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Interim Applications in Family Matters

2019-11-29T22:13:48Z

Julie Brown:

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [https://www.clicklaw.bc.ca/resource/1254 applying and responding to applications for interim orders in Supreme Court]
}}Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether and what amount of spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short-term orders like these, you must make an ''interim application'' in court.

This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Court of British Columbia, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short-term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The purposes of interim applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders, and conduct orders.

Restraining orders require someone to not do a specific thing, such as:

*not disposing of property,
*not racking up debt,
*not talking to the children about the issues in the court proceeding,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They require someone to not do a specific thing, such as:

*not communicating with the family member,
*not going to a place where the family member lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests, or
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or the judge's decision is handed down following a trial.

===Making interim applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending a court proceeding and works more or less like this:

#The person making the application, the ''applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#On the date of the hearing, the applicant argues why the order sought should be made, the application respondent argues why the order sought shouldn't be made, and the judge or master who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: judicial case conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

*when an application is being made for an order restraining either or both parties from disposing of family property,
*when the order will be made with the agreement of both parties, or,
*when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC. Once the first JCC has been held, interim applications can usually be made at any time.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the application respondent, you must deliver these documents to the other party's address for service by ordinary service under [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

The Notice of Application and any supporting affidavits must be served on the application respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the application respondent. The timelines for interim applications are discussed in more detail below.

====The Notice of Application====

The Notice of Application describes:

*the orders and declarations the applicant is asking for (also called the ''relief'' the applicant is asking for),
*the facts supporting the application,
*the legal grounds on which the application is made, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the ''[[Family Law Act]]'' and/or the ''[[Divorce Act]]''), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence which the applicant relies on in support of the relief sought,
*the amount of time the applicant thinks it will take for the application to be heard, and
*the date picked by the applicant for the hearing of the application.

The form you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $80.00.

====Supporting affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation.

The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank), those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]]. It's located in the ''How Do I?'' part of this resource.

===Responding to an application===

You must respond to an interim application if you object to any of the orders the applicant is asking for. If you agree with all of the orders sought by the applicant, you don't need to do anything. For a summary of this process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Supreme Court?]]. It's located in the ''How Do I?'' part of this resource.

To respond to an interim application, you must prepare a court form called an [[Form F32 Application Response|Application Response (Form F32)]] and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]], in the ''How Do I?'' part of this resource.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of Application. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====The Application Response====

The Application Response describes:

*the orders sought by the applicant which the application respondent agrees to,
*the orders that the application respondent opposes,
*the orders to which the application respondent neither opposes nor consents (this is called ''taking no position'' on an order),
*the facts supporting the application respondent's position,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]], in the ''How Do I?'' part of this resource.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed by the application respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the applicant's first affidavit.

The applicant must file any responding affidavits in court and serve them on the application respondent by 4:00 pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the application respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the application respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the application respondent to file and make arguments based on a new affidavit.

===A short note about time estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the trial coordinator at the court registry, and a hearing date may not be available for several weeks or months. Applications that will take less than two hours are heard on a day picked by the applicant, although it's always best if the applicant picks the date in consultation with the application respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in court on a particular day or there could be 30. The court clerk will generally sort the applications in order of the time estimates, so that a five-minute application will be heard fairly quickly, while a ninety-minute application might not be heard until much later in the day (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format, for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they must cooperate and prepare a joint Application Record.

The applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00 pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the applicant will be asking the court to hear. The applicant must serve a copy of the index of the Record on the application respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your record after the deadline of 4:00 pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr Rule 10-6(14)(a)], the materials in the Application Record need to be securely bound, which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including running a couple of hex bolts through the left-hand margin. The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record,
#the Notice of Application (Tab 1),
#the Response to Application (Tab 2), and
#the affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4, and so on).

(A ''tab'' is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on it; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a table of contents divider that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation, and copies of cases.

The Supreme Court issued [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notice 14], which explains what the cover page should include:

* The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents.
* The title of the document (usually just ''Application Record'').
* The claimant's address for delivery, telephone number, fax number (if any), and email.
* The respondent's address for delivery, telephone number, fax number (if any), and email.
* The name of the party filing the Application Record, the place, date, and time of the hearing, and the time estimate for the hearing.
* For written submissions that have been requested or directed by a judge following a hearing, the name of the judge presiding at the hearing.

Administrative Notice 14 (which replaced Administrative Notice 7 in 2017) contains an example of an acceptable cover page.
===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Interim applications are heard in courtrooms referred to as ''chambers''. The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the chambers list. The chambers list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the chambers lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online] under the heading Supreme Chamber List.

The judge or master will enter the courtroom at 10:00am and will expect to begin hearing applications right away—don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge—for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under [[How Do I Conduct Myself in Court at an Application?]].

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (i.e. by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the ''Family Law Act'') that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that explain why the judge shouldn't make the orders the applicant is asking for.

The applicant will then have a chance to briefly answer the application respondent's argument. The application respondent may have the opportunity to address the applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the applicant and application respondent questions during their presentations to clarify things.

After the judge or master has heard everyone's arguments, the judge or master will give their decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks, or even months to be provided.

===After the hearing===

It is usually the job of the applicant's lawyer to turn whatever the judge or master has decided into a written order. If the applicant doesn't have a lawyer, the lawyer for the application respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the ''official'' order of the court, the order takes effect and is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and may change depending on whether the application is for an interim order, a final order, or an order changing a final order.

====Making an application====

The applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 business days'' of the hearing.

====Replying to an application====

The application respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''14 business days'' of being served.

====Responding to an application response====

The applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application records====

The applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the application respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample timelines====

In this sample timeline for an ordinary interim application, the hearing is on Friday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the application respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record, and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING'''
|}

In this example, the application respondent's materials are due on Monday of the second week, one week after the date of service, and the applicant must file and serve any responding affidavits, file the Application Record, and serve the Application Record index on the application respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the applicant serves the interim application materials and the date of the hearing; all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the application respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record, and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A short note about courtesy===

The [http://canlii.ca/t/8mcr Supreme Court Family Rules] allow an applicant to simply set the hearing date without consulting the application respondent. Although this gives the applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the application respondent, you can expect the application respondent to show up on the hearing date and ask the court for a delay to your application. This is called an ''adjournment''.

If the application respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the application respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or their lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on the date of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that—that's why the rules and deadlines exist in the first place.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''respondent'', the person against whom the application has been brought. The respondent is not required to file anything in reply to the application.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation program

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]], in the ''[[How Do I?]]'' section of this resource.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their Reply to the applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the [https://www.clicklaw.bc.ca/question/commonquestion/1010 Parenting After Separation program] under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

*Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court.
*Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute.
*Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the Parenting After Separation program is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

*Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program.
*Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance.
*Rules 21(4) and (5) set out some exceptions to the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, most parents, once they have complied with Rules 5 and 21, can follow the standard rules for bringing on interim applications, described below.

====Family case conferences====

Family case conferences are similar in many ways to the judicial case conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that a FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that can simply be ticked off to indicate the sort of order that you want the court to make.

The registry will stamp all of the copies and keep the top sheet. You must then serve the respondent with their copy at least ''seven days'' before the date the application is set to be heard. The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===Defending an application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the applicant be served with a response.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]]. It is located in the ''How Do I?'' part of this resource.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which says that if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so if you can prepare one, you should. The respondent will have a chance to challenge the applicant's witnesses and cross-examine them, or may make an affidavit in reply to the applicant's affidavit.

Once the applicant's case is done, the respondent may present their own case, and call witnesses to give evidence just the way the applicant did. Likewise, the applicant will be able to cross-examine the respondent's witnesses.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their case and argue why the judge should make the order asked for. The respondent will be able to reply to the applicant's argument, after which the applicant may have the opportunity to make a reply to the respondent's reply.

Once everyone is done, the judge will give their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===After the hearing===

If the parties to the hearing were represented by lawyers, the applicant's lawyer will usually draft an order based on the judge's decision. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

==Common interim applications==

The following discussion reviews the basic facts that will usually need to be proven for some of the most common interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case. For a sample of common terms that are included in orders, see [https://www.clicklaw.bc.ca/resource/4130 Supreme Court Orders] and [https://www.clicklaw.bc.ca/resource/4085 Provincial Court Orders]. These lists cover common orders made but are not complete lists of all orders that possibly might be made.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates, and ages,
*where the children go to school and what grade they're in,
*any important health or educational concerns,
*the occupation of each parent,
*each parent's usual work schedule,
*how the parents shared the parenting of the children while they were together,
*who was responsible for arranging things like visits to the doctor and dentist,
*who was responsible for looking after school issues, like parent-teacher meetings and making sure homework was done,
*how the parents have shared the parenting of the children since they separated,
*the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation,
*a description of any actual problems with a parent's capacity to care for the children,
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the child?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates, and ages,
*how the children's time is divided between the parents,
*whether some or all of the children are stepchildren to the person who is to pay child support,
*whether some or all of the children are receiving child support from another parent,
*the nature of each parent's employment,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
Applications about child support typically require that each parent cough up certain documents in order to establish their income, in addition to a sworn Financial Statement. See the Legal Services Society's Family Law website's information page [https://clicklaw.bc.ca/resource/4653 "Legal forms & documents"] under the section "Filling out court forms" for more information. The most common income-related documents for people who are ''employees'' are:

*the last three years of personal income tax returns,
*all notices of assessment or reassessment received in relation to the last three tax years, and
*a recent paystub showing earnings-to-date or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are ''self-employed'' in an unincorporated business will also have to produce:

*statements of professional or business income,
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate financial statements for the three most recent fiscal years,
*corporate tax returns for the three most recent fiscal years, and
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

====Changing child support orders and agreements====

If the application is to ''change'' child support, the important facts for the Court will be those that address the threshold ''legal tests'' for changing child support:

*has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's ''income'',
*has there been a change in the ''needs and circumstances'' of the child,
*whether you have discovered ''new evidence'' about income (or a person's ability to earn income) since the last hearing, or
*whether you have discovered proof that someone's ''financial disclosure was incorrect or inadequate'' at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to ''set aside an agreement'' about child support, important facts for the Court will, again, be those that address the threshold legal test:

*what amount of support should the Court order, and
*why should the Court make a different order than what was agreed to?

===Spousal support===

====Important factors====

When making the ''first application'' for spousal support, the important facts will include:

*the date the parties began to live together and the date they married,
*the date of separation,
*the parties' ages, including the proposed recipient's age at the date of separation,
*each party's present health,
*any factors limiting a party's ability to obtain employment,
*the parties' present employment circumstances,
*the parties' employment history during marriage, including any periods of unemployment,
*each party's present income and the sources of that income,
*a description of the each party's living expenses after separation,
*any career sacrifices made during the relationship, including any promotions, raises, or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*a description of any education and training taken after separation, especially any education geared to finding employment,
*the ages and school status of the children at the date of separation, and
*the arrangements that have been made for the care and control of any children.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their income, in addition to a sworn Financial Statement. See the Legal Services Society's Family Law website's information page [https://www.clicklaw.bc.ca/resource/4653 "Legal forms & documents"] under the section "Filling out court forms" for more information.

The most common income-related documents for people who are employees are:

*the last three years of personal income tax returns,
*all notices of assessment or reassessment received in relation to the last three tax years, and
*a recent paystub showing earnings-to-date or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

*statements of professional or business income,
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate financial statements for the three most recent fiscal years,
*corporate tax returns for the three most recent fiscal years, and
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

====Changing spousal support orders or agreements====

If the application is to ''change an order'' about spousal support, the important facts for the Court will be those necessary to address the threshold legal tests for changing an order for spousal support:

*has there been a change in the ''means or needs'' of either spouse since the last order was made,
*whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
*whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order was made,
*any employment taken by the recipient since the order or agreement was made,
*any changes in the employment circumstances of the payor,
*whether the recipient has remarried or is in a new unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property, or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is (or has been) a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the ''[[Family Law Act]]'' (starting at section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member,
*orders prohibiting a person from attending, nearing, or entering a place regularly attended by the at-risk family member, including the residence, property, business, school, or place of employment of the at-risk family member (even if the person owns the place, or has a right to possess the place),
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm, or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization, or other document relating to a weapon or firearm, and
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member, or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a ''Protection Order'' under the ''Family Law Act'', important facts will usually include:

*the date when you began living together, the date of marriage (if any), and the date you separated,
*the names, birth dates, and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
**a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
**a description of any physical, sexual, psychological, or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
**a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship,
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (i.e. your home, place of employment, your children's school, etc.),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following):
**photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought,
**harassing emails or texts sent by the party against whom the Protection Order is sought,
**medical evidence which corroborates alcohol or drug tests, or admissions to treatment centres, and
**evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]], in the chapter, [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable), and the date you separated,
*the names, birth dates, and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about, and
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Supreme Court Chambers Lists]

===Links===

* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [https://www.clicklaw.bc.ca/resource/4279 MyLawBC: Get family orders pathway]
* [https://dialalaw.peopleslawschool.ca/interim-order-family-case-supreme/ People's Law School:Applying for an Interim Order in a Family Law Case in Supreme Court]]
* [http://www.bccourts.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
* [https://www.clicklaw.bc.ca/question/commonquestion/1010 Clicklaw Common Question: I’m looking for information about the Parenting After Separation program]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Family Law Trials in Provincial Court

2019-06-21T03:45:43Z

Julie Brown:

Responding to a Court Proceeding in a Family Matter

2019-06-14T01:37:34Z

Julie Brown: /* The next steps */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

If a court proceeding has been started against you, you have two choices: do nothing or respond to the proceeding and defend yourself. If you agree with the orders the other party is asking for, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or completely disagree you must respond to the claim or you risk losing by default.

This section discusses the process for responding to a court proceeding in the Supreme Court and the Provincial Court. For a more complete picture of the court process, read this section together with the section on [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]].

==The Supreme Court==

If you are being sued in the Supreme Court, you are the ''respondent'' in a court proceeding that has been started by the ''claimant''. If you disagree with any of the orders the claimant is asking for, you must prepare a Response to Family Claim. You can also prepare a Counterclaim if there is an order you would like to ask for. These documents, together with the claimant's Notice of Family Claim, are called pleadings.

The primary [http://canlii.ca/t/8mcr Supreme Court Family Rules] about Responses to Family Claim and Counterclaims, replying to a court proceeding and trials are:

*Rule 1-1: definitions
*Rule 3-1: starting a court proceeding
*Rule 4-3: Responses to Family Claim
*Rule 4-4: Counterclaims
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary 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 Family Claim
*Part 13: expert witnesses
*Rule 11-3: summary trial procedure
*Rule 14-7: trial procedure
*Rule 15-2.1: guardianship orders

Links to and examples of the Response to Family Claim, Counterclaim and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For a quick introduction to how to reply to a proceeding, see [[How Do I Respond to a Family Law Action in the Supreme Court?]] It's located in the section Defending an Action in the ''How Do I?'' part of this resource.

===Quick tips: Defending an action in the Supreme Court===

The following tips are located in the section Defending an Action in the ''[[JP_Boyd_on_Family_Law_—_How_Do_I%3F|How Do I?]]'' part of this resource:

* '''Can't pay your court fees:''' If you can't afford to pay court fees, you can apply for indigent status. If you are granted indigent status the court fees for all or part of the proceeding will be waived. To find out more, see [[How Do I Apply for Indigent Status in the Supreme Court?]]

* '''Need to change something in the Response to Family Claim or Counterclaim:''' To find out what happens when you need to change something, see [[How Do I Change Something in My Response to Family Claim or Counterclaim?]]

* '''Want the court action to stop:''' You might want to stop defending the claim or stop your counterclaim if, for example, you have reached a settlement. To find out how to do this, see [[How Do I Stop Defending a Family Law Action in the Supreme Court?]]

===Preparing, filing and serving your response===

You must file a Response to Family Claim at the court registry within 30 days of being served with the claimant's Notice of Family Claim.

The Notice of Family Claim sets out the basic history of the parties' relationship and an outline of the orders the claimant would like the court to make. Your Response to Family Claim says which of the claimant's claims you agree with and which you oppose, and which of the facts set out in the Notice of Family Claim are inaccurate.

The form you must use is Form F4, set out in the Supreme Court Family Rules. This is a special form of response used only in family law cases.

The Response to Family Claim must be filed in the court registry and be served on the claimant by ordinary service. It currently costs $25 to file a Response to Family Claim. When you file any document in Supreme Court (including the Response to Family Claim), the registry will keep the original of the document, so you will want to make and keep at least two additional copies (one for you to keep and one to give to the other party). Ordinary service means sending a copy of the filed response to the claimant at any of the addresses for service identified in the Notice of Family Claim.

===Preparing, filing and serving a counterclaim===

If there are any orders you would like to ask for, you may file a Counterclaim at the court registry within 30 days of being served with the claimant's Notice of Family Claim. Your Counterclaim describes the additional orders you would like the court to make.

It can be very important to file a Counterclaim if you want the court to make an order on different terms or about a different issue than the claims made in the Notice of Family Claim. Think of it like this: your Response to Family Claim is your defence to the claims made by the claimant in their Notice of Family Claim. Your Response to Family Claim doesn't ask for anything; it just says what you do and don't agree with. Unless a Counterclaim is filed, the only person asking for any orders is the claimant. If you are successful in your defence, there may be no claims left for the court to make an order about.

Rule 4-4 of the Supreme Court Family Rules provides information about Counterclaims. The form you must use is Form F5, set out in the Supreme Court Family Rules. This is a special form of counterclaim used in family law cases. Additional pages that require more detailed information must be added to the Counterclaim when you are asking for orders about:

*divorce,
*children, including child support,
*spousal support,
*the division of property and debt, and
*other orders, like protection orders or orders for the change of a person's name.

The Counterclaim must be filed in the court registry and be served on the claimant by ordinary service. It currently costs $200 to file a Counterclaim. When you file any document in Supreme Court (including the Counterclaim), the registry will keep the original of the document, so you will want to make and keep at least two additional copies (one for you to keep and one to give to the other party).

===Deadline for reply===

The claimant has 30 days to file a ''Response to Counterclaim'' in Form F6 after being served with the respondent's Counterclaim. Very few people bother to file a Response to Counterclaim. Many would only go to the trouble of preparing a response if there was something unusual or unexpected in the Counterclaim.

===The next steps===

Although you've decided to defend the claimant's claims, you're not necessarily going to wind up in a trial. One of three things is going to happen in your court proceeding:

#You'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make, called a consent order.
#You'll not be able to agree, and the intervention of the court at a trial will be required.
#After some initial scuffles, neither you nor the claimant will take any further steps in the court proceeding and the proceeding will languish.

For more information on the next steps in a family law proceeding, see [[Overview of Case Conferences and Discovery in Family Law Matters]] in this chapter.

==The Provincial Court==

If a court proceeding has been started against you in the Provincial Court, you are the ''respondent'' in the proceeding. The person who started the court proceeding is the ''applicant''. If you agree with the orders the applicant is asking for, doing nothing is the quickest way to handle things. On the other hand, if you only partly agree or if you completely disagree with what the applicant is asking for, you must prepare a Reply.

The primary [http://canlii.ca/t/85pb Provincial Court (Family) Rules] about Replies, defending a court proceeding and trials are:

*Rule 1: definitions
*Rule 3: Replies
*Rule 4: financial disclosure
*Rule 6: the first and subsequent appearances in court
*Rule 7: family case conferences
*Rule 11: trial procedure
*Rule 12: interim applications
*Rule 14: consent orders
*Rule 18: orders
*Rule 18.1: guardianship orders
*Rule 21: Parenting After Separation program

Links to and examples of the Reply and other court forms can be found in [[Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For a quick introduction to how to reply to a proceeding, see [[How Do I Respond to a Family Law Action in the Provincial Court?]] It's located in the section Defending an Action in the ''How Do I?'' part of this resource.

===Limitations of the Provincial Court===

The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantages of proceeding in the Provincial Court are that the authority of the court is limited and there are fewer opportunities to explore the other party's case before the trial. The Provincial Court can only hear applications under the ''[[Family Law Act]]'' on certain subjects, including:

*guardianship,
*parental responsibilities and parenting time,
*contact with a child,
*child support,
*spousal support,
*protection orders, and
*payment of household bills such as mortgage and utilities pending trial or settlement.

The Provincial Court cannot hear claims under the federal ''[[Divorce Act]]''. It cannot hear claims under the ''Family Law Act'' for orders relating to the division of property and debt.

===Preparing, filing and delivering the reply===

If you decide to defend yourself, you must complete a form called a Reply and file it within 30 days of the date you were served with the Application to Obtain an Order. There is no fee to file a reply.

In your reply, you can do one or more of the following things:

*agree to some or all of the orders the applicant is asking for,
*object to some or all of the orders the applicant is asking for, and
*apply for any orders you would like the court to make.

The form you must use is Form 3, set out in the [http://canlii.ca/t/85pb Provincial Court Family Rules]. The reply must be filed in the court registry and the court clerk will take care of delivering your reply to the applicant.

===Deadline for the applicant's reply===

The applicant has 30 days to file a Reply in Form 3 after being served with the respondent's Reply if the respondent's Reply asks for any orders. Very few applicants bother to file a Reply of their own. Many applicants only go to the trouble of preparing a Reply if there was something unusual or unexpected in the respondent's Reply.

===The next steps===
Certain registries may have special programs or requirements that are unique to the registry. The registry will advise you of what is needed when you file your materials.

In certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation] program before you can take any further steps in your case. This may apply even if you are seeking a default judgment. The court clerk at your court registry will tell you what is needed. If necessary, the court clerk will refer you to the family justice counsellor and tell you where the Parenting After Separation program is offered.

Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try mediation.

The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available [http://www.clicklaw.bc.ca/resource/4395 online]. The online course does not replace the need to attend an in-person course if that is otherwise required. You will have to file a certificate that you've completed the program.

In the Victoria Registry, there is the [https://www.provincialcourt.bc.ca/enews/enews-13-05-2019 Victoria Registry there is the Victoria Early Resolution Case Management Prototype].

The additional steps that follow the commencement of a proceeding in the Provincial Court are a simplified version of the Supreme Court process. There are fewer hoops to jump through, but also fewer means to extract information and documents from the other side.

For more information on the next steps in a family law proceeding, see [[Overview of Case Conferences and Discovery in Family Law Matters]] in this chapter.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* Legal Services Society Family Law in BC website: [http://www.clicklaw.bc.ca/resource/2278 How to start a family law case (Supreme Court)] and [http://www.clicklaw.bc.ca/resource/1701 How to get a final family order (Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society Website for BC Supreme Court]
* Legal Services Society website: [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course] from Justice Education Society

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 8, 2019}}

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Starting a Court Proceeding in a Family Matter

2019-06-14T01:34:52Z

Julie Brown: /* The Provincial Court */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of property (and even just a divorce), you must begin a court proceeding. There are certain steps you must take, certain fees you must pay and certain forms you must fill out before the court will hear your claim. Although the staff at the court registries are friendly and very helpful, they cannot provide legal advice and it is your job to prepare these materials, gather your evidence, and take the steps necessary to bring your case before a judge.

This section reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court. For a more complete picture of the court process, read this section together with the section on [[Replying_to_a_Court_Proceeding_in_a_Family_Matter|Replying to a Court Proceeding]].

==The Supreme Court==

To start a proceeding in the Supreme Court, the main document you will have to prepare is a Notice of Family Claim in Form F3, a special form prescribed by the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. (This document is one of the basic legal documents in a court proceeding known as pleadings.) This is the document that says who you are suing and the orders you want the court to make.

Family law proceedings are governed by the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about judicial case conferences, disclosure, interim applications, and trials.

The primary rules about Notices of Family Claim and the management of proceedings in Supreme Court 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: replying to a Notice of Family Claim
*Rule 5-1: financial disclosure
*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
*Part 13: expert witnesses
*Rule 11-3: summary trial procedure
*Rule 14-7: trial procedure
*Rule 15-2.1: guardianship orders

Links to and examples of the Notice of Family Claim and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For a quick introduction to how to start a proceeding, see [[How Do I Start a Family Law Action in the Supreme Court?]] It's located in the section ''Starting an Action'' in the ''How Do I?'' part of this resource.

===Quick tips: Starting an action in the Supreme Court===

The following tips are located in the section ''Starting an Action'' in the ''[[JP_Boyd_on_Family_Law_—_How_Do_I%3F|How Do I?]]'' part of this resource:

* '''Can't pay your court fees:''' If you can't afford to pay court fees, you can apply for indigent status. If you are granted indigent status the court fees will be waived for all or part of your court proceeding. To find out more, see [[How Do I Apply for Indigent Status in the Supreme Court?]]

* '''Guide to personal service:''' For a quick summary of what's involved in personal service, see [[How Do I Personally Serve Someone with Legal Documents?]]

* '''Can't personally serve the respondent:''' If it is impossible to personally serve the Notice of Family Claim on the respondent, you can ask the court to be allowed to use a substitute form of personal service. To find out what's involved, see [[How Do I Substitutionally Serve Someone with Legal Documents?]]

* '''Not sure where your ex is:''' If you're not sure where your ex lives in order to start a court proceeding, see [[How Do I Find My Ex?]]

* '''Need to change something in the Notice of Family Claim''': To find out what happens when you want to change something in your Notice of Family Claim, see [[How Do I Change Something in My Notice of Family Claim?]]

* '''Want the court action to stop:''' To find out if you can stop a family law action in the Supreme Court once you've started it, see [[How Do I Stop a Family Law Action in the Supreme Court?]]

===Preparing, filing and serving the Notice of Family Claim===
{{LSSbadge
|resourcetype = further step-by-step information on
|link = [http://www.clicklaw.bc.ca/resource/2278 How to start a family law case in Supreme Court]
}}The ''claimant'', the person starting the court proceeding, must fill out a Notice of Family Claim and file the claim in court. The Notice of Family Claim provides: the claimant's name and address; the name and address of the person against whom the claim is made, the ''respondent''; the basic history of the parties' relationship; the names and birthdates of any children; and, an outline of the orders the claimant would like the court to make.

The court form that must be used is Form F3, set out in the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional pages that require more detailed information must be added to the Notice of Family Claim when the claimant seeks orders about:

*divorce,
*the care of children and child support,
*spousal support,
*the division of property and debt, and
*other orders, like protection orders or orders for the change of a person's name.

The Notice of Family Claim must be filed in the court registry and be personally served on the respondent. If you are asking for a divorce order, you'll have to fill out a Registration of Divorce Proceeding form when you file your Notice of Family Claim. It currently costs $200 to file a Notice of Family Claim, or $210 if the claim includes a claim for a divorce. When you file any document in Supreme Court (including the Notice of Family Claim), the registry will keep the original of the document, so you will want to make and keep at least two additional copies (one for you to keep and one to give to the other party).

''Personal service'' means physically handing the Notice of Family Claim to the respondent. The ''[[Divorce Act]]'' and Rule 6-3(2) of the Supreme Court Family Rules say that a claimant cannot serve a respondent themself. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Although this ought to go without saying, don't use one of your children to serve your ex.

===Deadline for reply===

The respondent has 30 days to file a Response to Family Claim after being served with the claimant's Notice of Family Claim. If the respondent doesn't do this, the claimant may be able to apply for the orders asked for in the Notice of Family Claim as a ''default judgment'', a final order made in default of the respondent's reply (and possibly without further notice to the respondent).

You should be aware that judges can be fairly lenient towards people who miss filing deadlines. A claimant should not expect to win on a technicality like this. If a respondent files their Response to Family Claim late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

===The next steps===

If the respondent has chosen to file a Response to Family Claim, they have decided to oppose your claim(s). This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. One of three things is going to happen in your court proceeding:

#You'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make, called a consent order.
#You'll not be able to agree, and the intervention of the court at a trial will be required.
#After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

For more information on the next steps in a family law proceeding when the Respondent has filed a Response to Family Claim, see [[Overview of Case Conferences and Discovery in Family Law Matters]] in this chapter.

If the respondent does not file a Response to Family Claim, then the Respondent has chosen not to oppose your claim(s). In that situation, the family law proceeding is characterized as "an undefended family law case" and you can apply for a default judgment under Rule 10-10 of the Supreme Court Rules. Under that rule, if the orders being sought are relatively straightforward, then the Claimant can apply for final orders by way of a desk order application, meaning that a requisition, supporting affidavit(s) outlining the Claimant's evidence, and a few other documents (listed in Rule 10-10(2)) are submitted to the registry and reviewed by a judge at his or her desk when the judge finds time to do so. If the orders being sought have any complexity to them, then Rule 10-10 also allows the case to be set for trial.

==The Provincial Court==
{{LSSbadge
|resourcetype = further step-by-step information on
|link = [http://www.familylaw.lss.bc.ca/guides/final/cantAgree/provincial/apply/steps.php Starting a family law case in Provincial Court]
}}To start a proceeding in the Provincial Court, the main document you have to prepare is an Application to Obtain an Order in Form 1, a special form prescribed by the [http://canlii.ca/t/85pb Provincial Court Family Rules]. This is the document that says who you are suing and what you are suing for.

Family law proceedings are governed by the Provincial Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about Family Case Conferences, disclosure, interim applications, and trials. The primary rules about Applications to Obtain an Order and the management of court proceedings are:

*Rule 1: definitions
*Rule 2: Applications to Obtain an Order and service requirements
*Rule 3: replying to an Application to Obtain an Order
*Rule 4: financial disclosure
*Rule 6: the first and subsequent appearances in court
*Rule 7: family case conferences
*Rule 11: trial procedure
*Rule 12: interim applications
*Rule 14: consent orders
*Rule 18: orders
*Rule 18.1: guardianship orders
*Rule 21: Parenting After Separation program

Links to and examples of the Application to Obtain an Order and other court forms can be found in [[Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For a quick introduction to how to start a proceeding, see [[How Do I Start a Family Law Action in the Provincial Court?]] It's located in the section Starting an Action in the ''How Do I?'' part of this resource.

===Limitations of the Provincial Court===

The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantage of bringing your case to the Provincial Court is that the authority of the court is limited. The Provincial Court can only hear applications under the ''[[Family Law Act]]'' on certain subjects, including:

*guardianship,
*parental responsibilities and parenting time,
*contact with a child,
*child support,
*spousal support
*protection orders, and
*payment of household bills such as mortgage and utilities pending trial or settlement.

The Provincial Court cannot hear your application if you are applying for orders under the federal ''[[Divorce Act]]'' or for orders relating to the division of property and debt under the ''Family Law Act''.

===Preparing, filing and serving the application to obtain an order===

Most court proceedings are started in the Provincial Court by filing an Application to Obtain an Order in Form 1. (Court proceedings can also be started with an Application to Change or Cancel an Order in Form 2 where there is already a court order or separation agreement in place.) The person beginning the action, the ''applicant'', fills out the Application to Obtain an Order and provides certain information, including: the applicant's name and address; the name and address of the person against whom the application is being made, the ''respondent''; a list of the orders the applicant is asking the court to make; and, a very brief statement of the relevant facts.

The Application to Obtain an Order must be filed in the court registry and be personally served on the respondent. No fee is charged to file the Application to Obtain an Order.

Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] says that an applicant cannot personally be the one who serves a respondent. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Don't use one of your children to serve your ex.

If you're not sure where you ex lives, see [[How Do I Find My Ex?]] It's located in the section Marriage, Separation & Divorce in the ''How Do I?'' part of this resource.

===Deadline for reply===

The respondent has 30 days to fill out and file a court form called a Reply after being served with the applicant's Application to Obtain an Order. If the respondent doesn't do this, the applicant may be able to apply for the orders asked for in the Application to Obtain an Order as a ''default judgment'', a final order made in default of the respondent's reply.

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An applicant should not expect to win on a technicality like this. If a respondent files their reply late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

===The next steps===

If the respondent has chosen to file a Reply, they have decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. One of three things is going to happen in your court proceeding:
# You'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make, called a consent order.
# You'll not be able to agree, and the intervention of the court at a trial will be required.
# After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

Certain registries may have special programs or requirements that are unique to the registry. For example, in the Victoria Registry, there is the [https://www.provincialcourt.bc.ca/enews/enews-13-05-2019 Victoria Registry there is the Victoria Early Resolution Case Management Prototype] in other registries you are required to take the parenting after separation program described in further detail later in this section. The registry will inform you of any special requirements when you file.

=== Parenting After Separation ===

In certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation] program before you can take any further steps in your case. This may apply even if you are seeking a default judgment. The court clerk at your court registry will tell you what is needed. If necessary, the court clerk will refer you to the family justice counsellor and tell you where the Parenting After Separation program is offered.

Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try mediation.

The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available [http://www.clicklaw.bc.ca/resource/4395 online]. The online course does not replace the need to attend an in-person course if that is otherwise required. You will have to file a certificate that you've completed the program.



==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* Legal Services Society Family Law in BC website: [http://www.clicklaw.bc.ca/resource/2278 How to start a family law case (Supreme Court)] and [http://www.clicklaw.bc.ca/resource/1701 How to get a final family order (Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society Website for BC Supreme Court]
* Legal Services Society website: [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course] from Justice Education Society

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 8, 2019}}

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How Do I Respond to a Family Law Action in the Provincial Court?

2019-06-12T22:20:20Z

Julie Brown:

{{JP Boyd on Family Law How Do I TOC|expanded=defending}}

Once you have been served with the applicant's Application to Obtain an Order, you have 30 days to file a form called a Reply. The Reply is available at the provincial court registry or online (see the [[Provincial Court Forms (Family Law)|Provincial Court Forms]] section), although a copy may have been delivered with the Application to Obtain an Order.

You must file your Reply at the same court registry the Application to Obtain an Order was filed, and you can tell which registry this is by looking at the box at the upper right-hand corner of the form. There are no fees charged to file your Reply.

You have 30 days to file your Reply from the date ''you were served'', not 30 days from the date the Application to Obtain an Order was ''filed in court''.

When you fill out your Reply, you will be asked to say which parts of the Application to Obtain an Order you agree with and which you disagree with. The form can also be used to make a claim of your own against the applicant, this is called a counterclaim. You don't need to file an Application to Obtain an Order of your own.

After you have filed your Reply, the court may schedule a date for you to meet with a family justice counsellor and you may be required to attend a Parenting After Separation course, depending on which registry the application was filed. The registry will take care of scheduling your meeting with the family justice counsellor, but it's up to you to arrange for the Parenting After Separation course.

If the applicant is making a claim for child support or spousal support, you will also have to fill out and file a Financial Statement. If such a claim is being made, you will normally be given a blank Financial Statement at the same time you are served with the Application to Obtain an Order.

==For more information==

You can find a lot more information about this in the chapter [[Resolving Family Law Problems in Court]] within the section [[Replying to a Court Proceeding in a Family Matter]].

{{REVIEWED | reviewer = [[Julie Brown]], June 12, 2019}}

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[[Category:How Do I?|R]]
[[Category:Defending a Family Law Action]]
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How Do I Start a Family Law Action in the Provincial Court?

2019-06-12T22:18:52Z

Julie Brown:

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
{{LSSbadge
| resourcetype = a detailed step-by-step guide on
| link = [http://www.familylaw.lss.bc.ca/guides/final/cantAgree/provincial/apply/index.php starting a family law action in Provincial Court]
}}
Starting a court proceeding in the Provincial Court is fairly straightforward. Essentially, you have to fill out a document called an Application to Obtain an Order and file it in the registry of the court closest to you. In some cases, you will fill out a document called an Application to Change or Cancel an Order in Form 2 where there is already a court order or separation agreement in place.

There are no filing fees, and the court will tell you how to go about serving the other side.

You can get a copy of the Application to Obtain an Order from the court registry for free. The forms are also available online; see the [[Provincial Court Forms (Family Law)|Provincial Court Forms]] section. The version of the form that you can get from the court registry includes lots of information about how to fill it out.

If you are making a claim for ''spousal support'' or ''child support'', you'll also have to fill out a form called a Financial Statement. The court registry will provide you with this form. Again, the form is fairly easy to fill out. However, there are certain documents that you must gather and attach to the form, including your last three years' worth of tax returns, your most recent paystub, and so forth.

If you are making a claim for ''guardianship'' of a child, you will also have to fill out a special affidavit in Form 34, and provide copies of recent police and Ministry of Children and Family Development records checks.

==When to use the Provincial Court==

The authority of the Provincial Court is limited and it can only deal with certain issues. You can use the Provincial Court when the things you need to deal with involve any of the following:

*guardianship of children,
*parenting arrangements for children,
*contact with a child,
*child support,
*spousal support, and
*protection orders.

==When not to use the Provincial Court==

The Provincial Court cannot deal with issues involving property or debts. The Provincial Court cannot make orders under the ''Divorce Act'', including divorce orders. If you need orders about property, debt or divorce, you might think about starting your court proceeding in the Supreme Court which can deal with all of these issues and all of the issues that the Provincial Court can deal with.

==What happens next?==

Once you've filed your Application to Obtain an Order, you'll have to have it served on the other person and get your process server to complete an Affidavit of Service. Once the other person has been served, they will have 30 days to file a form called a Reply, and, if either of you are making a claim for spousal support or child support, their Financial Statement as well. The court will mail you a copy of these documents.

When the court receives the other person's Reply, the court will normally schedule a date for an initial meeting with the court, called a first appearance.
In certain registries there may be other requirements that you must meet before your first appearance. For example you may be required to meet with a family justice counsellor or take the Parenting After Separation Course. The registry will let you know what steps you have to take.

==For more information==

You can find more information about this in the chapter [[Resolving Family Law Problems in Court]] within the section [[Starting a Court Proceeding in a Family Matter]].

{{REVIEWED | reviewer = [[Julie Brown]], June 12, 2019}}

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Interim Applications in Family Matters

2019-06-12T21:58:34Z

Julie Brown: /* Common interim applications */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether and what amount of spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short-term orders like these, you must make an ''interim application'' in court.

This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short-term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The purposes of interim applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct orders.

Restraining orders require someone to not do a specific thing, such as:

*not disposing of property,
*not racking up debt,
*not talking to the children about the issues in the court proceeding,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They require someone to not do a specific thing, such as:

*not communicating with the family member,
*not going to a place where the family member lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or the judge's decision is handed down following a trial.

===Making interim applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending a court proceeding and works more or less like this:

#The person making the application, the ''applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#On the date of the hearing, the applicant argues why the order sought should be made, the application respondent argues why the order sought shouldn't be made, and the judge or master who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: judicial case conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

*when an application is being made for an order restraining either or both parties from disposing of family property,
*when the order will be made with the agreement of both parties, or,
*when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC. Once the first JCC has been held, interim applications can usually be made at any time.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the application respondent, you must deliver these documents to the other party's address for service by ordinary service under [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

The Notice of Application and any supporting affidavits must be served on the application respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the application respondent. The timelines for interim applications are discussed in more detail below.

====The Notice of Application====

The Notice of Application describes:

*the orders and declarations the applicant is asking for (also called the ''relief'' the applicant is asking for),
*the facts supporting the application,
*the legal grounds on which the application is made, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence which the applicant relies on in support of the relief sought,
*the amount of time the applicant thinks it will take for the application to be heard, and
*the date picked by the applicant for the hearing of the application.

The form you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $80.00.

