Family Law Trials in Provincial Court

If you are unable to settle your case to your satisfaction, you will need to go to trial.

Preparing for and going to trial is the most complex part of the court proceeding. Both steps require careful planning and organization as well as being mindful of the deadlines set out in the rules of court (the Provincial Court (Family) Rules), some of which a full month before the trial date.

There are also many rules about what evidence is allowed and how evidence is to be presented in court. Although the law of evidence is beyond the scope of this chapter, a good summary is found in Proving Your Case in Supreme Court (although do be aware that the references to rules are the Supreme Court Civil Rules rather than the Provincial Court (Family) Rules).

Preparing for trial in the Provincial Court

There are fewer rules and procedures involved in preparing for trial in Provincial Court than there are in Supreme Court.

The Judicial Case Manager will schedule the trial date after receiving direction from a judge to do so following the parties’ first appearance in court, attendance at the family case conference or another hearing. You should contact the Judicial Case Manager following the court appearance that provided the direction to schedule a trial so that you are consulted about your availability. This is best done by going to the Judicial Case Manager’s office at the courthouse, but can also be done by phoning the Judicial Case Manager.

A judge is also likely to direct that a trial preparation conference be scheduled. The judge may schedule the date him/herself (to a date that is a usual remand date at the courthouse) or direct the judicial case manager to schedule it. Trial preparation conferences are discussed in more detail later in this chapter.

Rule 11 of the Provincial Court (Family) Rules deals with trial procedures in Provincial Court.

Preparing for trial requires careful planning and organization as well as being mindful of the many deadlines set out in the rules of court. All deadlines count back from the 1st day of trial (not the last or any day in between) and should be considered well in advance of the actual deadline. The main deadlines in a Provincial Court proceeding are as follows:

30 days:	Service of expert report or summary of expert evidence on other party (Rule 11(3) & (4))
30 days:	Court ordered section 211 report to be filed and provided to all parties (Rule 11(1.1))
14 days:	Service of notice requiring other party’s expert to attend trial for cross examination (Rule 11(7)
14 days:	Party wanting section 211 report writer to attend trial must apply by notice of motion for permission to do so (Rule 11(2))
7 days	Service of subpoena

Consider a Section 211 (Parenting Capacity) report or a Views of the Child report

In family law matters where guardianship and/or the children’s living arrangements are in dispute, one or both parties may request that a person be appointed to prepare a report pursuant to section 211 of the Family Law Act. That section empowers the court to direct a person approved by the court to conduct an investigation into:

(a) the needs of a child in relation to a family law dispute;

(b) the views of a child in relation to a family law dispute;

(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

Depending on the scope of the assessment, a social worker or a counselor or a psychologist may be appointed. The section 211 assessment involves the appointed person conducting interviews with both parents as well as the children and may involve additional steps such as observing each parent with the children (either in each parent’s home or at the psychologist’s office), conducting psychological testing of the parents (if the person is a psychologist and qualified to do so) and conducting interviews with collateral witnesses, and then preparing a written report of the observations and opinions (if asked that an opinion be provided).

The cost of such a report can vary greatly from a couple or a few thousand dollars for interviews of the children only to over $10,000 (and often considerably more) for a more extensive assessment and report. Publicly funded reports (free-of-charge) are available through the province but are less extensive, often take longer to prepare, and require a court order.

While the appointed person’s recommendations are not binding on the court, the recommendations are often very persuasive at trial and therefore often assist in moving settlement discussions forward.

For more information on these types of reports, see the following sections of this website:

• How do I get a needs of the child assessment?
• How do I get a views of the child report?

Consider expert evidence

Expert evidence is a form of opinion evidence that is admissible in court due to the specialized education, training, skills, certification or experience of the person providing the opinion and would not otherwise be within the judge’s knowledge. Experts can provide opinion evidence about many types of issues such as a person’s medical and/or psychological condition, whether a party’s income earning capacity is impaired due to physical injuries or psychological conditions, the level of income person is capable of earning (ie: in their business or their field of employment), and the like.

If you intend to introduce expert evidence at trial, you must serve a written summary of the expert’s evidence on the other party at least 30 days before the expert is called to give evidence or a judge grants permission (see Rule 11(3) of the Provincial Court (Family) Rules). Instead of calling the expert to testify at trial, a party can introduce the evidence by way of a written report of the expert (setting out the expert’s opinion) as long as the party serves a copy of the report on all other parties at least 30 days before the expert is called to give evidence (see Rule 11(4) of the Provincial Court (Family) Rules). The report must also include a statement of the qualifications of the expert.

The other party can require that the expert be available for cross-examination at trial (see Rule 11(7) of the Provincial Court (Family Rules) although that party may be ordered to pay the expense of the expert’s attendance at trial (which could include travel costs, a meal allowance, and the expert’s time (at his/her hourly rate). See Rule 11(8) of the Provincial Court (Family) Rules). Because expert reports have to be served on the other party at least 30 days before the trial date and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial. In addition, because there are specific requirements about the use of expert evidence and the form it must take, if you think you might need an expert, this would be a good issue about which to consult a lawyer. The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert.

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."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.

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

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 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."

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."

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 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."

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."

In family law, this usually refers to one party obtaining a part of any property at issue before the property has been finally divided by court order or the parties' agreement, usually in order to help pay for that person's legal fees.

In law, (1) the whole of the conduct of a court proceeding, from beginning to end, and the steps in between, may also be used to refer to (2) a specific hearing or trial. See "action."

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, an application to the court for an order, usually brought after the commencement of a court proceeding but before its conclusion by trial or settlement; an interim application. See "action," "interim application," and "order."

A legal document, issued by the court or by a party pursuant to the rules of court, which compels a person to attend court to give evidence as a witness, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court. See "contempt of court," "evidence" and "witness."

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

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

In law, an order of a court cancelling or changing an earlier order of the court. See "order."

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."

(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."

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."

Opinion evidence given by an expert at trial, orally, in an affidavit or in a formal report. Opinion evidence is a statement about what a witness thinks or believes, rather than something personally known as a fact, and is generally not admissible at trial except when the opinion is provided by an expert. A person presented as an expert witness must be approved by the court as a qualified expert in their field. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists. See "evidence" and "witness."

Evidence given orally at trial or in writing by an affidavit concerning a witness' convictions, feelings, or views on something. Opinion evidence is inadmissible except when the opinion is offered by an expert on a subject within their expertise. See "affidavit," "evidence," "expert" and "witness."

In law, (1) a lawyer's advice to their client, (2) a lawyer's analysis of a legal problem, or (3) the views of an expert on an issue in an action. See "expert evidence" and "opinion evidence."

The portion of a trial where a party asks questions of a witness presented by the other party in order to challenge the witness’s recollection and truthfulness. The questions asked of the witness must be relevant to the issues and may be leading, that is, the questions may suggest their answers, for example "You didn't get home until 2:00am, did you?" See "examination-in-chief," "evidence," and "leading question."

In law, a calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account," "bill of costs," "Certificate of Costs or Expenses" and "lawyer's fees."

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

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.