. child support, spousal support, property division, debt division, or any other order relating to property or debt), the parties must file and serve on their respective financial statements. If the only financial order sought is for child support where the children live primarily (more than 60% of the time in a year) with the party asking for the order, only the other party has to file and serve their financial statement.

Stage 3: The parties attend a JCC

The section on Conferences and Supreme Court Family Law Proceedings talks about the role that case conferences play in family law claims. Almost all family law matters in BC Supreme Court require parties to attend a Judicial Case Conference (JCC) early on. JCCs are an opportunity for the parties and their lawyers to sit down before a judge and talk about settlement. The court will not make substantive orders (i.e. orders that determine the important rights and obligations of parties) at a JCC unless both parties agree. But even if the parties are not ready to agree to important substantive orders, the parties can ask for orders about procedural steps in the court action. Procedural orders can include things like an order that the parties exchange a list of documents, or include things in their financial statements, if these steps have not yet occurred. Parties must attend a JCC before they can bring interim applications, although a party can sometimes get an order permitting them to bring an application before a JCC (typically for urgent matters). For more about JCCs, including how to be allowed to bring an interim application before a JCC, and for information about the other types of conferences that can happen in BC Supreme Court for family law matters, see the section about Case Conferences in a Family Law Proceedings in this chapter.

Stage 4: A party may bring an interim application

Once a JCC has been held, either party is free to bring an interim application asking for interim orders (orders made before a trial or before settlement). These applications can include requests for substantive orders (such as parenting time, interim child support, interim spousal support, sale of the family home, restriction on use of the family property, etc.), or procedural orders (such as request for documents, that the other party provide their financial statement if they have not done so, that the other party attend an examination for discovery if they refuse to do so, etc.). The party bringing an interim application is required to file the necessary documents in court and serve them on the other party within a specified period of time, although a party can ask the court to be allowed to bring their application with no or little notice to the other party in some situations. A party can bring interim applications more than once. The section on Interim Applications and Supreme Court Family Law Proceedings in this chapter provides more information about interim applications.

Stage 5: Discovery

Discovery refers to the procedure for getting parties to submit to cross-examination before a trial. Scheduling an examination for discovery with the other party gives you an opportunity to hear what their evidence will be in advance of trial, and gives you a chance to ask for more documentation from them. For example, if a party is asking for a spousal support order, the other party may schedule an examination for discovery in order to cross-examine them about their earnings, explain their efforts to find employment, etc. In claims before the BC Supreme Court, parties are generally required to attend an examination for discovery.

Discovery is discussed more in the section on Disclosure and Discovery in Supreme Court Family Law Proceedings in this chapter.

Stage 6: Going to trial

Assuming that settlement has not occurred, court actions 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 are asking for in their claim or counterclaim. A party at trial can be more specific on the orders they are asking for, however their pleadings (e.g. claim or counterclaim) must include, at least in general terms, the orders they will be asking the court to make at trial. The judge may give their decision right away when the last party has given their final argument, but most often the judge will want to think about the evidence and the parties' arguments and defer their judgment, meaning they will provide a written decision later. This often means a decision takes weeks, or even months, after the trial ends.

Those are all 6 steps in a court proceeding, but there is another very important process that can happen at any time: settlement discussions. We will discuss this in more detail, including how you can use the court rules to promote settlement discussions to your advantage.

Anytime: Ongoing settlement efforts

Family law disputes can be settled by agreement at any time. Even if a claim has already been filed, the parties can continue to negotiate their family law dispute informally or formally. Informal negotiations include the parties or their lawyers speaking directly with each other, or through exchanging written communications. Formal negotiations include attending mediation, attending settlement conferences (led by the court), or sending official offers to settle to the other party. Parties can also agree to take the entire family law action to arbitration where they allow a third party adjudicator who is not a judge to decide their dispute. The chapter on Resolving Family Law Problems Out of Court applies even to family law disputes where a claim has been filed.

Within this section, check under the "Rules promoting settlement” heading, where you will find more information about how the court encourages parties to explore settlement before trial.

Rules that dictate the court process

Family law actions in the Supreme Court (summarized above) are governed by the Supreme Court Family Rules. It is important that you have a working knowledge of these rules. As your court action progresses, you will need to refer to the rules about judicial case conferences, disclosure, discoveries, interim applications, and trials. It is especially important that you review the Rules when scheduling a trial: if you do not comply with the time-lines in the Rules (the documents you must file in court in advance of the trial), your trial date(s) will be cancelled by trial scheduling.

Overall, the main rules about the management of your BC Supreme Court Action are:

Rule 1-1: Definitions

Rule 3-1: Starting a court proceeding

Rule 4-1: Notices of Family Claim and service requirements

Rule 4-3: Responding to a claim

Rule 4-4: Making a counterclaim

Rule 5-1: Financial disclosure

Rule 6-2: Ordinary service

Rule 6-3: Personal Service

Rule 7-1: Judicial case conferences

Part 9: Disclosure and discovery of documents

Part 10: Interim applications and chambers procedure

Rule 11-4: Discontinuing a court proceeding and withdrawing a response to one

Part 13: Expert witnesses

Rule 11-3: Summary trial procedure

Rule 14-7: Trial procedure

Rule 15-2.1: Guardianship orders

Rule 15-2.2: Corollary relief proceedings and information that must be provided to the court

Links to and examples of the court forms can be found in this resource under Supreme Court Forms (Family Law).

