Family Court (Script 110)
|The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. This script gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.|
- 1 What is Family Court?
- 2 What does Family Court handle?
- 3 Who can apply to Family Court?
- 4 What issues have to go to Supreme Court?
- 5 Appearing without a lawyer in Family Court
- 6 Why go to Family Court?
- 7 The first step is to go to the courthouse and talk to the clerk at the family law counter
- 8 What to do if it’s an emergency?
- 9 How are Family Court cases resolved?
- 10 What is negotiation?
- 11 What is mediation?
- 12 What are collaborative settlement processes?
- 13 If a settlement is reached, it should be put in writing
- 14 What is arbitration?
- 15 Sometimes parties have to go to trial
- 16 What is a “family case conference”?
- 17 What is a “needs of the child assessment”?
- 18 What is a “views of the child report”?
- 19 More information
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, in particular 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 counsel 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 agreements. 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.
- 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. Call Service BC at 1.800.663.7867 for the nearest Family Justice Centre that can find the closest session.
- Check the online PAS course provided by Justice Education Society of BC. This program is available in English, Chinese and Punjabi.
- For more information about mediation or other alternatives to court, see the Justice Access Center webpage regarding “Family matters”.
[updated February 2017]
The above was last reviewed for accuracy by Janette Kovacs.
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