====Supporting affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation.

The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond to an interim application if you object to any of the orders the applicant is asking for. If you agree with all of the orders sought by the applicant, you don't need to do anything. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of Application. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====The Application Response====

The Application Response describes:

*the orders sought by the applicant which the application respondent agrees to,
*the orders that the application respondent opposes,
*the orders to which the application respondent neither opposes nor consents (this is called ''taking no position'' on an order),
*the facts supporting the application respondent's position,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed by the application respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the applicant's first affidavit.

The applicant must file any responding affidavits in court and serve them on the application respondent by 4:00 pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the application respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the application respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the application respondent to file and make arguments based on a new affidavit.

===A short note about time estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the trial coordinator at the court registry, and a hearing date may not be available for several weeks or months. Applications that will take less than two hours are heard on a day picked by the applicant, although it's always best if the applicant picks the date in consultation with the application respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in court on a particular day or there could be 30. The court clerk will generally sort the applications in order of the time estimates, so that a five-minute application will be heard fairly quickly, while a ninety-minute application might not be heard until much later in the day (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they must cooperate and prepare a joint Application Record.

The applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00 pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the applicant will be asking the court to hear. The applicant must serve a copy of the index of the Record on the application respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your record after the deadline of 4:00 pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr Rule 10-6(14)(a)], the materials in the Application Record need to be securely bound, which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including running a couple of hex bolts through the left-hand margin. The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record,
#the Notice of Application (Tab 1),
#the Response to Application (Tab 2), and
#the affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A ''tab'' is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a table of contents divider that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notice 7], you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

#The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that explain why the judge shouldn't make the orders the applicant is asking for.

The applicant will then have a chance to briefly answer the application respondent's argument. The application respondent may have the opportunity to address the applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the applicant and application respondent questions during their presentations to clarify things.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===After the hearing===

It is usually the job of the applicant's lawyer to turn whatever the judge or master has decided into a written order. If the applicant doesn't have a lawyer, the lawyer for the application respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the ''official'' order of the court, the order takes effect and is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and may change depending on whether the application is for an interim order, a final order, or an order changing a final order.

====Making an application====

The applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 business days'' of the hearing.

====Replying to an application====

The application respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''14 business days'' of being served.

====Responding to an application response====

The applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application records====

The applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the application respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the application respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING'''
|}

In this example, the application respondent's materials are due on Monday on the second week, one week after the date of service, and the applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the application respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the applicant serves the interim application materials and the date of the hearing; all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the application respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A short note about courtesy===

The [http://canlii.ca/t/8mcr Supreme Court Family Rules] allow an applicant to simply set the hearing date without consulting the application respondent. Although this gives the applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the application respondent, you can expect the application respondent to show up on the hearing date and ask the court for a delay your application. This is called an ''adjournment''.

If the application respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the application respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or their lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on the date of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''respondent'', the person against whom the application has been brought. The respondent is not required to file anything in reply to the application.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation program

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their Reply to the applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation program] under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

*Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court.
*Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute.
*Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation program] is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

*Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program.
*Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance.
*Rules 21(4) and (5) set out some exceptions to the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, most parents, once they have complied with Rules 5 and 21, can follow the standard rules for bringing on interim applications, described below.

====Family case conferences====

Family case conferences are similar in many ways to the judicial case conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that can simply be ticked off to indicate the sort of order that you want the court to make.

The registry will stamp all of the copies and keep the top sheet. You must then serve the respondent with their copy at least ''seven days'' before the date the application is set to be heard. The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===Defending an application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the applicant be served with a response.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which says that if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so if you can prepare one, you should. The respondent will have a chance to challenge the applicant's witnesses and cross-examine them, or may make an affidavit in reply to the applicant's affidavit.

Once the applicant's case is done, the respondent may present their own case, and call witnesses to give evidence just the way the applicant did. Likewise, the applicant will be able to cross-examine the respondent's witnesses.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their case and argue why the judge should make the order asked for. The respondent will be able to reply to the applicant's argument, after which the applicant may have the opportunity to make a reply to the respondent's reply.

Once everyone is done, the judge will give their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===After the hearing===

If the parties to the hearing were represented by lawyers, the applicant's lawyer will usually draft an order based on the judge's decision. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

==Common interim applications==

The following discussion reviews the basic facts that will usually need to be proven for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case. For a sample of common terms that are included in orders see [https://www.bccourts.ca/supreme_court/practice_and_procedure/sc_family_law_orders.aspx Supreme Court Orders] and [https://www.provincialcourt.bc.ca/downloads/pdf/Dars%20FLA%20Orders%20Bench%20Picklist%20-%20for%20website.pdf Provincial Court Orders]. These lists cover common orders made but are not complete of all orders that might be made.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates and ages,
*where the children go to school and what grade they're in,
*any important health or educational concerns,
*the occupation of each parent,
*each parent's usual work schedule,
*how the parents shared the parenting of the children while they were together,
*who was responsible for arranging things like visits to the doctor and dentist,
*who was responsible for looking after school issues, like parent-teacher meetings and making sure homework was done,
*how the parents have shared the parenting of the children since they separated,
*the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates and ages,
*how the children's time is divided between the parents,
*whether some or all of the children are stepchildren to the person who is to pay child support,
*whether some or all of the children are receiving child support from another parent,
*the nature of each parent's employment,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their income, in addition to a sworn Financial Statement. See [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial#0 Complete a Supreme Court financial statement] and [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial#0 Complete a Provincial Court financial Statement] for more information. The most common of these documents for people who are ''employees'' are:

*the last three years of personal income tax returns,
*all notices of assessment or reassessment received in relation to the last three tax years, and
*a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from ''EI'', ''WCB'', ''CPP'', or ''social assistance'', will also have to produce their three most recent statements or cheque stubs from their payments.

People who are ''self-employed'' in an unincorporated business will also have to produce:

*statements of professional or business income,
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate financial statements for the three most recent fiscal years,
*corporate tax returns for the three most recent fiscal years, and
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

When making the first application for spousal support, the important facts will include:

*the date the parties began to live together and the date they married,
*the date of separation,
*the parties' ages, including the proposed recipient's age at the date of separation,
*each party's present health,
*any factors limiting a party's ability to obtain employment,
*the parties' present employment circumstances,
*the parties' employment history during marriage, including any periods of unemployment,
*each party's present income and the sources of that income,
*a description of the each party's living expenses after separation,
*any career sacrifices made during the relationship, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*a description of any education and training taken after separation, especially any education geared to finding employment,
*the ages and school status of the children at the date of separation, and
*the arrangements that have been made for the care and control of any children.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their income, in addition to a sworn Financial Statement. See [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial#0 Complete a Supreme Court financial statement] and [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial#0 Complete a Provincial Court financial Statement] for more information. The most common of these documents for people who are employees are:

*the last three years of personal income tax returns,
*all notices of assessment or reassessment received in relation to the last three tax years, and
*a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

*statements of professional or business income,
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate financial statements for the three most recent fiscal years,
*corporate tax returns for the three most recent fiscal years, and
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order was made,
*any employment taken by the recipient since the order or agreement was made,
*any changes in the employment circumstances of the payor,
*whether the recipient has remarried or is in a new unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order under the Family Law Act, important facts will usually include:

*the date when you began living together, the date of marriage (if any) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about,
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-12T21:55:17Z

Julie Brown: /* Costs */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations] provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations]
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on [https://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making Mediation happen in a family law case in Supreme Court].

===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See [http://canlii.ca/t/53h1z Rule 16-1] of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html?resultIndex=1#Appendix_B___Costs__1266142 Appendix B –Costs] of the Supreme Court Family Rules. The categories you can claim costs for are set out in [https://wiki.clicklaw.bc.ca/index.php?title=Form_F71_Bill_of_Costs Form 17 Bill of Costs]
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [https://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and Expenses].

===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under [http://canlii.ca/t/53h1z Rule 11-1] of the Supreme Court Family Rules has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The...[party(ies)]..., ...[name(s) of party(ies)]..., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
For more information on making an offer to settle see the Legal Services Society guide [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]

==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a judge has the discretion under [http://canlii.ca/t/53lfk Rule 11] to order the party requiring the expert's attendance pay for an expert’s attendance at court if the judge determines that it was unnecessary to call the person to attend.
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion. For further information see the section Family Case Conferences in [[Case Conferences in a Family Matter | Case Conferences]] and for a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[http://canlii.ca/t/52325 Notice to Mediate (Family) Regulation]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]
* Legal Services Society Family Law in BC website:
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/judicial-case-conferences-supreme-court Judicial case conference in Supreme Court]
** [http://familylaw.lss.bc.ca/bc-legal-system/legal-help/if-you-have-go-court/judicial-case-conferences-supreme-court/deal#0 Deal with a judicial case conference]
** [http://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making mediation happen in a family law case in Supreme Court]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and expenses]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/family-case-conferences-provincial-court Family case conference]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/family-case-conferences-provincial-court/checklist-family-case Checklist for family case conference]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

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[[Category:JP Boyd on Family Law]]

Family Law Trials in Supreme Court

2019-06-12T21:52:49Z

Julie Brown: /* Taxable costs and disbursements */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

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. You also need to be mindful of the many deadlines set out in the rules of court (the ''[http://canlii.ca/t/8mcr Supreme Court Family Rules]'') some of which arise months before the trial date.

There are also many ''rules of evidence'', like what evidence is allowed and how evidence is presented in court. Although the law of evidence is beyond the scope of this chapter, a good general summary is found in ''[http://www.clicklaw.bc.ca/resource/2335 Proving Your Case in Supreme Court]'' (although be aware this references is not specific to family law, and talks about the Supreme Court ''Civil'' Rules rather than the Supreme Court ''Family'' Rules).

== Preparing for trial in the Supreme Court ==

There are two available types of trial in Supreme Court – a ''regular trial'' (which is the type you see on TV and in the movies with cross-examination of witnesses and lawyers making legal arguments) and a ''summary trial'' (which is trial where each witness' evidence is introduced by affidavit).

Summary trials can seem like a good option because they can often be dealt with in fewer days of court time, often don’t involve cross-examination of the parties, and therefore are often easier and less expensive for the parties. However, summary trials are not suitable for all court proceedings; they are suitable only where there is sufficient evidence before the court for the judge to make a decision.

The factors a court will consider in deciding whether a summary trial is appropriate include:
*the complexity of the matter,
*any urgency and prejudice likely to arise by reason of delay,
*the cost of taking the case forward to a regular conventional trial in relation to the amount involved,
*the course of the proceedings, whether credibility is a critical factor in the determination of the dispute,
*whether the summary trial may create an unnecessary complexity in the resolution of the dispute and
*whether the application would result in litigating in slices (see ''[http://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 B.C.L.R. (2d) 202 (C.A.)).

Summary trials are more common where lawyers are involved, and rare if both parties are self-represented.

Summary trials are governed by Rule 11-3 of the Supreme Court Family Rules and are not subject to all of the rules and procedures described in the rest of the section below.

Summary trials must be heard at least 42 days before the scheduled trial date (see Rule 11-3(3) of the Supreme Court Family Rules) and a summary trial application must be set for hearing in accordance with Part 10 of the Supreme Family Court Rules (Obtaining Orders Other Than at Trial).

=== Preparing for trial ===

Rule 14 of the Supreme Court Family Rules deals with trial procedures in Supreme Court.

Again, 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 ''first'' day of trial (not the last or any day in between) and should be considered well in advance of the actual deadline. The main (but not ''only'') deadlines in a Supreme Court proceeding are as follows:

{| class="wikitable"
|-
| 84 days:
| Service of expert report on other party (Rule 13-6(3))
|-
| 42 days:
| Service of expert report in response to other party’s expert report (Rule 13-6(4))
|-
| 28 days:
| Attendance at a trial management conference (Rule 14-3(1))
NOTE: There is a further deadline to file and serve on all other parties a Trial Brief in Form 45 at least 7 days before the trial management conference (Rule 14-3(3))
|-
| 28 days:
| Updated Form F8 Financial Statement must be filed and served on the other party at least 28 days and no later than 63 days before the start of the trial
|-
| 21 days:
| Notice of Objection to other party’s expert report must be served (Rule 13-6(10))
|-
| 14-28 days:
| The Trial Record must be filed and served on the other party (Rule 14-4(3)) or trial date will be lost
|-
| 14-28 days:
| The Trial Certificate must be filed and served on the other party (Rule 14-5(2))
|-
| 7 days:
| Any plans, objects or photographs to be relied upon at trial must be available for inspection by the other party (Rule 14-7(10))
|-
| 7 days:
| Service of subpoena & witness fees on any witnesses (Rule 14-7(32) & (34) & Form F23)
|}

Before triggering any of these deadlines however you’ll need to schedule the trial date.

=== Scheduling a trial ===

The usual practice is for the claimant to schedule the trial, but the respondent is also able to do so. Given that the availability of trial dates varies from registry to registry (and there may be no available dates for many months), you may want to schedule the trial at the judicial case conference or as soon as possible after it.

In order to schedule a trial, you need to file a notice of trial in [[Form F44 Notice of Trial|Form 44]] in the registry where the court proceeding was started (or transferred). To do so, you will have to consider how many days of trial are needed to hear the evidence of all of the witnesses (both your witnesses and the other party’s witnesses, including both direct examination and cross-examination of each witness) as well as the summary of evidence and legal arguments presented by both parties (or their lawyers) at the end of the trial. You will then need to contact that registry to find out what dates are available for your trial. You should then contact the other party (or that party’s lawyer) to find out their availability. Once the date is confirmed and the notice of trial is filed, you must then promptly serve the notice of trial on the other party (see Rule 14-2(1), (3) and (5) of the Supreme Court Family Rules).

If you are served with a notice of trial and you are not available on the date(s) indicated, you must apply to the court within 21 days to have the trial rescheduled (see Rule 14-2(6) of the Supreme Court Family Rules).

In some cases, trial dates are discussed and agreed upon at the judicial case conference, but a notice of trial still needs to be filed in order to confirm the date with the registry.

If you are the party who has filed the notice of trial, you will also have to prepare and file a document called a trial record (as described below in the section [[{{PAGENAME}}#File and serve Trial Record|File & Serve Trial Record]]).

=== Consider amendments to pleadings before filing the notice of trial ===

If you need to amend the claims set out in your notice of family claim or counterclaim, you should do so before you file the notice of trial. This is because Rule 8-1(1) of the Supreme Court Family Rules allows a party to amend their pleadings once without leave of the court as long as the amendment is done before the notice of trial is filed. Once the notice of trial is filed, a party (or their lawyer) can only make amendments with the agreement of the other party or an order of the court (Rule 8-1(1)).

=== 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:

<blockquote>
(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.
</blockquote>

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 resources under the part ''How Do I?'' in this resource:
*[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]]
*[[How Do I Get a Views of the Child Report?|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, the valuation of property (i.e.: the family home, a pension, a business, shares in a company), 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 (i.e.: in their business or their field of employment), and the like.

Rule 13 of the Supreme Court Family Rules applies to the use of expert evidence at trial.

If you intend to introduce expert evidence at trial, you must ask the expert to prepare a written report (see Rule 13-6 and 13-7 of the Supreme Court Family Rules). Do note that under Rule 13-2 of the Supreme Court Family Rules, the role of the expert is to assist the court, not to be an advocate for either party. The expert is required to certify to their understanding of their role under this rule in the written report that they are to prepare (see Rule 13-2(2) of the Supreme Court Family Rules).

Because expert reports have to be served on the other party at least 84 days before the trial date (see Rule 13-6(3) of the Supreme Court Family Rules) and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial. Also, 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 to talk to a lawyer about. The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert so that the report meets the requirements for use in court.

=== Expert evidence about financial issues ===

If either party wants to present expert evidence about a ''financial issue'', that evidence must be presented to the court by means of an expert you and the other party hire together (often referred to as a ''jointly appointed expert''), unless the court orders or the parties agree otherwise (Rule 13-3(1) & (2) of the Supreme Court Family Rules). Once appointed, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules).

A financial issue is defined as an issue arising out of:

<blockquote>
(a) a claim for division of property and debt or division of a pension under the ''[[Family Law Act]]'' or out of an application for a FHRMIRA order (which means an order made under the ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]'' (Canada) or under a First Nation's law made under that ''Act'');

(b) a claim for an interest in property based on unjust enrichment or other trust claims, or

(c) a claim for compensation based on unjust enrichment.
</blockquote>

(See Rule 13-3(1) of the Supreme Court Family Rules).

This means that if you want an expert opinion about an issue that meets the definition of a financial issue and the other party doesn’t, you may have to make an interim court application to get the expert evidence that you need to go to trial. One option is to offer to pay the full cost of the report up front, but on a without prejudice basis so that a judge may later consider whether the other party should contribute to the cost of the report as well (usually after the judge has made their decision).

Each party has the right to cross-examine a joint expert at trial (Rule 13-4(10) of the Supreme Court Family Rules).

Each party is required to cooperate with the jointly appointed expert and to produce in a timely manner all relevant documents and information to the jointly appointed expert (Rule 13-4(9) of the Supreme Court Family Rules).

=== Expert evidence about other issues ===

If either party wants to present expert evidence on any other issues (ie: medical issues, psychological issues, the earning capacity of a party or particular occupation), the parties can either present the evidence through an expert that the parties together retain or any party may retain their own expert (see Rule 13-3(3) of the Supreme Court Family Rules).

=== Retaining the expert ===

The expert will need to be retained by way of a letter of instruction or retainer letter. If the expert accepts the retainer or instructions, it is likely that the parties will be required to pay a retainer to the expert right away and before the expert gets started on the report.

If the expert is retained by both parties, the parties must then reach agreement about the following issues:

<blockquote>
(a) the identity of the expert;

(b) the issue in the family law case the expert opinion evidence may help to resolve;

(c) any facts or assumptions of fact agreed to by the parties;

(d) for each party, any assumptions of fact not included under paragraph (c) that the party wishes the expert to consider;

(e) the questions to be considered by the expert;

(f) when the report must be prepared by the expert and given to the parties;

(g) responsibility for fees and expenses payable to the expert.
</blockquote>

(See Rule 13-4(1) of the Supreme Court Family Rules). That agreement must then be put in writing (in the form of a letter to the expert or an agreement between the parties and the expert) (See Rule 13-4(2) of the Supreme Court Family Rules) and the expert must consent the appointment reflected in the agreement.

=== Court application if parties can’t agree or additional experts necessary ===

If one party seeks an expert opinion about a financial matter but the other party will not agree or the parties cannot reach agreement about the terms of appointment (as required by Rule 13-4(1)), that party will need to make an application to the court to order a joint retainer (see Rule 13-4(3) of the Supreme Court Family Rules). Any order appointing an expert or setting out the terms of the expert’s appointment must be promptly served on the expert.

As stated before, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules). A party can apply to the court for permission to introduce the evidence of an additional expert at trial, but must do so within 21 days after receipt of the joint expert’s report by serving the application materials on all parties.

Parties also have the opportunity to apply to the court for an order allowing them to introduce the evidence of a further additional expert. The judge hearing the application will consider whether the evidence of a further additional expert is “necessary to ensure a fair trial” (see Rule 13-4(7) of the Supreme Court Family Rules). Other factors that the court may consider include:

<blockquote>
(a) whether the parties have fully cooperated with the joint expert and have made full and timely disclosure of all relevant information and documents to the joint expert,

(b) whether the dispute about the opinions of the joint expert may be resolved by requesting clarification or further opinions from that expert, and

(c) any other factor the court considers relevant.
</blockquote>

(see Rule 13-4(8) of the Supreme Court Family Rules).

This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].

=== Court-appointed experts ===

The court can also appoint an expert on its own initiative (see Rule 13-5(1) of the Supreme Court Family Rules). The circumstances and process for the court to do make this type of order are set out in Rule 13-5 of the Supreme Court Family Rules.

=== The expert’s report ===

Rule 13-6 (1) has specific requirements for an expert’s report. An expert report must:
*be signed by the expert,
*include the certification required under Rule 13-2(2), and
*set out the following:
::(a) the expert's name, address and area of expertise,
::(b) the expert's qualifications and employment and educational experience in their area of expertise,
::(c) the instructions provided to the expert in relation to the family law case,
::(d) the nature of the opinion being sought and the issues in the family law case to which the opinion relates,
::(e) the expert's opinion respecting those issues,
::(f) the expert's reasons for their opinion, including
:::(i) a description of the factual assumptions on which the opinion is based,
:::(ii) a description of any research conducted by the expert that led them to form the opinion, and
:::(iii) a list of every document, if any, relied on by the expert in forming the opinion.

The expert report must be served on the other party at least 84 days before the scheduled trial date along with written notice that the report is being served under Rule 13 of the Supreme Court Family Rules (see Rule 13-6(3) of the Supreme Court Family Rules), except reports of court appointed experts. This is the case even where there is a jointly retained expert; each party is still entitled to notice of the other party’s intention to rely on the report at trial.

If a party intends to introduce at trial an expert’s report that responds to another expert report, that party must serve a copy of the responding expert’s report on every party at least 42 days before the scheduled trial date.

Where one party has retained and served a report of its own expert, that party is required to provide to the other party, upon request, the following information:
# any written statement or statements of facts on which the expert's opinion is based,
# a record of any independent observations made by the expert in relation to the report,
# any data compiled by the expert in relation to the report,
# the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming their opinion, as well as
# access to the contents of the expert's file relating to the preparation of the opinion set out in the expert's report.

The party receiving the request must respond promptly to it (see Rule 13-6(8) of the Supreme Court Family Rules).

A party who intends to use an expert’s report at trial is responsible for notifying the expert:
# of the trial date as soon as possible after the trial date is scheduled or the expert retained, whichever is later, and
# that the expert may be required to attend trial for the purpose of cross-examination (See Rule 13-6(9) of the Supreme Court Family Rules).

If a party objects to another party’s expert report that party must serve upon every other party a notice of any objection that party intends to raise about the admissibility of the report. That notice of objection must be served on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date (see Rule 13-6(10) of the Supreme Court Family Rules). If such notice isn’t given, then the objection will not be permitted at trial (unless the court otherwise orders) (See Rule 13-6(11) of the Supreme Court Family Rules).

=== Schedule and attend a trial management conference (TMC) ===

Parties heading to trial are required to schedule and attend a ''trial management conference'' (unless the party has a lawyer in which case the party does not have to attend as long as they is available by telephone to speak with their lawyer if instructions are needed during the TMC). The TMC is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

The TMC must take place at least 28 days before the scheduled trial date, unless the court orders otherwise (see Rule 14-3(1) of the Supreme Court Family Rules).

Each party (or their lawyer if represented) is required to file and serve on all other parties a trial brief in Form 45 at least 7 days before the TMC (see Rule 14-3(3) of the Supreme Court Family Rules).

The trial brief must contain:
# A summary of the issues and that party’s position about each issue;
# A list of the witnesses that party intends to call at trial, including each witness’ address and an estimate of the time that witness will be on the stand answering questions by that party;
# A list of any expert reports that party intends to rely upon at trial;
# A list of the witnesses that party intends to cross examine and the time estimate for each;
# A list of any orders already made in the court proceeding which may affect the conduct of the trial;
# A list of the documents and other exhibits that party intends to rely upon at trial;
# A list of the legal authorities that party intends to rely upon at trial;
# A list of the orders that party is requesting the judge to make; and
# That party’s time estimate for submissions (final argument) at the end of the trial.

At the TMC, the judge or master may consider and make orders about the following issues (see Rule 14-3(9)):
* direct the parties to attend a settlement conference,
* amendment of pleadings within a fixed time,
* a plan for how the trial should be conducted,
* admissions of fact at trial,
* admission of documents at trial, including:
** agreements as to the purposes for which documents may be admitted, and
** the preparation of common books of documents and document agreements.
* imposing time limits for the direct examination or cross-examination of witnesses, opening statements and final submissions,
* directing that a party provide a summary of the evidence that the party expects one or more of the party's witnesses will give at trial,
* directing that evidence of witnesses be presented at trial by way of affidavit,
* respecting experts, including, without limitation, orders that the parties' experts must, before the service of their respective reports, confer to determine and report on those matters on which they agree and those matters on which they do not agree,
* directing that the parties present opening statements and final submissions in writing,
* adjournment of the trial,
* directing that the number of days reserved for the trial be changed,
* adjourning the TMC,
* directing the parties to attend a further TMC at a specified date and time, and
* any other matter that may assist in making the trial more efficient or aid in the resolution of the family law proceeding.

If a party (or that party’s) lawyer does not attend a TMC, the judge or master may proceed with the TMC without the party, adjourn the TMC to another date, and/or order the party to pay costs to the other party (see Rule 14-3(5)).

Rule 14-3 of the Supreme Court Family Rules sets out further information about the TMC.

=== File and serve a trial record ===

If you are the party who has filed the Notice of Trial, you are also required to prepare and file a trial record. The trial record must be filed and served on the other party at least 14 days, but not more than 28 days, before the first day of trial (see Rule 14-4(3) of the Supreme Court Family Rules).

The trial record must include:
* the pleadings (i.e.: the Notice of Family Claim and each Response to Family Claim, Counterclaim and Response to Counterclaim),
* any particulars served under a demand for particulars, together with the demand made,
* the most current Form F8 financial statement, if any, filed by each party, and
* any orders relating to the conduct of the trial.

Once you have collected these documents, you will need to arrange them into a bound book (such as a binder). The bound book should include:
* a cover with the style of cause; the title ''Trial Record'', the names and contact information (addresses and phone numbers) of each party (or their lawyers if represented), and the date and place of trial in the bottom right hand corner;
* an index of the documents in the trial record, including the name and date of each document and on which page it can be found within the trial record; and
* page numbers on the top right hand corner of each document.

Once the trial record is complete, you will need to make two additional copies (or more if there are corporate or other respondents). You will then need to file the trial record (original and copies) with the registry and serve one copy on each party, saving one for yourself.

Further information about filing a trial record is set out in Rule 14-4 of the Supreme Court Family Rules.

=== File and serve a trial certificate ===

The trial certificate is a short document ([[Form F46 Trial Certificate|Form 46]]) that provides notice to the court that you are ready to proceed with the trial as scheduled. It specifically sets out that (1) the party filing the form is ready to proceed with the trial as scheduled; (2) the party filing the form has completed all examinations for discovery; (3) the current time estimate for the length of the trial; and (4) confirmation that the trial management conference has been completed. Both parties must file a trial certificate (see Rule 14-5 (1) of the Supreme Court Family Rules).

The trial certificate must be filed at least 14 days but not more than 28 days before trial and it is crucial that it is done within this timeframe (See Rule 14-5(2) of the Supreme Court Family Rules). If no party files the trial certificate, the proceeding will be removed from the trial list and you will lose your trial date (therefore requiring you to reschedule the trial). Although the practice is for the Claimant (or the party who filed the Notice to Trial) to file the trial certificate, if that party fails to do so, the other party can in order to preserve the scheduled trial date.

Further information about filing a trial record is set out in Rule 14-5 of the Supreme Court Family Rules.

=== Update Form F8 Financial Statement ===

Each party is required to update their [[Form F8 Financial Statement]] before trial.

The usual rule is that each party must file and serve on the other party an updated financial statement at least 28 days before trial (but not more than 63 days before the start of the trial). There is an exception for parties who have delivered their original Form F8 within 91 days before the start of the trial (see Rule 5-1(8) of the Supreme Court Family Rules).

If a party’s updated [[Form F8 Financial Statement]] includes material changes in that party’s financial circumstances since the initial Form F8, then the other party may seek a court order to allow that party to cross-examined before trial.

== Preparing evidence for trial ==
A review of all the rules of evidence is beyond the scope of this chapter. A good starting point for reviewing the rules of evidence is the [https://www.bccourts.ca/supreme_court/self-represented_litigants/Memorandum_to_SLRs_on_Trial_Procedure_and_Evidence.pdf Memorandum to Self-Represented Litigants on Trial Procedure and Evidence] prepared by the Supreme Court.

A good starting point is to prepare a framework for the eventual argument that you will be making at trial and keep updating it until you get to trial. Here is how you would begin:

# '''List of claims:''' Start by making a list of all of the claims that each of the parties are making in the court proceeding. The claimant’s claims are listed in the notice of family claim and the respondent’s claims are listed in the counterclaim. Consider the specifics of each order you want the court to make in relation to each claim (and make notes where appropriate).
# '''Know the law:''' Then review the law to figure out what factors the judge will be considering when making their decision, and figure out what you need to prove at trial in order for the judge to consider making (and hopefully make) the orders you are requesting. Note those factors in your outline so that you remember to address them in the evidence you lead at trial and your eventual argument to the judge.
# '''Consider the evidence:''' Then review the evidence you have to prove your case to make sure that you are including all the information the judge needs to know to be persuaded to make the orders you are requesting. You must also consider the form of the evidence and how you will present it to the judge (ie: presenting a document or having a witness testify).

Once you know where there are gaps in your evidence, you can figure out what further evidence you need. It is also useful to make note of where in the outline the evidence fits in and address that in your closing argument.

You should also consider whether there is any evidence that disproves an aspect of your case and any evidence you know (or even think you know) the other party has to prove their case because these factors should be taken into account when considering settlement options and positions at trial.

Put your outline (which at this point may be several or many pages already) into a three ring binder which will eventually become your trial binder. In the meantime, it will be a key organizational tool for preparing for trial and should include the following (each behind its own tab):
* A prominent page (the first page or behind the first tab) which includes:
** the trial date; and
** a list of all the dates by which you must take specific steps in the court proceeding (such as filing a trial certificate which if not done will cause you to lose your trial date);
* Your outline;
* A list of all the witnesses you intend to call to testify at trial, their address and phone number; you should later add a point form summary of the evidence you expect to receive from them as well as the date of trial you expect each to testify;
* A page to list the documents you intend to rely upon at trial; this list will become the index to your book of documents (which step is discussed more below);
* A section to include any other key documents such as a notice to admit or an offer to settle.

=== Documents ===

Preparing your outline (as described above) will help you decide which documents you will want to present as evidence during the trial.

Once you have collected all of the documents you intend to use at trial, you will need to consider how you will prove each document in court (i.e.: through a witness testifying about the document or another means), unless the other party will simply agree to the document being used. Consider doing the following:
* Ask the other party if they will agree to the use of the document for a specific purpose (i.e.: in the case of an email exchange between the parties about special or extraordinary expenses, the fact that one party responded on a specific date).
* Ask the other party to agree to the authenticity of the document through the use of a notice to admit (see the Discovery Process in Family Matters also in this chapter). Be aware that agreeing to the authenticity of a document means that you are agreeing that the document is what it looks to be (i.e.: a letter from a family doctor, dated …); it does not mean agreeing to the truth of its contents (i.e.: the diagnosis or prognosis within the letter from the family doctor).
* Ask the other party to agree to a form of document agreement which may include agreement on one or more of the following:
**the documents are all true copies of the originals;
**the documents were signed and dated as indicated on the documents;
**the documents were mailed, emailed or faxed on the dates indicated on the documents; and
**the documents were all received by the recipient indicated on the documents.

Any agreements you are able to reach with the other party about the use of documents at trial should be noted in your trial preparation binder and told to the trial judge when the trial begins. If the other party won’t reach agreement about the use of documents at trial, this is a good issue to discuss at the trial management conference.

Once you have collected your documents for use at trial and you know how you intend to prove each one, you can start preparing your book of documents. Start by organizing the documents in chronological order (by date); then separate each document by numbered tabs to make them easy to find, and if the documents are longer than one page number each page of that document starting with page one for each separate document (this is required by Rule 17-7(9) of the [http://canlii.ca/t/8mcr Supreme Court Family Rules]). You will need to prepare an index of each document included in the book and the corresponding tab number for each.

It is also a good idea to prepare a joint book of documents where possible. A joint book of documents would include:
* all documents that both parties intend to rely upon at trial; and
* all documents that one party intends to rely upon at trial and to which the other party does not object.

The joint book of documents can then be entered as a single exhibit at trial. If there are some documents that one party wants to use in court but the other party objects to including them in the joint book of documents, then that party wishing to rely on the additional documents can prepare a separate and additional book of documents and will need to address each document separately at trial.

In the days leading up to the trial, you will need to bind the documents (i.e.: use a binder or cerlox binding machine if you have access to one). Include a cover page that sets out:
* the style of cause of the court proceeding (the names of the parties and court registry information as set out at the beginning of every filed document);
* the title of the book: Book of Documents of the Claimant/Respondent (whichever applies); and
* the names and contact information for each party or their lawyer if represented.

You should prepare and bring to court an original and at least three copies of your book of documents (more if there are more than two parties). The original will used to show to witnesses at trial (if their testimony requires it) and copies will be provided to the judge and each party.

Also be aware of:
* Rule 14-7(10) of the Supreme Court Family Rules which requires that all ''plans, photographs or objects'' for use as evidence at trial must be available for inspection by the other party at least 7 days before the start of the trial (unless the court orders or the parties agree otherwise). That means that you can’t leave it to the last minute to figure out whether you will introduce these types of evidence at trial.
* Rule 14-7(8) of the Supreme Court Family Rules which entitles either party to require the other party to bring to the trial any document listed in the other party’s list of documents by service a notice in [[Form F47 Notice to Produce|Form F47]] on the other party at least 2 days before trial.

=== Witnesses ===

You will need to consider whether you need anyone else to attend the trial to give evidence in support of your case. Witnesses should only be called to testify about facts that are relevant to the case and that are within the witness’ direct experience (in contrast to having heard information from another person who is not testifying).

Witnesses are generally not allowed to testify about their opinions, although there are exceptions to this general rule. One notable exception: a lay person is allowed to provide an opinion based upon personal observation of something that is commonly known (such as coming to the conclusion that it was raining outside because everyone who came inside was soaking wet). A second notable exception: an expert witness is allowed to provide an opinion based upon their specialized education, training, skills, certification or experience.

=== Testifying in person ===

The usual rule is that witnesses are to testify in person at trial, although there are limited circumstances under which affidavit evidence or deposition evidence (Rule 14-7(40) to (45) of the Supreme Court Family Rules) or pre-trial examination of a witness may be allowed instead (discussed further below).

You will need to contact each witness to ask them to testify. If they won’t agree to testify or you are otherwise uncertain as to whether they will show up, then you will need to issue a subpoena to require them to testify. A subpoena is in [[Form F23 Subpoena to Witness|Form F23]] and needs to be served personally on the witness at least 7 days before trial, along with the required witness fees which are set out in [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/part-7/bc-reg-169-2009-part-7.html Appendix C] – Schedule 3 (Fees Payable to Witnesses) of the Supreme Court Family Rules (Rule 14-7(32) & (34) of the Supreme Court Family Rules).

The daily witness fee is currently $20 in addition to the travel costs of the party being examined as follows:
#Mileage:
#:(a) If the party being examined lives within 200 km by road (including any ferry route and road tolls), currently $.30 per km each way by road between their residence and the place of the examination (but no payment if the distance is less than 8 km); or
#:(b) If the party being examined lives more than 200 km away, the minimum return air fare by scheduled airline plus $.30 per km at this time each way from their residence to the departure airport and from the arrival airport to the place of the examination.
#Reasonable allowance for meal expenses and if the witness isn’t local and has to stay the night, a reasonable allowance for overnight accommodation. To figure out what is reasonable, call a few decent hotels in your area and consider including that information in a cover letter to the witness.
#Reasonable payment for the witness’ time and any expenses the witness incurred to prepare to give evidence (if the preparation is necessary). Basically you have to pay your witness their reasonable wage for missing work to testify.

If the witness then fails to show up at the trial, the witness can be charged with contempt of court (see Rule 14-7 (38) of the Supreme Court Family Rules).

For each witness, prepare a list of the issues that you need them to speak about in their testimony. Then make a list of questions to ask and review with them before trial. For each witness, you will likely want to start with basic questions such as their full name, address, age and occupation, their education if relevant, and their relationship to the parties, and then move on to the focused areas of inquiry.

You can only ask your witnesses open ended questions, meaning questions that do not suggest the answers (those types of questions are limited to cross examination of the other party’s witnesses).

=== Use of pre-trial examination or deposition ===

There are limited circumstances under which a witness may be able to testify before trial and have the transcript of their answers used as evidence at trial (see Rule 14-7(40) about the use of deposition evidence and Rule14-7(52) about the use of transcripts of pre-trial examinations of witnesses) – although even then, the court retains the right to require the witness to attend the trial to testify in person (see Rule 14-7(40) of the Supreme Court Family Rules). Doing so may be appropriate in the following circumstances:
<blockquote>
(a) Where the transcript evidence can be used to contradict or impeach the testimony of the person at trial; or

(b) It is necessary in the interests of justice for one of the following reasons:
:(i) the person is unable to testify due to death, age, infirmity, sickness or imprisonment;
:(ii) the person is out of the jurisdiction, or
:(iii) the person cannot be served with a subpoena.
</blockquote>

Doing so also requires either the consent of both parties or an order of the court. For more information about making an application to the court for an order before trial, see the section: [[Interim Applications in Family Matters]].

Do note that you can’t cherry pick the evidence from the transcript to introduce at trial. Rule 14-7(45) requires that depositions (whether by video or transcript) must be presented in full at trial. Rule 14-7 (53) states that a court may consider the whole of the pre-trial examination and can direct that other related portions be introduced as evidence. Rule 14-7(56) allows a party to object to the admissibility of any question asked at a deposition or pre-trial examination of a witness even if the party didn’t object at the time the question was being asked.

=== Expert witnesses ===

If the expert has been jointly appointed, each party has the right to cross-examine that expert at trial (see Rule 13-4(10) of the Supreme Court Family Rules).

If the expert has been retained by one party:
<blockquote>
(a) the party who retained the expert may conduct a direct examination of the expert which is limited to clarifying terminology in the report or to otherwise make the report more understandable (Rule 13-7(5) of the Supreme Court Family Rules);

(b) the other party is permitted to cross-examine the expert at trial provided that party gave the necessary notice of their intention to cross-examine the expert; and

(c) after the cross-examination, the party who retained the expert may be permitted to re-examine the expert on any new issues that were raised in the cross-examination.
</blockquote>

Where an expert has been appointed by the court, a party wishing to cross-examine the expert at trial must serve notice on the expert and all parties. The notice is in [[Form F43 Notice to Cross-examine|Form F43]] and must be served at least 28 days before the scheduled trial date.

Preparing a cross examination of an expert is a lot like preparing for any other witness, except that it usually requires more specialized knowledge and therefore may require some research or even contacting another expert of a similar background for advice about areas of questioning.

For each expert witness, prepare a list of the issues that you need them to speak about in their testimony. Then make a list of questions to ask and review the questions with the expert before trial if possible. You may have questions about their training and experience, about the process of information gathering they used to form their opinion, and the opinion itself.

Any party relying upon the expert report at trial will need to bring the original of any expert report to trial along with at least three copies. (If the expert’s resume or curriculum vitae is not already attached to the report, copies of it will be required too). The original will be used for reference by the expert witness and the remaining copies will be distributed to the judge and all parties (or their counsel). The expert report (and resume or curriculum) can be included in any joint book of documents at trial or submitted as a separate exhibit.

