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Separation and the Law

2017-05-09T21:28:09Z

Thomas Wallwork:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
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| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}Separation usually signals the breakdown of a married or unmarried relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but it can also lead to reconciliation and the resumption of life together as a committed couple. Separation occurs when one or both spouses decide that their relationship is over and say so; there's no need to hire a lawyer or to seek the approval of a judge.

This section discusses the legal aspects of separation, the rules relating to reconciliation, and some of the other issues you may want to consider once you have separated or have decided to separate. The information applies to married spouses and unmarried spouses.

This section will also address some common questions about sex and new relationships after separation. The next section, [[Separating Emotionally]], talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.

==Introduction==

Although many people move out when they separate, others separate and remain living under the same roof. A physical separation is not necessary to separate; there must simply be an intention to end the relationship and the intimacies and mutual support that a committed relationship usually involves.

Often the decision to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and a spouse's decision to end a relationship doesn't require the consent of the other spouse.

Some people go to family law lawyers to get a "legal separation." Separation is accomplished, in most cases, by simply leaving the family home with the intention of living separate and apart, although technically speaking it isn't necessary to move out at all. Once you or your spouse has left the family home or announced that the marriage is at an end, you're separated. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Everyone is entitled to separate if they wish to end a relationship, and you don't need to see a lawyer to do so; the function of the family law lawyer is to assist in the resolution of the issues arising from the breakdown of the relationship.

Now, to be fair, what people often mean by "legal separation" is a ''separation agreement''. This is something else altogether. A separation agreement is a contract that a couple use to record their agreement about things like how the children will be cared for, how their property will be shared, and how child support and spousal support will be paid. Separation agreements are not always necessary, and you can't be forced to sign a separation agreement.

You can find more information about separation agreements in the chapter [[Family Law Agreements]] within the section [[Separation Agreements]]. You can find out more about preparing to separate in [[How Do I Prepare for Separation?]], located in the ''How Do I?'' section of this resource. Look under ''Marriage, Separation & Divorce''.

===The date of separation===

Under the old ''[[Family Relations Act]]'', married spouses rarely argued about when they separated. The issue was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation.

Under the new ''[[Family Law Act]]'', the date of separation has become very important for both married and unmarried spouses.

In general, the date of separation will have the following effects:

*each spouse becomes enttiled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only;
*the spouses each become responsible (as between the spouses) for one half of family debts;
*any property either spouse obtains after the date of separation is his or her own separate property, and not family property;
*any debt either spouse incurs after the date of separation is that spouse's sole responsibility;
*unmarried (ie. common-law) spouses have two years past the ''date of separation'' to start a claim in court for division of family property, spousal support, or sharing of family debts, if they cannot otherwise agree;
*married spouses have two years from the date of their ''divorce'' to bring claims in court for division of family property, spousal support, or division of debts.

The [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter talks about the first four issues in more detail; the [[Spousal Support]] chapter talks about the last issue.

Spouses do not need to move out in order to be separated. What's needed is for at least one spouse to reach the conclusion that the relationship is over, to say as much to the other spouse, and then begin behaving as if the relationship is over. That usually means stopping behaving like a couple, stopping sleeping together, stopping doing chores and tasks for each other, and so on. Section 3(4) of the ''Family Law Act'' talks about separation:

<blockquote><tt>For the purposes of this Act,</tt></blockquote>
<blockquote><blockquote><tt>(a) spouses may be separated despite continuing to live in the same residence, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) the court may consider, as evidence of separation,</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote></blockquote>

This is helpful, because the old ''Family Relations Act'' didn't talk about separation in any detail. However, the phrase in s. 3(4)(b), "the court may consider," suggests that this section isn't a comprehensive listing of things the court should consider, and the cases about separation are still very helpful. Here are some of the highlights:

''Herman v. Herman'', Nova Scotia Supreme Court, 1969:

<blockquote>"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."</blockquote>

''Hills v. Hills'', Nova Scotia Supreme Court, 1969:

<blockquote>"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."</blockquote>

''McDorman v. McDorman'', New Brunswick Supreme Court, 1972:

<blockquote>"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."</blockquote>

''Lachman v. Lachman'', Ontario Court of Appeal, 1970:

<blockquote>"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."</blockquote>

It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before considering them to actually be separated; once the 90-day period is over, the date of separation is the date the couple began to live separate and apart.

