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.

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