=== Section 211 reports ===

If a party wishes to challenge any of the facts or opinions in a section 211 report, that party must do so by cross-examination of the report writer.

Each party has the right to cross-examine the person who prepared a report under section 211 of the ''[[Family Law Act]]'' provided that person provides the necessary notice. The notice of a party’s intention to cross-examine the report writer must be in [[Form F43 Notice to Cross-examine|Form F43]] and be served at least 28 days before the scheduled trial date (see Rule 13-1(2) of the Supreme Court Family Rules).

Preparing to cross-examine a section 211 report writer is similar to preparing to cross-examine an expert.

For more information about section 211 reports, see:
[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]]

[[How Do I Get a Views of the Child Report?|How do I get a views of the child report?]] in the ''How Do I?'' part of this resource.

=== Use of physical objects ===

If you intend to use a physical object at trial, you will need to bring it to trial.

You should also be aware of:
* Rule 14-7(10) of the Supreme Court Family Rules which requires that all plans, photographs or objects for use as evidence at trial must be available for inspection by the other party at least 7 days before the start of the trial (unless the court orders or the parties agree otherwise). That means that you can’t leave it to the last minute to figure out whether you will introduce these types of evidence at trial.
* Rule 14-7(8) of the Supreme Court Family Rules which allows either party to serve a notice to require the other party to bring to the trial any physical object the party serving the notice is considering introducing at trial. The notice must identify the object, be in [[Form F47 Notice to Produce|Form 47]], and served on the other party at least 2 days before trial.

=== Final steps to prepare for a family law trial ===

There are a number of final steps to prepare for a family law trial:
# '''Book of Documents:''' If you haven’t already done so, prepare your Book of Documents. Preparation of a book of documents is set out earlier in this section under Preparing Evidence for Trial: Documents.
# '''Prepare Book of Authorities.''' This is a bound volume of the law that you intend to rely on at trial and should include copies of any statutes, regulations and case law (which are collectively called ''authorities'') you intend to rely on at trial. Each authority should be placed behind a separate tab and an index listing each authority and its corresponding tab for easy reference during the trial. You will need to make enough copies for the judge, yourself and every other party (or their lawyer if they have one).
# '''Prepare an opening statement:''' This is a statement that is made at the beginning of each party’s case to give the judge some factual background about the case, an overview of the legal issues involved and the positions taken/orders sought by that party. If the parties have reached agreement on any issues, this should be communicated to the judge during a party’s opening statement. If there are housekeeping issues (such as an expert witness only be available to testify on a specific date), such issues should be raised at this time as well. A party’s opening statement should be consistent with a party’s closing argument.
# '''Update outline for closing submissions:''' Each party’s closing submissions should include a summary of the law on each issue, a description of each order sought by the party making the submissions, and a summary of the evidence that supports each order sought. If a party has made an extensive outline during their earlier trial preparation (as suggested above), this step is simplified. A party’s closing argument should be consistent with the party’s opening statement.
# '''Finalize preparation of direct examinations & cross examinations of witnesses'''
# '''Consider preparing a chronology:''' Each party should also consider preparing a chronology of important events such as the birth dates of each party and child, the date of cohabitation, the date of marriage, the date of separation, the date of divorce (if applicable), and the dates of any other significant events such as moves, job changes, promotions, inheritances, gifts, diagnoses etc. for easy reference by the judge at trial. If you do prepare a chronology, be sure to bring copies for the judge, the other party (or their lawyer) and yourself.
# '''Consider preparing a Scott Schedule:''' If either party has a lawyer and division of property and debt is in dispute, then the lawyer will also prepare a ''Scott Schedule''. A Scott Schedule is a spreadsheet that lists all of the property and debt in issue, the value of each at various dates, and other useful information such as whether there are excluded property claims, that party’s position about what should happen with each property and debt and the like. There is no requirement in the Supreme Court Family Rules that a Scott Schedule be prepared, but it is a useful reference tool at trial. If one party has a lawyer who prepares a Scott Schedule, the other party can review it carefully and make note of where that party disagrees with the information provided. If neither party have a lawyer and neither party prepares a Scott Schedule, the judge will likely use the parties’ financial statements as the main reference for financial information about property and debts.
# '''Prepare your own trial binder:''' Convert any trial preparation binder to your trial binder. Replace all documents with the following, each of which should be included behind separate tabs:
#* List of witnesses (with contact information for each) and anticipated trial plan/schedule (which is really just a best guess as to when each witness will testify and for how long)
#* Page to list exhibits as they are entered at trial – this will be an important reference during the trial and when you are preparing your final argument
#* Chronology &/or Scott Schedule, if either/both have been prepared
#* Opening statement
#* Direct examination of each witness that party intends to call (with each examination behind a separate tab)
#* Cross examination of each witness the other party intends to call (with each examination behind a separate tab)
#* List of read-ins (from examination for discovery, pre-trial examinations of witnesses or depositions, if any)
#* Final argument/closing submissions
#* Miscellaneous notes/to do list – sometimes during a trial a judge will ask a party to do something during a court break or a party thinks of another idea to explore. It is helpful to have a place to list such miscellaneous items and thoughts that come up during trial in order to stay organized.
#'''Personal preparation:'''
#*Familiarize yourself with court and court processes:
#**Visit the courthouse to familiarize yourself with it (unless you know it well already), including checking the hours of operation, the location of the hearing list, the location of washrooms, and the availability of food at or near the courthouse if you don’t plan to pack a lunch each day of trial.
#**Consider watching a trial as observation of the real thing is often the best education. Trials are open to the public and are generally in session from 10 am to 12:30 pm and from 2:00 to 4:00 pm each day.
#*Engage in self-care leading up to trial, including ensuring that you get enough sleep, that you are eating healthily and getting regular exercise, and that you have the emotional support that you need to help you through this process (ie: family, friend, counsellor).
#*For more tips on personal preparation to manage the trial process, see the Legal Services Society of British Columbia’s fact sheets:
#**[http://www.clicklaw.bc.ca/resource/4069 Coping with the court process]
#**[http://www.clicklaw.bc.ca/resource/4070 Preparing to attend Supreme Court]

== Conducting the trial in Supreme Court ==

=== Usual sequence of events ===

Trials of family matters in Supreme Court are usually conducted in the following manner and sequence:
<blockquote>
(a) '''Opening Statement of the Claimant:''' At the beginning of the trial, the claimant (or claimant’s counsel) has the opportunity to tell the court what the case is about and what proof the claimant will be presenting.

(b) '''Claimant’s Presentation of Evidence:''' The claimant (or claimant’s counsel) will then call each of their witnesses, including the claimant themself, to testify and to introduce any applicable exhibits into evidence (ie: documents or objects). The respondent (or respondent’s counsel) will then have the right to cross-examine the witnesses.

(c) '''Opening Statement of the Respondent:''' After the claimant has finished presenting their witnesses and evidence, the respondent (or respondent’s counsel) is entitled to make an opening statement to the court.

(d) '''Respondent’s Presentation of Evidence:''' The respondent (or respondent’s counsel) will then be given the opportunity to call witnesses, including the respondent him/herself, to testify and to introduce any applicable exhibits into evidence. The claimant (or claimant’s counsel) will then have the right to cross-examine them.

(e) '''Argument:''' After the evidence is complete, both parties (or their lawyers) will have the opportunity to make submissions (arguments) about how the case should be decided. The claimant is given the opportunity to make submissions first, then the respondent, and then the claimant is often given a further opportunity to respond (briefly) to the submissions of the respondent.
</blockquote>

=== Tips about etiquette at trial in Supreme Court ===

* Always arrive early for court (15 minutes early is a good guideline) and return to the courtroom on time after breaks.
* Stand up when the judge enters or leaves the courtroom and when you are speaking to the judge.
* If the judge is:
** a man call him '''My Lord'' or ''Your Lordship''
** a woman call her ''My Lady'' or ''Your Ladyship''
* Always be respectful to the judge and to everyone else in the courtroom, including the court clerk, the sheriff (if any) and the other party and counsel.
* When speaking to a witness, use Mr., Ms., or Dr. followed by their surname, rather than the witness' first name (which is too casual).

For more tips on conducting a trial in Supreme Court, see the Legal Services Society of British Columbia’s fact sheet on [http://www.clicklaw.bc.ca/resource/4071 Tips for Conducting your Supreme Court Trial].

=== Taxable costs and disbursements ===

There is a distinction between costs and disbursements. Costs are intended as a partial payment of the legal fees of the successful party. Disbursements are the out-of-pocket expenses such as court filing fees, witness fees, traveling and subsistence expenses, experts' fees, fees for medical/legal reports and the like.

Both are dealt with in Rule 16-1 of the Supreme Court Family Rules. The usual rule is that the successful party will be awarded their taxable costs and disbursements on a ''party and party'' basis, but there are many exceptions.

An award of costs normally does not amount to more than approximately 30% of a party's actual legal fees. Generally, most disbursements are recoverable, although there are some exceptions. A successful party can expect to recover about 80-90% of actual out-of-pocket expenses.

A party can ask the judge for a ruling on costs after the judge has delivered the decision.

For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [http://www.clicklaw.bc.ca/resource/1620 Costs and Expenses].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* Legal Services Society Family Law in BC website:
**[http://www.clicklaw.bc.ca/resource/4055 How to schedule and prepare for your Supreme Court trial]
**[http://www.clicklaw.bc.ca/resource/4068 Present your evidence at Supreme Court]
**[http://www.clicklaw.bc.ca/resource/4070 Preparing to attend Supreme Court]
**[http://www.clicklaw.bc.ca/resource/4072 What happens at a Supreme Court trial?]
**[http://www.clicklaw.bc.ca/resource/4071 Tips for conducting your Supreme Court trial]
**[http://www.clicklaw.bc.ca/resource/4069 Coping with the court process]
**[http://www.clicklaw.bc.ca/resource/4056 How to draft a Supreme Court order]
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society Website for BC Supreme Court]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 15, 2017}}

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[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-12T21:51:48Z

Julie Brown: /* Basic financial information */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether and what amount of spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short-term orders like these, you must make an ''interim application'' in court.

This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short-term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The purposes of interim applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct orders.

Restraining orders require someone to not do a specific thing, such as:

*not disposing of property,
*not racking up debt,
*not talking to the children about the issues in the court proceeding,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They require someone to not do a specific thing, such as:

*not communicating with the family member,
*not going to a place where the family member lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or the judge's decision is handed down following a trial.

===Making interim applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending a court proceeding and works more or less like this:

#The person making the application, the ''applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#On the date of the hearing, the applicant argues why the order sought should be made, the application respondent argues why the order sought shouldn't be made, and the judge or master who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: judicial case conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

*when an application is being made for an order restraining either or both parties from disposing of family property,
*when the order will be made with the agreement of both parties, or,
*when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC. Once the first JCC has been held, interim applications can usually be made at any time.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the application respondent, you must deliver these documents to the other party's address for service by ordinary service under [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

The Notice of Application and any supporting affidavits must be served on the application respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the application respondent. The timelines for interim applications are discussed in more detail below.

====The Notice of Application====

The Notice of Application describes:

*the orders and declarations the applicant is asking for (also called the ''relief'' the applicant is asking for),
*the facts supporting the application,
*the legal grounds on which the application is made, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence which the applicant relies on in support of the relief sought,
*the amount of time the applicant thinks it will take for the application to be heard, and
*the date picked by the applicant for the hearing of the application.

The form you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $80.00.

====Supporting affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation.

The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond to an interim application if you object to any of the orders the applicant is asking for. If you agree with all of the orders sought by the applicant, you don't need to do anything. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of Application. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====The Application Response====

The Application Response describes:

*the orders sought by the applicant which the application respondent agrees to,
*the orders that the application respondent opposes,
*the orders to which the application respondent neither opposes nor consents (this is called ''taking no position'' on an order),
*the facts supporting the application respondent's position,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed by the application respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the applicant's first affidavit.

The applicant must file any responding affidavits in court and serve them on the application respondent by 4:00 pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the application respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the application respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the application respondent to file and make arguments based on a new affidavit.

===A short note about time estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the trial coordinator at the court registry, and a hearing date may not be available for several weeks or months. Applications that will take less than two hours are heard on a day picked by the applicant, although it's always best if the applicant picks the date in consultation with the application respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in court on a particular day or there could be 30. The court clerk will generally sort the applications in order of the time estimates, so that a five-minute application will be heard fairly quickly, while a ninety-minute application might not be heard until much later in the day (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they must cooperate and prepare a joint Application Record.

The applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00 pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the applicant will be asking the court to hear. The applicant must serve a copy of the index of the Record on the application respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your record after the deadline of 4:00 pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr Rule 10-6(14)(a)], the materials in the Application Record need to be securely bound, which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including running a couple of hex bolts through the left-hand margin. The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record,
#the Notice of Application (Tab 1),
#the Response to Application (Tab 2), and
#the affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A ''tab'' is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a table of contents divider that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notice 7], you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

#The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that explain why the judge shouldn't make the orders the applicant is asking for.

The applicant will then have a chance to briefly answer the application respondent's argument. The application respondent may have the opportunity to address the applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the applicant and application respondent questions during their presentations to clarify things.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===After the hearing===

It is usually the job of the applicant's lawyer to turn whatever the judge or master has decided into a written order. If the applicant doesn't have a lawyer, the lawyer for the application respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the ''official'' order of the court, the order takes effect and is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and may change depending on whether the application is for an interim order, a final order, or an order changing a final order.

====Making an application====

The applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 business days'' of the hearing.

====Replying to an application====

The application respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''14 business days'' of being served.

====Responding to an application response====

The applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application records====

The applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the application respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the application respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING'''
|}

In this example, the application respondent's materials are due on Monday on the second week, one week after the date of service, and the applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the application respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the applicant serves the interim application materials and the date of the hearing; all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the application respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A short note about courtesy===

The [http://canlii.ca/t/8mcr Supreme Court Family Rules] allow an applicant to simply set the hearing date without consulting the application respondent. Although this gives the applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the application respondent, you can expect the application respondent to show up on the hearing date and ask the court for a delay your application. This is called an ''adjournment''.

If the application respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the application respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or their lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on the date of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''respondent'', the person against whom the application has been brought. The respondent is not required to file anything in reply to the application.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation program

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their Reply to the applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation program] under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

*Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court.
*Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute.
*Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation program] is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

*Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program.
*Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance.
*Rules 21(4) and (5) set out some exceptions to the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, most parents, once they have complied with Rules 5 and 21, can follow the standard rules for bringing on interim applications, described below.

====Family case conferences====

Family case conferences are similar in many ways to the judicial case conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that can simply be ticked off to indicate the sort of order that you want the court to make.

The registry will stamp all of the copies and keep the top sheet. You must then serve the respondent with their copy at least ''seven days'' before the date the application is set to be heard. The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===Defending an application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the applicant be served with a response.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which says that if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so if you can prepare one, you should. The respondent will have a chance to challenge the applicant's witnesses and cross-examine them, or may make an affidavit in reply to the applicant's affidavit.

Once the applicant's case is done, the respondent may present their own case, and call witnesses to give evidence just the way the applicant did. Likewise, the applicant will be able to cross-examine the respondent's witnesses.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their case and argue why the judge should make the order asked for. The respondent will be able to reply to the applicant's argument, after which the applicant may have the opportunity to make a reply to the respondent's reply.

Once everyone is done, the judge will give their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===After the hearing===

If the parties to the hearing were represented by lawyers, the applicant's lawyer will usually draft an order based on the judge's decision. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

==Common interim applications==

The following discussion reviews the basic facts that will usually need to be proven for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates and ages,
*where the children go to school and what grade they're in,
*any important health or educational concerns,
*the occupation of each parent,
*each parent's usual work schedule,
*how the parents shared the parenting of the children while they were together,
*who was responsible for arranging things like visits to the doctor and dentist,
*who was responsible for looking after school issues, like parent-teacher meetings and making sure homework was done,
*how the parents have shared the parenting of the children since they separated,
*the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates and ages,
*how the children's time is divided between the parents,
*whether some or all of the children are stepchildren to the person who is to pay child support,
*whether some or all of the children are receiving child support from another parent,
*the nature of each parent's employment,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their income, in addition to a sworn Financial Statement. See [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial#0 Complete a Supreme Court financial statement] and [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial#0 Complete a Provincial Court financial Statement] for more information. The most common of these documents for people who are ''employees'' are:

*the last three years of personal income tax returns,
*all notices of assessment or reassessment received in relation to the last three tax years, and
*a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from ''EI'', ''WCB'', ''CPP'', or ''social assistance'', will also have to produce their three most recent statements or cheque stubs from their payments.

People who are ''self-employed'' in an unincorporated business will also have to produce:

*statements of professional or business income,
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate financial statements for the three most recent fiscal years,
*corporate tax returns for the three most recent fiscal years, and
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

When making the first application for spousal support, the important facts will include:

*the date the parties began to live together and the date they married,
*the date of separation,
*the parties' ages, including the proposed recipient's age at the date of separation,
*each party's present health,
*any factors limiting a party's ability to obtain employment,
*the parties' present employment circumstances,
*the parties' employment history during marriage, including any periods of unemployment,
*each party's present income and the sources of that income,
*a description of the each party's living expenses after separation,
*any career sacrifices made during the relationship, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*a description of any education and training taken after separation, especially any education geared to finding employment,
*the ages and school status of the children at the date of separation, and
*the arrangements that have been made for the care and control of any children.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their income, in addition to a sworn Financial Statement. See [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial#0 Complete a Supreme Court financial statement] and [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial#0 Complete a Provincial Court financial Statement] for more information. The most common of these documents for people who are employees are:

*the last three years of personal income tax returns,
*all notices of assessment or reassessment received in relation to the last three tax years, and
*a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

*statements of professional or business income,
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate financial statements for the three most recent fiscal years,
*corporate tax returns for the three most recent fiscal years, and
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order was made,
*any employment taken by the recipient since the order or agreement was made,
*any changes in the employment circumstances of the payor,
*whether the recipient has remarried or is in a new unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order under the Family Law Act, important facts will usually include:

*the date when you began living together, the date of marriage (if any) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about,
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Interim Applications in Family Matters

2019-06-12T21:51:27Z

Julie Brown: /* Basic financial information */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
{{LSSbadge
|resourcetype = a self-help guide on 
|link = [http://www.clicklaw.bc.ca/resource/1701 applying and responding to applications for interim orders in Supreme Court]
}}Once a court proceeding has started, it's usually necessary to get one or more short-term orders about important issues like where the children will live or whether and what amount of spousal support ought to be paid. Issues like these can't wait until trial and need to be dealt with immediately, although they'll only be dealt with on a temporary, interim basis pending trial. To get short-term orders like these, you must make an ''interim application'' in court.

This section provides an introduction to interim applications, discusses the process for making and defending interim applications in the Supreme Court and in the Provincial Court, and reviews some of the basic facts that should be discussed for a variety of common interim applications.

==Introduction==

Interim applications are applications for temporary, short-term orders made before trial. Interim orders only last until a final order is made at trial or a final settlement is reached or if a court allows a variation before trial.

Interim orders can be very useful to establish some basic ground rules between separated people, and although these rules can be established fairly quickly, they are not intended to be permanent. In ''[http://canlii.ca/t/1q6cl M.(D.R.) v. M.(R.B.)]'', 2006 BCSC 1921, a case from the Supreme Courtof British Columbia, the judge had this to say about interim orders:

<blockquote>"Interim orders are only intended to be short-term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits.</blockquote>

<blockquote>"Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the [underlying] case."</blockquote>

===The purposes of interim applications===

Interim applications are particularly common in family law proceedings, sometimes because someone's behaviour is out of control, sometimes because decisions need to be made about where the children will live, and sometimes to get some financial support flowing. Interim applications are most often made to answer questions like these:

*What time will each parent have with the children (until a final order is made or settlement is reached)?
*Should child support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should spousal support be paid and, if so, how much should be paid (until a final order is made or settlement is reached)?
*Should only one spouse have the right to live in the family home (until a final order is made or settlement is reached)?
*Should the property be frozen until it is divided by a final order or agreement?
*Is a protection order necessary?
*Is a form or restraining order or conduct order necessary?
*Who should be responsible for paying debts or expenses to maintain the home pending trial?

Interim orders that are designed to govern how the parties will relate to each other often come in the form of restraining orders, protection orders and conduct orders.

Restraining orders require someone to not do a specific thing, such as:

*not disposing of property,
*not racking up debt,
*not talking to the children about the issues in the court proceeding,
*not making negative comments to the children about the other parent, or
*not going to a particular place.

Protection orders are designed for the protection of a family member and are enforced by police. They require someone to not do a specific thing, such as:

*not communicating with the family member,
*not going to a place where the family member lives and/or goes to school and/or works,
*not possessing weapons, or
*not stalking or harassing the family member.

Conduct orders are designed to manage behaviours, such as:

*how parties will communicate with each other (ie: written communication by email only),
*requiring a party to attend counseling, mediation or a specified service or program (such as a parenting course),
*requiring a party to refrain from consuming alcohol or non-prescription drugs during that party's parenting time, or to submit to blood tests,
*requiring a party to pay specific expenses such as expenses related to the family home (ie: mortgage, taxes, property insurance).

Other types of interim order deal with procedural matters that have to do with the administration and management of the court proceeding, rather than with the relationship between the parties and their children. These can be useful to:

*set deadlines for the exchange of financial documents, such as bank statements and tax returns, documents relating to the children like report cards and education assessments, or court documents like Financial Statements and Lists of Documents,
*authorize the preparation of a needs of the child assessment or views of the child report, which can also include both parties undergoing psychological testing, or
*fix dates for case conferences like trial management conferences and settlement conferences.

Pretty much anything can be dealt with at an interim application, except for things that are final in nature, like an order for divorce or an order dividing the family property and family debt. The one thing all interim orders have in common is that they are only temporary and will expire the moment the case is settled or the judge's decision is handed down following a trial.

===Making interim applications===

The process of bringing or defending an interim application, whether you're in the Supreme Court or the Provincial Court, is a miniature version of the process for starting or defending a court proceeding and works more or less like this:

#The person making the application, the ''applicant'', prepares the formal court documents that start the application, and delivers those documents to the person who will be defending the application, the ''application respondent'' or the ''respondent''.
#The application respondent has a certain amount of time to respond to the application, and does so by preparing other formal court documents and delivering those to the applicant.
#The applicant may prepare a reply to the application respondent's response.
#On the date of the hearing, the applicant argues why the order sought should be made, the application respondent argues why the order sought shouldn't be made, and the judge or master who hears the application makes a decision one way or the other (or, often, a bit of both ways). Sometimes the judge or master makes the decision that same day, but sometimes it can take weeks or even months for the decision to be handed down.

The requirements, deadlines, and court forms for each of these steps are governed by the rules of the particular court you are in. The rules also set out how the application is set for hearing and heard, and the nature of the court's authority to decide the issues before it. It is very important to understand how the rules about interim applications work.

==The Supreme Court==

Interim applications are only brought after a court proceeding has started. The purpose of these applications is usually to provide a legal structure to the parties' relationship with each other and with their children. A typical interim application might be made to establish how the parties will share parental responsibilities or parenting time with the children, to arrange for the payment of spousal support or child support on an interim basis, to freeze the family property, or for the payment of family debt (such as the mortgage) for example.

The main [http://canlii.ca/t/8mcr Supreme Court Family Rules] about the interim application process are:

*Rule 1-1: definitions
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
*Rule 7-1: judicial case conferences
*Part 10: interim applications and chambers procedure
*Rule 10-2: where applications are heard
*Rule 10-3: chambers procedure
*Rule 10-4: affidavits
*Rule 10-6: normal application process
*Rule 10-9: urgent applications
*Rule 15-1: court orders
*Rule 16-1: costs
*Rule 21-2: time

For a summary of the application process, see [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' part of this resource.
Links to and examples of the court forms used in the process can be found in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].

===When to make an application===

The usual rule is that interim applications can only be filed and heard by the court after the respondent has had a chance to file their Response to Family Claim and a judicial case conference has been held. However, exceptions are allowed and applications can be brought earlier than this — sometimes on the same day that the court proceeding is started — when there is a very urgent problem that needs to be resolved immediately. This might be the case if a parent is threatening to leave the country with the children or has a history of violence in the family.

[http://canlii.ca/t/8mcr Rule 7-1(3)] of the Supreme Court Family Rules sets out the exceptions to the requirement that a JCC be held before any applications can be brought:

*when an application is being made for an order restraining either or both parties from disposing of family property,
*when the order will be made with the agreement of both parties, or,
*when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'').

If you must bring an application before the JCC but your application doesn't fit into one of the exceptions described in Rule 7-1(3), you must ask the court for permission to have your application heard before the JCC under Rule 7-1(4). To ask for permission, you must file a Requisition in Form F17 with a signed letter explaining why your application should be heard before the JCC. Once the first JCC has been held, interim applications can usually be made at any time.

This chapter discusses JCCs in more detail in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To start an interim application, you must prepare a Notice of Application and an affidavit in support of your application. Unless your application is being brought without notice to the other party, the application respondent, you must deliver these documents to the other party's address for service by ordinary service under [http://canlii.ca/t/8mcr Rule 6-2]. You can do this by sending them to the application respondent's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim.

(Even if you go to court and get an order without providing the other party with notice of the application (ie: on an ex parte basis), once the order is made you will need to serve the order along with the Notice of Application and supporting documents on the other party. The other party is always entitled to know the factual basis upon which the order was made. It is also important to know that if the party really takes issue with an order made ex parte, that party can make their own application to the court to have the order set aside.)

The Notice of Application and any supporting affidavits must be served on the application respondent at least eight business days before the date you have picked for the hearing of the application, except in cases of urgency or where the application is to be heard without notice to the application respondent. The timelines for interim applications are discussed in more detail below.

====The Notice of Application====

The Notice of Application describes:

*the orders and declarations the applicant is asking for (also called the ''relief'' the applicant is asking for),
*the facts supporting the application,
*the legal grounds on which the application is made, meaning the specific rule(s) of the Supreme Court Family Rules, section(s) of the applicable legislation (such as the Family Law Act and/or the Divorce Act), and any caselaw that party is relying on in support of their court application,
*the affidavits or other evidence which the applicant relies on in support of the relief sought,
*the amount of time the applicant thinks it will take for the application to be heard, and
*the date picked by the applicant for the hearing of the application.

The form you must use is Form F31, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. The cost to file an application is currently $80.00.

====Supporting affidavits====

An affidavit is a written summary of relevant facts and information, given under oath or affirmation.

The affidavits filed with the Notice of Application should describe the important facts that relate to the relief sought in the application. Where possible, if a party has documents that support statements in an affidavit (such as the level of the party's income or financial transactions through a bank) those documents should be attached as exhibits to the affidavit. These affidavits may be brand new or they may have been prepared earlier in the proceeding for a previous application. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Responding to an application===

You must respond to an interim application if you object to any of the orders the applicant is asking for. If you agree with all of the orders sought by the applicant, you don't need to do anything. For a summary of this process, see [[How Do I Respoind to an Interim Application in a Family Law Matter in the Supreme Court?]] It's located in the ''How Do I?'' part of this resource, in the section Interim Applications.

To respond to an interim application, you must prepare a court form called an Application Response and an affidavit in support of your position. These documents must be filed in court and served on the applicant no more than five business days after the date you were served with the application materials. The timelines for interim applications are discussed below in more detail.

You must serve your documents on the applicant by ordinary service. You can do this by sending them to the applicant's current address for service, which will usually be set out in their Notice of Family Claim or Response to Family Claim. How to serve documents is discussed in [[How Do I Personally Serve Someone with Legal Documents?]] It's located in the ''How Do I?'' part of this resource under ''Starting an Action''.

You may, at any time after being served with a Notice of Application, decide to file an application of your own for whatever interim orders you think are necessary. You can make this application, called a ''cross-application'', by Notice of Application. Depending on the circumstances and the timing of the cross-application, the parties will often agree to have the two applications heard at the same time.

====The Application Response====

The Application Response describes:

*the orders sought by the applicant which the application respondent agrees to,
*the orders that the application respondent opposes,
*the orders to which the application respondent neither opposes nor consents (this is called ''taking no position'' on an order),
*the facts supporting the application respondent's position,
*the legal grounds on which any opposed orders are opposed,
*the affidavits or other evidence which the application respondent relies on in opposing the application, and
*the amount of time the application respondent thinks it will take for the application to be heard.

The form you must use is Form F32, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]]. There is no fee to file an application response.

====Supporting affidavits====

An affidavit is a written summary of relevant evidence (being facts and information), given under oath or affirmation.

The affidavits filed with the Application Response should give evidence that helps to explain why the application is opposed. These affidavits may be brand new or they may have been prepared for a previous application in the family law proceeding. The form you must use is Form F30, which you can download in an editable format in [[Sample Supreme Court Forms (Family Rules)|Supreme Court Forms & Examples]].

The process for drafting affidavits and the rules about the content of affidavits are discussed in [[How Do I Prepare an Affidavit?]] It's located in the ''How Do I?'' part of this resource under Affidavits.

===Replying to the Application Response===

The applicant may prepare an affidavit in reply to the affidavit(s) provided by the application respondent. This new affidavit must be limited to talking about new issues raised by the Application Response and supporting affidavits filed by the application respondent; it is not an opportunity to give facts or raise issues that ought to have been raised in the applicant's first affidavit.

The applicant must file any responding affidavits in court and serve them on the application respondent by 4:00 pm on the day that is one full business day before the date set for the hearing. The filed affidavit must be served on the application respondent by ordinary service. The timelines for interim applications are discussed below in more detail.

Although the application respondent does not have a right to reply to a responding affidavit under the rules, you should not count on the court refusing to allow the application respondent to file and make arguments based on a new affidavit.

===A short note about time estimates===

Time estimates are very important in interim applications before the Supreme Court. The length of time an application will take to be heard determines the time when the application will be heard on the date of the hearing and how the hearing date is set.

An application that will take longer than two hours must be scheduled with the trial coordinator at the court registry, and a hearing date may not be available for several weeks or months. Applications that will take less than two hours are heard on a day picked by the applicant, although it's always best if the applicant picks the date in consultation with the application respondent.

Note that the shorter an application is, the more likely it is to be heard sooner rather than later on the day of hearing. There could be three applications set to be heard in court on a particular day or there could be 30. The court clerk will generally sort the applications in order of the time estimates, so that a five-minute application will be heard fairly quickly, while a ninety-minute application might not be heard until much later in the day (or may even be postponed to another day if the judge runs out of time).

===The Application Record===
{{LSSbadge
|resourcetype = examples of an
|link = [http://www.clicklaw.bc.ca/resource/1773 Application Record index and cover page]
}}The applicant must prepare the Application Record for the application. An Application Record contains documents relating to the application plus an index, in a bound format for the benefit of the judge or master who is hearing the application. When both parties have an application scheduled to be heard on the same day, they must cooperate and prepare a joint Application Record.

The applicant must file the Application Record plus an extra copy of the Notice of Application in court by 4:00 pm on the day that is one full business day before the date set for the hearing. The extra Notice of Application should be marked to indicate which claims the applicant will be asking the court to hear. The applicant must serve a copy of the index of the Record on the application respondent by ordinary service by the same deadline. The timelines for interim applications are discussed below in more detail.

If you file your record after the deadline of 4:00 pm on the day that is one business day before the hearing date, the registry will not put your application on the list for the hearing date. This can be a bit challenging, because I've seen some pretty long lineups at the registry counter at 3:45 pm, and I suggest you give yourself plenty of time to file your Application Record and get to the registry early.

Under [http://canlii.ca/t/8mcr Rule 10-6(14)(a)], the materials in the Application Record need to be securely bound, which usually means that they are assembled in a three-ring binder, although any other kind of secure binding will do, including running a couple of hex bolts through the left-hand margin. The contents of the Application Record are listed in Rule 10-6(14)(b) and should be sorted, separated by tabs, in the following order:

#the index to the Application Record,
#the Notice of Application (Tab 1),
#the Response to Application (Tab 2), and
#the affidavits both parties will rely on at the hearing, each separated by a tab (Tab 3, Tab 4 and so on).

(A ''tab'' is a piece of heavier paper with a little tab that sticks out on the right-hand side with a number written on them; these are sometimes called ''tab dividers'' or ''index dividers'' by stores like Staples and Office Depot. Legal supply stores sell tabs that are numbered from 1 to 200. Avery sells a table of contents divider that goes from 1 to 8; Sparco sells index dividers that go from 1 to 31.)

Following these documents, Application Records may also include things like written arguments and a draft of the order sought. Certain things are not allowed to be included in the Application Record, such as affidavits of service, copies of legislation and copies of cases.

Under [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Administrative Notice 7], you are required to tape a cover page to the front cover of the binder with the names of the parties and the file number of the action. The cover page should state:

#The court file number, court registry, and the names of the parties, the way these appear at the top of all other court documents.
#The title of the document (usually just ''Application Record'').
#The claimant's address for delivery, telephone number, fax number (if any) and email.
#The respondent's address for delivery, telephone number, fax number (if any) and email.
#The name of the party filing the Application Record, the place, date and time of the hearing, and the time estimate for the hearing.


===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Interim applications are heard in courtrooms referred to as "chambers". The chambers courtroom will open at 9:45am. Everyone who is going to be heard that day will line up to the front of the courtroom and sign in with the court clerk, identifying themselves by their names and their number on the court list. The court list will be posted somewhere outside the courtroom, and another copy is usually available in the courtroom. All the applications that are going to be heard that day are listed on this list, but in no particular order. Limited parts of the court lists are posted online for that day only on [https://justice.gov.bc.ca/cso/courtLists.do Court Services Online].

The judge or master will enter the courtroom at 10:00 am and will expect to begin hearing applications right away — don't forget to stand when the judge or master enters the courtroom! The court clerk will call each application by its number on the court hearing list and by the last names of the parties involved.

When a case is called by the court clerk, the parties will walk up to the front of the court and identify themselves to the judge — for example, "I am Barbara Brown, and this is my application" or "I am Lucy Chiu, and I am responding to the application." A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

The applicant will address the judge first, and present their case, explaining:

*what orders the applicant is asking the judge to make,
*why the judge can make the orders the applicant is asking for (ie: by reference to the rule of court or the section of legislation (such as the ''Divorce Act'' or the Family Law Act) that permits the judge to make the order), and
*the facts that explain why the application has been made and why the judge should make the orders asked for.

The application respondent will then present their side of the case and explain:

*which orders the application respondent agrees to and might agree to on conditions,
*which orders the application respondent opposes, and
*the facts that explain why the judge shouldn't make the orders the applicant is asking for.

The applicant will then have a chance to briefly answer the application respondent's argument. The application respondent may have the opportunity to address the applicant's answer, but not every judge or master will permit this. As well, the judge or master may ask the applicant and application respondent questions during their presentations to clarify things.

After the judge or master has heard everyone's arguments, the judge or master will give his or her decision. Sometimes the judge or master will ask the parties to come back later for the decision. This called a ''reserved decision'' and can take days, weeks or even months to be provided.

===After the hearing===

It is usually the job of the applicant's lawyer to turn whatever the judge or master has decided into a written order. If the applicant doesn't have a lawyer, the lawyer for the application respondent will take care of it. If neither party has a lawyer, a court clerk will usually prepare and enter the order.

The registry staff will ''enter'' the order in the court's book of orders by checking the draft order prepared by the lawyer against the notes the court clerk made during the hearing. Assuming the registry approves of the form of the draft order and it matches the clerk's notes, the order will be signed and stamped by the registry and added to the book of orders.

It is important to know that although the entered, stamped order is the ''official'' order of the court, the order takes effect and is binding on both parties from the moment the judge or master makes the order, and each party must start behaving according to the terms of the order right away, whether it takes a day or a month to enter the order.

===Timelines===

The rules about the timelines for chambers applications can be complicated, and may change depending on whether the application is for an interim order, a final order, or an order changing a final order.

====Making an application====

The applicant must file and serve the Notice of Application and supporting materials:

*For interim applications, within ''eight business days'' of the date picked for the hearing.
*For summary trial applications, within ''12 business days'' of the hearing.
*For applications to change a final order, within ''21 business days'' of the hearing.

====Replying to an application====

The application respondent must file and serve the Application Response and supporting materials:

*For interim applications, within ''five business days'' of being served with the Notice of Application.
*For summary trial applications, within ''eight business days'' of being served.
*For applications to change a final order, within ''14 business days'' of being served.

====Responding to an application response====

The applicant must file and serve any new supporting materials, usually limited to new affidavits:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Application records====

The applicant must file the Application Record in court, along with an extra copy of the Notice of Application, and deliver a copy of the index to the Application Record on the application respondent:

*By 4:00pm on the business day that is one full business day before the hearing date.

====Sample timelines====

In this sample timeline for an ordinary interim application, the hearing is on Thursday the week after the Monday on which the application materials were filed and served. This sample shows the minimum timelines required by [http://canlii.ca/t/8mcr Rule 10-6] of the Supreme Court Family Rules; nothing stops you from agreeing to a more generous set of due dates.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the application respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|''Fifth business day after service.''   '''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''||align="center"|'''DAY OF HEARING'''
|}

In this example, the application respondent's materials are due on Monday on the second week, one week after the date of service, and the applicant must file and serve any responding affidavits, file the Application Record and serve the Application Record index on the application respondent by 4:00pm the next Wednesday. The hearing is on Friday in the second week.

This next sample timeline shows what happens when there's a holiday between the date the applicant serves the interim application materials and the date of the hearing; all of the steps after the holiday get bumped back by one day.

::{| width="75%" class="wikitable"
!style="width: 15%" align="center"|Monday
!style="width: 15%" align="center"|Tuesday
!style="width: 15%" align="center"|Wednesday
!style="width: 15%" align="center"|Thursday
!style="width: 15%" align="center"|Friday
|-
|align="center"| '''Applicant''' files and serves application materials on the application respondent.  ||align="center"|''First business day after service.''||align="center"|''Second business day after service.''||align="center"|''Third business day after service.''||align="center"|''Fourth business day after service.''
|-
|align="center"|'''HOLIDAY.'''||align="center"|''Fifth business day after service.''   '''Application respondent''' files and serves reply materials.||align="center"|''Sixth business day after service.''||align="center"| ''Seventh business day after service.''   '''Applicant''' files and serves responding affidavits, files Application Record and serves Application Record index by 4:00pm.  ||align="center"|''Eighth business day after service.''   ''One business day before the date of the hearing.''
|-
|align="center"| '''DAY OF HEARING.'''  || || || ||
|}

===A short note about courtesy===

The [http://canlii.ca/t/8mcr Supreme Court Family Rules] allow an applicant to simply set the hearing date without consulting the application respondent. Although this gives the applicant the right to pick a date unilaterally, it's usually better for everyone if the hearing date can be agreed upon by both parties. If the date you've picked isn't good for the application respondent, you can expect the application respondent to show up on the hearing date and ask the court for a delay your application. This is called an ''adjournment''.

If the application respondent is successful in getting the adjournment, which will usually be the case if you've been unreasonable or the application respondent has a genuinely good reason for needing the adjournment, you'll have wasted all the time and anxiety you spent preparing for the application, only to have to take another day off work and do it all again some other day.