===Being separated while living together===

It is possible to separate and remain living under the same roof as your spouse. People sometimes do this when they simply cannot afford to make ends meet while maintaining separate homes or when neither spouse wants to leave the home and the children.

In order for the courts to recognize this form of separation as a separation, the spouses must live as if they have completely ended the romantic aspect of their relationship. This usually includes sleeping in separate beds in separate rooms, opening separate bank accounts and closing joint accounts, separately performing household chores like laundry and cooking, not going out as a couple, and so on. Either way, the spouses must stop behaving as if they are a couple.

Because the date of separation can sometimes be hard to pin down when separated spouses continue to live under the same roof, it can be very helpful to make some sort of record of the date that separation occurred. Sending a letter or email to your spouse to confirm separation might be a good idea; make sure you keep a copy.

===Desertion===

This ground for divorce has been abolished.

Instead, s. 8(1)(2)(a) of the ''Divorce Act (Canada)'' allows either spouse to apply for a divorce on the ground that the spouses have been living separate and apart for at least a year, and that there is no chance of reconciliation.

===Separation and children===

Under s. 39(1) of the ''Family Law Act'', a parent is a guardian of his or her child both while the parents live together and remain guardians even after the parents separate.

Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which I encourage all separating parents to take. You can find more information about this program and other issues relating to children and separation in the [[Children in Family Law Matters|Children]] chapter, in the section [[Parenting after Separation]].

Separation is, of course, also difficult for the adults who are separating. You can find more information about the emotional dimensions of separation in the next section of this chapter, [[Separating Emotionally]].

==Reconciliation==

For some couples, a period of separation does not sound their relationship's death knell. For some, a period of separation can be a time for rebuilding a relationship and can become a healthy break that rejuvenates and revitalizes a marriage.

===Married spouses===

The ''[[Divorce Act]]'' contains a number of provisions intended to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the act provides that:

<blockquote><tt>A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote>
<blockquote><blockquote><tt>(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.</tt></blockquote></blockquote>

In other words, a married couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of 90 days without stopping the clock on separation as a ground of divorce. If a couple have lived together for more than 90 days since the first separation, the clock will start again at the end of the last period in which they lived together as a married couple.

The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the ground of your divorce, you cannot have resumed your relationship with your spouse for a total of 90 days within the one-year period of separation.

===Unmarried spouses===

Because unmarried couples don't need to get divorced, the ''[[Family Law Act]]'' has no similar provisions about separation and attempts at reconciliation, except in relation to property. Section 83(1) says this:

<blockquote><tt>For the purposes of this Part, spouses are not considered to have separated if, within one year after separation, </tt></blockquote>
<blockquote><blockquote><tt>(a) they begin to live together again and the primary purpose for doing so is to reconcile, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they continue to live together for one or more periods, totalling at least 90 days. </tt></blockquote></blockquote>

These provisions are important because the date of separation is the date when new property and new debt stop being shared family property and family debt and start being each spouse's separate property and debt.

==Things to think about after separation==

Once you've separated, there a number of things you may want to do, change, or adjust to reflect the new circumstances of your relationship with your spouse.

===Bank accounts and credit cards===

You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling his or her authority.

Credit cards, loans and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit to the current balance on the account.

===Insurance policies, pensions and RRSPs===

You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an account, your bank or insurance company may require your spouse's consent to remove his or her name as a beneficiary.

===Jointly owned real estate===

Most spouses own real estate as “joint tenants”. The essential feature of this type of ownership is that if one of you dies, then the surviving party will own the entire property. This does '''not''' change as a result of your separation.

There are reasons for and against keeping the ownership as joint tenants. If you do not want to risk the property becoming entirely owned by your spouse in case of your death, then you can change the type of ownership by transferring your interest to yourself. This change must be registered with the Land Title Office.

You should see a real estate lawyer for help in changing the way that you own the real estate.

