Court Procedures in Family Law (3:XV)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on September 29, 2020.

A. Limitation Dates

1. Child Support

There is no limitation period for making a claim to child support, provided the child is still a “child” within the meaning of the FLA or the DA, as applicable, at the time of the originating application (de Rooy v. Bergstrom, 2010 BCCA 5; Crepnjak v. Crepnjak, 2011 BCCA 177). The general rule of thumb is that the Court will not order child support retroactive to more than three years from the date of the application (DBS v SRG, 2006 SCC 37).

Under the Limitations Act, there is no limitation date for claims on arrears of child support payments payable under a judgment or an agreement filed with the court under s 148(2) or 163(3) of the FLA.

2. Spousal Support

2(a) Married Spouses

Divorce Act

Spousal support can be claimed under the Divorce Act in a divorce proceeding or in a proceeding for corollary relief alone (ss 4 and 15.2). There is no limitation period within which married spouses or divorced spouses must bring a spousal support application. A claim for spousal support can be brought before or after an order for divorce. However, the longer a party waits, the less likely they will succeed in a claim for spousal support.

Family Law Act

Under s 198(3) of the FLA, a claim for spousal support must be brought no later than 2 years after the judgment granting a divorce or an order declaring the marriage to be a nullity. The two-year time limit does not apply to a review of spousal support under s 168 and 169 of the FLA.

The running of time limits is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional or a prescribed process.

Under s 198(3), a married spouse may make an application to set aside an order or agreement for spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.

Under the Limitations Act, there is no limitation date for claims on arrears of spousal support payments payable under a judgment or an agreement filed with the court under s 148(2) or 163(3) of the FLA.

2(b) Common-Law Spouses

Divorce Act

The Divorce Act does not apply to common -law spouses.

Family Law Act

Under s 198(3) of the FLA, a claim for spousal support must be brought no later than 2 years after the date of separation. The two-year time limit does not apply to a review of spousal support under s 168 and 169 of the FLA.

The running of time limits is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional or a prescribed process.

Under s 198(3), a spouse living in a marriage-like relationship may make an application to set aside an order or agreement for spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.

Under the Limitations Act, there is no limitation date for claims on arrears of spousal support payments payable under a judgment or an agreement filed with the court under s 148(2) or 163(3) of the FLA.

3. Division of Property, Debt, and Pension

3(a) Married Spouses

Under section 198(3) of the FLA, a married spouse may begin a proceeding to divide property, debt, or a pension no later than 2 years after a judgment granting a divorce or an order declaring the marriage to be a nullity. The limitation period may be suspended if the spouses were engaged in family dispute resolution with a family dispute resolution professional or a prescribed process.

A spouse may make an application to set aside an order or agreement for property division no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.

Once a distribution scheme for family property is set, either by the Court or by agreement, it is always enforceable subject to the relevant case law.

3(b) Common-Law Spouses

Spouses living in a marriage-like relationship may begin a proceeding to divide property, debt, or a pension no later than 2 years after the date of separation (s 198(3)). The limitation period may be suspended spouses if the spouses were engaged in family dispute resolution with a family dispute resolution professional or a prescribed process.

A spouse living in a marriage-like relationship may make an application to set aside an order or agreement for property division no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.

Once a distribution scheme for family property is set, either by the Court or by agreement, it is always enforceable subject to the relevant case law.

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 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 or master 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 if there 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 [1979 BCJ No 58 (QL)]). 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

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 letter to the other spouse to advise them 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 will not 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 (Rule 2).

As of May 2021, Form 1 will be known as a Notice to Resolve a Family Law Matter under the new 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) (as of May 2021, Form 6 will be used under the new Provincial Court (Family) Rules);
• a blank financial statement form (Form 4), if the applicant is seeking an order for child and/or spousal support or a variation of child and/or spousal support; and
• a filed copy of the applicant’s financial statement and applicable documentation under Rule 4 (2), if applicable (as of May 2021, the applicable rule will be Rule 3 under the new Provincial Court (Family) Rules).

b) Reply

The respondent must file a reply within 30 days of being served with a copy of the application, otherwise a default judgment may be sought in favour of the applicant. If the respondent disagrees with the remedy sought, they 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 (as of May 2021, Form 6 will be used under the new Provincial Court (Family) Rules);
• 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) (as of May 2021, the applicable rule will be Rule 3 under the new Provincial Court (Family) Rules).