It can be tough to call your ex (or their lawyer) to negotiate a hearing date, especially since you're likely fairly annoyed at having to make your application in the first place. However, if the subject of the application is important enough for you to pay the fee and jump through all the hoops, it's got to be important enough that you'll want to avoid delays and adjournment applications. If you can make the call, try to reach an agreement on the date of the hearing. You may also be able to reach agreement on adjusting the date when you'll have the application materials to the application respondent and the date the application respondent will get their reply materials to you, but don't expect that - that's why the rules and deadlines exist in the first place.

==The Provincial Family Court==

Interim applications are brought only after a court proceeding has been started. The person bringing the application, the ''applicant'', must file a Notice of Motion in court, and then serve a court-stamped copy of the Notice of Motion to the ''respondent'', the person against whom the application has been brought. The respondent is not required to file anything in reply to the application.

Applications in the Provincial Court are often based on oral evidence, evidence given by witnesses who have sworn or affirmed that they will tell the truth, rather than affidavits. Some judges prefer to hear oral evidence and may require a party to testify even if affidavits have been prepared. Other judges appreciate the convenience of having the evidence written out in affidavits.

The principle [http://canlii.ca/t/85pb Provincial Court Family Rules] that relate to Notices of Motion and the application process are:

*Rule 1: definitions
*Rule 5: court procedures for courthouses that are designated as "family justice registries"
*Rule 12: interim applications
*Rule 13: affidavits
*Rule 18: orders
*Rule 20: general rules about court procedures
*Rule 21: parenting after separation program

For a summary of the process, see [[How Do I Make an Interim Application in a Family Law Matter in the Provincial Court?]] in this section.

===When an application can be brought===

Generally speaking, interim applications are only brought after the respondent has had a chance to file their Reply to the applicant's Application to Obtain an Order, but they can be brought earlier, sometimes on the same day that the action is started, when there is a very urgent problem that needs to be resolved immediately, as might be the case if the respondent was threatening to leave the country with the children or if a party is concerned about their own safety due to a history of family violence.

The precise rules about when an application can be brought depend on whether or not the registry your court proceeding is in is a registry subject to the [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation program] under Rule 21 and, if so, whether it is also a family justice registry subject to Rule 5. The court clerk will tell you whether or not your registry is a designated registry for the Parenting After Separation program and whether it is also a family justice registry.

====Family justice registries====

Rule 5 of the [http://canlii.ca/t/85pb Provincial Court Family Rules] applies to those registries of the Provincial Court that have been designated as family justice registries. Under this rule, the parties to a court proceeding are required to jump through a number of hoops before they can first appear in court:

*Rule 5(3) requires the court clerk to refer the parties to a family justice counsellor before the clerk can schedule the parties' first appearance in court.
*Rule 5(4) requires the parties to each meet separately with a family justice counsellor, who may refer the parties to other services or may try to mediate a resolution to the parties' dispute.
*Rule 5(6) says that the parties to a court proceeding cannot meet with a judge until they have met with a family justice counsellor.
*Rule 5(8) says that if a party is asking for a protection order or "urgent and exceptional circumstances exist," the court may exempt the party from all or part of the rule.

Registries designated as family justice registries must also apply Rule 21, the Parenting After Separation rule, where a court proceeding involves orders about the care of children or child support. Rule 21 sets out a few more hoops to jump through, but the [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation program] is a very useful program that you should consider taking whether you're at a registry subject to Rule 21 or not. Here are the highlights of Rule 21:

*Rule 21(8) says that the registry cannot set a first appearance until one or both parties have filed a certificate of attendance at a Parenting After Separation program.
*Rule 21(9) says that both parties must attend the program and file a certificate of attendance before the registry can set a first appearance.
*Rules 21(4) and (5) set out some exceptions to the rule if there is a consent order, if the program isn't offered in their community, if the party doesn't speak the language the program is offered in, or if the party has completed the program in the last two years.
*Rule 21(7) allows the court to exempt someone from completing the program where urgent circumstances exist.

Rules 5 and 21 have been applied very strictly in the registries to which they apply, which has led to some fairly unusual results, such as parents who have been separated for many years being required to take the Parenting After Separation program and other parents being required to take the program three or four times. However, most parents, once they have complied with Rules 5 and 21, can follow the standard rules for bringing on interim applications, described below.

====Family case conferences====

Family case conferences are similar in many ways to the judicial case conferences common in the Supreme Court. The big difference between the two is that it's not mandatory that an FCC be held before an interim application can be brought. You needn't wait for your FCC before you bring on an interim application unless a judge tells you that you must.

This chapter discusses both FCCs and JCCs in the [[Case Conferences in a Family Law Matter|Case Conferences]] section.

===Making an application===

To make an interim application, the applicant must file four copies of the Notice of Motion in the court registry. The form is simple to complete and has check boxes that can simply be ticked off to indicate the sort of order that you want the court to make.

The registry will stamp all of the copies and keep the top sheet. You must then serve the respondent with their copy at least ''seven days'' before the date the application is set to be heard. The hearing date will usually be fixed according to the court's calendar, as most Provincial Court registries have certain days set aside for hearing interim applications in family law cases.

The form you must use is Form 16, which comes from the courthouse printed in quadruplicate or can be downloaded in an editable format in [[Sample Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. There is no charge to file a Notice of Motion.

===Defending an application===

If you have been served with a Notice of Motion, you may answer the application with a Reply in Form 3 if you wish. The Provincial Court does not have a specific form for responding to Notices of Motion, nor do the rules have any particular provision about how Notices of Motion are to be addressed. Most registries will accept a Form 3 Reply, even though that form is the form usually used for responding to Applications to Obtain an Order rather than to Notices of Motion. There are no rules about when the applicant be served with a response.

For a summary of the process, see [[How Do I Reply to an Interim Application in a Family Law Matter in the Provincial Court?]] It is located in the ''How Do I?'' part of this resource, under Interim Applications.

===The hearing===

On the date set for hearing, show up at court at the appointed time. It's especially important for the respondent to attend court because of Rule 12(4), which says that if a respondent doesn't come to court on the date set for the hearing of an interim application, the court may hear the application in the respondent's absence and make the order requested by the applicant.

Let the court clerk know which matter you are involved with and what your name is. When your case is called by the clerk, walk up and stand to either side of the centre podium. The judge will ask you to identify yourself and will ask the applicant what their application is all about.

The applicant will make their case, and will have the opportunity to call evidence. Evidence is often given orally, on oath or affirmation, rather than in affidavit format, although affidavits can be used. Most judges would prefer to have an affidavit, so if you can prepare one, you should. The respondent will have a chance to challenge the applicant's witnesses and cross-examine them, or may make an affidavit in reply to the applicant's affidavit.

Once the applicant's case is done, the respondent may present their own case, and call witnesses to give evidence just the way the applicant did. Likewise, the applicant will be able to cross-examine the respondent's witnesses.

After the evidence from both sides has been given, the applicant will have the opportunity to summarize their case and argue why the judge should make the order asked for. The respondent will be able to reply to the applicant's argument, after which the applicant may have the opportunity to make a reply to the respondent's reply.

Once everyone is done, the judge will give their judgment on the application. The judge may give their decision right away, or the judge may need to think about things for awhile. This is called a ''reserved judgment'', and the judge will usually give their decision in a written form later. A reserved judgment may be handed down days, weeks or even months after the hearing date.

Remember to stand whenever the judge speaks to you, if you can stand. A discussion of courtroom etiquette and protocol is available in the ''How Do I?'' part of this resource under Courtroom Protocol. You may wish to review [[How Do I Conduct Myself in Court at an Application?]]

===After the hearing===

If the parties to the hearing were represented by lawyers, the applicant's lawyer will usually draft an order based on the judge's decision. If there were no lawyers present, the court clerk will draft the order.

While it is usual for there to be a delay between the making of an order and the formal entry of the order, remember that the judge's order is binding on you from the moment it leaves the judge's lips, whether you have a paper copy of the order or not.

==Common interim applications==

The following discussion reviews the basic facts that will usually need to be proven for some of the most interim applications in family law court proceedings. This is only a rough guide; the particular facts that are important will change from case to case.

===Care of children===

====Important factors====

When making the first application about custody and access under the ''[[Divorce Act]]'', or about parenting arrangements and contact under the ''[[Family Law Act]]'', important facts will usually include:

*the children's names, birth dates and ages,
*where the children go to school and what grade they're in,
*any important health or educational concerns,
*the occupation of each parent,
*each parent's usual work schedule,
*how the parents shared the parenting of the children while they were together,
*who was responsible for arranging things like visits to the doctor and dentist,
*who was responsible for looking after school issues, like parent-teacher meetings and making sure homework was done,
*how the parents have shared the parenting of the children since they separated,
*the quality of the parents' ability to talk to each other and cooperatively make decisions about the children after separation,
*a description of any actual problems with a parent's capacity to care for the children;
* any family violence concerns,
*other caregivers or support at or near a parent's home, and
*the children's extra-curricular activities (if applicable to the issue of financial support or scheduling parenting time).

====Changing orders and agreements about the care of children====

If the application is to change an ''order'' about the care of the children, the important facts will also include the facts that address the legal test that must be met to change an order:

*what is the change in the child's needs or circumstances since the original order was made, and
*how has this change affected the best interests of the children?

Other important facts might include:

*how the original order has worked out,
*if the parents followed the terms of the order, and
*if the order met the children's needs and if not, why not.

If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts that address the legal test that must be met to set aside an agreement:

*why the agreement is not or is no longer in the best interests of the children.

Other important facts might include:

*how the agreement has worked out,
*if the parents followed the terms of the agreement, and
*if the agreement met the children's needs and if not, why not.

===Child support===

====Important factors====

The important facts that go into most applications for child support are:

*the children's names, birth dates and ages,
*how the children's time is divided between the parents,
*whether some or all of the children are stepchildren to the person who is to pay child support,
*whether some or all of the children are receiving child support from another parent,
*the nature of each parent's employment,
*each parent's income from their employment and any other source, and
*whether the children have special or extraordinary expenses.

====Basic financial information====
{{LSSbadge
|resourcetype = guides for Financial Statements in
|link = [http://www.clicklaw.bc.ca/resource/2654 Provincial Court]''' and '''[http://www.clicklaw.bc.ca/resource/1713 Supreme Court]
}}Applications about child support typically require that each parent cough up certain documents in order to establish their income, in addition to a sworn Financial Statement. See [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-supreme-court-financial#0 Complete a Supreme Court financial statement] and [http://familylaw.lss.bc.ca/bc-legal-system/legal-forms-documents/filling-out-court-forms/complete-provincial-court-financial#0 Complete a Provincial Court financial Statement] for more information. The most common of these documents for people who are ''employees'' are:

*the last three years of personal income tax returns,
*all notices of assessment or reassessment received in relation to the last three tax years, and
*a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from ''EI'', ''WCB'', ''CPP'', or ''social assistance'', will also have to produce their three most recent statements or cheque stubs from their payments.

People who are ''self-employed'' in an unincorporated business will also have to produce:

*statements of professional or business income,
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
*balance sheets, if available.

People who are ''self-employed'' by an incorporated business will also have to produce:

*corporate financial statements for the three most recent fiscal years,
*corporate tax returns for the three most recent fiscal years, and
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

====Changing child support orders and agreements====

If the application is to change an order about the child support, important facts will include the facts which address the threshold legal tests:

#has there been a change that would cause a different amount of support to be paid under the [[Child Support Guidelines]], usually a change in someone's income,
#has there been a change in the needs and circumstances of the child,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*each party's present income,
*the child's continuing entitlement to receive child support, and
*updated information concerning any special expenses.

If the application is to set aside an agreement about the child support, important facts will include the facts which address the threshold legal test:

#what amount of support should be court order, and
#why should the court make a different order than what was agreed to?

===Spousal support===

====Important factors====

When making the first application for spousal support, the important facts will include:

*the date the parties began to live together and the date they married,
*the date of separation,
*the parties' ages, including the proposed recipient's age at the date of separation,
*each party's present health,
*any factors limiting a party's ability to obtain employment,
*the parties' present employment circumstances,
*the parties' employment history during marriage, including any periods of unemployment,
*each party's present income and the sources of that income,
*a description of the each party's living expenses after separation,
*any career sacrifices made during the relationship, including any promotions, raises or educational opportunities foregone by the party,
*any moves during the parties' relationship that impacted either or both parties' employment prospects,
*the parties' education and training history, prior to and during the relationship,
*contributions by one party to the other party's career during the relationship,
*a description of any education and training taken after separation, especially any education geared to finding employment,
*the ages and school status of the children at the date of separation, and
*the arrangements that have been made for the care and control of any children.

====Basic financial information====

All applications about spousal support typically require that each spouse cough up certain documents to prove their income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are:

*the last three years of personal income tax returns,
*all notices of assessment or reassessment received in relation to the last three tax years, and
*a recent paystub showing earnings-to-day or a letter from the employer confirming the terms of a party's income.

People who have income from EI, WCB, CPP, or social assistance, will also have to produce their three most recent statements or cheque stubs from their payments.

People who are self-employed in an unincorporated business will also have to produce:

*statements of professional or business income,
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or new spouses, and
*balance sheets, if available.

People who are self-employed by an incorporated business will also have to produce:

*corporate financial statements for the three most recent fiscal years,
*corporate tax returns for the three most recent fiscal years, and
*a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children, or spouses.

====Changing spousal support orders or agreements====

If the application is to change an order about spousal support, important facts will include the facts necessary to address the threshold legal tests to change an order:

#has there been a change in the means or needs of either spouse since the last order was made,
#whether you have discovered new evidence about income or a person's ability to earn income since the last hearing, or
#whether you have discovered proof that someone's financial disclosure was incorrect or inadequate at the last hearing.

Other important facts usually include:

*the terms of the initial order (and attach a copy of the initial order as an exhibit),
*each party's present income,
*each party's income (and other financial circumstances if relevant) at the time of the initial order,
*the steps the recipient has taken to become financially self-sufficient,
*education or training taken by the recipient since the order was made,
*any employment taken by the recipient since the order or agreement was made,
*any changes in the employment circumstances of the payor,
*whether the recipient has remarried or is in a new unmarried spousal relationship, and
*whether the payor has acquired new family support obligations since the order was made.

If the application is to set aside an agreement about spousal support, important facts will include the facts necessary to address the two threshold legal tests to set aside an agreement. Under the first test, you could include facts that might show that there were problems when the agreement was negotiated:

*a party failed to disclose relevant income, property or debt,
*one party took advantage of the other party's vulnerability or ignorance,
*a party didn't understand the nature of the agreement,
*the agreement is unconscionable, or
*a party did not sign the agreement voluntarily.

Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about:

*how long it has been since the agreement was signed,
*any changes in the needs or circumstances of either party,
*the parties' intention to have a final deal when the agreement was signed,
*how important the agreement was to each party in planning their lives and arranging their affairs, and
*how closely the agreement meets the objectives that the court considers when it makes an order for spousal support.

===Protection orders===

The court can make a variety of orders where there is or has been a history of family violence and someone is in need of protection. These orders are usually called Protection Orders and are available under Part 9 of the Family Law Act (starting section 182). More information about family violence can be found in the chapter on [[Family Violence Overview|Family Violence]].

The specifics of the protection order will depend on what the circumstances are and which order makes the most sense. The range of protection orders available are set out in section 183(3) and include:

*orders prohibiting or limiting contact with the at-risk family member;
*orders prohibiting a person from attending, nearing or entering a place regularly attended by the at-risk family member, including the residence, property, business, school or place of employment of the at-risk family member. This even applies if the family member owns the place, or has a right to possess the place,
*orders prohibiting a party from following the at-risk family member,
*orders prohibiting the possession of a weapon, firearm or a specified object,
*orders prohibiting the possession of a licence, registration certificate, authorization or other document relating to a weapon or firearm;
*orders directing police officers to remove the family member from the residence immediately or within a specified period of time, or to accompany the family member, the at-risk family member or a specified person to the residence within a specified period of time as well as to supervise the removal of personal belongings.

====Important factors====

When making an application for a Protection Order under the Family Law Act, important facts will usually include:

*the date when you began living together, the date of marriage (if any) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*the history of the family violence, which could include:
- a description of the dynamics of the relationship, including whether it has stayed the same or changed over time,
- a description of any physical, sexual, psychological or emotional abuse or any other coercive or controlling behaviours, as well as a description of the harm suffered
- a description of any destruction to property,
*any factors which have caused you to be isolated in your relationship
*any factors which make you more vulnerable in your relationship, such as substance abuse, financial dependence if you have little or no employment, mental health problems, physical health problems, pregnancy, the other party's access to weapons,
*any concerns about the children having been witness to or otherwise exposed to the family violence and how they reacted,
*why you continue to feel afraid of or intimidated by the other party,
*if applicable, the location that you want the other party to be restricted from attending (ie: your home, place of employment, your children's school etc),
*if you have any of the following, be sure to include it (but don't worry if you don't, because it isn't necessary and many victims of family violence don't have any of the following): photographs of any injuries or damage to property caused by the party against whom the Protection Order is sought, harassing emails or texts sent by the party against whom the Protection Order is sought, medical evidence which corroborates, alcohol or drug tests or admissions to treatment centres, and evidence of any other person who has witnessed or overheard or can otherwise corroborate that the other party has engaged in abusive or controlling behaviours.

===Property Restraining Orders===

The court can also make orders designed to protect property from being sold, hidden, or used as collateral for a loan. More information about these orders can be found in the section [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]] in the chapter [[Property & Debt in Family Law Matters|Property & Debt]].

====Important factors====

When making an application for an order restraining the other party from selling or encumbering or transferring or otherwise dealing with property at issue in the family law proceeding, important facts will usually include:

*the date when you began living together, your date of marriage (if applicable) and the date you separated,
*the names, birth dates and ages of your children, if any,
*the ages and occupation of each party,
*any reasons you are financially vulnerable in the relationship, including if you are financially dependent on the other party or have little knowledge about the family's property and debt situation,
*a description of the family's financial circumstances, including a list of the property and debts you do know about,
*a description of the reasons you are concerned about the other party selling or encumbering or transferring or otherwise dealing with the property at issue in the family law proceeding.

==Resources and links==

===Legislation===

*''[[Family Law Act]]''
*''[[Divorce Act]]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [https://justice.gov.bc.ca/cso/courtLists.do Court Chambers Lists Website]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society: Court tips for parents representing themselves (video)]
* [http://www.clicklaw.bc.ca/resource/1701 Legal Services Society Family Law in BC Website: How to get an interim family order when parties don't agree (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2280 Legal Services Society Family Law in BC Website: How to get an interim family order when parties agree (Supreme Court)]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/info_packages.aspx Supreme Court Information Packages]
*[http://courts.gov.bc.ca/supreme_court/self-represented_litigants/Supreme%20Court%20Document%20Packages/Chambers%20Application%20Package.docx Supreme Court: Chambers Application Package (Word DOC)]
* [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/1713 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Supreme Court)]
* [http://www.clicklaw.bc.ca/resource/2654 Legal Services Society Family Law in BC Website: How to fill in a Financial Statement (Provincial Court)]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 11, 2019}}

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[[Category:Interim Applications in a Family Law Action]]
[[Category:JP Boyd on Family Law]]

Family Law Trials in Supreme Court

2019-06-12T21:44:20Z

Julie Brown: /* Preparing evidence for trial */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

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. You also need to be mindful of the many deadlines set out in the rules of court (the ''[http://canlii.ca/t/8mcr Supreme Court Family Rules]'') some of which arise months before the trial date.

There are also many ''rules of evidence'', like what evidence is allowed and how evidence is presented in court. Although the law of evidence is beyond the scope of this chapter, a good general summary is found in ''[http://www.clicklaw.bc.ca/resource/2335 Proving Your Case in Supreme Court]'' (although be aware this references is not specific to family law, and talks about the Supreme Court ''Civil'' Rules rather than the Supreme Court ''Family'' Rules).

== Preparing for trial in the Supreme Court ==

There are two available types of trial in Supreme Court – a ''regular trial'' (which is the type you see on TV and in the movies with cross-examination of witnesses and lawyers making legal arguments) and a ''summary trial'' (which is trial where each witness' evidence is introduced by affidavit).

Summary trials can seem like a good option because they can often be dealt with in fewer days of court time, often don’t involve cross-examination of the parties, and therefore are often easier and less expensive for the parties. However, summary trials are not suitable for all court proceedings; they are suitable only where there is sufficient evidence before the court for the judge to make a decision.

The factors a court will consider in deciding whether a summary trial is appropriate include:
*the complexity of the matter,
*any urgency and prejudice likely to arise by reason of delay,
*the cost of taking the case forward to a regular conventional trial in relation to the amount involved,
*the course of the proceedings, whether credibility is a critical factor in the determination of the dispute,
*whether the summary trial may create an unnecessary complexity in the resolution of the dispute and
*whether the application would result in litigating in slices (see ''[http://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 B.C.L.R. (2d) 202 (C.A.)).

Summary trials are more common where lawyers are involved, and rare if both parties are self-represented.

Summary trials are governed by Rule 11-3 of the Supreme Court Family Rules and are not subject to all of the rules and procedures described in the rest of the section below.

Summary trials must be heard at least 42 days before the scheduled trial date (see Rule 11-3(3) of the Supreme Court Family Rules) and a summary trial application must be set for hearing in accordance with Part 10 of the Supreme Family Court Rules (Obtaining Orders Other Than at Trial).

=== Preparing for trial ===

Rule 14 of the Supreme Court Family Rules deals with trial procedures in Supreme Court.

Again, 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 ''first'' day of trial (not the last or any day in between) and should be considered well in advance of the actual deadline. The main (but not ''only'') deadlines in a Supreme Court proceeding are as follows:

{| class="wikitable"
|-
| 84 days:
| Service of expert report on other party (Rule 13-6(3))
|-
| 42 days:
| Service of expert report in response to other party’s expert report (Rule 13-6(4))
|-
| 28 days:
| Attendance at a trial management conference (Rule 14-3(1))
NOTE: There is a further deadline to file and serve on all other parties a Trial Brief in Form 45 at least 7 days before the trial management conference (Rule 14-3(3))
|-
| 28 days:
| Updated Form F8 Financial Statement must be filed and served on the other party at least 28 days and no later than 63 days before the start of the trial
|-
| 21 days:
| Notice of Objection to other party’s expert report must be served (Rule 13-6(10))
|-
| 14-28 days:
| The Trial Record must be filed and served on the other party (Rule 14-4(3)) or trial date will be lost
|-
| 14-28 days:
| The Trial Certificate must be filed and served on the other party (Rule 14-5(2))
|-
| 7 days:
| Any plans, objects or photographs to be relied upon at trial must be available for inspection by the other party (Rule 14-7(10))
|-
| 7 days:
| Service of subpoena & witness fees on any witnesses (Rule 14-7(32) & (34) & Form F23)
|}

Before triggering any of these deadlines however you’ll need to schedule the trial date.

=== Scheduling a trial ===

The usual practice is for the claimant to schedule the trial, but the respondent is also able to do so. Given that the availability of trial dates varies from registry to registry (and there may be no available dates for many months), you may want to schedule the trial at the judicial case conference or as soon as possible after it.

In order to schedule a trial, you need to file a notice of trial in [[Form F44 Notice of Trial|Form 44]] in the registry where the court proceeding was started (or transferred). To do so, you will have to consider how many days of trial are needed to hear the evidence of all of the witnesses (both your witnesses and the other party’s witnesses, including both direct examination and cross-examination of each witness) as well as the summary of evidence and legal arguments presented by both parties (or their lawyers) at the end of the trial. You will then need to contact that registry to find out what dates are available for your trial. You should then contact the other party (or that party’s lawyer) to find out their availability. Once the date is confirmed and the notice of trial is filed, you must then promptly serve the notice of trial on the other party (see Rule 14-2(1), (3) and (5) of the Supreme Court Family Rules).

If you are served with a notice of trial and you are not available on the date(s) indicated, you must apply to the court within 21 days to have the trial rescheduled (see Rule 14-2(6) of the Supreme Court Family Rules).

In some cases, trial dates are discussed and agreed upon at the judicial case conference, but a notice of trial still needs to be filed in order to confirm the date with the registry.

If you are the party who has filed the notice of trial, you will also have to prepare and file a document called a trial record (as described below in the section [[{{PAGENAME}}#File and serve Trial Record|File & Serve Trial Record]]).

=== Consider amendments to pleadings before filing the notice of trial ===

If you need to amend the claims set out in your notice of family claim or counterclaim, you should do so before you file the notice of trial. This is because Rule 8-1(1) of the Supreme Court Family Rules allows a party to amend their pleadings once without leave of the court as long as the amendment is done before the notice of trial is filed. Once the notice of trial is filed, a party (or their lawyer) can only make amendments with the agreement of the other party or an order of the court (Rule 8-1(1)).

=== 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:

<blockquote>
(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.
</blockquote>

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 resources under the part ''How Do I?'' in this resource:
*[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]]
*[[How Do I Get a Views of the Child Report?|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, the valuation of property (i.e.: the family home, a pension, a business, shares in a company), 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 (i.e.: in their business or their field of employment), and the like.

Rule 13 of the Supreme Court Family Rules applies to the use of expert evidence at trial.

If you intend to introduce expert evidence at trial, you must ask the expert to prepare a written report (see Rule 13-6 and 13-7 of the Supreme Court Family Rules). Do note that under Rule 13-2 of the Supreme Court Family Rules, the role of the expert is to assist the court, not to be an advocate for either party. The expert is required to certify to their understanding of their role under this rule in the written report that they are to prepare (see Rule 13-2(2) of the Supreme Court Family Rules).

Because expert reports have to be served on the other party at least 84 days before the trial date (see Rule 13-6(3) of the Supreme Court Family Rules) and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial. Also, 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 to talk to a lawyer about. The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert so that the report meets the requirements for use in court.

=== Expert evidence about financial issues ===

If either party wants to present expert evidence about a ''financial issue'', that evidence must be presented to the court by means of an expert you and the other party hire together (often referred to as a ''jointly appointed expert''), unless the court orders or the parties agree otherwise (Rule 13-3(1) & (2) of the Supreme Court Family Rules). Once appointed, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules).

A financial issue is defined as an issue arising out of:

<blockquote>
(a) a claim for division of property and debt or division of a pension under the ''[[Family Law Act]]'' or out of an application for a FHRMIRA order (which means an order made under the ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]'' (Canada) or under a First Nation's law made under that ''Act'');

(b) a claim for an interest in property based on unjust enrichment or other trust claims, or

(c) a claim for compensation based on unjust enrichment.
</blockquote>

(See Rule 13-3(1) of the Supreme Court Family Rules).

This means that if you want an expert opinion about an issue that meets the definition of a financial issue and the other party doesn’t, you may have to make an interim court application to get the expert evidence that you need to go to trial. One option is to offer to pay the full cost of the report up front, but on a without prejudice basis so that a judge may later consider whether the other party should contribute to the cost of the report as well (usually after the judge has made their decision).

Each party has the right to cross-examine a joint expert at trial (Rule 13-4(10) of the Supreme Court Family Rules).

Each party is required to cooperate with the jointly appointed expert and to produce in a timely manner all relevant documents and information to the jointly appointed expert (Rule 13-4(9) of the Supreme Court Family Rules).

=== Expert evidence about other issues ===

If either party wants to present expert evidence on any other issues (ie: medical issues, psychological issues, the earning capacity of a party or particular occupation), the parties can either present the evidence through an expert that the parties together retain or any party may retain their own expert (see Rule 13-3(3) of the Supreme Court Family Rules).

=== Retaining the expert ===

The expert will need to be retained by way of a letter of instruction or retainer letter. If the expert accepts the retainer or instructions, it is likely that the parties will be required to pay a retainer to the expert right away and before the expert gets started on the report.

If the expert is retained by both parties, the parties must then reach agreement about the following issues:

<blockquote>
(a) the identity of the expert;

(b) the issue in the family law case the expert opinion evidence may help to resolve;

(c) any facts or assumptions of fact agreed to by the parties;

(d) for each party, any assumptions of fact not included under paragraph (c) that the party wishes the expert to consider;

(e) the questions to be considered by the expert;

(f) when the report must be prepared by the expert and given to the parties;

(g) responsibility for fees and expenses payable to the expert.
</blockquote>

(See Rule 13-4(1) of the Supreme Court Family Rules). That agreement must then be put in writing (in the form of a letter to the expert or an agreement between the parties and the expert) (See Rule 13-4(2) of the Supreme Court Family Rules) and the expert must consent the appointment reflected in the agreement.

=== Court application if parties can’t agree or additional experts necessary ===

If one party seeks an expert opinion about a financial matter but the other party will not agree or the parties cannot reach agreement about the terms of appointment (as required by Rule 13-4(1)), that party will need to make an application to the court to order a joint retainer (see Rule 13-4(3) of the Supreme Court Family Rules). Any order appointing an expert or setting out the terms of the expert’s appointment must be promptly served on the expert.

As stated before, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules). A party can apply to the court for permission to introduce the evidence of an additional expert at trial, but must do so within 21 days after receipt of the joint expert’s report by serving the application materials on all parties.

Parties also have the opportunity to apply to the court for an order allowing them to introduce the evidence of a further additional expert. The judge hearing the application will consider whether the evidence of a further additional expert is “necessary to ensure a fair trial” (see Rule 13-4(7) of the Supreme Court Family Rules). Other factors that the court may consider include:

<blockquote>
(a) whether the parties have fully cooperated with the joint expert and have made full and timely disclosure of all relevant information and documents to the joint expert,

(b) whether the dispute about the opinions of the joint expert may be resolved by requesting clarification or further opinions from that expert, and

(c) any other factor the court considers relevant.
</blockquote>

(see Rule 13-4(8) of the Supreme Court Family Rules).

This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].

=== Court-appointed experts ===

The court can also appoint an expert on its own initiative (see Rule 13-5(1) of the Supreme Court Family Rules). The circumstances and process for the court to do make this type of order are set out in Rule 13-5 of the Supreme Court Family Rules.

=== The expert’s report ===

Rule 13-6 (1) has specific requirements for an expert’s report. An expert report must:
*be signed by the expert,
*include the certification required under Rule 13-2(2), and
*set out the following:
::(a) the expert's name, address and area of expertise,
::(b) the expert's qualifications and employment and educational experience in their area of expertise,
::(c) the instructions provided to the expert in relation to the family law case,
::(d) the nature of the opinion being sought and the issues in the family law case to which the opinion relates,
::(e) the expert's opinion respecting those issues,
::(f) the expert's reasons for their opinion, including
:::(i) a description of the factual assumptions on which the opinion is based,
:::(ii) a description of any research conducted by the expert that led them to form the opinion, and
:::(iii) a list of every document, if any, relied on by the expert in forming the opinion.

The expert report must be served on the other party at least 84 days before the scheduled trial date along with written notice that the report is being served under Rule 13 of the Supreme Court Family Rules (see Rule 13-6(3) of the Supreme Court Family Rules), except reports of court appointed experts. This is the case even where there is a jointly retained expert; each party is still entitled to notice of the other party’s intention to rely on the report at trial.

If a party intends to introduce at trial an expert’s report that responds to another expert report, that party must serve a copy of the responding expert’s report on every party at least 42 days before the scheduled trial date.

Where one party has retained and served a report of its own expert, that party is required to provide to the other party, upon request, the following information:
# any written statement or statements of facts on which the expert's opinion is based,
# a record of any independent observations made by the expert in relation to the report,
# any data compiled by the expert in relation to the report,
# the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming their opinion, as well as
# access to the contents of the expert's file relating to the preparation of the opinion set out in the expert's report.

The party receiving the request must respond promptly to it (see Rule 13-6(8) of the Supreme Court Family Rules).

A party who intends to use an expert’s report at trial is responsible for notifying the expert:
# of the trial date as soon as possible after the trial date is scheduled or the expert retained, whichever is later, and
# that the expert may be required to attend trial for the purpose of cross-examination (See Rule 13-6(9) of the Supreme Court Family Rules).

If a party objects to another party’s expert report that party must serve upon every other party a notice of any objection that party intends to raise about the admissibility of the report. That notice of objection must be served on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date (see Rule 13-6(10) of the Supreme Court Family Rules). If such notice isn’t given, then the objection will not be permitted at trial (unless the court otherwise orders) (See Rule 13-6(11) of the Supreme Court Family Rules).

=== Schedule and attend a trial management conference (TMC) ===

Parties heading to trial are required to schedule and attend a ''trial management conference'' (unless the party has a lawyer in which case the party does not have to attend as long as they is available by telephone to speak with their lawyer if instructions are needed during the TMC). The TMC is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

The TMC must take place at least 28 days before the scheduled trial date, unless the court orders otherwise (see Rule 14-3(1) of the Supreme Court Family Rules).

Each party (or their lawyer if represented) is required to file and serve on all other parties a trial brief in Form 45 at least 7 days before the TMC (see Rule 14-3(3) of the Supreme Court Family Rules).

The trial brief must contain:
# A summary of the issues and that party’s position about each issue;
# A list of the witnesses that party intends to call at trial, including each witness’ address and an estimate of the time that witness will be on the stand answering questions by that party;
# A list of any expert reports that party intends to rely upon at trial;
# A list of the witnesses that party intends to cross examine and the time estimate for each;
# A list of any orders already made in the court proceeding which may affect the conduct of the trial;
# A list of the documents and other exhibits that party intends to rely upon at trial;
# A list of the legal authorities that party intends to rely upon at trial;
# A list of the orders that party is requesting the judge to make; and
# That party’s time estimate for submissions (final argument) at the end of the trial.

At the TMC, the judge or master may consider and make orders about the following issues (see Rule 14-3(9)):
* direct the parties to attend a settlement conference,
* amendment of pleadings within a fixed time,
* a plan for how the trial should be conducted,
* admissions of fact at trial,
* admission of documents at trial, including:
** agreements as to the purposes for which documents may be admitted, and
** the preparation of common books of documents and document agreements.
* imposing time limits for the direct examination or cross-examination of witnesses, opening statements and final submissions,
* directing that a party provide a summary of the evidence that the party expects one or more of the party's witnesses will give at trial,
* directing that evidence of witnesses be presented at trial by way of affidavit,
* respecting experts, including, without limitation, orders that the parties' experts must, before the service of their respective reports, confer to determine and report on those matters on which they agree and those matters on which they do not agree,
* directing that the parties present opening statements and final submissions in writing,
* adjournment of the trial,
* directing that the number of days reserved for the trial be changed,
* adjourning the TMC,
* directing the parties to attend a further TMC at a specified date and time, and
* any other matter that may assist in making the trial more efficient or aid in the resolution of the family law proceeding.

If a party (or that party’s) lawyer does not attend a TMC, the judge or master may proceed with the TMC without the party, adjourn the TMC to another date, and/or order the party to pay costs to the other party (see Rule 14-3(5)).

Rule 14-3 of the Supreme Court Family Rules sets out further information about the TMC.

=== File and serve a trial record ===

If you are the party who has filed the Notice of Trial, you are also required to prepare and file a trial record. The trial record must be filed and served on the other party at least 14 days, but not more than 28 days, before the first day of trial (see Rule 14-4(3) of the Supreme Court Family Rules).

The trial record must include:
* the pleadings (i.e.: the Notice of Family Claim and each Response to Family Claim, Counterclaim and Response to Counterclaim),
* any particulars served under a demand for particulars, together with the demand made,
* the most current Form F8 financial statement, if any, filed by each party, and
* any orders relating to the conduct of the trial.

Once you have collected these documents, you will need to arrange them into a bound book (such as a binder). The bound book should include:
* a cover with the style of cause; the title ''Trial Record'', the names and contact information (addresses and phone numbers) of each party (or their lawyers if represented), and the date and place of trial in the bottom right hand corner;
* an index of the documents in the trial record, including the name and date of each document and on which page it can be found within the trial record; and
* page numbers on the top right hand corner of each document.

Once the trial record is complete, you will need to make two additional copies (or more if there are corporate or other respondents). You will then need to file the trial record (original and copies) with the registry and serve one copy on each party, saving one for yourself.

Further information about filing a trial record is set out in Rule 14-4 of the Supreme Court Family Rules.

=== File and serve a trial certificate ===

The trial certificate is a short document ([[Form F46 Trial Certificate|Form 46]]) that provides notice to the court that you are ready to proceed with the trial as scheduled. It specifically sets out that (1) the party filing the form is ready to proceed with the trial as scheduled; (2) the party filing the form has completed all examinations for discovery; (3) the current time estimate for the length of the trial; and (4) confirmation that the trial management conference has been completed. Both parties must file a trial certificate (see Rule 14-5 (1) of the Supreme Court Family Rules).

The trial certificate must be filed at least 14 days but not more than 28 days before trial and it is crucial that it is done within this timeframe (See Rule 14-5(2) of the Supreme Court Family Rules). If no party files the trial certificate, the proceeding will be removed from the trial list and you will lose your trial date (therefore requiring you to reschedule the trial). Although the practice is for the Claimant (or the party who filed the Notice to Trial) to file the trial certificate, if that party fails to do so, the other party can in order to preserve the scheduled trial date.

Further information about filing a trial record is set out in Rule 14-5 of the Supreme Court Family Rules.

=== Update Form F8 Financial Statement ===

Each party is required to update their [[Form F8 Financial Statement]] before trial.

The usual rule is that each party must file and serve on the other party an updated financial statement at least 28 days before trial (but not more than 63 days before the start of the trial). There is an exception for parties who have delivered their original Form F8 within 91 days before the start of the trial (see Rule 5-1(8) of the Supreme Court Family Rules).

If a party’s updated [[Form F8 Financial Statement]] includes material changes in that party’s financial circumstances since the initial Form F8, then the other party may seek a court order to allow that party to cross-examined before trial.

== Preparing evidence for trial ==
A review of all the rules of evidence is beyond the scope of this chapter. A good starting point for reviewing the rules of evidence is the [https://www.bccourts.ca/supreme_court/self-represented_litigants/Memorandum_to_SLRs_on_Trial_Procedure_and_Evidence.pdf Memorandum to Self-Represented Litigants on Trial Procedure and Evidence] prepared by the Supreme Court.

A good starting point is to prepare a framework for the eventual argument that you will be making at trial and keep updating it until you get to trial. Here is how you would begin:

# '''List of claims:''' Start by making a list of all of the claims that each of the parties are making in the court proceeding. The claimant’s claims are listed in the notice of family claim and the respondent’s claims are listed in the counterclaim. Consider the specifics of each order you want the court to make in relation to each claim (and make notes where appropriate).
# '''Know the law:''' Then review the law to figure out what factors the judge will be considering when making their decision, and figure out what you need to prove at trial in order for the judge to consider making (and hopefully make) the orders you are requesting. Note those factors in your outline so that you remember to address them in the evidence you lead at trial and your eventual argument to the judge.
# '''Consider the evidence:''' Then review the evidence you have to prove your case to make sure that you are including all the information the judge needs to know to be persuaded to make the orders you are requesting. You must also consider the form of the evidence and how you will present it to the judge (ie: presenting a document or having a witness testify).

Once you know where there are gaps in your evidence, you can figure out what further evidence you need. It is also useful to make note of where in the outline the evidence fits in and address that in your closing argument.