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 BC Supreme Court Family Rules 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.

Put some real, honest effort into resolving your family law matter without going to trial. The sooner you reach a fair settlement with the other side, the more you will save in terms of:

• pure litigation costs,
• stress, definitely your own, but also the strain on children or the people close to you,
• lost time, including the hours, days, or even weeks you might otherwise spend on litigation when you could be working, spending time with loved ones, or pursuing any other activity you actually enjoy,
• uncertainty, since once a judge intervenes you lose control over what kind of compromise you will make, and
• hostility, recognizing that even if goodwill feels impossible right now, it can often be regained over time after both parties move past the conflict stage.

Your settlement, whether it's reached with the help of a judge or not, must still be fair and reasonable of course. It should be within range of what would happen if your case were resolved at trial. While it's always a relief to wrap up a court proceeding, if the settlement is significantly unfair to either party, a return to court may be inevitable!

The BC Supreme Court's stick for encouraging settlement

The vast majority of family law actions never go to trial, and the simple fact is there are barely enough court resources (judges, courtrooms, court staff, etc.) to handle the cases that do require trial. Since the court's capacity is finite, the courts rely on parties settling their disputes, and it's no surprise that the Supreme Court Family Rules are designed to encourage this, either by enticing parties to settle (they are offered the carrot), or by imposing negative consequences for parties who are litigating unreasonably (they may feel the stick instead). For example, making judges available early on through JCCs, where they can talk informally with parties about settlement options, is a supportive and positive effort by the court system to reduce conflict. Even if the whole dispute is not resolved, perhaps some of the issues can be settled, and the outstanding issues can be narrowed down and better defined.

On the other hand, if a party is being overly stubborn, the court has more forceful tools to discourage them from being unreasonable in their demands, or from being unreasonable in their resistance to another party's reasonable demands. A good example of this is the court's power to penalize a party for insisting on litigating issues that they will likely lose on. Under the rules, this penalty system is called costs.

The biggest stick the BC Supreme Court has to encourage parties to settle their family law dispute is its jurisdiction to order costs against a party.

Costs

Under Rule 16-1 of the Supreme Court Family Rules, a party may ask for costs in an interim application, a trial, or the whole of a court action. "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 typically won't amount to more than around 30% of a party's actual legal fees.

Normally, the party who is substantially successful (i.e. the one who gets most of what they are asking for) will get an order that the other side pay costs, although there are exceptions.

You can think of costs as a sort of penalty designed to discourage a litigant from making unreasonable claims, resisting reasonable claims, or combining unreasonable claims with reasonable claims. For example, say you and the other party have three children, and you have asked the other party to pay child support of $1,982 per month. You claim that the children live primarily with you, and that the other party earns $100,000 per year. Furthermore, you want a retroactive order for support covering years Here are some possible outcomes and how costs might work if you end up in court.

If you are successful at trial If you convince the court that the children live primarily with you (as opposed to in a shared parenting arrangement), prove that the other party earns $100,000, and get awarded $1,982 per month in child support (which is what the Child Support Guidelines says a parent of three in BC needs to pay if they earn $100,000), then you are likely going to receive costs because you were successful in your claims. The other party will likely be ordered to pay costs. The other party forced you to go through an application or trial to get an order, and that should not have been necessary.

If you are partially successful at trial But what if you convince the court about only some of the facts, and succeed in only some of your claims? Say the court finds that you are the children's primary caregiver, but also finds that the other party's income is only $40,000, not the $100,000 that you alleged. The court awards you only $843 per month for child support, much less than what you were claiming.

You might have to pay costs to the other party—even though you were partially successful—if:

• the other party did not oppose your claim that you were the primary caregiver,
• they only argued their income was $40,000 instead of $100,000, and were successful, and
• they had already been paying $843 each month, which is what the Child Support Guidelines says someone who earns $40,000 in BC should pay for three children.

In such a case, the other side was more successful than you. They did not oppose the one claim you succeeded on, and did oppose you in the issues you lost on.

If success is more divided, as is often the case especially when there are several issues being disputed, the court may decline ordering costs to either party. For example, if:

• the other party unsuccessfully argued that you were not the primary caregiver, while you successfully argued you were the primary caregiver,
• the other party successfully argued that their income was $40,000, while you unsuccessfully argued their income was $100,000,
• the other party was successful in asking for parenting arrangements that you opposed,
• you were successful in asking for retroactive support payments that the other party opposed,
• etc.

As a general rule, a party is substantially successful (and therefore entitled to costs), if they succeed in getting 75% or more of what they are asking for.