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;
• counterclaim for a variety of relief, including but not limited to guardianship, allocation of parenting responsibilities, parenting time, child support, spousal support, or a protection order under the FLA; 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://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors.

Once the new Provincial Court Family Rules come into effect in May 2021, the Family Justice Registries will be designated under Part 6, Rule 87. Rule 90 addresses exceptions to family justice registry requirements.

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. Under the new Provincial Court Family Rules which come into force in May 2021, this requirement will be pursuant to Rule 94.

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://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas.

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.

As of May 2021, the Provincial Court (Family) Rules will be repealed and the new Provincial Court Family Rules will be in effect (excepting Division 5 of Part 9, which will come into force in May 2022). Once the new Rules apply, pre-trial conferences will be replaced by trial preparation conferences.

If a trial preparation conference is to be held, each party must file and serve a trial readiness statement in Form 22 either 7 days before the conference is scheduled (Rule 110). If no trial preparation conference is scheduled, then the statement must be submitted a minimum of 30 days prior to the first date of trial.

During this conference, a judge will determine whether a trial will be held and in what manner. Rule 112 provides a fulsome list of matters the judge may give direction about, including evidentiary requirements, how the views of a child will be heard, and whether family violence is at issue.

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.

As of May 2021, the rule under the new Provincial Court Family Rules will be Rule 36.

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. As of May 2021, Form 23 will replace Form 15 under the new Provincial Court Family Rules.

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.

As of May 2021, Rules 145, 112 will replace the above rules under the new Provincial Court Family Rules, and Form 45 will be used in place of 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;
• for an order to produce documents;
• for 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;
• to change or cancel an ex parte order;
• to have a file transferred;
• to have disclosure; or
• to obtain directions on procedures not in the Provincial (Family) Court Rules.

Different Provincial Court Registries have different procedures regarding evidence at interim hearings. Some allow Affidavits and others require leave to produce and file an Affidavit and prefer viva voce (spoken) evidence. Be sure to check the procedure at the Registry in question before filing materials.

As of May 2021, Rule 118 will replace Rule 12 under the new Provincial Court Family Rules.

k) Trial

Provincial (Family) Court trial is an adversarial proceeding. Clients are there to give the judge enough facts so that they can make a decision about the application. However, the judge often gets involved in the presentation of evidence, especially where one party is not represented by counsel.

l) Procedure for Enforcement of Custody Orders

An Application Form (Form 21) and copy of the custody order must be filed in the registry.

As of May 2021, Form 29 will replace Form 21 under the new Provincial Court Family Rules.

m) Procedure for Enforcement of Support Orders

The most effective and simplest method of enforcing Support Orders is to register with the Family Maintenance Enforcement Program. For more information call or write the Enrolment Office, Box 5789, Victoria, BC, V8R 6S8; telephone: (250) 356-8889, toll-free: 1-800-663-7616.

n) Orders

Orders come into effect on the day that they are made, unless the judge orders otherwise. If the party in whose favour the order is made is unrepresented, a clerk must prepare the order. Otherwise the favoured party’s lawyer will prepare the order.

If there is a dispute about the terms of an order, a party may apply to a judge to have the dispute settled. Once an order is signed and approved, it must be given to the court registry to be signed by the judge and filed with the Court. Otherwise, the order is not enforceable. At any time, a judge may correct a clerical error in an order.

o) Compliance with Provincial Court (Family) Rules

If any of the Provincial Court (Family) Rules (British Columbia) are not complied with, the judge may disregard the incorrect procedure or order, order the hearing or trial to continue as if the respondent were absent, or give any direction they think is fair. Please check the Cumulative Regulation Bulletin 2014 for any non-consolidated amendments to this regulation that may be in effect. As of May 2021, these rules will be replaced with the new Provincial Court Family Rules; please review the updated rules to ensure that you are in compliance.

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