You should also consider whether there is any evidence that disproves an aspect of your case and any evidence you know (or even think you know) the other party has to prove their case because these factors should be taken into account when considering settlement options and positions at trial.

Put your outline (which at this point may be several or many pages already) into a three ring binder which will eventually become your trial binder. In the meantime, it will be a key organizational tool for preparing for trial and should include the following (each behind its own tab):
* A prominent page (the first page or behind the first tab) which includes:
** the trial date; and
** a list of all the dates by which you must take specific steps in the court proceeding (such as filing a trial certificate which if not done will cause you to lose your trial date);
* Your outline;
* A list of all the witnesses you intend to call to testify at trial, their address and phone number; you should later add a point form summary of the evidence you expect to receive from them as well as the date of trial you expect each to testify;
* A page to list the documents you intend to rely upon at trial; this list will become the index to your book of documents (which step is discussed more below);
* A section to include any other key documents such as a notice to admit or an offer to settle.

=== Documents ===

Preparing your outline (as described above) will help you decide which documents you will want to present as evidence during the trial.

Once you have collected all of the documents you intend to use at trial, you will need to consider how you will prove each document in court (i.e.: through a witness testifying about the document or another means), unless the other party will simply agree to the document being used. Consider doing the following:
* Ask the other party if they will agree to the use of the document for a specific purpose (i.e.: in the case of an email exchange between the parties about special or extraordinary expenses, the fact that one party responded on a specific date).
* Ask the other party to agree to the authenticity of the document through the use of a notice to admit (see the Discovery Process in Family Matters also in this chapter). Be aware that agreeing to the authenticity of a document means that you are agreeing that the document is what it looks to be (i.e.: a letter from a family doctor, dated …); it does not mean agreeing to the truth of its contents (i.e.: the diagnosis or prognosis within the letter from the family doctor).
* Ask the other party to agree to a form of document agreement which may include agreement on one or more of the following:
**the documents are all true copies of the originals;
**the documents were signed and dated as indicated on the documents;
**the documents were mailed, emailed or faxed on the dates indicated on the documents; and
**the documents were all received by the recipient indicated on the documents.

Any agreements you are able to reach with the other party about the use of documents at trial should be noted in your trial preparation binder and told to the trial judge when the trial begins. If the other party won’t reach agreement about the use of documents at trial, this is a good issue to discuss at the trial management conference.

Once you have collected your documents for use at trial and you know how you intend to prove each one, you can start preparing your book of documents. Start by organizing the documents in chronological order (by date); then separate each document by numbered tabs to make them easy to find, and if the documents are longer than one page number each page of that document starting with page one for each separate document (this is required by Rule 17-7(9) of the [http://canlii.ca/t/8mcr Supreme Court Family Rules]). You will need to prepare an index of each document included in the book and the corresponding tab number for each.

It is also a good idea to prepare a joint book of documents where possible. A joint book of documents would include:
* all documents that both parties intend to rely upon at trial; and
* all documents that one party intends to rely upon at trial and to which the other party does not object.

The joint book of documents can then be entered as a single exhibit at trial. If there are some documents that one party wants to use in court but the other party objects to including them in the joint book of documents, then that party wishing to rely on the additional documents can prepare a separate and additional book of documents and will need to address each document separately at trial.

In the days leading up to the trial, you will need to bind the documents (i.e.: use a binder or cerlox binding machine if you have access to one). Include a cover page that sets out:
* the style of cause of the court proceeding (the names of the parties and court registry information as set out at the beginning of every filed document);
* the title of the book: Book of Documents of the Claimant/Respondent (whichever applies); and
* the names and contact information for each party or their lawyer if represented.

You should prepare and bring to court an original and at least three copies of your book of documents (more if there are more than two parties). The original will used to show to witnesses at trial (if their testimony requires it) and copies will be provided to the judge and each party.

Also be aware of:
* Rule 14-7(10) of the Supreme Court Family Rules which requires that all ''plans, photographs or objects'' for use as evidence at trial must be available for inspection by the other party at least 7 days before the start of the trial (unless the court orders or the parties agree otherwise). That means that you can’t leave it to the last minute to figure out whether you will introduce these types of evidence at trial.
* Rule 14-7(8) of the Supreme Court Family Rules which entitles either party to require the other party to bring to the trial any document listed in the other party’s list of documents by service a notice in [[Form F47 Notice to Produce|Form F47]] on the other party at least 2 days before trial.

=== Witnesses ===

You will need to consider whether you need anyone else to attend the trial to give evidence in support of your case. Witnesses should only be called to testify about facts that are relevant to the case and that are within the witness’ direct experience (in contrast to having heard information from another person who is not testifying).

Witnesses are generally not allowed to testify about their opinions, although there are exceptions to this general rule. One notable exception: a lay person is allowed to provide an opinion based upon personal observation of something that is commonly known (such as coming to the conclusion that it was raining outside because everyone who came inside was soaking wet). A second notable exception: an expert witness is allowed to provide an opinion based upon their specialized education, training, skills, certification or experience.

=== Testifying in person ===

The usual rule is that witnesses are to testify in person at trial, although there are limited circumstances under which affidavit evidence or deposition evidence (Rule 14-7(40) to (45) of the Supreme Court Family Rules) or pre-trial examination of a witness may be allowed instead (discussed further below).

You will need to contact each witness to ask them to testify. If they won’t agree to testify or you are otherwise uncertain as to whether they will show up, then you will need to issue a subpoena to require them to testify. A subpoena is in [[Form F23 Subpoena to Witness|Form F23]] and needs to be served personally on the witness at least 7 days before trial, along with the required witness fees which are set out in [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/part-7/bc-reg-169-2009-part-7.html Appendix C] – Schedule 3 (Fees Payable to Witnesses) of the Supreme Court Family Rules (Rule 14-7(32) & (34) of the Supreme Court Family Rules).

The daily witness fee is currently $20 in addition to the travel costs of the party being examined as follows:
#Mileage:
#:(a) If the party being examined lives within 200 km by road (including any ferry route and road tolls), currently $.30 per km each way by road between their residence and the place of the examination (but no payment if the distance is less than 8 km); or
#:(b) If the party being examined lives more than 200 km away, the minimum return air fare by scheduled airline plus $.30 per km at this time each way from their residence to the departure airport and from the arrival airport to the place of the examination.
#Reasonable allowance for meal expenses and if the witness isn’t local and has to stay the night, a reasonable allowance for overnight accommodation. To figure out what is reasonable, call a few decent hotels in your area and consider including that information in a cover letter to the witness.
#Reasonable payment for the witness’ time and any expenses the witness incurred to prepare to give evidence (if the preparation is necessary). Basically you have to pay your witness their reasonable wage for missing work to testify.

If the witness then fails to show up at the trial, the witness can be charged with contempt of court (see Rule 14-7 (38) of the Supreme Court Family Rules).

For each witness, prepare a list of the issues that you need them to speak about in their testimony. Then make a list of questions to ask and review with them before trial. For each witness, you will likely want to start with basic questions such as their full name, address, age and occupation, their education if relevant, and their relationship to the parties, and then move on to the focused areas of inquiry.

You can only ask your witnesses open ended questions, meaning questions that do not suggest the answers (those types of questions are limited to cross examination of the other party’s witnesses).

=== Use of pre-trial examination or deposition ===

There are limited circumstances under which a witness may be able to testify before trial and have the transcript of their answers used as evidence at trial (see Rule 14-7(40) about the use of deposition evidence and Rule14-7(52) about the use of transcripts of pre-trial examinations of witnesses) – although even then, the court retains the right to require the witness to attend the trial to testify in person (see Rule 14-7(40) of the Supreme Court Family Rules). Doing so may be appropriate in the following circumstances:
<blockquote>
(a) Where the transcript evidence can be used to contradict or impeach the testimony of the person at trial; or

(b) It is necessary in the interests of justice for one of the following reasons:
:(i) the person is unable to testify due to death, age, infirmity, sickness or imprisonment;
:(ii) the person is out of the jurisdiction, or
:(iii) the person cannot be served with a subpoena.
</blockquote>

Doing so also requires either the consent of both parties or an order of the court. For more information about making an application to the court for an order before trial, see the section: [[Interim Applications in Family Matters]].

Do note that you can’t cherry pick the evidence from the transcript to introduce at trial. Rule 14-7(45) requires that depositions (whether by video or transcript) must be presented in full at trial. Rule 14-7 (53) states that a court may consider the whole of the pre-trial examination and can direct that other related portions be introduced as evidence. Rule 14-7(56) allows a party to object to the admissibility of any question asked at a deposition or pre-trial examination of a witness even if the party didn’t object at the time the question was being asked.

=== Expert witnesses ===

If the expert has been jointly appointed, each party has the right to cross-examine that expert at trial (see Rule 13-4(10) of the Supreme Court Family Rules).

If the expert has been retained by one party:
<blockquote>
(a) the party who retained the expert may conduct a direct examination of the expert which is limited to clarifying terminology in the report or to otherwise make the report more understandable (Rule 13-7(5) of the Supreme Court Family Rules);

(b) the other party is permitted to cross-examine the expert at trial provided that party gave the necessary notice of their intention to cross-examine the expert; and

(c) after the cross-examination, the party who retained the expert may be permitted to re-examine the expert on any new issues that were raised in the cross-examination.
</blockquote>

Where an expert has been appointed by the court, a party wishing to cross-examine the expert at trial must serve notice on the expert and all parties. The notice is in [[Form F43 Notice to Cross-examine|Form F43]] and must be served at least 28 days before the scheduled trial date.

Preparing a cross examination of an expert is a lot like preparing for any other witness, except that it usually requires more specialized knowledge and therefore may require some research or even contacting another expert of a similar background for advice about areas of questioning.

For each expert witness, prepare a list of the issues that you need them to speak about in their testimony. Then make a list of questions to ask and review the questions with the expert before trial if possible. You may have questions about their training and experience, about the process of information gathering they used to form their opinion, and the opinion itself.

Any party relying upon the expert report at trial will need to bring the original of any expert report to trial along with at least three copies. (If the expert’s resume or curriculum vitae is not already attached to the report, copies of it will be required too). The original will be used for reference by the expert witness and the remaining copies will be distributed to the judge and all parties (or their counsel). The expert report (and resume or curriculum) can be included in any joint book of documents at trial or submitted as a separate exhibit.

=== Section 211 reports ===

If a party wishes to challenge any of the facts or opinions in a section 211 report, that party must do so by cross-examination of the report writer.

Each party has the right to cross-examine the person who prepared a report under section 211 of the ''[[Family Law Act]]'' provided that person provides the necessary notice. The notice of a party’s intention to cross-examine the report writer must be in [[Form F43 Notice to Cross-examine|Form F43]] and be served at least 28 days before the scheduled trial date (see Rule 13-1(2) of the Supreme Court Family Rules).

Preparing to cross-examine a section 211 report writer is similar to preparing to cross-examine an expert.

For more information about section 211 reports, see:
[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]]

[[How Do I Get a Views of the Child Report?|How do I get a views of the child report?]] in the ''How Do I?'' part of this resource.

=== Use of physical objects ===

If you intend to use a physical object at trial, you will need to bring it to trial.

You should also be aware of:
* Rule 14-7(10) of the Supreme Court Family Rules which requires that all plans, photographs or objects for use as evidence at trial must be available for inspection by the other party at least 7 days before the start of the trial (unless the court orders or the parties agree otherwise). That means that you can’t leave it to the last minute to figure out whether you will introduce these types of evidence at trial.
* Rule 14-7(8) of the Supreme Court Family Rules which allows either party to serve a notice to require the other party to bring to the trial any physical object the party serving the notice is considering introducing at trial. The notice must identify the object, be in [[Form F47 Notice to Produce|Form 47]], and served on the other party at least 2 days before trial.

=== Final steps to prepare for a family law trial ===

There are a number of final steps to prepare for a family law trial:
# '''Book of Documents:''' If you haven’t already done so, prepare your Book of Documents. Preparation of a book of documents is set out earlier in this section under Preparing Evidence for Trial: Documents.
# '''Prepare Book of Authorities.''' This is a bound volume of the law that you intend to rely on at trial and should include copies of any statutes, regulations and case law (which are collectively called ''authorities'') you intend to rely on at trial. Each authority should be placed behind a separate tab and an index listing each authority and its corresponding tab for easy reference during the trial. You will need to make enough copies for the judge, yourself and every other party (or their lawyer if they have one).
# '''Prepare an opening statement:''' This is a statement that is made at the beginning of each party’s case to give the judge some factual background about the case, an overview of the legal issues involved and the positions taken/orders sought by that party. If the parties have reached agreement on any issues, this should be communicated to the judge during a party’s opening statement. If there are housekeeping issues (such as an expert witness only be available to testify on a specific date), such issues should be raised at this time as well. A party’s opening statement should be consistent with a party’s closing argument.
# '''Update outline for closing submissions:''' Each party’s closing submissions should include a summary of the law on each issue, a description of each order sought by the party making the submissions, and a summary of the evidence that supports each order sought. If a party has made an extensive outline during their earlier trial preparation (as suggested above), this step is simplified. A party’s closing argument should be consistent with the party’s opening statement.
# '''Finalize preparation of direct examinations & cross examinations of witnesses'''
# '''Consider preparing a chronology:''' Each party should also consider preparing a chronology of important events such as the birth dates of each party and child, the date of cohabitation, the date of marriage, the date of separation, the date of divorce (if applicable), and the dates of any other significant events such as moves, job changes, promotions, inheritances, gifts, diagnoses etc. for easy reference by the judge at trial. If you do prepare a chronology, be sure to bring copies for the judge, the other party (or their lawyer) and yourself.
# '''Consider preparing a Scott Schedule:''' If either party has a lawyer and division of property and debt is in dispute, then the lawyer will also prepare a ''Scott Schedule''. A Scott Schedule is a spreadsheet that lists all of the property and debt in issue, the value of each at various dates, and other useful information such as whether there are excluded property claims, that party’s position about what should happen with each property and debt and the like. There is no requirement in the Supreme Court Family Rules that a Scott Schedule be prepared, but it is a useful reference tool at trial. If one party has a lawyer who prepares a Scott Schedule, the other party can review it carefully and make note of where that party disagrees with the information provided. If neither party have a lawyer and neither party prepares a Scott Schedule, the judge will likely use the parties’ financial statements as the main reference for financial information about property and debts.
# '''Prepare your own trial binder:''' Convert any trial preparation binder to your trial binder. Replace all documents with the following, each of which should be included behind separate tabs:
#* List of witnesses (with contact information for each) and anticipated trial plan/schedule (which is really just a best guess as to when each witness will testify and for how long)
#* Page to list exhibits as they are entered at trial – this will be an important reference during the trial and when you are preparing your final argument
#* Chronology &/or Scott Schedule, if either/both have been prepared
#* Opening statement
#* Direct examination of each witness that party intends to call (with each examination behind a separate tab)
#* Cross examination of each witness the other party intends to call (with each examination behind a separate tab)
#* List of read-ins (from examination for discovery, pre-trial examinations of witnesses or depositions, if any)
#* Final argument/closing submissions
#* Miscellaneous notes/to do list – sometimes during a trial a judge will ask a party to do something during a court break or a party thinks of another idea to explore. It is helpful to have a place to list such miscellaneous items and thoughts that come up during trial in order to stay organized.
#'''Personal preparation:'''
#*Familiarize yourself with court and court processes:
#**Visit the courthouse to familiarize yourself with it (unless you know it well already), including checking the hours of operation, the location of the hearing list, the location of washrooms, and the availability of food at or near the courthouse if you don’t plan to pack a lunch each day of trial.
#**Consider watching a trial as observation of the real thing is often the best education. Trials are open to the public and are generally in session from 10 am to 12:30 pm and from 2:00 to 4:00 pm each day.
#*Engage in self-care leading up to trial, including ensuring that you get enough sleep, that you are eating healthily and getting regular exercise, and that you have the emotional support that you need to help you through this process (ie: family, friend, counsellor).
#*For more tips on personal preparation to manage the trial process, see the Legal Services Society of British Columbia’s fact sheets:
#**[http://www.clicklaw.bc.ca/resource/4069 Coping with the court process]
#**[http://www.clicklaw.bc.ca/resource/4070 Preparing to attend Supreme Court]

== Conducting the trial in Supreme Court ==

=== Usual sequence of events ===

Trials of family matters in Supreme Court are usually conducted in the following manner and sequence:
<blockquote>
(a) '''Opening Statement of the Claimant:''' At the beginning of the trial, the claimant (or claimant’s counsel) has the opportunity to tell the court what the case is about and what proof the claimant will be presenting.

(b) '''Claimant’s Presentation of Evidence:''' The claimant (or claimant’s counsel) will then call each of their witnesses, including the claimant themself, to testify and to introduce any applicable exhibits into evidence (ie: documents or objects). The respondent (or respondent’s counsel) will then have the right to cross-examine the witnesses.

(c) '''Opening Statement of the Respondent:''' After the claimant has finished presenting their witnesses and evidence, the respondent (or respondent’s counsel) is entitled to make an opening statement to the court.

(d) '''Respondent’s Presentation of Evidence:''' The respondent (or respondent’s counsel) will then be given the opportunity to call witnesses, including the respondent him/herself, to testify and to introduce any applicable exhibits into evidence. The claimant (or claimant’s counsel) will then have the right to cross-examine them.

(e) '''Argument:''' After the evidence is complete, both parties (or their lawyers) will have the opportunity to make submissions (arguments) about how the case should be decided. The claimant is given the opportunity to make submissions first, then the respondent, and then the claimant is often given a further opportunity to respond (briefly) to the submissions of the respondent.
</blockquote>

=== Tips about etiquette at trial in Supreme Court ===

* Always arrive early for court (15 minutes early is a good guideline) and return to the courtroom on time after breaks.
* Stand up when the judge enters or leaves the courtroom and when you are speaking to the judge.
* If the judge is:
** a man call him '''My Lord'' or ''Your Lordship''
** a woman call her ''My Lady'' or ''Your Ladyship''
* Always be respectful to the judge and to everyone else in the courtroom, including the court clerk, the sheriff (if any) and the other party and counsel.
* When speaking to a witness, use Mr., Ms., or Dr. followed by their surname, rather than the witness' first name (which is too casual).

For more tips on conducting a trial in Supreme Court, see the Legal Services Society of British Columbia’s fact sheet on [http://www.clicklaw.bc.ca/resource/4071 Tips for Conducting your Supreme Court Trial].

=== Taxable costs and disbursements ===

There is a distinction between costs and disbursements. Costs are intended as a partial payment of the legal fees of the successful party. Disbursements are the out-of-pocket expenses such as court filing fees, witness fees, traveling and subsistence expenses, experts' fees, fees for medical/legal reports and the like.

Both are dealt with in Rule 11-1 of the Supreme Court Family Rules. The usual rule is that the successful party will be awarded their taxable costs and disbursements on a ''party and party'' basis, but there are many exceptions.

An award of costs normally does not amount to more than approximately 30% of a party's actual legal fees. Generally, most disbursements are recoverable, although there are some exceptions. A successful party can expect to recover about 80-90% of actual out-of-pocket expenses.

A party can ask the judge for a ruling on costs after the judge has delivered the decision.

For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [http://www.clicklaw.bc.ca/resource/1620 Costs and Expenses].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* Legal Services Society Family Law in BC website:
**[http://www.clicklaw.bc.ca/resource/4055 How to schedule and prepare for your Supreme Court trial]
**[http://www.clicklaw.bc.ca/resource/4068 Present your evidence at Supreme Court]
**[http://www.clicklaw.bc.ca/resource/4070 Preparing to attend Supreme Court]
**[http://www.clicklaw.bc.ca/resource/4072 What happens at a Supreme Court trial?]
**[http://www.clicklaw.bc.ca/resource/4071 Tips for conducting your Supreme Court trial]
**[http://www.clicklaw.bc.ca/resource/4069 Coping with the court process]
**[http://www.clicklaw.bc.ca/resource/4056 How to draft a Supreme Court order]
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society Website for BC Supreme Court]

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 15, 2017}}

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[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-12T21:35:20Z

Julie Brown: /* Offer to Settle */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations] provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations]
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on [https://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making Mediation happen in a family law case in Supreme Court].

===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See [http://canlii.ca/t/53h1z Rule 16-1] of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [https://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and Expenses].

===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under [http://canlii.ca/t/53h1z Rule 11-1] of the Supreme Court Family Rules has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The...[party(ies)]..., ...[name(s) of party(ies)]..., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
For more information on making an offer to settle see the Legal Services Society guide [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]

==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a judge has the discretion under [http://canlii.ca/t/53lfk Rule 11] to order the party requiring the expert's attendance pay for an expert’s attendance at court if the judge determines that it was unnecessary to call the person to attend.
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion. For further information see the section Family Case Conferences in [[Case Conferences in a Family Matter | Case Conferences]] and for a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[http://canlii.ca/t/52325 Notice to Mediate (Family) Regulation]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]
* Legal Services Society Family Law in BC website:
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/judicial-case-conferences-supreme-court Judicial case conference in Supreme Court]
** [http://familylaw.lss.bc.ca/bc-legal-system/legal-help/if-you-have-go-court/judicial-case-conferences-supreme-court/deal#0 Deal with a judicial case conference]
** [http://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making mediation happen in a family law case in Supreme Court]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and expenses]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/family-case-conferences-provincial-court Family case conference]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/family-case-conferences-provincial-court/checklist-family-case Checklist for family case conference]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

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How Do I Schedule a Family Management Conference for Hearing?

2019-06-12T21:34:19Z

Julie Brown: Created page with "{{JP Boyd on Family Law How Do I TOC|expanded=other}} A family case conference (FCC) is a special type of hearing in the Provincial Court involving the parties, their lawyers..."

{{JP Boyd on Family Law How Do I TOC|expanded=other}}

A family case conference (FCC) is a special type of hearing in the Provincial Court involving the parties, their lawyers and a judge, that is intended to explore the issues in a court proceeding with the hope of finding a way to settle all or part of the proceeding. FCCs are private and held off the record.

FCCs can be very helpful, especially if the judge is prepared to be pushy with the parties and their lawyers. It's fairly common for proceedings to settle at FCCs, and where a settlement is reached the judge will make a consent order on the spot, at the end of the hearing.

If you think a FCC will help, you can:

*ask that a FCC be scheduled at your first appearance, or
*if you've already had your first appearance, ask the judicial case manager to set a FCC for hearing.

If, for some reason, you have trouble scheduling a FCC, you can apply for an order by Notice of Motion that a FCC be scheduled under Rule 7(1).

There is more information about family case conferences in the chapter, [[Resolving Family Law Problems in Court]] within the section [[Case Conferences in a Family Law Matter]].

{{REVIEWED | reviewer = [[Julie Brown]], June 12, 2019}}

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[[Category:How Do I?|S]]
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Rules Promoting Settlement in Family Matters

2019-06-12T21:32:04Z

Julie Brown: /* Resources and links */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations] provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations]
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on [https://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making Mediation happen in a family law case in Supreme Court].

===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See [http://canlii.ca/t/53h1z Rule 16-1] of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [https://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and Expenses].

===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under [http://canlii.ca/t/53h1z Rule 11-1] of the Supreme Court Family Rules has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
For more information on making an offer to settle see the Legal Services Society guide [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]

==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a judge has the discretion under [http://canlii.ca/t/53lfk Rule 11] to order the party requiring the expert's attendance pay for an expert’s attendance at court if the judge determines that it was unnecessary to call the person to attend.
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion. For further information see the section Family Case Conferences in [[Case Conferences in a Family Matter | Case Conferences]] and for a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[http://canlii.ca/t/52325 Notice to Mediate (Family) Regulation]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]
* Legal Services Society Family Law in BC website:
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/judicial-case-conferences-supreme-court Judicial case conference in Supreme Court]
** [http://familylaw.lss.bc.ca/bc-legal-system/legal-help/if-you-have-go-court/judicial-case-conferences-supreme-court/deal#0 Deal with a judicial case conference]
** [http://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making mediation happen in a family law case in Supreme Court]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and expenses]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/family-case-conferences-provincial-court Family case conference]
** [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/family-case-conferences-provincial-court/checklist-family-case Checklist for family case conference]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

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Rules Promoting Settlement in Family Matters

2019-06-12T21:22:25Z

Julie Brown: /* Offer to Settle */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations] provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations]
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on [https://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making Mediation happen in a family law case in Supreme Court].

===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See [http://canlii.ca/t/53h1z Rule 16-1] of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [https://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and Expenses].

===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under [http://canlii.ca/t/53h1z Rule 11-1] of the Supreme Court Family Rules has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
For more information on making an offer to settle see the Legal Services Society guide [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Making an offer to settle]

==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a judge has the discretion under [http://canlii.ca/t/53lfk Rule 11] to order the party requiring the expert's attendance pay for an expert’s attendance at court if the judge determines that it was unnecessary to call the person to attend.
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion. For further information see the section Family Case Conferences in [[Case Conferences in a Family Matter | Case Conferences]] and for a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-12T21:19:54Z

Julie Brown: /* Provincial Court */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations] provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations]
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on [https://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making Mediation happen in a family law case in Supreme Court].

===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See [http://canlii.ca/t/53h1z Rule 16-1] of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [https://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and Expenses].

===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a judge has the discretion under [http://canlii.ca/t/53lfk Rule 11] to order the party requiring the expert's attendance pay for an expert’s attendance at court if the judge determines that it was unnecessary to call the person to attend.
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion. For further information see the section Family Case Conferences in [[Case Conferences in a Family Matter | Case Conferences]] and for a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-12T21:11:55Z

Julie Brown: /* Costs */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations] provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations]
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on [https://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making Mediation happen in a family law case in Supreme Court].

===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See [http://canlii.ca/t/53h1z Rule 16-1] of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on [https://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and Expenses].

===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a court has the discretion to order payment for an expert’s attendance at court
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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Rules Promoting Settlement in Family Matters

2019-06-12T21:08:26Z

Julie Brown: /* Serve a Notice to Mediate */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations] provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the [http://canlii.ca/t/52325 Notice to Mediate (Family) Regulations]
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on [https://familylaw.lss.bc.ca/separation-divorce/getting-divorce/making-mediation-happen-family-law-case-supreme-court Making Mediation happen in a family law case in Supreme Court].

===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See Rule 16-1 of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on Costs and Expenses.
===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a court has the discretion to order payment for an expert’s attendance at court
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-12T21:04:38Z

Julie Brown: /* Request a Settlement Conference */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a settlement conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See [http://canlii.ca/t/53h1z Rule 7-2 of the of the Supreme Court Family Rules]). For more information about the purpose and scheduling a settlement conference see the section [[Case Conferences in a Family Matter | Case Conferences]] in this Chapter.

===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 Regulations provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in Section of the Notice to Mediate Regulations.
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on Making Mediation happen in a family law case in Supreme Court.
===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See Rule 16-1 of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on Costs and Expenses.
===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a court has the discretion to order payment for an expert’s attendance at court
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-12T21:02:32Z

Julie Brown: /* Request another judicial case conference */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section [[Case Conferences in a Family Law Matter]] of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under [http://canlii.ca/t/53h1z Rule 7-1(15) of the Supreme Court Family Rules] the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.

===Request a Settlement Conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules). For more information see the section Case Conferences in this Chapter.
===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 Regulations provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in Section of the Notice to Mediate Regulations.
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on Making Mediation happen in a family law case in Supreme Court.
===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See Rule 16-1 of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on Costs and Expenses.
===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a court has the discretion to order payment for an expert’s attendance at court
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

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[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-12T20:59:00Z

Julie Brown: /* Resolving a court proceeding without a trial is still possible */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial ''[[Family Law Act]]'' says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.

==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section Case Conference of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under Rule 7-1(15) the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.
===Request a Settlement Conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules). For more information see the section Case Conferences in this Chapter.
===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 Regulations provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in Section of the Notice to Mediate Regulations.
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on Making Mediation happen in a family law case in Supreme Court.
===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See Rule 16-1 of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on Costs and Expenses.
===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a court has the discretion to order payment for an expert’s attendance at court
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Rules Promoting Settlement in Family Matters

2019-06-12T01:16:20Z

Julie Brown: Created page with "{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge |ChapterEditors = Shannon Aldinger and Julie Brown}} {{LSSbadge}} ==Resolving a court proceeding..."

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]}}
{{LSSbadge}}
==Resolving a court proceeding without a trial is still possible==
Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial.

There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.

Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, s. 4 of the provincial Family Law Act says that the purposes of the part of the Act on dispute resolution are to:

<blockquote><tt>(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;</tt></blockquote>
<blockquote><tt>(c) to encourage parents and guardians to</tt></blockquote>
<blockquote><tt>(i) resolve conflict other than through court intervention, and</tt></blockquote>
<blockquote><tt>(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.</tt></blockquote> 

In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.

This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.
==Supreme Court==
===Request another judicial case conference===
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section Case Conference of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, regardless if the parties have already had one.
Under Rule 7-1(15) the court has very broad powers at JCC including the following to promote settlement:
*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;
*mediate any of the issues in dispute;
*without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.
===Request a Settlement Conference===
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules). For more information see the section Case Conferences in this Chapter.
===Serve a Notice to Mediate===
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception.
A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date.
The parties have to attend mediation unless one of the following exceptions applies:
*There has already been a mediation session ;
*There is a protection order against one party;
*The mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive; or
*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 Regulations provide the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in Section of the Notice to Mediate Regulations.
For more information about the Notice to Mediate see the Legal Services Society of British Columbia fact sheet on Making Mediation happen in a family law case in Supreme Court.
===Costs===
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See Rule 16-1 of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees.
Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding and the amount depends on the difficulty. See Appendix B –Costs.
There are three levels of difficulty, less than ordinary, ordinary and more than ordinary. Ordinary difficulty is the default if the court makes no determination on difficulty.
The following is an example of costs that could be payable for a 3 day trial:
{| class="wikitable"
|-
! Item !! Description !! Costs ($)
|-
| 1 || Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim || $3,000
|-
| 2 || Process for discovery and inspection of documents || $2,000
|-
| 3 || Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party. || $2,000
|-
| 4 || Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance || $1,000
|-
| 5 || Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC|| $1,000
|-
| 6 || Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference || $500
|-
| 7|| Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial || $6,000
|-
| || '''Total Costs'''|| '''$15,000'''
|}

In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements.
Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, fees for medical/legal reports, photocopies, couriers, postage and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary.
The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention.
For more information about costs see the Legal Services Society of British Columbia’s fact sheet on Costs and Expenses.
===Offer to Settle===
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer.
To qualify as a formal offer under Rule 11-1 the offer must:
*be in writing;
*be served on all parties in the proceeding; and
*contain the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) 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 cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission.
The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer on if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
*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 on any later date;
*the relationship between the terms of settlement offered and the final judgment of the court;
*the relative financial circumstances of the parties; and
*any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made.
==Provincial Court ==
There are fewer incentives in the Provincial Court Rules for settlement. Costs are not payable in Provincial Court, except that a court has the discretion to order payment for an expert’s attendance at court
===Request a family case conference===
Family case conferences may be ordered by a judge if guardianship, parenting arrangements or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including mediate any of the issues in dispute and without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a notice of motion.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]

{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

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JP Boyd on Family Law

2019-06-12T01:13:51Z

Julie Brown: /* Chapters */

{{Cover Thumbnail
|filename = jpboydcover.png
|title = ''JP Boyd on Family Law'' (print edition released Sep 2017)
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| text = [[File:jpboydblog.jpg|230px|center|link=http://bcfamilylawresource.blogspot.ca/]]The '''[http://bcfamilylawresource.blogspot.ca/ JP Boyd on Family Law Blog]''' provides updates and commentary on family law developments, and is curated by [http://www.collaborativedivorcebc.com Collaborative Divorce Vancouver].
}}

Written in plain language, with rollover definitions for legal words and phrases, '''''JP Boyd on Family Law''''' provides practical, in-depth coverage of family law and divorce law in British Columbia. This trusted source for family law information is based on [[JP Boyd|John-Paul Boyd]]'s popular website, BC Family Law Resource, and is completely updated for the ''Family Law Act''. To get started, read [[Family Law in British Columbia]] for a quick introduction. Then dive into the main chapters of the wikibook, or see the [[JP Boyd on Family Law — How Do I?|How Do I?]] section for answers to common procedural questions. Read about the [[Introduction to JP Boyd on Family Law|transition of this resource to a wiki format]]. View the many [[:Category:JP Boyd on Family Law Contributors|lawyers and judges]] who are part of the editorial team led by [[Megan Ellis QC]] that keep this resource updated.

==Contents==

===Getting Started===
*[[Introduction to JP Boyd on Family Law|Introduction]]{{·}} [[Family Law in British Columbia]]{{·}} [[Terminology|Definitions]]{{·}} [[Legislation in Family Matters|Family Law Legislation]]{{·}} [[Divorce Act Basics|''Divorce Act'' Basics]]{{·}} [[Family Law Act Basics|''Family Law Act'' Basics]]

===Chapters===
{|
|- style="vertical-align:top;"
|
*'''[[Introduction to the Legal System for Family Matters|The Legal System]]'''
**[[The Court System for Family Matters|The Court System]]{{·}}[[The Law for Family Matters|The Law]]{{·}}[[You & Your Lawyer]]
| [[Bob Mostar]] and [[Mark Norton]]
|- style="vertical-align:top;"
|
*'''[[Resolving Family Law Problems out of Court|Resolving Problems out of Court]]'''
**[[Collaborative Processes]]{{·}}[[Family Law Mediation|Mediation]]{{·}} [[Family Law Arbitration|Arbitration]]{{·}} [[Parenting Coordination]]
| [[Catherine Brink]], [[Morag MacLeod QC]], [[John-Paul Boyd]] and [[Deirdre Severide]]
|- style="vertical-align:top;"
|
*'''[[Resolving Family Law Problems in Court|Resolving Problems in Court]]'''
**[[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}} [[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}} [[Overview of Case Conferences and Discovery in Family Law Matters|Case Conferences & Discovery Overview]]{{·}} [[Case Conferences in a Family Law Matter|Case Conferences]]{{·}} [[Discovery Process in a Family Law Matter|Discovery Process]]{{·}} [[Interim Applications in Family Matters|Interim Applications]]{{·}} [[Rules Promoting Settlement|Promoting Settlement]]{{·}} [[Preparing for and Going to Trial in Supreme Court|Supreme Court Trials]]{{·}} [[Preparing for and Going to Trial in Provincial Court|Provincial Court Trials]]{{·}} [[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}} [[Changing Final Orders in Family Matters|Changing Final Orders]]
| [[Shannon Aldinger]] and [[Julie Brown]]
|- style="vertical-align:top;"
|
*'''[[Family Law Agreements]]'''
**[[Cohabitation Agreements|Cohabitation Agreements]]{{·}} [[Marriage Agreements|Marriage Agreements]]{{·}} [[Separation Agreements|Separation Agreements]]{{·}} [[Enforcing Family Law Agreements|Enforcing Agreements]]{{·}} [[Changing Family Law Agreements|Changing Agreements]]
| [[Beatrice McCutcheon]] and [[Gagan Mann]]
|- style="vertical-align:top;"
|
*'''[[Children in Family Law Matters|Children]]'''
**[[Parenting after Separation]]{{·}} [[Guardianship, Parenting Arrangements and Contact|Guardianship, Parenting and Contact]]{{·}} [[Custody and Access|Custody and Access]]{{·}} [[Changing Family Law Orders and Agreements Involving Children|Making Changes]]{{·}} [[Estrangement and Alienation|Estrangement and Alienation]]
| [[Mary Mouat QC]] and [[Samantha Rapoport]]
|- style="vertical-align:top;"
|
*'''[[Child Support]]'''
**[[Child Support Guidelines|The Guidelines]]{{·}} [[Exceptions to the Child Support Guidelines|Exceptions to the Guidelines]]{{·}} [[Making Changes to Child Support|Making Changes]]{{·}} [[Child Support Arrears]]
| [[Bill Murphy-Dyson]] and [[Inga Phillips]]
|- style="vertical-align:top;"
|
*'''[[Spousal Support]]'''
**[[Basic Principles of Spousal Support|Basic Principles]]{{·}} [[The Spousal Support Advisory Guidelines|The Advisory Guidelines]]{{·}} [[Making Changes to Spousal Support|Making Changes]]{{·}} [[Spousal Support Arrears]]
| [[David Dundee]] and [[Gillian Oliver]]
|- style="vertical-align:top;"
|
*'''[[Property & Debt in Family Law Matters|Property & Debt]]'''
**[[Basic Principles of Property & Debt in Family Law|Basic Principles]]{{·}} [[Protecting Property & Debt in Family Law Matters|Protecting Property & Debt]]{{·}} [[Dividing Property & Debt in Family Law Matters|Dividing Property & Debt]]
| [[Helen Chiu]] and [[Matthew Ostrow]]
|- style="vertical-align:top;"
|
*'''[[Family Relationships]]'''
**[[Marriage & Married Spouses]]{{·}} [[Unmarried Spouses]]{{·}} [[Other Unmarried Relationships]]{{·}} [[Children's Caregivers and Extended Family|Caregivers and Extended Family]]{{·}} [[Adoption]]{{·}} [[Parentage and Assisted Reproduction|Parentage and Assisted Reproduction]]
| [[Stephen Wright]] and [[Michael Sinclair]]
|- style="vertical-align:top;"
|
*'''[[Separation & Divorce]]'''
**[[Separation]]{{·}} [[Separating Emotionally]]{{·}} [[Divorce]]
| [[Vanessa Van Sickle]]
|- style="vertical-align:top;"
|
*'''[[Family Violence Overview|Family Violence]]'''
**[[Family Violence and the Family Law Act|Family Violence under the ''Family Law Act'']]{{·}} [[Family Violence and Child Protection|Child Protection]]{{·}} [[Family Violence and the Criminal Code|Criminal Code]]{{·}} [[Suing for Family Violence in a Family Law Claim|Civil Claims]]
| [[Fiona Beveridge]] and [[Samantha Simpson]]
|- style="vertical-align:top;"
|
*'''[[Specific Communities and Family Law|Specific Communities]]'''
**[[Aboriginal Families]]{{·}} [[Immigrants and Family Law|Newcomers to Canada and Family Law]]{{·}} [[Same Sex Relationships and Issues Affecting Transgendered and Transsexual People|LGBTQ Community]]
| [[Rhaea Bailey]], [[Taruna Agrawal]] and [[Todd Bell]]
|- style="vertical-align:top;"
|
*'''[[Overlapping Legal Issues and Family Law|Overlapping Legal Issues]]'''
**[[Naming and Changes of Name|Naming and Changes of Name]]{{·}} [[Wills and Estates Issues in Family Law|Wills and Estates Issues]]{{·}} [[Conflict of Laws Issues in Family Law|Conflict of Laws Issues]]
| [[Bob Mostar]] and [[Mark Norton]]
|- style="vertical-align:top;"
|
|}

===How Do I?===
*'''Marriage, Separation & Divorce'''
**[[How Do I Get Married in British Columbia?|Get Married in British Columbia?]]{{·}} [[How Do I Prepare for Separation?|Prepare for Separation?]]{{·}} [[How Do I Separate from My Spouse?|Separate from My Spouse?]]{{·}} [[How Do I Find Out if I'm Divorced?|Find Out if I'm Divorced?]]{{·}} [[How Do I Get Divorced|Get Divorced?]]{{·}} [[How Do I Get my Certificate of Divorce?|Get my Certificate of Divorce?]]