You are unsuccessful at trial What if the other party convinces the court that their income is only $40,000, and that the children live with both parents on an equal basis? The other party would be entitled to their costs because you had no success in your claims against the other party in the first place.

The schedule 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.

In some exceptional circumstances the court may award special costs after an interim application or trial. Special costs are awarded against a party who has engaged in severe wrongdoing, deception of the court, complete disregard of court orders, and other reprehensible conduct. The court does this to punish a party, or to deter such behaviour (either by a party or in general).

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, and to behave properly during the litigation process. 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 Legal Aid BC's Family Law website's information page If you have to go to court under the section "Costs and expenses."

Formal court settlement processes

Below are some of the formal court processes available for settlement of family law actions outside of trial.

Offers to settle

You can make a formal "offer to settle" under Rule 11-1 at any time during a court proceeding. An offer to settle under Rule 11-1 is a written offer that contains the language set-out in Rule 11-1(1) (see below for more details), and state how all of the orders requested in the claim and counterclaim will be resolved. A party receiving an offer to settle pursuant to Rule 11-1 can:

• decide to accept the offer,
• present their own counteroffer, or
• simply refuse it without making a counteroffer.

Any counteroffer made under Rule 11-1 should include the same language in that rule. Also note that a counteroffer does not cause the initial offer to expire, and it is best practice to make sure that any offer or counteroffer you present has deadline, i.e. an expiration date. This ensures that the offer you made is not "live" when you go to trial, which is important should you end up asking for different orders at trial than you were originally prepared to compromise for when you made your earlier formal offer or counteroffer. There are important consequences for refusing a reasonable offer or counteroffer under Rule 11-1 that we will talk about below.

It is also important to know that offers to settle are private and confidential. This allows one party to make an offer to settle without later being held to its terms if the other side reject the offer and if the case then goes to trial. You want to be able to make a serious proposal that offers a compromise 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—or negative consequence for the party that rejected an offer that was better than what they got at trial—shows up in Rule 11-1 (5) and (6). 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
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).

It is highly recommended that you present a formal offer to settle under Rule 11-1(5). The advantage is that it opens negotiations and puts the other party on notice that if you win at trial, they may be required to pay additional costs to you. There are no real disadvantages to presenting an offer to settle under Rule 11-1(5), as long as your offer is within the ranges of what you may be entitled to receive at trial.

The Notice to Mediate Regulation

Under the Notice to Mediate (Family) Regulation, someone who is a party to a court proceeding in the BC 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 reply 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 would rather avoid, if the process results in a settlement, it is probably worth it. Although you need to consider the added cost of mediation and whether it is likely to result in a settlement, the truth is that the time and money spent on the mediation process will be a fraction of the time and money you'll spend on trial.

The advantage of mediation is that if a settlement is reached, you will save time and cost. The disadvantage of mediation is that if there is no settlement, the time and cost of mediation (which can be a few thousand dollars) will have been a waste.

Judicial Case Conferences

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 Conferences section of this chapter.

The advantages and disadvantages of JCCs are similar to those of settlement conferences, which are discussed below. But JCCs are time limited. A settlement conference can be booked for an entire day, but a JCC can only be scheduled for 1.5 hours, which limits how much time the judge has to discuss settlement with the parties. Although a JCC can be scheduled without the other party's consent, if the other party is not prepared to engage in negotiations, it may not be worth your time to schedule one.

Settlement conferences

Settlement conferences are available under Rule 7-2 at the request of both parties, and by filing a requisition in Form F17. Settlement conferences are relatively informal meetings between the parties, their lawyers, and a judge. The sole purpose of a settlement conference is 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.

The advantage of settlement conferences is that if the judge feels comfortable in providing an opinion on how the case might be resolved at trial, having the parties hear it might help them reach an agreement. The disadvantage is that the courts do not currently prioritize scheduling settlement conferences and so it may be difficult to get an actual court date. Also, judges do not always feel comfortable giving their opinion about how a matter may be decided at trial.

Nonetheless, if the parties agree to attend a settlement conference it is an inexpensive way to help them reach a settlement of. As of 2024, the court fee for a settlement conference is the same as for filing a notice of application, only $80.

What you will find in this chapter

The remaining sections in this chapter discuss:

1. Starting and Responding to Supreme Court Family Law Proceedings
2. Disclosure and Discovery in Supreme Court Family Law Proceedings
3. Conferences and Supreme Court Family Law Proceedings
4. Interim Applications and Supreme Court Family Law Proceedings
5. Trials and Supreme Court Family Law Proceedings
6. Changing Supreme Court Family Law Orders
7. Enforcing Supreme Court Family Law Orders

Resources and links

Legislation

• Supreme Court Family Rules
• Supreme Court Act
• Family Law Act
• Divorce Act

Resources

• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Family Law Guidebooks for BC Supreme Court, from Justice Education Society
• BC Supreme Court webpage for self-represented litigants

Links

• BC Supreme Court website
• Supreme Court Trial Scheduling
• Notice to Mediate (Family) Regulation
• Code of Professional Conduct, from Law Society of BC

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Iris Turaglio, 22 November 2024.

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.