*'''Avoiding an Obligation'''
**[[How Do I Get Out of Paying Child Support?|Get Out of Paying Child Support?]]{{·}} [[How Do I Get Out of Paying Spousal Support?|Get Out of Paying Spousal Support?]]{{·}} [[How Do I Get Out of Sharing My Assets?|Get Out of Sharing My Assets?]]

*'''Alternatives to Court'''
**[[How Do I Start Negotiations with My Spouse?|Start Negotiations with My Spouse?]]{{·}} [[How Do I Start Mediation with My Spouse?|Start Mediation with My Spouse?]]{{·}} [[How Do I Start a Collaborative Settlement Process with My Spouse?|Start a Collaborative Process with My Spouse?]]{{·}} [[How Do I Start Arbitration with My Spouse?|Start Arbitration with My Spouse?]]{{·}} [[How Do I Hire a Parenting Coordinator?|Hire a Parenting Coordinator?]]

More [[JP Boyd on Family Law — How Do I?|How Do I?]] topics...

===Court Forms & Documents===
*[[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]{{·}} [[Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]{{·}} [[Other Forms and Documents (Family Law)|Other Family Law Forms & Documents]]

===From the Author===
*[[JP Boyd on Family Law Editorial Manifesto|Editorial Manifesto]]{{·}} [[Rights and Responsibilities of Self-Represented Litigants]]

==Editors and Advisory Committee==
===Current editors===
[[JP Boyd on Family Law Contributors|Many contributors and editors]] help to improve ''JP Boyd on Family Law'' and keep it current, including:
{| style="font-size:85%; border: 1px;"
|[[File:ddundee.png|border|x125px|link=David Dundee]] <div class="center">[[David Dundee]]</div> || [[File:TAgrawal.jpg|border|x125px|link=Taruna Agrawal]] <div class="center">[[Taruna Agrawal]]</div> || [[File:rbailey.jpg|border|x125px|link=Rhaea Bailey]] <div class="center">[[Rhaea Bailey]]</div> || [[File:saldinger.png|border|x125px|link=Shannon Aldinger]] <div class="center">[[Shannon Aldinger]]</div> || [[File:bmccutcheon.jpg|border|x125px|link=Beatrice McCutcheon]] <div class="center">[[Beatrice McCutcheon]]</div> || [[File:Mmouat.png|border|x125px|link=Mary Mouat]] <div class="center">[[Mary Mouat QC]]</div> || [[File:msinclair.png|border|x125px|link=Michael Sinclair]] <div class="center">[[Michael Sinclair]]</div>
|}

==Creative Commons==

{{Creative Commons
|title = JP Boyd on Family Law
|author = [[JP Boyd|John-Paul Boyd]] and Courthouse Libraries BC
}}
{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:Navigation Page]]
[[Category:JP Boyd on Family Law]]

Case Conferences in a Family Law Matter

2019-06-11T20:39:46Z

Julie Brown: /* Provincial Court: Family case conferences */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}{{LSSbadge
|resourcetype = fact sheets for
|link = [http://www.clicklaw.bc.ca/resource/1636 JCCs in Supreme Court] '''and ''' [http://www.clicklaw.bc.ca/resource/1627 FCCs in Provincial Court]''' plus a checklist for '''[http://www.clicklaw.bc.ca/resource/1626 Family Case Conferences]
}}A case conference is a meeting between the parties, their lawyers (if they have them), and a judge, usually for a purpose relating to the administration or the settlement of a court proceeding.

''Judicial case conferences'' in the Supreme Court and ''family case conferences'' in the Provincial Court are held early in a proceeding and are about settling issues than can be agreed on, getting interim arrangements in place for support and the care of the children, and planning the next few steps in the proceeding to help the parties prepare for trial if the matter cannot be settled.

''Trial management conferences'' in the Supreme Court and ''trial preparation conferences'' in the Provincial Court are all about getting a proceeding ready for trial, and are held towards the end of a proceeding.

''Settlement conferences'' in the Supreme Court are not mandatory and can be held at any time during a proceeding if both parties agree to doing so.

This section discusses judicial case conferences, family case conferences, settlement conferences, and to a lesser extent trial management and preparation conferences, including their limitations and their uses, and provides some tips about how you can get the most out of your time and the judge's time at a case conference.

More information about trial management and preparation conferences can be found later in this section:
*Preparing for and Going to Trial in Supreme Court: [[Preparing for and Going to Trial in Supreme Court#Schedule and attend a trial management conference (TMC)|Schedule and attend a trial management conference]], and
*Preparing for and Going to Trial in Provincial Court: [[Preparing for and Going to Trial in Provincial Court#Attend a trial preparation conference (TPC)|Attend a trial preparation conference]].

==Supreme Court: Judicial case conferences==

Judicial case conferences in the Supreme Court, usually referred to as JCCs, are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom. JCCs must be held in all contested family law court proceedings, and, in most cases, they must be held before any interim applications can be heard. (Exceptions to this rule are found at Rule 7-1(3) of the of the Supreme Court Family Rules.)

Financial statements must be exchanged by the parties before each JCC. They must also be filed in court in advance of the JCC to give the judge the chance to read through them first. More information about Financial Statements is provided later in this chapter in the section [[Discovery Process in a Family Matter]].

Lists of Documents are also to be exchanged early on in the discovery process (see Rule 9-1(1) of the Supreme Court Family Rules) unless the parties otherwise agree or the court otherwise orders, and therefore also often exchanged before the JCC. (Lists of Documents are not filed in court, but simply exchanged informally between the parties). More information about Lists of Documents is provided later in this chapter in [[Discovery Process in a Family Matter]].

The more information that is exchanged before the JCC the better. Parties who are well informed about the facts of the case and who have had the opportunity to get legal advice in advance of the JCC are more likely to reach a settlement at the JCC, and save the time, expense, stress and uncertainty of continuing the lawsuit.

===The purposes of judicial case conferences===

The basic purposes of a JCC are to review the claims each side is making, determine where there is agreement, and see whether there is anything other than a trial that will resolve the claims in dispute. JCCs are relatively informal affairs, and in some courthouses everyone sits at a large table with the judge or master who is hearing the JCC. JCCs are private. Only the parties and their lawyers are allowed to be there. They are also held on an off-the-record basis, so that nothing said in the JCC can be used against anyone later on (i.e.: in an application to the court or at trial).

Different judges and masters will handle JCCs in different ways. Some judges and masters are very hands-on; others take a more distant, judicial approach. Some are very keen to try to settle a dispute, and will work almost like a mediator; others are content to leave areas of disagreement alone and focus on getting a resolution in place on the areas of agreement instead. Some judges and masters will provide an informal opinion about the likely result in a particular case; others won't. There are no guarantees that a JCC will be run in a particular way.

However, JCCs are very useful in almost all cases. Some cases will even settle at a JCC, with no need for further litigation. The court's powers at JCCs are set out at [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/part-2/bc-reg-169-2009-part-2.html Rule 7-1(15)] and are very broad. The court may:

<blockquote><tt>(a) 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;</tt></blockquote>
<blockquote><tt>(b) make orders to which all the parties consent;</tt></blockquote>
<blockquote><tt>(c) mediate any of the issues in dispute;</tt></blockquote>
<blockquote><tt>(d) with the consent of the parties, refer any issues to mediation with a private mediator;</tt></blockquote>
<blockquote><tt>(e) refer the parties to a family justice counsellor, or to a person designated by the Attorney General to provide specialized support assistance, if the court has received written advice from the regional manager that the family justice counsellor or designated person is readily available to the parties;</tt></blockquote>
<blockquote><tt>(f) direct a party to attend the Parenting after Separation program operated by the Family Justice Services Division (Justice Services Branch), Ministry of Attorney General;</tt></blockquote>
<blockquote><tt>(g) make orders respecting amendment of a pleading, petition or response to petition within a fixed time;</tt></blockquote>
<blockquote><tt>(h) make orders requiring that particulars be provided in relation to any matter raised in a pleading;</tt></blockquote>
<blockquote><tt>(i) make orders respecting discovery of documents;</tt></blockquote>
<blockquote><tt>(j) make orders respecting examinations for discovery;</tt></blockquote>
<blockquote><tt>(k) direct that any or all applications must be made within a specified time;</tt></blockquote>
<blockquote><tt>(l) reserve a trial date for the family law case or reserve a date for a trial that is restricted to issues defined by the parties;</tt></blockquote>
<blockquote><tt>(m) set a date for a trial management conference under Rule 14-3;</tt></blockquote>
<blockquote><tt>(n) make any orders that may be made at a trial management conference under Rule 14-3 (9);</tt></blockquote>
<blockquote><tt>(o) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;</tt></blockquote>
<blockquote><tt>(p) without limiting any other orders respecting timing that may be made under this subrule, make orders respecting timing of events;</tt></blockquote>
<blockquote><tt>(q) adjourn the judicial case conference;</tt></blockquote>
<blockquote><tt>(r) direct the parties to attend a further judicial case conference at a specified date and time;</tt></blockquote>
<blockquote><tt>(s) make any procedural order or give any direction that the court considers will further the object of these Supreme Court Family Rules.</tt></blockquote>

At the JCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. JCCs often work best when the parties are able to express their own views and concerns freely.

JCCs also work best when both (or in some cases all) parties come prepared. This means having a realistic view of the strengths and weaknesses of the evidence that you have to prove your case and the strengths and weaknesses of the legal arguments you are trying to advance. It is also helpful to have a sense of the likely cost of taking the matter to trial if you can’t settle it at the judicial case conference (or sometime thereafter). As noted before, Financial Statements and often Lists of Documents are exchanged prior to the judicial case conference as the exchange of information is a necessary step before a settlement can be reached.

It is important to remember that while the judge or master may (and should!) push the parties to agree about certain things, the parties don't have to agree. The judge or master cannot make any orders, except for procedural orders, that the parties don't agree with. If you're not happy with a potential order that's being discussed, you must say so!

===Potential outcomes===

It is possible for some or all issues to be settled at a JCC. Where there are areas of agreement — which could concern anything, from a temporary parenting schedule, to interim support, to a protection order, to the sale of the family home, to the production of documents — the judge or master will make that order. Areas that can't be agreed upon will be left for further negotiation and further litigation.

Even if nothing can be agreed upon, the judge or master will usually make a series of orders about the next procedural steps in the litigation. Typically, these will include:

*scheduling an application for hearing,
*setting dates for the exchange of documents and lists of documents,
*setting dates for examinations for discovery,
*scheduling a settlement conference,
*resolving issues about experts and reports about parenting arrangements,
*setting the dates for the trial management conference and the trial, and
*scheduling the dates for any further JCCs.

At the end of the conference, the court clerk will print out a case management plan that will show the orders that have been agreed to, the issues still in dispute, and any schedule for the next steps in the litigation. Most of the time, both parties and their lawyers will sign the case management plan; no one needs to sign a case management plan where nothing was agreed to.

===Scheduling a judicial case conference===

To set a date for a JCC, first contact the court registry and get their available dates. (JCCs are given a lot of priority by the registry staff, and you should be able to book a hearing date within a month or two.) In most cases, you will want to give these dates to the other side and select a date that you are both available for. It's just common courtesy to select a date that's convenient for everyone, plus you will want the other side to be able to attend the conference.

Once you have an agreeable date, call the registry back and tell them which date you've picked. They will then ask you to fill out and file a Notice of Judicial Case Conference in Form F19 setting that date. You will be charged a filing fee (currently $80). You must then serve a copy of your filed Notice of Judicial Case Conference on the other side, along with a copy of your filed financial statement, by ordinary service.

For a summary of how to schedule a JCC, see [[How Do I Schedule a Judicial Case Conference for Hearing?]] It's located in the ''How Do I?'' part of this resource, in the section Other Litigation Issues.
===Avoiding a judicial case conference===

The usual rule is that the parties to a family law proceeding in Supreme Court must attend a judicial case conference before making an application to the court for interim orders, although there are exceptions to the rule.

Rule 7-1(2) of the Supreme Court Family Rules says that:

<blockquote><tt>Subject to subrules (3) and (4), unless a judicial case conference has been conducted in a family law case, a party to the family law case must not serve on another party a notice of application or an affidavit in support.</tt></blockquote>

Subrule (3) sets out the exceptions to this requirement:

#when an application is being made for an order restraining either or both parties from disposing of property,
#when an order will be made with the agreement of both parties, and
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'' or a ''without notice application'').

Subrule (4) sets out some further exceptions to the general rule about JCCs and interim applications. However, if you need to ask for an exception under this subrule, you'll have to make an application to the court for an order granting the exception:

<blockquote><tt>On application by a party, the court may relieve a party from the requirements of subrule (2) if</tt></blockquote>
<blockquote><blockquote><tt>(a) it is premature to require the parties to attend a judicial case conference,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) it is impracticable or unfair to require the party to comply with the requirements of subrule (2),</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the application referred to in subrule (2) is urgent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) delaying the application referred to in subrule (2) or requiring the party to attend a judicial case conference is or might be dangerous to the health or safety of any person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the court considers it appropriate to do so in the circumstances.</tt></blockquote></blockquote>

In other words, if your application is urgent you can ask for permission to have your application heard before the first JCC. If your application falls into one of the exceptions set out in Rule 7-1(3), you don't need the court's permission. If your application doesn't fall into either category, you've got little choice but to have a JCC before you can bring your application.

Applications to be exempt from the JCC requirement are made by filing a special form of Requisition without an appearance in court (see [[Form F17 Requisition (General)|Form 17]] - Requisition Schedule A (to Avoid Judicial Case Conference)).

== Supreme Court: Settlement conferences ==

Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory, but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules).

Like JCCs, settlement conferences are private. Only the parties and their lawyers are allowed to be there unless the parties and the judge all agree that another person can attend. They are also held on an off-the-record basis, so that nothing said in the settlement conference can be used against anyone later on (i.e.: in an application to the court or at trial).

There are no guarantees that a settlement conference will result in a settlement as that requires that the parties attend in good faith and are motivated to settle.

Updated financial information should be exchanged between the parties before a settlement conference. If the updates are extensive and significant it is helpful to update and exchange sworn financial statements as well. If financial statements are updated, they should also be filed in court in advance of the settlement or a copy brought for the judge at the settlement conference.

It is common practice for parties to exchange settlement conference briefs prior to a settlement conference, and parties may be directed to do so. There is no specific form of settlement conference brief, but the following information should be included (or at least considered for inclusion):
# Key facts & dates: date of cohabitation, marriage, separation &/or divorce, birthdates of parties and children, and other significant dates (may include house sales/purchases and/or moves, changes in employment or education, significant financial transactions such as inheritances, loans, purchases)
# List of issues to be resolved and a description of your position about each one; and
# List of key documents and other evidence to be relied upon, for example expert reports such as a section 211 parenting assessment or a marriage agreement or loan document that is at the heart of the dispute; you may want to attach a copy of any such document to the settlement conference brief; do bring an extra copy to the settlement conference in case the judge or the other party doesn’t have theirs.
# Key case law to be relied on (more likely where the parties have lawyers).

At the settlement conference, each party will have turns telling the judge their version of the facts and why they want the orders that they want. The judge will listen and ask questions and explore settlement options. The judge may even provide opinions about the likely outcome of the case if it goes to trial based upon the judge’s experience in other cases and what the judge knows about the case.

Also like JCCs, settlement conferences work best when both parties come prepared, and the more information that is exchanged before the settlement conference the better. Being prepared also means having a realistic view of the strengths and weaknesses of the evidence that you have to prove your case and the strengths and weaknesses of the legal arguments you are trying to advance. It is also helpful to have a sense of the likely cost of taking the matter to trial if you can’t settle it at the settlement conference. Parties who are well informed about the facts of the case and who have had the opportunity to get legal advice in advance of the settlement conference are more likely to reach a settlement there, and save the time, expense, stress and uncertainty of continuing the lawsuit through to trial.

=== Scheduling a settlement conference ===

To set a date for a settlement conference, you will then need to contact the court registry and get their available dates. You will then need to communicate with the other party to select a date that you are both available for.

Once you have an agreeable date, call the registry back and tell them which date you've picked. You will then need to fill out and file a Requisition in [[Form F17 Requisition (General)|Form F17]] setting that date. There is no filing fee charged to schedule a settlement conference. You must then serve a copy of your filed Requisition on the other side by ordinary service

== Supreme Court: Trial management conferences ==

Parties heading to trial are required to schedule and attend a trial management conference (unless the party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TMC). The trial management conference is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

More information about trial management conferences can be found later in this section: Preparing for and Going to Trial in Supreme Court: [[Preparing for and Going to Trial in Supreme Court#Schedule and attend a trial management conference|Schedule and attend a trial management conference]].

==Provincial Court: Family case conferences==

There are two big differences between judicial case conferences in the Supreme Court and family case conferences in the Provincial Court. First, FCCs aren't mandatory and you only get to have an FCC if a judge orders that you have one. Second, the judge at an FCC has the discretion to make orders without the consent of a party. Otherwise FCCs are pretty much just like JCCs.

===The purposes of family case conferences===

The primary purpose of an FCC is to reach a settlement of any disputed parenting issues. Although [http://canlii.ca/t/85pb Rule 7] limits the circumstances in which an FCC can be ordered to parenting issues, it doesn't say that no other issues can be discussed at an FCC, and the judge may be prepared to deal with support issues as well.

FCCs are relatively informal affairs, and most of the time everyone sits at a large table with the judge who is hearing the FCC. FCCs are private; under Rule 7(2) only the parties and their lawyers are allowed to be there. Under Rule 7(3), the judge may give permission for other people, including the parties' child, to attend. FCCs are held on an off-the-record basis, so that nothing said in the FCC can be used against anyone later on.

Although different judges will handle FCCs in different ways, most of the time the judge will act like a mediator. Some judges will handle the FCC in a reserved, judicious manner. Others are more hands-on and will do everything they can to help the parties settle their issues, including:

*scheduling a series of FCCs,
*speaking directly to the children,
*ordering or recommending views of the child reports,
*ordering support be paid on an interim basis (meaning until the trial is heard),
*ordering a party to produce relevant documents such as income tax returns or bank records,
*ordering that a section 211 report be prepared, and
*asking important third parties, like a new spouse or a half-sibling, to attend a future FCC.

At the FCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. FCCs often work best when the parties are able to voice their own views and concerns freely.

Cases often settle at FCCs. In order to maximize the chances of settlement, it is critical that you get proper legal advice about your situation and options before you go to the FCC if you don't have a lawyer. If you do have a lawyer, you should speak to them about the range of potential results areas where you might want to compromise your position, options for settlement, and the likely cost of proceeding to trial.

===Potential outcomes===

It is possible for some or all issues to be settled at a FCC. Where there are areas of agreement, the judge will make that order. Issues that can't be agreed upon will be left for further negotiation and further litigation.

[http://canlii.ca/t/85pb Rule 7(4)] lists the things a judge can do at a FCC:

<blockquote><tt>The judge at the family case conference may do one or more of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) mediate any of the issues in dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) decide any issues that do not require evidence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) with consent of the parties, refer any issues to mediation with a private mediator;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) if the regional manager has advised the court in writing that the person or program is readily available to the parties, refer the parties to a family justice counsellor or to a person designated by the Attorney General to provide specialized maintenance assistance;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) adjourn the case for purposes of mediation under paragraph (c) or a referral under paragraph (d);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) make an order to which all of the parties consent;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) direct that any or all applications must be made within a set time;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) direct the parties to attend a further family case conference, setting a date for that conference;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) set a date for a trial preparation conference under rule 8;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) make any order that may be made at a trial preparation conference under rule 8 (4);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(k) if the judge does not set a date for a further family case conference or for a trial preparation conference, set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(l) make an interim or final order requested in an application, reply or notice of motion;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(m) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(n) make any other order or give any direction that the judge considers appropriate.</tt></blockquote></blockquote>

Although that last item, "make any other order or give any direction that the judge considers appropriate," sounds pretty all-encompassing and all-powerful, in practice the court rarely makes orders that one or more parties oppose.

===Applying for a family case conference===

Under [http://canlii.ca/t/85pb Rule 7(1)] of the Provincial Court Family Rules, a judge may order the parties to attend an FCC where the case involves contested claims about guardianship or for parental responsibilities, parenting time or contact. An application for an FCC can be made at a first appearance or at any subsequent appearance, or by Notice of Motion like any other interim application.

It is fairly easy to get an order that an FCC be heard as the court will usually agree that an FCC is a good idea. The court will not be interested in granting an FCC if:

*it's obvious that you've asked for the FCC to obstruct the hearing or trial or an interim application,
*there's already been an FCC heard in your case and there's nothing to suggest that a new FCC will have a better chance of success, or
*there is an urgent reason for the case to head to trial without further delay.

===Scheduling a family case conference===

FCCs are booked by the judicial case manager, and if you get an order for an FCC, the judge will adjourn your case to the judicial case manager to get a date set up. Like JCCs, it is good idea to pick a date on which everyone is available to attend.

The judicial case manager will fix the date for the FCC on the spot and give you a slip with the date and time on it.

For a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]] It's located in the ''How Do I?'' part of this resource, in the section Other Litigation Issues.

== Provincial Court: Trial preparation conferences ==

Parties heading to trial are usually required to attend a trial preparation conference, except if a party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TPC) . The trial preparation conference is a short court hearing with a judge discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

More information about trial preparation conferences can be found later in this chapter: Preparing for and Going to Trial in Provincial Court: [[Preparing for and Going to Trial in Provincial Court#Preparing for trial in Provincial Court|Preparing for trial in Provincial Court]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]
* [http://www.clicklaw.bc.ca/resource/1636 Legal Services Society: Judicial Case Conferences in Supreme Court]
* [http://www.clicklaw.bc.ca/resource/2279 Legal Services Society: How to deal with a JCC]
* [http://www.clicklaw.bc.ca/resource/1627 Legal Services Society: Family Case Conferences in Provincial Court]
* [http://www.clicklaw.bc.ca/resource/1626 Legal Services Society: Family Case Conference Checklist]
* [http://www.clicklaw.bc.ca/resource/4055 Legal Services Society: How to schedule and prepare for your Supreme Court trial] - see Step 4: Prepare for and attend the Trial Management Conference

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 16, 2017}}

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[[Category:JP Boyd on Family Law]]

Case Conferences in a Family Law Matter

2019-06-11T20:37:50Z

Julie Brown: /* Supreme Court: Judicial case conferences */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}{{LSSbadge
|resourcetype = fact sheets for
|link = [http://www.clicklaw.bc.ca/resource/1636 JCCs in Supreme Court] '''and ''' [http://www.clicklaw.bc.ca/resource/1627 FCCs in Provincial Court]''' plus a checklist for '''[http://www.clicklaw.bc.ca/resource/1626 Family Case Conferences]
}}A case conference is a meeting between the parties, their lawyers (if they have them), and a judge, usually for a purpose relating to the administration or the settlement of a court proceeding.

''Judicial case conferences'' in the Supreme Court and ''family case conferences'' in the Provincial Court are held early in a proceeding and are about settling issues than can be agreed on, getting interim arrangements in place for support and the care of the children, and planning the next few steps in the proceeding to help the parties prepare for trial if the matter cannot be settled.

''Trial management conferences'' in the Supreme Court and ''trial preparation conferences'' in the Provincial Court are all about getting a proceeding ready for trial, and are held towards the end of a proceeding.

''Settlement conferences'' in the Supreme Court are not mandatory and can be held at any time during a proceeding if both parties agree to doing so.

This section discusses judicial case conferences, family case conferences, settlement conferences, and to a lesser extent trial management and preparation conferences, including their limitations and their uses, and provides some tips about how you can get the most out of your time and the judge's time at a case conference.

More information about trial management and preparation conferences can be found later in this section:
*Preparing for and Going to Trial in Supreme Court: [[Preparing for and Going to Trial in Supreme Court#Schedule and attend a trial management conference (TMC)|Schedule and attend a trial management conference]], and
*Preparing for and Going to Trial in Provincial Court: [[Preparing for and Going to Trial in Provincial Court#Attend a trial preparation conference (TPC)|Attend a trial preparation conference]].

==Supreme Court: Judicial case conferences==

Judicial case conferences in the Supreme Court, usually referred to as JCCs, are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom. JCCs must be held in all contested family law court proceedings, and, in most cases, they must be held before any interim applications can be heard. (Exceptions to this rule are found at Rule 7-1(3) of the of the Supreme Court Family Rules.)

Financial statements must be exchanged by the parties before each JCC. They must also be filed in court in advance of the JCC to give the judge the chance to read through them first. More information about Financial Statements is provided later in this chapter in the section [[Discovery Process in a Family Matter]].

Lists of Documents are also to be exchanged early on in the discovery process (see Rule 9-1(1) of the Supreme Court Family Rules) unless the parties otherwise agree or the court otherwise orders, and therefore also often exchanged before the JCC. (Lists of Documents are not filed in court, but simply exchanged informally between the parties). More information about Lists of Documents is provided later in this chapter in [[Discovery Process in a Family Matter]].

The more information that is exchanged before the JCC the better. Parties who are well informed about the facts of the case and who have had the opportunity to get legal advice in advance of the JCC are more likely to reach a settlement at the JCC, and save the time, expense, stress and uncertainty of continuing the lawsuit.

===The purposes of judicial case conferences===

The basic purposes of a JCC are to review the claims each side is making, determine where there is agreement, and see whether there is anything other than a trial that will resolve the claims in dispute. JCCs are relatively informal affairs, and in some courthouses everyone sits at a large table with the judge or master who is hearing the JCC. JCCs are private. Only the parties and their lawyers are allowed to be there. They are also held on an off-the-record basis, so that nothing said in the JCC can be used against anyone later on (i.e.: in an application to the court or at trial).

Different judges and masters will handle JCCs in different ways. Some judges and masters are very hands-on; others take a more distant, judicial approach. Some are very keen to try to settle a dispute, and will work almost like a mediator; others are content to leave areas of disagreement alone and focus on getting a resolution in place on the areas of agreement instead. Some judges and masters will provide an informal opinion about the likely result in a particular case; others won't. There are no guarantees that a JCC will be run in a particular way.

However, JCCs are very useful in almost all cases. Some cases will even settle at a JCC, with no need for further litigation. The court's powers at JCCs are set out at [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/part-2/bc-reg-169-2009-part-2.html Rule 7-1(15)] and are very broad. The court may:

<blockquote><tt>(a) 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;</tt></blockquote>
<blockquote><tt>(b) make orders to which all the parties consent;</tt></blockquote>
<blockquote><tt>(c) mediate any of the issues in dispute;</tt></blockquote>
<blockquote><tt>(d) with the consent of the parties, refer any issues to mediation with a private mediator;</tt></blockquote>
<blockquote><tt>(e) refer the parties to a family justice counsellor, or to a person designated by the Attorney General to provide specialized support assistance, if the court has received written advice from the regional manager that the family justice counsellor or designated person is readily available to the parties;</tt></blockquote>
<blockquote><tt>(f) direct a party to attend the Parenting after Separation program operated by the Family Justice Services Division (Justice Services Branch), Ministry of Attorney General;</tt></blockquote>
<blockquote><tt>(g) make orders respecting amendment of a pleading, petition or response to petition within a fixed time;</tt></blockquote>
<blockquote><tt>(h) make orders requiring that particulars be provided in relation to any matter raised in a pleading;</tt></blockquote>
<blockquote><tt>(i) make orders respecting discovery of documents;</tt></blockquote>
<blockquote><tt>(j) make orders respecting examinations for discovery;</tt></blockquote>
<blockquote><tt>(k) direct that any or all applications must be made within a specified time;</tt></blockquote>
<blockquote><tt>(l) reserve a trial date for the family law case or reserve a date for a trial that is restricted to issues defined by the parties;</tt></blockquote>
<blockquote><tt>(m) set a date for a trial management conference under Rule 14-3;</tt></blockquote>
<blockquote><tt>(n) make any orders that may be made at a trial management conference under Rule 14-3 (9);</tt></blockquote>
<blockquote><tt>(o) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;</tt></blockquote>
<blockquote><tt>(p) without limiting any other orders respecting timing that may be made under this subrule, make orders respecting timing of events;</tt></blockquote>
<blockquote><tt>(q) adjourn the judicial case conference;</tt></blockquote>
<blockquote><tt>(r) direct the parties to attend a further judicial case conference at a specified date and time;</tt></blockquote>
<blockquote><tt>(s) make any procedural order or give any direction that the court considers will further the object of these Supreme Court Family Rules.</tt></blockquote>

At the JCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. JCCs often work best when the parties are able to express their own views and concerns freely.

JCCs also work best when both (or in some cases all) parties come prepared. This means having a realistic view of the strengths and weaknesses of the evidence that you have to prove your case and the strengths and weaknesses of the legal arguments you are trying to advance. It is also helpful to have a sense of the likely cost of taking the matter to trial if you can’t settle it at the judicial case conference (or sometime thereafter). As noted before, Financial Statements and often Lists of Documents are exchanged prior to the judicial case conference as the exchange of information is a necessary step before a settlement can be reached.

It is important to remember that while the judge or master may (and should!) push the parties to agree about certain things, the parties don't have to agree. The judge or master cannot make any orders, except for procedural orders, that the parties don't agree with. If you're not happy with a potential order that's being discussed, you must say so!

===Potential outcomes===

It is possible for some or all issues to be settled at a JCC. Where there are areas of agreement — which could concern anything, from a temporary parenting schedule, to interim support, to a protection order, to the sale of the family home, to the production of documents — the judge or master will make that order. Areas that can't be agreed upon will be left for further negotiation and further litigation.

Even if nothing can be agreed upon, the judge or master will usually make a series of orders about the next procedural steps in the litigation. Typically, these will include:

*scheduling an application for hearing,
*setting dates for the exchange of documents and lists of documents,
*setting dates for examinations for discovery,
*scheduling a settlement conference,
*resolving issues about experts and reports about parenting arrangements,
*setting the dates for the trial management conference and the trial, and
*scheduling the dates for any further JCCs.

At the end of the conference, the court clerk will print out a case management plan that will show the orders that have been agreed to, the issues still in dispute, and any schedule for the next steps in the litigation. Most of the time, both parties and their lawyers will sign the case management plan; no one needs to sign a case management plan where nothing was agreed to.

===Scheduling a judicial case conference===

To set a date for a JCC, first contact the court registry and get their available dates. (JCCs are given a lot of priority by the registry staff, and you should be able to book a hearing date within a month or two.) In most cases, you will want to give these dates to the other side and select a date that you are both available for. It's just common courtesy to select a date that's convenient for everyone, plus you will want the other side to be able to attend the conference.

Once you have an agreeable date, call the registry back and tell them which date you've picked. They will then ask you to fill out and file a Notice of Judicial Case Conference in Form F19 setting that date. You will be charged a filing fee (currently $80). You must then serve a copy of your filed Notice of Judicial Case Conference on the other side, along with a copy of your filed financial statement, by ordinary service.

For a summary of how to schedule a JCC, see [[How Do I Schedule a Judicial Case Conference for Hearing?]] It's located in the ''How Do I?'' part of this resource, in the section Other Litigation Issues.
===Avoiding a judicial case conference===

The usual rule is that the parties to a family law proceeding in Supreme Court must attend a judicial case conference before making an application to the court for interim orders, although there are exceptions to the rule.

Rule 7-1(2) of the Supreme Court Family Rules says that:

<blockquote><tt>Subject to subrules (3) and (4), unless a judicial case conference has been conducted in a family law case, a party to the family law case must not serve on another party a notice of application or an affidavit in support.</tt></blockquote>

Subrule (3) sets out the exceptions to this requirement:

#when an application is being made for an order restraining either or both parties from disposing of property,
#when an order will be made with the agreement of both parties, and
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'' or a ''without notice application'').

Subrule (4) sets out some further exceptions to the general rule about JCCs and interim applications. However, if you need to ask for an exception under this subrule, you'll have to make an application to the court for an order granting the exception:

<blockquote><tt>On application by a party, the court may relieve a party from the requirements of subrule (2) if</tt></blockquote>
<blockquote><blockquote><tt>(a) it is premature to require the parties to attend a judicial case conference,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) it is impracticable or unfair to require the party to comply with the requirements of subrule (2),</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the application referred to in subrule (2) is urgent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) delaying the application referred to in subrule (2) or requiring the party to attend a judicial case conference is or might be dangerous to the health or safety of any person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the court considers it appropriate to do so in the circumstances.</tt></blockquote></blockquote>

In other words, if your application is urgent you can ask for permission to have your application heard before the first JCC. If your application falls into one of the exceptions set out in Rule 7-1(3), you don't need the court's permission. If your application doesn't fall into either category, you've got little choice but to have a JCC before you can bring your application.

Applications to be exempt from the JCC requirement are made by filing a special form of Requisition without an appearance in court (see [[Form F17 Requisition (General)|Form 17]] - Requisition Schedule A (to Avoid Judicial Case Conference)).

== Supreme Court: Settlement conferences ==

Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory, but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules).

Like JCCs, settlement conferences are private. Only the parties and their lawyers are allowed to be there unless the parties and the judge all agree that another person can attend. They are also held on an off-the-record basis, so that nothing said in the settlement conference can be used against anyone later on (i.e.: in an application to the court or at trial).

There are no guarantees that a settlement conference will result in a settlement as that requires that the parties attend in good faith and are motivated to settle.

Updated financial information should be exchanged between the parties before a settlement conference. If the updates are extensive and significant it is helpful to update and exchange sworn financial statements as well. If financial statements are updated, they should also be filed in court in advance of the settlement or a copy brought for the judge at the settlement conference.

It is common practice for parties to exchange settlement conference briefs prior to a settlement conference, and parties may be directed to do so. There is no specific form of settlement conference brief, but the following information should be included (or at least considered for inclusion):
# Key facts & dates: date of cohabitation, marriage, separation &/or divorce, birthdates of parties and children, and other significant dates (may include house sales/purchases and/or moves, changes in employment or education, significant financial transactions such as inheritances, loans, purchases)
# List of issues to be resolved and a description of your position about each one; and
# List of key documents and other evidence to be relied upon, for example expert reports such as a section 211 parenting assessment or a marriage agreement or loan document that is at the heart of the dispute; you may want to attach a copy of any such document to the settlement conference brief; do bring an extra copy to the settlement conference in case the judge or the other party doesn’t have theirs.
# Key case law to be relied on (more likely where the parties have lawyers).

At the settlement conference, each party will have turns telling the judge their version of the facts and why they want the orders that they want. The judge will listen and ask questions and explore settlement options. The judge may even provide opinions about the likely outcome of the case if it goes to trial based upon the judge’s experience in other cases and what the judge knows about the case.

Also like JCCs, settlement conferences work best when both parties come prepared, and the more information that is exchanged before the settlement conference the better. Being prepared also means having a realistic view of the strengths and weaknesses of the evidence that you have to prove your case and the strengths and weaknesses of the legal arguments you are trying to advance. It is also helpful to have a sense of the likely cost of taking the matter to trial if you can’t settle it at the settlement conference. Parties who are well informed about the facts of the case and who have had the opportunity to get legal advice in advance of the settlement conference are more likely to reach a settlement there, and save the time, expense, stress and uncertainty of continuing the lawsuit through to trial.

=== Scheduling a settlement conference ===

To set a date for a settlement conference, you will then need to contact the court registry and get their available dates. You will then need to communicate with the other party to select a date that you are both available for.

Once you have an agreeable date, call the registry back and tell them which date you've picked. You will then need to fill out and file a Requisition in [[Form F17 Requisition (General)|Form F17]] setting that date. There is no filing fee charged to schedule a settlement conference. You must then serve a copy of your filed Requisition on the other side by ordinary service

== Supreme Court: Trial management conferences ==

Parties heading to trial are required to schedule and attend a trial management conference (unless the party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TMC). The trial management conference is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

More information about trial management conferences can be found later in this section: Preparing for and Going to Trial in Supreme Court: [[Preparing for and Going to Trial in Supreme Court#Schedule and attend a trial management conference|Schedule and attend a trial management conference]].

==Provincial Court: Family case conferences==

There are two big differences between judicial case conferences in the Supreme Court and family case conferences in the Provincial Court. First, FCCs aren't mandatory and you only get to have an FCC if a judge orders that you have one. Second, the judge at an FCC has the discretion to make orders without the consent of a party. Otherwise FCCs are pretty much just like JCCs.

===Applying for a family case conference===

Under [http://canlii.ca/t/85pb Rule 7(1)] of the Provincial Court Family Rules, a judge may order the parties to attend an FCC where the case involves contested claims about guardianship or for parental responsibilities, parenting time or contact. An application for an FCC can be made at a first appearance or at any subsequent appearance, or by Notice of Motion like any other interim application.

It is fairly easy to get an order that an FCC be heard as the court will usually agree that an FCC is a good idea. The court will not be interested in granting an FCC if:

*it's obvious that you've asked for the FCC to obstruct the hearing or trial or an interim application,
*there's already been an FCC heard in your case and there's nothing to suggest that a new FCC will have a better chance of success, or
*there is an urgent reason for the case to head to trial without further delay.

===Scheduling a family case conference===

FCCs are booked by the judicial case manager, and if you get an order for an FCC, the judge will adjourn your case to the judicial case manager to get a date set up. Like JCCs, it is good idea to pick a date on which everyone is available to attend.

The judicial case manager will fix the date for the FCC on the spot and give you a slip with the date and time on it.

For a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]] It's located in the ''How Do I?'' part of this resource, in the section Other Litigation Issues.

===The purposes of family case conferences===

The primary purpose of an FCC is to reach a settlement of any disputed parenting issues. Although [http://canlii.ca/t/85pb Rule 7] limits the circumstances in which an FCC can be ordered to parenting issues, it doesn't say that no other issues can be discussed at an FCC, and the judge may be prepared to deal with support issues as well.

FCCs are relatively informal affairs, and most of the time everyone sits at a large table with the judge who is hearing the FCC. FCCs are private; under Rule 7(2) only the parties and their lawyers are allowed to be there. Under Rule 7(3), the judge may give permission for other people, including the parties' child, to attend. FCCs are held on an off-the-record basis, so that nothing said in the FCC can be used against anyone later on.

Although different judges will handle FCCs in different ways, most of the time the judge will act like a mediator. Some judges will handle the FCC in a reserved, judicious manner. Others are more hands-on and will do everything they can to help the parties settle their issues, including:

*scheduling a series of FCCs,
*speaking directly to the children,
*ordering or recommending views of the child reports,
*ordering support be paid on an interim basis (meaning until the trial is heard),
*ordering a party to produce relevant documents such as income tax returns or bank records,
*ordering that a section 211 report be prepared, and
*asking important third parties, like a new spouse or a half-sibling, to attend a future FCC.

At the FCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. FCCs often work best when the parties are able to voice their own views and concerns freely.

Cases often settle at FCCs. In order to maximize the chances of settlement, it is critical that you get proper legal advice about your situation and options before you go to the FCC if you don't have a lawyer. If you do have a lawyer, you should speak to them about the range of potential results areas where you might want to compromise your position, options for settlement, and the likely cost of proceeding to trial.

===Potential outcomes===

It is possible for some or all issues to be settled at a FCC. Where there are areas of agreement, the judge will make that order. Issues that can't be agreed upon will be left for further negotiation and further litigation.

[http://canlii.ca/t/85pb Rule 7(4)] lists the things a judge can do at a FCC:

<blockquote><tt>The judge at the family case conference may do one or more of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) mediate any of the issues in dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) decide any issues that do not require evidence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) with consent of the parties, refer any issues to mediation with a private mediator;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) if the regional manager has advised the court in writing that the person or program is readily available to the parties, refer the parties to a family justice counsellor or to a person designated by the Attorney General to provide specialized maintenance assistance;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) adjourn the case for purposes of mediation under paragraph (c) or a referral under paragraph (d);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) make an order to which all of the parties consent;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) direct that any or all applications must be made within a set time;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) direct the parties to attend a further family case conference, setting a date for that conference;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) set a date for a trial preparation conference under rule 8;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) make any order that may be made at a trial preparation conference under rule 8 (4);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(k) if the judge does not set a date for a further family case conference or for a trial preparation conference, set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(l) make an interim or final order requested in an application, reply or notice of motion;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(m) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(n) make any other order or give any direction that the judge considers appropriate.</tt></blockquote></blockquote>

Although that last item, "make any other order or give any direction that the judge considers appropriate," sounds pretty all-encompassing and all-powerful, in practice the court rarely makes orders that one or more parties oppose.

== Provincial Court: Trial preparation conferences ==

Parties heading to trial are usually required to attend a trial preparation conference, except if a party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TPC) . The trial preparation conference is a short court hearing with a judge discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

More information about trial preparation conferences can be found later in this chapter: Preparing for and Going to Trial in Provincial Court: [[Preparing for and Going to Trial in Provincial Court#Preparing for trial in Provincial Court|Preparing for trial in Provincial Court]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]
* [http://www.clicklaw.bc.ca/resource/1636 Legal Services Society: Judicial Case Conferences in Supreme Court]
* [http://www.clicklaw.bc.ca/resource/2279 Legal Services Society: How to deal with a JCC]
* [http://www.clicklaw.bc.ca/resource/1627 Legal Services Society: Family Case Conferences in Provincial Court]
* [http://www.clicklaw.bc.ca/resource/1626 Legal Services Society: Family Case Conference Checklist]
* [http://www.clicklaw.bc.ca/resource/4055 Legal Services Society: How to schedule and prepare for your Supreme Court trial] - see Step 4: Prepare for and attend the Trial Management Conference

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 16, 2017}}

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[[Category:JP Boyd on Family Law]]

Case Conferences in a Family Law Matter

2019-06-11T20:36:15Z

Julie Brown: /* Resolving a court proceeding without a trial is still possible */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}{{LSSbadge
|resourcetype = fact sheets for
|link = [http://www.clicklaw.bc.ca/resource/1636 JCCs in Supreme Court] '''and ''' [http://www.clicklaw.bc.ca/resource/1627 FCCs in Provincial Court]''' plus a checklist for '''[http://www.clicklaw.bc.ca/resource/1626 Family Case Conferences]
}}A case conference is a meeting between the parties, their lawyers (if they have them), and a judge, usually for a purpose relating to the administration or the settlement of a court proceeding.

''Judicial case conferences'' in the Supreme Court and ''family case conferences'' in the Provincial Court are held early in a proceeding and are about settling issues than can be agreed on, getting interim arrangements in place for support and the care of the children, and planning the next few steps in the proceeding to help the parties prepare for trial if the matter cannot be settled.

''Trial management conferences'' in the Supreme Court and ''trial preparation conferences'' in the Provincial Court are all about getting a proceeding ready for trial, and are held towards the end of a proceeding.

''Settlement conferences'' in the Supreme Court are not mandatory and can be held at any time during a proceeding if both parties agree to doing so.

This section discusses judicial case conferences, family case conferences, settlement conferences, and to a lesser extent trial management and preparation conferences, including their limitations and their uses, and provides some tips about how you can get the most out of your time and the judge's time at a case conference.

More information about trial management and preparation conferences can be found later in this section:
*Preparing for and Going to Trial in Supreme Court: [[Preparing for and Going to Trial in Supreme Court#Schedule and attend a trial management conference (TMC)|Schedule and attend a trial management conference]], and
*Preparing for and Going to Trial in Provincial Court: [[Preparing for and Going to Trial in Provincial Court#Attend a trial preparation conference (TPC)|Attend a trial preparation conference]].

==Supreme Court: Judicial case conferences==

Judicial case conferences in the Supreme Court, usually referred to as JCCs, are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom. JCCs must be held in all contested family law court proceedings, and, in most cases, they must be held before any interim applications can be heard. (Exceptions to this rule are found at Rule 7-1(3) of the of the Supreme Court Family Rules.)

Financial statements must be exchanged by the parties before each JCC. They must also be filed in court in advance of the JCC to give the judge the chance to read through them first. More information about Financial Statements is provided later in this chapter in the section [[Discovery Process in a Family Matter]].

Lists of Documents are also to be exchanged early on in the discovery process (see Rule 9-1(1) of the Supreme Court Family Rules) unless the parties otherwise agree or the court otherwise orders, and therefore also often exchanged before the JCC. (Lists of Documents are not filed in court, but simply exchanged informally between the parties). More information about Lists of Documents is provided later in this chapter in [[Discovery Process in a Family Matter]].

The more information that is exchanged before the JCC the better. Parties who are well informed about the facts of the case and who have had the opportunity to get legal advice in advance of the JCC are more likely to reach a settlement at the JCC, and save the time, expense, stress and uncertainty of continuing the lawsuit.

===Avoiding a judicial case conference===

The usual rule is that the parties to a family law proceeding in Supreme Court must attend a judicial case conference before making an application to the court for interim orders, although there are exceptions to the rule.

Rule 7-1(2) of the Supreme Court Family Rules says that:

<blockquote><tt>Subject to subrules (3) and (4), unless a judicial case conference has been conducted in a family law case, a party to the family law case must not serve on another party a notice of application or an affidavit in support.</tt></blockquote>

Subrule (3) sets out the exceptions to this requirement:

#when an application is being made for an order restraining either or both parties from disposing of property,
#when an order will be made with the agreement of both parties, and
#when the application is being made without notice being given to the other side (sometimes called an ''ex parte application'' or a ''without notice application'').

Subrule (4) sets out some further exceptions to the general rule about JCCs and interim applications. However, if you need to ask for an exception under this subrule, you'll have to make an application to the court for an order granting the exception:

<blockquote><tt>On application by a party, the court may relieve a party from the requirements of subrule (2) if</tt></blockquote>
<blockquote><blockquote><tt>(a) it is premature to require the parties to attend a judicial case conference,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) it is impracticable or unfair to require the party to comply with the requirements of subrule (2),</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) the application referred to in subrule (2) is urgent,</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) delaying the application referred to in subrule (2) or requiring the party to attend a judicial case conference is or might be dangerous to the health or safety of any person, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) the court considers it appropriate to do so in the circumstances.</tt></blockquote></blockquote>

In other words, if your application is urgent you can ask for permission to have your application heard before the first JCC. If your application falls into one of the exceptions set out in Rule 7-1(3), you don't need the court's permission. If your application doesn't fall into either category, you've got little choice but to have a JCC before you can bring your application.

Applications to be exempt from the JCC requirement are made by filing a special form of Requisition without an appearance in court (see [[Form F17 Requisition (General)|Form 17]] - Requisition Schedule A (to Avoid Judicial Case Conference)).

===Scheduling a judicial case conference===

To set a date for a JCC, first contact the court registry and get their available dates. (JCCs are given a lot of priority by the registry staff, and you should be able to book a hearing date within a month or two.) In most cases, you will want to give these dates to the other side and select a date that you are both available for. It's just common courtesy to select a date that's convenient for everyone, plus you will want the other side to be able to attend the conference.

Once you have an agreeable date, call the registry back and tell them which date you've picked. They will then ask you to fill out and file a Notice of Judicial Case Conference in Form F19 setting that date. You will be charged a filing fee (currently $80). You must then serve a copy of your filed Notice of Judicial Case Conference on the other side, along with a copy of your filed financial statement, by ordinary service.

For a summary of how to schedule a JCC, see [[How Do I Schedule a Judicial Case Conference for Hearing?]] It's located in the ''How Do I?'' part of this resource, in the section Other Litigation Issues.

===The purposes of judicial case conferences===

The basic purposes of a JCC are to review the claims each side is making, determine where there is agreement, and see whether there is anything other than a trial that will resolve the claims in dispute. JCCs are relatively informal affairs, and in some courthouses everyone sits at a large table with the judge or master who is hearing the JCC. JCCs are private. Only the parties and their lawyers are allowed to be there. They are also held on an off-the-record basis, so that nothing said in the JCC can be used against anyone later on (i.e.: in an application to the court or at trial).

Different judges and masters will handle JCCs in different ways. Some judges and masters are very hands-on; others take a more distant, judicial approach. Some are very keen to try to settle a dispute, and will work almost like a mediator; others are content to leave areas of disagreement alone and focus on getting a resolution in place on the areas of agreement instead. Some judges and masters will provide an informal opinion about the likely result in a particular case; others won't. There are no guarantees that a JCC will be run in a particular way.

However, JCCs are very useful in almost all cases. Some cases will even settle at a JCC, with no need for further litigation. The court's powers at JCCs are set out at [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/part-2/bc-reg-169-2009-part-2.html Rule 7-1(15)] and are very broad. The court may:

<blockquote><tt>(a) 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;</tt></blockquote>
<blockquote><tt>(b) make orders to which all the parties consent;</tt></blockquote>
<blockquote><tt>(c) mediate any of the issues in dispute;</tt></blockquote>
<blockquote><tt>(d) with the consent of the parties, refer any issues to mediation with a private mediator;</tt></blockquote>
<blockquote><tt>(e) refer the parties to a family justice counsellor, or to a person designated by the Attorney General to provide specialized support assistance, if the court has received written advice from the regional manager that the family justice counsellor or designated person is readily available to the parties;</tt></blockquote>
<blockquote><tt>(f) direct a party to attend the Parenting after Separation program operated by the Family Justice Services Division (Justice Services Branch), Ministry of Attorney General;</tt></blockquote>
<blockquote><tt>(g) make orders respecting amendment of a pleading, petition or response to petition within a fixed time;</tt></blockquote>
<blockquote><tt>(h) make orders requiring that particulars be provided in relation to any matter raised in a pleading;</tt></blockquote>
<blockquote><tt>(i) make orders respecting discovery of documents;</tt></blockquote>
<blockquote><tt>(j) make orders respecting examinations for discovery;</tt></blockquote>
<blockquote><tt>(k) direct that any or all applications must be made within a specified time;</tt></blockquote>
<blockquote><tt>(l) reserve a trial date for the family law case or reserve a date for a trial that is restricted to issues defined by the parties;</tt></blockquote>
<blockquote><tt>(m) set a date for a trial management conference under Rule 14-3;</tt></blockquote>
<blockquote><tt>(n) make any orders that may be made at a trial management conference under Rule 14-3 (9);</tt></blockquote>
<blockquote><tt>(o) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;</tt></blockquote>
<blockquote><tt>(p) without limiting any other orders respecting timing that may be made under this subrule, make orders respecting timing of events;</tt></blockquote>
<blockquote><tt>(q) adjourn the judicial case conference;</tt></blockquote>
<blockquote><tt>(r) direct the parties to attend a further judicial case conference at a specified date and time;</tt></blockquote>
<blockquote><tt>(s) make any procedural order or give any direction that the court considers will further the object of these Supreme Court Family Rules.</tt></blockquote>

At the JCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. JCCs often work best when the parties are able to express their own views and concerns freely.

JCCs also work best when both (or in some cases all) parties come prepared. This means having a realistic view of the strengths and weaknesses of the evidence that you have to prove your case and the strengths and weaknesses of the legal arguments you are trying to advance. It is also helpful to have a sense of the likely cost of taking the matter to trial if you can’t settle it at the judicial case conference (or sometime thereafter). As noted before, Financial Statements and often Lists of Documents are exchanged prior to the judicial case conference as the exchange of information is a necessary step before a settlement can be reached.

It is important to remember that while the judge or master may (and should!) push the parties to agree about certain things, the parties don't have to agree. The judge or master cannot make any orders, except for procedural orders, that the parties don't agree with. If you're not happy with a potential order that's being discussed, you must say so!

===Potential outcomes===

It is possible for some or all issues to be settled at a JCC. Where there are areas of agreement — which could concern anything, from a temporary parenting schedule, to interim support, to a protection order, to the sale of the family home, to the production of documents — the judge or master will make that order. Areas that can't be agreed upon will be left for further negotiation and further litigation.

Even if nothing can be agreed upon, the judge or master will usually make a series of orders about the next procedural steps in the litigation. Typically, these will include:

*scheduling an application for hearing,
*setting dates for the exchange of documents and lists of documents,
*setting dates for examinations for discovery,
*scheduling a settlement conference,
*resolving issues about experts and reports about parenting arrangements,
*setting the dates for the trial management conference and the trial, and
*scheduling the dates for any further JCCs.

At the end of the conference, the court clerk will print out a case management plan that will show the orders that have been agreed to, the issues still in dispute, and any schedule for the next steps in the litigation. Most of the time, both parties and their lawyers will sign the case management plan; no one needs to sign a case management plan where nothing was agreed to.

== Supreme Court: Settlement conferences ==

Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory, but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules).

Like JCCs, settlement conferences are private. Only the parties and their lawyers are allowed to be there unless the parties and the judge all agree that another person can attend. They are also held on an off-the-record basis, so that nothing said in the settlement conference can be used against anyone later on (i.e.: in an application to the court or at trial).

There are no guarantees that a settlement conference will result in a settlement as that requires that the parties attend in good faith and are motivated to settle.

Updated financial information should be exchanged between the parties before a settlement conference. If the updates are extensive and significant it is helpful to update and exchange sworn financial statements as well. If financial statements are updated, they should also be filed in court in advance of the settlement or a copy brought for the judge at the settlement conference.

It is common practice for parties to exchange settlement conference briefs prior to a settlement conference, and parties may be directed to do so. There is no specific form of settlement conference brief, but the following information should be included (or at least considered for inclusion):
# Key facts & dates: date of cohabitation, marriage, separation &/or divorce, birthdates of parties and children, and other significant dates (may include house sales/purchases and/or moves, changes in employment or education, significant financial transactions such as inheritances, loans, purchases)
# List of issues to be resolved and a description of your position about each one; and
# List of key documents and other evidence to be relied upon, for example expert reports such as a section 211 parenting assessment or a marriage agreement or loan document that is at the heart of the dispute; you may want to attach a copy of any such document to the settlement conference brief; do bring an extra copy to the settlement conference in case the judge or the other party doesn’t have theirs.
# Key case law to be relied on (more likely where the parties have lawyers).

At the settlement conference, each party will have turns telling the judge their version of the facts and why they want the orders that they want. The judge will listen and ask questions and explore settlement options. The judge may even provide opinions about the likely outcome of the case if it goes to trial based upon the judge’s experience in other cases and what the judge knows about the case.

Also like JCCs, settlement conferences work best when both parties come prepared, and the more information that is exchanged before the settlement conference the better. Being prepared also means having a realistic view of the strengths and weaknesses of the evidence that you have to prove your case and the strengths and weaknesses of the legal arguments you are trying to advance. It is also helpful to have a sense of the likely cost of taking the matter to trial if you can’t settle it at the settlement conference. Parties who are well informed about the facts of the case and who have had the opportunity to get legal advice in advance of the settlement conference are more likely to reach a settlement there, and save the time, expense, stress and uncertainty of continuing the lawsuit through to trial.

=== Scheduling a settlement conference ===

To set a date for a settlement conference, you will then need to contact the court registry and get their available dates. You will then need to communicate with the other party to select a date that you are both available for.

Once you have an agreeable date, call the registry back and tell them which date you've picked. You will then need to fill out and file a Requisition in [[Form F17 Requisition (General)|Form F17]] setting that date. There is no filing fee charged to schedule a settlement conference. You must then serve a copy of your filed Requisition on the other side by ordinary service

== Supreme Court: Trial management conferences ==

Parties heading to trial are required to schedule and attend a trial management conference (unless the party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TMC). The trial management conference is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

More information about trial management conferences can be found later in this section: Preparing for and Going to Trial in Supreme Court: [[Preparing for and Going to Trial in Supreme Court#Schedule and attend a trial management conference|Schedule and attend a trial management conference]].

==Provincial Court: Family case conferences==

There are two big differences between judicial case conferences in the Supreme Court and family case conferences in the Provincial Court. First, FCCs aren't mandatory and you only get to have an FCC if a judge orders that you have one. Second, the judge at an FCC has the discretion to make orders without the consent of a party. Otherwise FCCs are pretty much just like JCCs.

===Applying for a family case conference===

Under [http://canlii.ca/t/85pb Rule 7(1)] of the Provincial Court Family Rules, a judge may order the parties to attend an FCC where the case involves contested claims about guardianship or for parental responsibilities, parenting time or contact. An application for an FCC can be made at a first appearance or at any subsequent appearance, or by Notice of Motion like any other interim application.

It is fairly easy to get an order that an FCC be heard as the court will usually agree that an FCC is a good idea. The court will not be interested in granting an FCC if:

*it's obvious that you've asked for the FCC to obstruct the hearing or trial or an interim application,
*there's already been an FCC heard in your case and there's nothing to suggest that a new FCC will have a better chance of success, or
*there is an urgent reason for the case to head to trial without further delay.

===Scheduling a family case conference===

FCCs are booked by the judicial case manager, and if you get an order for an FCC, the judge will adjourn your case to the judicial case manager to get a date set up. Like JCCs, it is good idea to pick a date on which everyone is available to attend.

The judicial case manager will fix the date for the FCC on the spot and give you a slip with the date and time on it.

For a summary of how to schedule a case conference, see [[How Do I Schedule a Family Case Conference for Hearing?]] It's located in the ''How Do I?'' part of this resource, in the section Other Litigation Issues.

===The purposes of family case conferences===

The primary purpose of an FCC is to reach a settlement of any disputed parenting issues. Although [http://canlii.ca/t/85pb Rule 7] limits the circumstances in which an FCC can be ordered to parenting issues, it doesn't say that no other issues can be discussed at an FCC, and the judge may be prepared to deal with support issues as well.

FCCs are relatively informal affairs, and most of the time everyone sits at a large table with the judge who is hearing the FCC. FCCs are private; under Rule 7(2) only the parties and their lawyers are allowed to be there. Under Rule 7(3), the judge may give permission for other people, including the parties' child, to attend. FCCs are held on an off-the-record basis, so that nothing said in the FCC can be used against anyone later on.

Although different judges will handle FCCs in different ways, most of the time the judge will act like a mediator. Some judges will handle the FCC in a reserved, judicious manner. Others are more hands-on and will do everything they can to help the parties settle their issues, including:

*scheduling a series of FCCs,
*speaking directly to the children,
*ordering or recommending views of the child reports,
*ordering support be paid on an interim basis (meaning until the trial is heard),
*ordering a party to produce relevant documents such as income tax returns or bank records,
*ordering that a section 211 report be prepared, and
*asking important third parties, like a new spouse or a half-sibling, to attend a future FCC.

At the FCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. FCCs often work best when the parties are able to voice their own views and concerns freely.

Cases often settle at FCCs. In order to maximize the chances of settlement, it is critical that you get proper legal advice about your situation and options before you go to the FCC if you don't have a lawyer. If you do have a lawyer, you should speak to them about the range of potential results areas where you might want to compromise your position, options for settlement, and the likely cost of proceeding to trial.

===Potential outcomes===

It is possible for some or all issues to be settled at a FCC. Where there are areas of agreement, the judge will make that order. Issues that can't be agreed upon will be left for further negotiation and further litigation.

[http://canlii.ca/t/85pb Rule 7(4)] lists the things a judge can do at a FCC:

<blockquote><tt>The judge at the family case conference may do one or more of the following:</tt></blockquote>
<blockquote><blockquote><tt>(a) mediate any of the issues in dispute;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) decide any issues that do not require evidence;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) with consent of the parties, refer any issues to mediation with a private mediator;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) if the regional manager has advised the court in writing that the person or program is readily available to the parties, refer the parties to a family justice counsellor or to a person designated by the Attorney General to provide specialized maintenance assistance;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(e) adjourn the case for purposes of mediation under paragraph (c) or a referral under paragraph (d);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(f) make an order to which all of the parties consent;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(g) direct that any or all applications must be made within a set time;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(h) direct the parties to attend a further family case conference, setting a date for that conference;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(i) set a date for a trial preparation conference under rule 8;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(j) make any order that may be made at a trial preparation conference under rule 8 (4);</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(k) if the judge does not set a date for a further family case conference or for a trial preparation conference, set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(l) make an interim or final order requested in an application, reply or notice of motion;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(m) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(n) make any other order or give any direction that the judge considers appropriate.</tt></blockquote></blockquote>

Although that last item, "make any other order or give any direction that the judge considers appropriate," sounds pretty all-encompassing and all-powerful, in practice the court rarely makes orders that one or more parties oppose.

== Provincial Court: Trial preparation conferences ==

Parties heading to trial are usually required to attend a trial preparation conference, except if a party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TPC) . The trial preparation conference is a short court hearing with a judge discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

More information about trial preparation conferences can be found later in this chapter: Preparing for and Going to Trial in Provincial Court: [[Preparing for and Going to Trial in Provincial Court#Preparing for trial in Provincial Court|Preparing for trial in Provincial Court]].

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
*[http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2012%20-%20Judicial%20Case%20Conferences%20-%20Litigants'%20Guide%20to%20Judicial%20Case%20Conferences.pdf Supreme Court website: Litigants' Guide to Judicial Case Conferences]
* [http://www.clicklaw.bc.ca/resource/1636 Legal Services Society: Judicial Case Conferences in Supreme Court]
* [http://www.clicklaw.bc.ca/resource/2279 Legal Services Society: How to deal with a JCC]
* [http://www.clicklaw.bc.ca/resource/1627 Legal Services Society: Family Case Conferences in Provincial Court]
* [http://www.clicklaw.bc.ca/resource/1626 Legal Services Society: Family Case Conference Checklist]
* [http://www.clicklaw.bc.ca/resource/4055 Legal Services Society: How to schedule and prepare for your Supreme Court trial] - see Step 4: Prepare for and attend the Trial Management Conference

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 16, 2017}}

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[[Category:JP Boyd on Family Law]]

Overview of Case Conferences and Discovery in Family Law Matters

2019-06-11T20:34:12Z

Julie Brown:

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}

Whether you're off to trial or a settlement can be reached, the steps until trial involve attending ''case conferences'' and taking steps to discover the other party’s case (the evidence and arguments of the other party).

Case conferences involve opportunities for parties to meet with each other in front of a judge to discuss the issues in the court proceeding (and possible opportunities for settlement) as well as assist the parties in setting deadlines to prepare themselves for trial.

''Discovery'' involves learning about (discovering) the evidence that the other party intends to use at trial (for example through receiving documents from the other party and asking the other party questions about their case) and the arguments that party intends to make at trial. It also involves providing the other party with details about the evidence you intend to use at trial (for example documents) and telling them why you are making the claims and/or taking the position(s) you are taking.

Before reviewing the usual next steps:
#Do remember that moving towards trial and trying to reach a settlement are not mutually exclusive approaches; although you may be taking steps to ready yourself for the eventual trial date, you can continue to try to negotiate a settlement with the other party, on one or more issues in the court proceeding, at the same time. Also, as you learn more about the strengths and weaknesses of the other party’s case and the strengths and weaknesses of your own, be sure to reconsider your settlement options. Settlement discussions remain an available approach even though you are scheduling a trial date.
#Be aware of your legal obligation to disclose information to the other party. Under section 5 of the ''[[Family Law Act]]'' each “party to a family law dispute provide to the other party full and true information for the purposes of resolving a family law dispute”. This means that as a party, you have to provide to the other party full and accurate information about your finances and other personal circumstances that are relevant to the issues in the court proceeding. If you don’t, any agreement or order entered into could be set aside on the basis of the false information, financial penalties may be awarded against you, and/or your credibility may be compromised if you find yourself in trial.

Except as otherwise noted, whether you are in Supreme Court or Provincial Court, the next steps are usually these:
#'''Exchange Financial Statements.''' Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements are prepared in Form 8. Financial Statements must be exchanged before the first judicial case conference, and updated statements will be required throughout the case and before trial. These are discussed in more detail further on in this section.
#'''Attend a Case Conference.''' In Supreme Court, parties must attend a Judicial Case Conference (often referred to as a JCC) and is required to take place before most interim applications can be brought. JCCs are informal, off-the-record meetings between the parties, their lawyers and a judge intended to talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this section. In Provincial Court, parties are not required to attend a Family Case Conference (often referred to as an FCC), although judges may order the parties to attend one if guardianship, parenting arrangements or contact with a child are contested. In practice, many judges will order the parties to attend a Family Case Conference if the parties ask to attend one. FCCs are discussed in more detail further in this section.
#'''Make interim applications as needed.''' In almost all cases, parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them until the claims at issue in the court proceeding are finally determined by settlement or trial. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, the payment of child support and spousal support, protection orders and orders for document production. This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].
#'''Disclose documents and information.''' In the Supreme Court, the rules of court require each party to produce to the other all documents that are relevant to the issues in a court proceeding. Each party must list these documents in a formal List of Documents, and update their List of Documents when new documents are found or become available. Lists of Documents in Supreme Court are discussed in more detail later in this chapter (see [[Discovery Process in a Family Law Matter]]). The Provincial Court Rules do not have comparable requirements, but each party can ask the other to produce financial and other information that is relevant to the matters at issue in the court proceeding. Relevant documents can include things like bank statements, credit card statements, property tax assessments, mortgage documents, report cards, medical records, school reports, and income tax returns. If you think that there are documents necessary to prove your case that the other party is not producing willingly, then you may need to make an interim application to the court (as discussed at point 3 above).
#'''Questioning the other party out of court.''' In Supreme Court the parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an ''examination for discovery''. Examinations for discovery, also called ''discoveries'', are helpful to get each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged. There is no similar procedure in Provincial Court.
#'''Other discovery processes available in Supreme Court.''' There are more extensive discovery processes in the Supreme Court than in Provincial Court, which processes include notices to admit (Rule 9-6), interrogatories (Rule 9-3), and pre-trial examination of witnesses (Rule 9-4).
#'''Have a settlement conference & make a settlement offer.''' In Supreme Court, the rules of court allow a party to schedule a settlement conference before a judge ahead of trial. In Provincial Court, a party would need to ask to schedule another family case conference. At this conference, the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help the parties work towards a settlement. The judge may also express their opinion about the strengths and weaknesses of each party's position, which also encourages settlement. You can also prepare a written settlement offer and provide it to the other party (see [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Family Law in BC: Making an offer to settle]). Just because one round of settlement negotiations isn’t successful doesn’t mean that you shouldn’t try again later in the case after information has been exchanged between the parties and the trial is approaching.
#'''Have a trial preparation or management conference.''' In Supreme Court, parties attend a trial management conference (TMC) which is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes as possible about evidence before trial. Among other things, the judge will ask about the witnesses each party intends to present, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions, although the judge at the TMC can order that a settlement conference happen. In Provincial Court, parties must attend a trial preparation conference (TPC) unless they are represented by lawyers in which case the lawyers must attend and the parties must be available by phone to give instructions. Similar issues are discussed at a TPC as at a TMC. Both are discussed in more detail further in this section.
#'''Go to trial.''' At the end of the day, if you can't agree on a resolution you will wind up at trial. Do remember that one party has to take steps to schedule a trial (see the sections in this chapter on Preparing for Trial in Supreme and Provincial Court). At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to make the orders that party is seeking. The judge will hear all the evidence and the arguments, and reach a decision in the form of ''reasons for judgment''. The reasons for judgment are not always provided the date the trial ends; often it takes a judge weeks or even months to reach their decision and write their reasons for judgment. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the reasons for judgment.

This description of the steps involved is just a rough sketch of the lengthy process of bringing a court proceeding to a conclusion. Not every proceeding will need to use all of these steps (some people may not need to have examinations for discovery and others won't see the point of holding a settlement conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process (which includes complicated rules of evidence) is much, much more complex than this brief description.

For more information about case conferences, see [[Case Conferences in a Family Law Matter]] in this chapter. For more information about discovery, see [[Discovery Process in a Family Law Matter]], also in this chapter.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://familylaw.lss.bc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/making-offer-settle Family Law in BC: Making an offer to settle]

__NOTOC__
{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 11, 2019}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Julie Brown

2019-06-11T20:08:44Z

Julie Brown:

<noinclude>{{Template:Clicklaw Wikibooks Contributor}}</noinclude>{{Contributor
| bio = '''Julie Brown''' is a subject editor for ''[[JP Boyd on Family Law]]'', and is jointly responsible for the pages on [[Resolving Family Law Problems in Court]]. Julie is a lawyer at Pietrow Law Group and practices exclusively in family law. Julie has represented clients on a range of issues, including child custody, division of property and debt, child support and spousal support. She has experience at all stages of the litigation process and has appeared before all levels of court in British Columbia. Julie also has experience representing clients at mediations, negotiating settlements and drafting agreements.

| name = Julie Brown
| image = [[image:jbrown.jpg|150px|left|link=|Julie Brown]]
| organization = Pietrow Law Group
| website = [https://www.pietrowlawgroup.ca www.pietrowlawgroup.ca]
}}

<noinclude>
[[Category:Contributor Bio|Brown]]
[[Category:JP Boyd on Family Law Contributors|Brown]]
</noinclude>

Overview of Case Conferences and Discovery in Family Law Matters

2019-06-05T22:19:46Z

Julie Brown:

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

Whether you're off to trial or a settlement can be reached, the steps until trial involve attending ''case conferences'' and taking steps to discover the other party’s case (the evidence and arguments of the other party).

Case conferences involve opportunities for parties to meet with each other in front of a judge to discuss the issues in the court proceeding (and possible opportunities for settlement) as well as assist the parties in setting deadlines to prepare themselves for trial.

''Discovery'' involves learning about (discovering) the evidence that the other party intends to use at trial (for example through receiving documents from the other party and asking the other party questions about their case) and the arguments that party intends to make at trial. It also involves providing the other party with details about the evidence you intend to use at trial (for example documents) and telling them why you are making the claims and/or taking the position(s) you are taking.

Before reviewing the usual next steps:
#Do remember that moving towards trial and trying to reach a settlement are not mutually exclusive approaches; although you may be taking steps to ready yourself for the eventual trial date, you can continue to try to negotiate a settlement with the other party, on one or more issues in the court proceeding, at the same time. Also, as you learn more about the strengths and weaknesses of the other party’s case and the strengths and weaknesses of your own, be sure to reconsider your settlement options. Settlement discussions remain an available approach even though you are scheduling a trial date.
#Be aware of your legal obligation to disclose information to the other party. Under section 5 of the ''[[Family Law Act]]'' each “party to a family law dispute provide to the other party full and true information for the purposes of resolving a family law dispute”. This means that as a party, you have to provide to the other party full and accurate information about your finances and other personal circumstances that are relevant to the issues in the court proceeding. If you don’t, any agreement or order entered into could be set aside on the basis of the false information, financial penalties may be awarded against you, and/or your credibility may be compromised if you find yourself in trial.

Except as otherwise noted, whether you are in Supreme Court or Provincial Court, the next steps are usually these:
#'''Exchange Financial Statements.''' Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements are prepared in Form 8. Financial Statements must be exchanged before the first judicial case conference, and updated statements will be required throughout the case and before trial. These are discussed in more detail further on in this section.
#'''Attend a Case Conference.''' In Supreme Court, parties must attend a Judicial Case Conference (often referred to as a JCC) and is required to take place before most interim applications can be brought. JCCs are informal, off-the-record meetings between the parties, their lawyers and a judge intended to talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this section. In Provincial Court, parties are not required to attend a Family Case Conference (often referred to as an FCC), although judges may order the parties to attend one if guardianship, parenting arrangements or contact with a child are contested. In practice, many judges will order the parties to attend a Family Case Conference if the parties ask to attend one. FCCs are discussed in more detail further in this section.
#'''Make interim applications as needed.''' In almost all cases, parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them until the claims at issue in the court proceeding are finally determined by settlement or trial. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, the payment of child support and spousal support, protection orders and orders for document production. This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].
#'''Disclose documents and information.''' In the Supreme Court, the rules of court require each party to produce to the other all documents that are relevant to the issues in a court proceeding. Each party must list these documents in a formal List of Documents, and update their List of Documents when new documents are found or become available. Lists of Documents in Supreme Court are discussed in more detail later in this chapter (see [[Discovery Process in a Family Law Matter]]). The Provincial Court Rules do not have comparable requirements, but each party can ask the other to produce financial and other information that is relevant to the matters at issue in the court proceeding. Relevant documents can include things like bank statements, credit card statements, property tax assessments, mortgage documents, report cards, medical records, school reports, and income tax returns. If you think that there are documents necessary to prove your case that the other party is not producing willingly, then you may need to make an interim application to the court (as discussed at point 3 above).
#'''Questioning the other party out of court.''' In Supreme Court the parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an ''examination for discovery''. Examinations for discovery, also called ''discoveries'', are helpful to get each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged. There is no similar procedure in Provincial Court.
#'''Other discovery processes available in Supreme Court.''' There are more extensive discovery processes in the Supreme Court than in Provincial Court, which processes include notices to admit (Rule 9-6), interrogatories (Rule 9-3), and pre-trial examination of witnesses (Rule 9-4).
#'''Have a settlement conference & make a settlement offer.''' In Supreme Court, the rules of court allow a party to schedule a settlement conference before a judge ahead of trial. In Provincial Court, a party would need to ask to schedule another family case conference. At this conference, the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help the parties work towards a settlement. The judge may also express their opinion about the strengths and weaknesses of each party's position, which also encourages settlement. You can also prepare a written settlement offer and provide it to the other party (see [http://www.clicklaw.bc.ca/resource/4074 Family Law in BC: Making an offer to settle]). Just because one round of settlement negotiations isn’t successful doesn’t mean that you shouldn’t try again later in the case after information has been exchanged between the parties and the trial is approaching.
#'''Have a trial preparation or management conference.''' In Supreme Court, parties attend a trial management conference (TMC) which is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes as possible about evidence before trial. Among other things, the judge will ask about the witnesses each party intends to present, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions, although the judge at the TMC can order that a settlement conference happen. In Provincial Court, parties must attend a trial preparation conference (TPC) unless they are represented by lawyers in which case the lawyers must attend and the parties must be available by phone to give instructions. Similar issues are discussed at a TPC as at a TMC. Both are discussed in more detail further in this section.
#'''Go to trial.''' At the end of the day, if you can't agree on a resolution you will wind up at trial. Do remember that one party has to take steps to schedule a trial (see the sections in this chapter on Preparing for Trial in Supreme and Provincial Court). At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to make the orders that party is seeking. The judge will hear all the evidence and the arguments, and reach a decision in the form of ''reasons for judgment''. The reasons for judgment are not always provided the date the trial ends; often it takes a judge weeks or even months to reach their decision and write their reasons for judgment. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the reasons for judgment.

This description of the steps involved is just a rough sketch of the lengthy process of bringing a court proceeding to a conclusion. Not every proceeding will need to use all of these steps (some people may not need to have examinations for discovery and others won't see the point of holding a settlement conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process (which includes complicated rules of evidence) is much, much more complex than this brief description.

For more information about case conferences, see [[Case Conferences in a Family Law Matter]] in this chapter. For more information about discovery, see [[Discovery Process in a Family Law Matter]], also in this chapter.

==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/4074 Family Law in BC: Making an offer to settle]

__NOTOC__
{{REVIEWED | reviewer = [[Shannon Aldinger]], June 8, 2017}}

{{JP Boyd on Family Law Navbox|type=chapters}}
{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Starting a Court Proceeding in a Family Matter

2019-05-31T16:36:20Z

Julie Brown: /* The Supreme Court */

{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of property (and even just a divorce), you must begin a court proceeding. There are certain steps you must take, certain fees you must pay and certain forms you must fill out before the court will hear your claim. Although the staff at the court registries are friendly and very helpful, they cannot provide legal advice and it is your job to prepare these materials, gather your evidence, and take the steps necessary to bring your case before a judge.

This section reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court. For a more complete picture of the court process, read this section together with the section on [[Replying_to_a_Court_Proceeding_in_a_Family_Matter|Replying to a Court Proceeding]].

==The Supreme Court==

To start a proceeding in the Supreme Court, the main document you will have to prepare is a Notice of Family Claim in Form F3, a special form prescribed by the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. (This document is one of the basic legal documents in a court proceeding known as pleadings.) This is the document that says who you are suing and the orders you want the court to make.

Family law proceedings are governed by the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about judicial case conferences, disclosure, interim applications, and trials.

The primary rules about Notices of Family Claim and the management of proceedings in Supreme Court 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: replying to a Notice of Family Claim
*Rule 5-1: financial disclosure
*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
*Part 13: expert witnesses
*Rule 11-3: summary trial procedure
*Rule 14-7: trial procedure
*Rule 15-2.1: guardianship orders

Links to and examples of the Notice of Family Claim and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For a quick introduction to how to start a proceeding, see [[How Do I Start a Family Law Action in the Supreme Court?]] It's located in the section ''Starting an Action'' in the ''How Do I?'' part of this resource.

===Quick tips: Starting an action in the Supreme Court===

The following tips are located in the section ''Starting an Action'' in the ''[[JP_Boyd_on_Family_Law_—_How_Do_I%3F|How Do I?]]'' part of this resource:

* '''Can't pay your court fees:''' If you can't afford to pay court fees, you can apply for indigent status. If you are granted indigent status the court fees will be waived for all or part of your court proceeding. To find out more, see [[How Do I Apply for Indigent Status in the Supreme Court?]]

* '''Guide to personal service:''' For a quick summary of what's involved in personal service, see [[How Do I Personally Serve Someone with Legal Documents?]]

* '''Can't personally serve the respondent:''' If it is impossible to personally serve the Notice of Family Claim on the respondent, you can ask the court to be allowed to use a substitute form of personal service. To find out what's involved, see [[How Do I Substitutionally Serve Someone with Legal Documents?]]

* '''Not sure where your ex is:''' If you're not sure where your ex lives in order to start a court proceeding, see [[How Do I Find My Ex?]]

* '''Need to change something in the Notice of Family Claim''': To find out what happens when you want to change something in your Notice of Family Claim, see [[How Do I Change Something in My Notice of Family Claim?]]

* '''Want the court action to stop:''' To find out if you can stop a family law action in the Supreme Court once you've started it, see [[How Do I Stop a Family Law Action in the Supreme Court?]]

===Preparing, filing and serving the Notice of Family Claim===
{{LSSbadge
|resourcetype = further step-by-step information on
|link = [http://www.clicklaw.bc.ca/resource/2278 How to start a family law case in Supreme Court]
}}The ''claimant'', the person starting the court proceeding, must fill out a Notice of Family Claim and file the claim in court. The Notice of Family Claim provides: the claimant's name and address; the name and address of the person against whom the claim is made, the ''respondent''; the basic history of the parties' relationship; and, an outline of the orders the claimant would like the court to make.

The court form that must be used is Form F3, set out in the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional pages that require more detailed information must be added to the Notice of Family Claim when the claimant seeks orders about:

*divorce,
*the care of children and child support,
*spousal support,
*the division of property and debt, and
*other orders, like protection orders or orders for the change of a person's name.

The Notice of Family Claim must be filed in the court registry and be personally served on the respondent. If you are asking for a divorce order, you'll have to fill out a Registration of Divorce Proceeding form when you file your Notice of Family Claim. It currently costs $200 to file a Notice of Family Claim, or $210 if the claim includes a claim for a divorce. When you file any document in Supreme Court (including the Notice of Family Claim), the registry will keep the original of the document, so you will want to make and keep at least two additional copies (one for you to keep and one to give to the other party).

''Personal service'' means physically handing the Notice of Family Claim to the respondent. The ''[[Divorce Act]]'' and Rule 6-3(2) of the Supreme Court Family Rules say that a claimant cannot serve a respondent themself. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Although this ought to go without saying, don't use one of your children to serve your ex.

===Deadline for reply===

The respondent has 30 days to file a Response to Family Claim after being served with the claimant's Notice of Family Claim. If the respondent doesn't do this, the claimant may be able to apply for the orders asked for in the Notice of Family Claim as a ''default judgment'', a final order made in default of the respondent's reply (and possibly without further notice to the respondent).

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. A claimant should not expect to win on a technicality like this. If a respondent files their Response to Family Claim late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

===The next steps===

If the respondent has chosen to file a Response to Family Claim, they have decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. One of three things is going to happen in your court proceeding:

#You'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make, called a consent order.
#You'll not be able to agree, and the intervention of the court at a trial will be required.
#After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

For more information on the next steps in a family law proceeding, see [[Overview of Case Conferences and Discovery in Family Law Matters]] in this chapter.

==The Provincial Court==
{{LSSbadge
|resourcetype = further step-by-step information on
|link = [http://www.familylaw.lss.bc.ca/guides/final/cantAgree/provincial/apply/steps.php Starting a family law case in Provincial Court]
}}To start a proceeding in the Provincial Court, the main document you have to prepare is an Application to Obtain an Order in Form 1, a special form prescribed by the [http://canlii.ca/t/85pb Provincial Court Family Rules]. This is the document that says who you are suing and what you are suing for.

Family law proceedings are governed by the Provincial Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about Family Case Conferences, disclosure, interim applications, and trials. The primary rules about Applications to Obtain an Order and the management of court proceedings are:

*Rule 1: definitions
*Rule 2: Applications to Obtain an Order and service requirements
*Rule 3: replying to an Application to Obtain an Order
*Rule 4: financial disclosure
*Rule 6: the first and subsequent appearances in court
*Rule 7: family case conferences
*Rule 11: trial procedure
*Rule 12: interim applications
*Rule 14: consent orders
*Rule 18: orders
*Rule 18.1: guardianship orders
*Rule 21: Parenting After Separation program

Links to and examples of the Application to Obtain an Order and other court forms can be found in [[Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For a quick introduction to how to start a proceeding, see [[How Do I Start a Family Law Action in the Provincial Court?]] It's located in the section Starting an Action in the ''How Do I?'' part of this resource.

===Limitations of the Provincial Court===

The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantage of bringing your case to the Provincial Court is that the authority of the court is limited. The Provincial Court can only hear applications under the ''[[Family Law Act]]'' on certain subjects, including:

*guardianship,
*parental responsibilities and parenting time,
*contact with a child,
*child support,
*spousal support
*protection orders, and
*payment of household bills such as mortgage and utilities pending trial or settlement.

The Provincial Court cannot hear your application if you are applying for orders under the federal ''[[Divorce Act]]'' or for orders relating to the division of property and debt under the ''Family Law Act''.

===Preparing, filing and serving the application to obtain an order===

Most court proceedings are started in the Provincial Court by filing an Application to Obtain an Order in Form 1. (Court proceedings can also be started with an Application to Change or Cancel an Order in Form 2 where there is already a court order or separation agreement in place.) The person beginning the action, the ''applicant'', fills out the Application to Obtain an Order and provides certain information, including: the applicant's name and address; the name and address of the person against whom the application is being made, the ''respondent''; a list of the orders the applicant is asking the court to make; and, a very brief statement of the relevant facts.

The Application to Obtain an Order must be filed in the court registry and be personally served on the respondent. No fee is charged to file the Application to Obtain an Order.

Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] says that an applicant cannot personally be the one who serves a respondent. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Don't use one of your children to serve your ex.

If you're not sure where you ex lives, see [[How Do I Find My Ex?]] It's located in the section Marriage, Separation & Divorce in the ''How Do I?'' part of this resource.

===Deadline for reply===

The respondent has 30 days to fill out and file a court form called a Reply after being served with the applicant's Application to Obtain an Order. If the respondent doesn't do this, the applicant may be able to apply for the orders asked for in the Application to Obtain an Order as a ''default judgment'', a final order made in default of the respondent's reply.

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An applicant should not expect to win on a technicality like this. If a respondent files their reply late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

===The next steps===

If the respondent has chosen to file a Reply, they have decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. One of three things is going to happen in your court proceeding:
# You'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make, called a consent order.
# You'll not be able to agree, and the intervention of the court at a trial will be required.
# After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

=== Parenting After Separation ===

In certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation] program before you can take any further steps in your case. This may apply even if you are seeking a default judgment. The court clerk at your court registry will tell you what is needed. If necessary, the court clerk will refer you to the family justice counsellor and tell you where the Parenting After Separation program is offered.

Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try mediation.

The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available [http://www.clicklaw.bc.ca/resource/4395 online]. The online course does not replace the need to attend an in-person course if that is otherwise required. You will have to file a certificate that you've completed the program.



==Resources and links==

===Legislation===

* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]

===Links===

* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* Legal Services Society Family Law in BC website: [http://www.clicklaw.bc.ca/resource/2278 How to start a family law case (Supreme Court)] and [http://www.clicklaw.bc.ca/resource/1701 How to get a final family order (Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society Website for BC Supreme Court]
* Legal Services Society website: [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course] from Justice Education Society

{{REVIEWED | reviewer = [[Shannon Aldinger]], June 8, 2017}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2019-05-17T17:39:35Z

Julie Brown: /* Court procedure in a nutshell */

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}} [[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}} [[Next Steps: An Overview of Case Conferences and Discovery in a Family Law Matter|Next Steps: An Overview of Case Conferences and Discovery]]{{·}} [[Case Conferences in a Family Law Matter|Case Conferences]]{{·}} [[Discovery Process in a Family Law Matter|Discovery Process]]{{·}} [[Interim Applications in Family Matters|Interim Applications]]{{·}} [[Preparing for and Going to Trial in Supreme Court]]{{·}} [[Preparing for and Going to Trial in Provincial Court]]{{·}} [[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}} [[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

The process of starting a court proceeding and bringing it through to a trial can be complicated. This chapter discusses the process for starting and replying to proceedings in the Provincial Court and the Supreme Court.

This section provides a thumbnail sketch of the basic court process common to all non-criminal proceedings. Other sections in this chapter provide more detail about [[Starting a Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|changing final orders]].

==Hold on for a minute, do you really have to go to court?==

Sometimes, you really have no choice except to start a court proceeding. But you should think twice before you do and make sure that litigation is your best choice.

The end of a relationship, especially a long relationship, is an emotionally charged, stressful process. Court is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to court, think about these things first:

<blockquote>'''Your future relationship with your ex.''' Right now you might hate your ex and want to make their life miserable. You might not feel that way in a year or two. If you don't have children, it might be entirely possible for you to simply walk out of each other's lives and into the sunset. If you do have children, you don't have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.</blockquote>

<blockquote>'''Your children, and your relationship with your children.''' Your children will be aware that there is a conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in a court proceeding, it can be tremendously difficult to shield the children from the litigation, and from your emotional reactions to the litigation. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely and often in ways you don't expect.</blockquote>

<blockquote>'''Your own worries and anxieties.''' Litigation is always an uncertain affair. No one, not even your lawyer, will guarantee that you will be completely successful about any particular issue. At the end of the day, fundamental decisions will be made by a complete stranger — the judge — about the things that matter the most to you, and the judge's decision is not something you can predict with absolute certainty. On top of that, litigation, especially when you're doing it yourself, is extremely stressful. The documents and processes will be new to you, and each court appearance will be a fresh cause of anxiety and uncertainty.</blockquote>

<blockquote>'''Your pocket book.''' If you opt to hire a lawyer, be prepared to pay and to pay a lot. Sometimes a lawyer can help you get things done quickly and with a minimum of fuss and bother, but if emotions are running high, you stand to pay a whopping legal bill, especially if you go all the way through to trial. Even if you don't hire a lawyer, litigation can be expensive, and if you are unsuccessful in your case you may be ordered to pay the other side's court costs. </blockquote>

There are other ways of solving your problem than litigation. Going to court is only one of the ways to bring your dispute to an end. Other, less confrontational and less adversarial approaches include: negotiation, mediation, and collaborative settlement processes. All of these other approaches generally cost a lot less, and, because they are cooperative in nature, they'll give you the best chance of maintaining a working relationship with your ex after the dust has settled. These options are discussed in more detail in the chapter [[Resolving Family Law Problems out of Court]].

Now, in fairness, there are times when going to court may be your only choice. It may be critical to start a court proceeding when:

*there is a threat or a risk of child abduction,
*there has been ''family violence'' in the relationship, whether to you or to your children (family violence is defined in [http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20F%20--/Family%20Law%20Act%20%5BSBC%202011%5D%20c.%2025/00_Act/11025_01.xml#section1 section 1] of the ''Family Law Act''),
*threats to your physical safety, or to the safety of your children, have been made,
*there is a threat or a risk that your ex will damage, hide or dispose of property,
*there is an urgent need to immediately secure some financial help,
*negotiations have failed and, despite your best efforts, you and your ex can't agree on how to solve your differences, or
*your ex refuses to communicate with you about the legal issues that need to be resolved.

While you should think twice before deciding that court is your only option, starting a lawsuit doesn't mean that you can't continue to try to negotiate a resolution outside of the court process.

For more information about the emotions that surround the end of a long-term relationship, and how these emotions can affect the course of litigation, read the section [[Separating Emotionally]] in the chapter [[Separation & Divorce]]. You should also track down and read a copy of ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone from the Ontario Court of Justice. He gives a lot of practical advice about the family law court system, when it works best and when it doesn't work at all.

You might also want to read a short note I've written for people who are representing themselves in a court proceeding, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF) which you can find in the chapter From the Author in this resource.

==An overview of court procedure for civil claims==

If you need the court to make an order about something, you must start a court proceeding (also called a family law proceeding). That's the only way to get a court order. The kind of court you need to go to is ''civil court'', the kind of trial court that deals with claims between people and companies. The other kind of trial court is ''criminal court'', the court that deals with criminal offences.

Before going further, it'll help to learn some of the terminology.

===A few definitions===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.</blockquote>

<blockquote>'''Claimant/Applicant.''' The person or people who start a court proceeding in the Supreme Court are the claimants. In the Provincial Court, this person is the applicant. In family law proceedings, there is usually only one claimant. In this section, claimant refers to claimants and applicants.</blockquote>

<blockquote>'''Respondent.''' The person or people against whom a court proceeding is brought are the respondents. In family law proceedings, there is usually only one respondent.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''Claim/Application.''' The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family Claim (or less often, a Petition). In the Provincial Court, proceedings are started with an Application to Obtain an Order or an Application to Change or Cancel an Order. In this section, claim refers to all of these documents.</blockquote>

<blockquote>'''Reply.''' A respondent who objects to all or some of the orders sought by the claimant in the Supreme Court will file a Response to Family Claim and sometimes a Counterclaim if the respondent wants to advance claims on their own. In the Provincial Court, the respondent will file a Reply, which includes a section to complete a counterclaim. In this section, reply refers to all of these documents.</blockquote>

<blockquote>'''Pleadings.''' The basic documents that frame a legal dispute (i.e., that list the issues that need to be resolved) are called the pleadings. In most Supreme Court family law proceedings, the pleadings are the Notice of Family Claim, the Response to Family Claim, and also usually a Counterclaim. In most Provincial Court proceedings, the pleadings are the Application to Obtain an Order and the Reply.</blockquote>

===Court procedure in a nutshell===

Court proceedings in the Provincial Court and the Supreme Court, other than criminal proceedings, work more or less like this:

*'''The claimant starts the proceeding.''' The person who wants a court order, ''the claimant'', starts a court proceeding by filing a claim in court and serving the filed claim on the respondent. The claims says what orders the claimant wants the court to make. Serving the filed claim involves having the claim hand delivered to the respondent by someone other than the claimant (this could be a process server who you pay or a friend who is over the age of majority).
*'''The respondent files a reply.''' The respondent has a certain amount of time after being served to respond to the court proceeding by filing a reply in court. The number of days is set out in the document filed by the claimant. The reply says which orders the respondent agrees to and which they object to. The respondent may ask the court for other orders; if other orders are needed, the respondent will file a claim of their own, called a counterclaim. The reply and any counterclaim must be delivered to the claimant.
*'''The claimant files a reply.''' The claimant has a certain amount of time after being served to respond to any claim made by the respondent by filing a reply in court. The claimant's reply says which orders the claimant agrees to and which they object to. The claimant's reply must be delivered to the respondent.
*'''The parties exchange information.''' Next, the parties gather the information and documents they need to explain why they should have the orders they are asking for. Because trials are not run like an ambush, the parties must also exchange their information and documents well in advance of trial. This way everyone knows exactly what is going on and how strong each person’s case is. If financial matters are in dispute, one the key documents you will need to exchange is a sworn financial statement. There are different processes in Supreme Court and Provincial Court for exchanging information. For more details, see the section [[Starting a Court Proceeding in a Family Matter]] in this chapter.
*'''The parties attend Case Conferences.''' ''Case conferences'' are conferences that take place in front of a judge, which provide an opportunity for the parties to discuss settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the section about [[Case Conferences in a Family Law Matter | Case Conferences]] in this chapter.
*'''Each party is examined out of court.''' After the documents have been exchanged, in Supreme Court proceedings each party will schedule an examination of the other party. An examination is an opportunity to ask questions about the facts and the issues out of court so that everyone knows the evidence that will be given at the trial. This is also an opportunity to ask for more documents.
*'''Go to trial.''' Assuming that settlement isn't possible, the only way to resolve the court proceeding is to have a trial. At the trial, each of the parties will present their evidence and explain to the judge why the judge should make the orders asked for. The judge may make a decision resolving the decision on the spot; most often, however, the judge will want to think about the evidence and the parties' arguments and will give a written decision later.

And that's pretty much it. Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process.

While working through this process, it is sometimes important to ask for ''interim orders''. These are temporary orders that might be necessary to get a court proceeding through to a trial or to take care of a short-term need. In family law cases, people often ask for interim orders to protect against family violence, to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property .

The process for interim orders is a miniature version of the larger process for getting a claim to trial.

*'''The applicant starts the application.''' The person who wants the interim order, the ''applicant'', starts the application process by filing an application and an affidavit in court, and serving the filed application and affidavit on the other party, called the ''application respondent''. An affidavit is a written statement of the facts that are important to the application. For more information about affidavits, see [[How Do I Prepare an Affidavit?]] in the chapter ''How Do I'' in this resource.
*'''The application respondent files a reply.''' ''The application respondent'', the person who is responding to the application, has a certain amount of time after being served to respond to the application by filing a reply and an affidavit in court. The reply says which orders the person agrees to and which are objected to; the affidavit describes any additional facts that are important to the application. The reply and affidavit must be delivered to the applicant.
*'''The applicant files a responding affidavit.''' The applicant has a certain amount of time after being served with the application respondent's materials to file a further responding affidavit in court. The responding affidavit describes any additional facts that are important to the application. The responding affidavit must be delivered to the application respondent.
*'''Go to the hearing.''' Assuming that settlement isn't possible, the only way to resolve the application is to have a hearing. At the hearing, each of the parties will present the evidence set out in their affidavits and explain to the judge why the judge should make the orders asked for. Most of the time the judge will make a decision resolving the decision on the spot; sometimes, however, the judge will want to think about the evidence and the parties' arguments, and will give a written decision later.

For more details see the section [[Interim Applications in Family Matters | Interim Applications]] in this chapter.

There are lots of details we've skipped over, including details about important things like experts, case conferences, and the rules of evidence, but this is the basic process in a nutshell. These details are governed by each court's set of rules. The rules of court are very important!

You can probably guess that this can be a long and involved process, and that if you have a lawyer representing you, it'll cost a lot of money to wrap everything up. In the Lower Mainland of Vancouver, for example, it can be possible to get trial dates for short family law trials in as little as six months, but most of the time it takes a year or more to get from the start of a proceeding to trial.

It's important to remember that you and the other party can agree to resolve your dispute out of court at any time in this process. You should always be thinking about ways to reach agreement outside of the court process. Just because litigation has been started, that does not mean that you have to continue to litigate. If you haven't done so already, please read the chapter [[Resolving Family Law Problems out of Court]]

==Resources and links==

===Legislation===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/84h4 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[Andrea Glen]], May 11, 2016}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2019-05-17T17:35:24Z

Julie Brown: /* Court procedure in a nutshell */

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}} [[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}} [[Next Steps: An Overview of Case Conferences and Discovery in a Family Law Matter|Next Steps: An Overview of Case Conferences and Discovery]]{{·}} [[Case Conferences in a Family Law Matter|Case Conferences]]{{·}} [[Discovery Process in a Family Law Matter|Discovery Process]]{{·}} [[Interim Applications in Family Matters|Interim Applications]]{{·}} [[Preparing for and Going to Trial in Supreme Court]]{{·}} [[Preparing for and Going to Trial in Provincial Court]]{{·}} [[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}} [[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

The process of starting a court proceeding and bringing it through to a trial can be complicated. This chapter discusses the process for starting and replying to proceedings in the Provincial Court and the Supreme Court.

This section provides a thumbnail sketch of the basic court process common to all non-criminal proceedings. Other sections in this chapter provide more detail about [[Starting a Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|changing final orders]].

==Hold on for a minute, do you really have to go to court?==

Sometimes, you really have no choice except to start a court proceeding. But you should think twice before you do and make sure that litigation is your best choice.

The end of a relationship, especially a long relationship, is an emotionally charged, stressful process. Court is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to court, think about these things first:

<blockquote>'''Your future relationship with your ex.''' Right now you might hate your ex and want to make their life miserable. You might not feel that way in a year or two. If you don't have children, it might be entirely possible for you to simply walk out of each other's lives and into the sunset. If you do have children, you don't have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.</blockquote>

<blockquote>'''Your children, and your relationship with your children.''' Your children will be aware that there is a conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in a court proceeding, it can be tremendously difficult to shield the children from the litigation, and from your emotional reactions to the litigation. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely and often in ways you don't expect.</blockquote>

<blockquote>'''Your own worries and anxieties.''' Litigation is always an uncertain affair. No one, not even your lawyer, will guarantee that you will be completely successful about any particular issue. At the end of the day, fundamental decisions will be made by a complete stranger — the judge — about the things that matter the most to you, and the judge's decision is not something you can predict with absolute certainty. On top of that, litigation, especially when you're doing it yourself, is extremely stressful. The documents and processes will be new to you, and each court appearance will be a fresh cause of anxiety and uncertainty.</blockquote>

<blockquote>'''Your pocket book.''' If you opt to hire a lawyer, be prepared to pay and to pay a lot. Sometimes a lawyer can help you get things done quickly and with a minimum of fuss and bother, but if emotions are running high, you stand to pay a whopping legal bill, especially if you go all the way through to trial. Even if you don't hire a lawyer, litigation can be expensive, and if you are unsuccessful in your case you may be ordered to pay the other side's court costs. </blockquote>

There are other ways of solving your problem than litigation. Going to court is only one of the ways to bring your dispute to an end. Other, less confrontational and less adversarial approaches include: negotiation, mediation, and collaborative settlement processes. All of these other approaches generally cost a lot less, and, because they are cooperative in nature, they'll give you the best chance of maintaining a working relationship with your ex after the dust has settled. These options are discussed in more detail in the chapter [[Resolving Family Law Problems out of Court]].

Now, in fairness, there are times when going to court may be your only choice. It may be critical to start a court proceeding when:

*there is a threat or a risk of child abduction,
*there has been ''family violence'' in the relationship, whether to you or to your children (family violence is defined in [http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20F%20--/Family%20Law%20Act%20%5BSBC%202011%5D%20c.%2025/00_Act/11025_01.xml#section1 section 1] of the ''Family Law Act''),
*threats to your physical safety, or to the safety of your children, have been made,
*there is a threat or a risk that your ex will damage, hide or dispose of property,
*there is an urgent need to immediately secure some financial help,
*negotiations have failed and, despite your best efforts, you and your ex can't agree on how to solve your differences, or
*your ex refuses to communicate with you about the legal issues that need to be resolved.

While you should think twice before deciding that court is your only option, starting a lawsuit doesn't mean that you can't continue to try to negotiate a resolution outside of the court process.

For more information about the emotions that surround the end of a long-term relationship, and how these emotions can affect the course of litigation, read the section [[Separating Emotionally]] in the chapter [[Separation & Divorce]]. You should also track down and read a copy of ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone from the Ontario Court of Justice. He gives a lot of practical advice about the family law court system, when it works best and when it doesn't work at all.

You might also want to read a short note I've written for people who are representing themselves in a court proceeding, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF) which you can find in the chapter From the Author in this resource.

==An overview of court procedure for civil claims==

If you need the court to make an order about something, you must start a court proceeding (also called a family law proceeding). That's the only way to get a court order. The kind of court you need to go to is ''civil court'', the kind of trial court that deals with claims between people and companies. The other kind of trial court is ''criminal court'', the court that deals with criminal offences.

Before going further, it'll help to learn some of the terminology.

===A few definitions===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.</blockquote>

<blockquote>'''Claimant/Applicant.''' The person or people who start a court proceeding in the Supreme Court are the claimants. In the Provincial Court, this person is the applicant. In family law proceedings, there is usually only one claimant. In this section, claimant refers to claimants and applicants.</blockquote>

<blockquote>'''Respondent.''' The person or people against whom a court proceeding is brought are the respondents. In family law proceedings, there is usually only one respondent.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''Claim/Application.''' The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family Claim (or less often, a Petition). In the Provincial Court, proceedings are started with an Application to Obtain an Order or an Application to Change or Cancel an Order. In this section, claim refers to all of these documents.</blockquote>

<blockquote>'''Reply.''' A respondent who objects to all or some of the orders sought by the claimant in the Supreme Court will file a Response to Family Claim and sometimes a Counterclaim if the respondent wants to advance claims on their own. In the Provincial Court, the respondent will file a Reply, which includes a section to complete a counterclaim. In this section, reply refers to all of these documents.</blockquote>

<blockquote>'''Pleadings.''' The basic documents that frame a legal dispute (i.e., that list the issues that need to be resolved) are called the pleadings. In most Supreme Court family law proceedings, the pleadings are the Notice of Family Claim, the Response to Family Claim, and also usually a Counterclaim. In most Provincial Court proceedings, the pleadings are the Application to Obtain an Order and the Reply.</blockquote>

===Court procedure in a nutshell===

Court proceedings in the Provincial Court and the Supreme Court, other than criminal proceedings, work more or less like this:

*'''The claimant starts the proceeding.''' The person who wants a court order, ''the claimant'', starts a court proceeding by filing a claim in court and serving the filed claim on the respondent. The claims says what orders the claimant wants the court to make. Serving the filed claim involves having the claim hand delivered to the respondent by someone other than the claimant (this could be a process server who you pay or a friend who is over the age of majority).
*'''The respondent files a reply.''' The respondent has a certain amount of time after being served to respond to the court proceeding by filing a reply in court. The number of days is set out in the document filed by the claimant. The reply says which orders the respondent agrees to and which they object to. The respondent may ask the court for other orders; if other orders are needed, the respondent will file a claim of their own, called a counterclaim. The reply and any counterclaim must be delivered to the claimant.
*'''The claimant files a reply.''' The claimant has a certain amount of time after being served to respond to any claim made by the respondent by filing a reply in court. The claimant's reply says which orders the claimant agrees to and which they object to. The claimant's reply must be delivered to the respondent.
*'''The parties exchange information.''' Next, the parties gather the information and documents they need to explain why they should have the orders they are asking for. Because trials are not run like an ambush, the parties must also exchange their information and documents well in advance of trial. This way everyone knows exactly what is going on and how strong each person’s case is. If financial matters are in dispute, one the key documents you will need to exchange is a sworn financial statement. There are different processes in Supreme Court and Provincial Court for exchanging information. For more details, see the section [[Starting a Court Proceeding in a Family Matter]] in this chapter.
*'''The parties attend Case Conferences.''' ''Case conferences'' are conferences that take place in front of a judge, which provide an opportunity for the parties to discuss settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the section about [[Case Conferences in a Family Law Matter | Case Conferences]] in this chapter.
*'''Each party is examined out of court.''' After the documents have been exchanged, in Supreme Court proceedings each party will schedule an examination of the other party. An examination is an opportunity to ask questions about the facts and the issues out of court so that everyone knows the evidence that will be given at the trial. This is also an opportunity to ask for more documents.
*'''Go to trial.''' Assuming that settlement isn't possible, the only way to resolve the court proceeding is to have a trial. At the trial, each of the parties will present their evidence and explain to the judge why the judge should make the orders asked for. The judge may make a decision resolving the decision on the spot; most often, however, the judge will want to think about the evidence and the parties' arguments and will give a written decision later.

And that's pretty much it. Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process.

While working through this process, it is sometimes important to ask for ''interim orders''. These are temporary orders that might be necessary to get a court proceeding through to a trial or to take care of a short-term need. In family law cases, people often ask for interim orders to protect against family violence, to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property .

The process for interim orders is a miniature version of the larger process for getting a claim to trial.

*'''The applicant starts the application.''' The person who wants the interim order, the ''applicant'', starts the application process by filing an application and an affidavit in court, and serving the filed application and affidavit on the other party, called the ''application respondent''. An affidavit is a written statement of the facts that are important to the application. For more information about affidavits, see [[How Do I Prepare an Affidavit?]] in the chapter ''How Do I'' in this resource.
*'''The application respondent files a reply.''' ''The application respondent'', the person who is responding to the application, has a certain amount of time after being served to respond to the application by filing a reply and an affidavit in court. The reply says which orders the person agrees to and which are objected to; the affidavit describes any additional facts that are important to the application. The reply and affidavit must be delivered to the applicant.
*'''The applicant files a responding affidavit.''' The applicant has a certain amount of time after being served with the application respondent's materials to file a further responding affidavit in court. The responding affidavit describes any additional facts that are important to the application. The responding affidavit must be delivered to the application respondent.
*'''Go to the hearing.''' Assuming that settlement isn't possible, the only way to resolve the application is to have a hearing. At the hearing, each of the parties will present the evidence set out in their affidavits and explain to the judge why the judge should make the orders asked for. Most of the time the judge will make a decision resolving the decision on the spot; sometimes, however, the judge will want to think about the evidence and the parties' arguments, and will give a written decision later.

There are lots of details we've skipped over, including details about important things like experts, case conferences, and the rules of evidence, but this is the basic process in a nutshell. These details are governed by each court's set of rules. The rules of court are very important!

You can probably guess that this can be a long and involved process, and that if you have a lawyer representing you, it'll cost a lot of money to wrap everything up. In the Lower Mainland of Vancouver, for example, it can be possible to get trial dates for short family law trials in as little as six months, but most of the time it takes a year or more to get from the start of a proceeding to trial.

It's important to remember that you and the other party can agree to resolve your dispute out of court at any time in this process. You should always be thinking about ways to reach agreement outside of the court process. Just because litigation has been started, that does not mean that you have to continue to litigate. If you haven't done so already, please read the chapter [[Resolving Family Law Problems out of Court]]

==Resources and links==

===Legislation===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/84h4 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[Andrea Glen]], May 11, 2016}}

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Resolving Family Law Problems in Court

2019-05-17T17:32:54Z

Julie Brown:

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}} [[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}} [[Next Steps: An Overview of Case Conferences and Discovery in a Family Law Matter|Next Steps: An Overview of Case Conferences and Discovery]]{{·}} [[Case Conferences in a Family Law Matter|Case Conferences]]{{·}} [[Discovery Process in a Family Law Matter|Discovery Process]]{{·}} [[Interim Applications in Family Matters|Interim Applications]]{{·}} [[Preparing for and Going to Trial in Supreme Court]]{{·}} [[Preparing for and Going to Trial in Provincial Court]]{{·}} [[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}} [[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

The process of starting a court proceeding and bringing it through to a trial can be complicated. This chapter discusses the process for starting and replying to proceedings in the Provincial Court and the Supreme Court.

This section provides a thumbnail sketch of the basic court process common to all non-criminal proceedings. Other sections in this chapter provide more detail about [[Starting a Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|changing final orders]].

==Hold on for a minute, do you really have to go to court?==

Sometimes, you really have no choice except to start a court proceeding. But you should think twice before you do and make sure that litigation is your best choice.

The end of a relationship, especially a long relationship, is an emotionally charged, stressful process. Court is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to court, think about these things first:

<blockquote>'''Your future relationship with your ex.''' Right now you might hate your ex and want to make their life miserable. You might not feel that way in a year or two. If you don't have children, it might be entirely possible for you to simply walk out of each other's lives and into the sunset. If you do have children, you don't have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.</blockquote>

<blockquote>'''Your children, and your relationship with your children.''' Your children will be aware that there is a conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in a court proceeding, it can be tremendously difficult to shield the children from the litigation, and from your emotional reactions to the litigation. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely and often in ways you don't expect.</blockquote>

<blockquote>'''Your own worries and anxieties.''' Litigation is always an uncertain affair. No one, not even your lawyer, will guarantee that you will be completely successful about any particular issue. At the end of the day, fundamental decisions will be made by a complete stranger — the judge — about the things that matter the most to you, and the judge's decision is not something you can predict with absolute certainty. On top of that, litigation, especially when you're doing it yourself, is extremely stressful. The documents and processes will be new to you, and each court appearance will be a fresh cause of anxiety and uncertainty.</blockquote>

<blockquote>'''Your pocket book.''' If you opt to hire a lawyer, be prepared to pay and to pay a lot. Sometimes a lawyer can help you get things done quickly and with a minimum of fuss and bother, but if emotions are running high, you stand to pay a whopping legal bill, especially if you go all the way through to trial. Even if you don't hire a lawyer, litigation can be expensive, and if you are unsuccessful in your case you may be ordered to pay the other side's court costs. </blockquote>

There are other ways of solving your problem than litigation. Going to court is only one of the ways to bring your dispute to an end. Other, less confrontational and less adversarial approaches include: negotiation, mediation, and collaborative settlement processes. All of these other approaches generally cost a lot less, and, because they are cooperative in nature, they'll give you the best chance of maintaining a working relationship with your ex after the dust has settled. These options are discussed in more detail in the chapter [[Resolving Family Law Problems out of Court]].

Now, in fairness, there are times when going to court may be your only choice. It may be critical to start a court proceeding when:

*there is a threat or a risk of child abduction,
*there has been ''family violence'' in the relationship, whether to you or to your children (family violence is defined in [http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20F%20--/Family%20Law%20Act%20%5BSBC%202011%5D%20c.%2025/00_Act/11025_01.xml#section1 section 1] of the ''Family Law Act''),
*threats to your physical safety, or to the safety of your children, have been made,
*there is a threat or a risk that your ex will damage, hide or dispose of property,
*there is an urgent need to immediately secure some financial help,
*negotiations have failed and, despite your best efforts, you and your ex can't agree on how to solve your differences, or
*your ex refuses to communicate with you about the legal issues that need to be resolved.

While you should think twice before deciding that court is your only option, starting a lawsuit doesn't mean that you can't continue to try to negotiate a resolution outside of the court process.

For more information about the emotions that surround the end of a long-term relationship, and how these emotions can affect the course of litigation, read the section [[Separating Emotionally]] in the chapter [[Separation & Divorce]]. You should also track down and read a copy of ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone from the Ontario Court of Justice. He gives a lot of practical advice about the family law court system, when it works best and when it doesn't work at all.

You might also want to read a short note I've written for people who are representing themselves in a court proceeding, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF) which you can find in the chapter From the Author in this resource.

==An overview of court procedure for civil claims==

If you need the court to make an order about something, you must start a court proceeding (also called a family law proceeding). That's the only way to get a court order. The kind of court you need to go to is ''civil court'', the kind of trial court that deals with claims between people and companies. The other kind of trial court is ''criminal court'', the court that deals with criminal offences.

Before going further, it'll help to learn some of the terminology.

===A few definitions===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.</blockquote>

<blockquote>'''Claimant/Applicant.''' The person or people who start a court proceeding in the Supreme Court are the claimants. In the Provincial Court, this person is the applicant. In family law proceedings, there is usually only one claimant. In this section, claimant refers to claimants and applicants.</blockquote>

<blockquote>'''Respondent.''' The person or people against whom a court proceeding is brought are the respondents. In family law proceedings, there is usually only one respondent.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''Claim/Application.''' The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family Claim (or less often, a Petition). In the Provincial Court, proceedings are started with an Application to Obtain an Order or an Application to Change or Cancel an Order. In this section, claim refers to all of these documents.</blockquote>

<blockquote>'''Reply.''' A respondent who objects to all or some of the orders sought by the claimant in the Supreme Court will file a Response to Family Claim and sometimes a Counterclaim if the respondent wants to advance claims on their own. In the Provincial Court, the respondent will file a Reply, which includes a section to complete a counterclaim. In this section, reply refers to all of these documents.</blockquote>

<blockquote>'''Pleadings.''' The basic documents that frame a legal dispute (i.e., that list the issues that need to be resolved) are called the pleadings. In most Supreme Court family law proceedings, the pleadings are the Notice of Family Claim, the Response to Family Claim, and also usually a Counterclaim. In most Provincial Court proceedings, the pleadings are the Application to Obtain an Order and the Reply.</blockquote>

===Court procedure in a nutshell===

Court proceedings in the Provincial Court and the Supreme Court, other than criminal proceedings, work more or less like this:

*'''The claimant starts the proceeding.''' The person who wants a court order, ''the claimant'', starts a court proceeding by filing a claim in court and serving the filed claim on the respondent. The claims says what orders the claimant wants the court to make. Serving the filed claim involves having the claim hand delivered to the respondent by someone other than the claimant (this could be a process server who you pay or a friend who is over the age of majority).
*'''The respondent files a reply.''' The respondent has a certain amount of time after being served to respond to the court proceeding by filing a reply in court. The number of days is set out in the document filed by the claimant. The reply says which orders the respondent agrees to and which they object to. The respondent may ask the court for other orders; if other orders are needed, the respondent will file a claim of their own, called a counterclaim. The reply and any counterclaim must be delivered to the claimant.
*'''The claimant files a reply.''' The claimant has a certain amount of time after being served to respond to any claim made by the respondent by filing a reply in court. The claimant's reply says which orders the claimant agrees to and which they object to. The claimant's reply must be delivered to the respondent.
*'''The parties exchange information.''' Next, the parties gather the information and documents they need to explain why they should have the orders they are asking for. Because trials are not run like an ambush, the parties must also exchange their information and documents well in advance of trial. This way everyone knows exactly what is going on and how strong each person’s case is. If financial matters are in dispute, one the key documents you will need to exchange is a sworn financial statement. There are different processes in Supreme Court and Provincial Court for exchanging information. For more details, see the section [[Starting a Court Proceeding in a Family Matter]] in this chapter.
*'''The parties attend Case Conferences.''' ''Case conferences'' are conferences that take place in front of a judge, which provide an opportunity for the parties to discuss settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the section about [[Case Conferences]] in this chapter.
*'''Each party is examined out of court.''' After the documents have been exchanged, in Supreme Court proceedings each party will schedule an examination of the other party. An examination is an opportunity to ask questions about the facts and the issues out of court so that everyone knows the evidence that will be given at the trial. This is also an opportunity to ask for more documents.
*'''Go to trial.''' Assuming that settlement isn't possible, the only way to resolve the court proceeding is to have a trial. At the trial, each of the parties will present their evidence and explain to the judge why the judge should make the orders asked for. The judge may make a decision resolving the decision on the spot; most often, however, the judge will want to think about the evidence and the parties' arguments and will give a written decision later.

And that's pretty much it. Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process.

While working through this process, it is sometimes important to ask for ''interim orders''. These are temporary orders that might be necessary to get a court proceeding through to a trial or to take care of a short-term need. In family law cases, people often ask for interim orders to protect against family violence, to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property .

The process for interim orders is a miniature version of the larger process for getting a claim to trial.

*'''The applicant starts the application.''' The person who wants the interim order, the ''applicant'', starts the application process by filing an application and an affidavit in court, and serving the filed application and affidavit on the other party, called the ''application respondent''. An affidavit is a written statement of the facts that are important to the application. For more information about affidavits, see [[How Do I Prepare an Affidavit?]] in the chapter ''How Do I'' in this resource.
*'''The application respondent files a reply.''' ''The application respondent'', the person who is responding to the application, has a certain amount of time after being served to respond to the application by filing a reply and an affidavit in court. The reply says which orders the person agrees to and which are objected to; the affidavit describes any additional facts that are important to the application. The reply and affidavit must be delivered to the applicant.
*'''The applicant files a responding affidavit.''' The applicant has a certain amount of time after being served with the application respondent's materials to file a further responding affidavit in court. The responding affidavit describes any additional facts that are important to the application. The responding affidavit must be delivered to the application respondent.
*'''Go to the hearing.''' Assuming that settlement isn't possible, the only way to resolve the application is to have a hearing. At the hearing, each of the parties will present the evidence set out in their affidavits and explain to the judge why the judge should make the orders asked for. Most of the time the judge will make a decision resolving the decision on the spot; sometimes, however, the judge will want to think about the evidence and the parties' arguments, and will give a written decision later.

There are lots of details we've skipped over, including details about important things like experts, case conferences, and the rules of evidence, but this is the basic process in a nutshell. These details are governed by each court's set of rules. The rules of court are very important!

You can probably guess that this can be a long and involved process, and that if you have a lawyer representing you, it'll cost a lot of money to wrap everything up. In the Lower Mainland of Vancouver, for example, it can be possible to get trial dates for short family law trials in as little as six months, but most of the time it takes a year or more to get from the start of a proceeding to trial.

It's important to remember that you and the other party can agree to resolve your dispute out of court at any time in this process. You should always be thinking about ways to reach agreement outside of the court process. Just because litigation has been started, that does not mean that you have to continue to litigate. If you haven't done so already, please read the chapter [[Resolving Family Law Problems out of Court]]

==Resources and links==

===Legislation===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/84h4 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.clicklaw.bc.ca/resource/1115 Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[Andrea Glen]], May 11, 2016}}

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