===Wills===

If you separate and your spouse dies, you cannot rely on your spouse's will. Unless the Will says otherwise, any gift or appointment the deceased spouse made to you is revoked at the date of your separation. If you want to make a claim to property owned by your spouse's estate, or for support from your spouse's estate, then you must sue your spouse's estate under the ''[http://canlii.ca/t/8q3k Family Law Act]'' and the ''[http://canlii.ca/t/7vbw Divorce Act]''.

If you still want your spouse to receive a gift or appointment through your Will, you must update your Will and specify that the gift or appointment should proceed even after your separation.

You should see a wills and estates lawyer for help in making or changing a will.

===Powers of attorney and other authorizations===

Under the ''[http://canlii.ca/t/849l Power of Attorney Act]'', if you are unmarried, any power of attorney made by you and your spouse terminates when your marriage or marriage-like relationship ends. However, if you ''are'' married, the power of attorney may only terminate when you get an order for divorce. The courts still need to interpret this section.

No matter what your relationship status is, if you want to be sure that your power of attorney has been terminated, you need to prepare a written revocation and deliver a copy to all financial institutions where you have an account, as well as a copy to your spouse and anybody else you have appointed as your attorney. Always keep records of your revocation, and how and when you delivered the revocation.

If you do still want your former spouse to be able to act as your attorney after you separate, then you should prepare a new power of attorney to make sure that he or she has a valid power of attorney.

If you wish to revoke an existing power of attorney or other authorization or to create a new one, you should speak with a wills and estates lawyer to have the proper documents drawn up.

===Medical and dental insurance===

Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information as different plans have different rules about the eligibility of spouses as beneficiaries following separation.

For most people, maintaining spousal benefits cost little or nothing. If that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it will appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!

===Finances and assets===

When you separate, make sure you take with you or secure the following items:

*your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth,
*your MSP card and your private medical insurance card, if you have one,
*your children's birth certificates,
*your immigration or citizenship documents, if you are new to Canada, and
*your passport and your children's passports.

You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture, and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite and half of the living room furniture.

Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in his or her own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an argument about who owns what or the extent of the family property and family debt.

==Sex and new relationships after separation==

A lot of readers have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships, and how a married spouse can be in a unmarried spousal relationship with someone else while still being married.

===Sex with spouses===

There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there is nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the care of the children is managed, the amount of child support to be paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not look into this sort of conduct in determining these issues.

However, two things that married spouses probably need to think about are these:

*'''Reconciliation:''' While simply having sex with your spouse won't count toward the 90-day period of reconciliation described above, it may if you begin to live with each other while you're doing it.
*'''Divorces based on adultery:''' If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery. The same principle would probably also apply to divorce claims based on cruelty.

===Sex with other people===

Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded, and your obligation to remain monogamous along with it. Married spouses won't be divorced until they get a court order, of course, but after separation the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end.

Having sex with someone else will not have an impact on how the care of the children should be managed, the amount of child support to be paid, whether spousal support should be paid, or how the family property and debt should be divided. The court does not consider this sort of conduct in determining these issues.

====Is it adultery?====

Adultery is only an issue for married spouses. Technically speaking, it is in fact adultery to have sex with anyone other than your spouse for so long as you are married. You will remain married until you have obtained an order for your divorce.

While having sex with someone else might constitute adultery, the court will not care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you like. No one apart from your ex and your in-laws is likely to criticize you for it.

====Can it be a ground of divorce?====

You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use his or her adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation.

===New relationships===

New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner could somehow be seen as a genuine risk to the children.

Entering into a new relationship will not usually have an impact on how the care of the children should be managed and the amount of child support to be paid, and it will never have an impact on whether spousal support should be paid or how your property and debt should be divided. The court does not look at this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are divorced.

====What about the kids?====

As a general rule, people should be a bit careful about exposing the children to new relationships. It can be very confusing to deal with the idea of parents separating and then have to cope with the idea of a parent being involved with some stranger who appears to be stepping into the shoes of the other parent.

You should take a lot of care in deciding how and when the children are introduced to new relationships. In general, older children are more likely to understand the new relationship; younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very Norman Rockwell/Hallmark Cards view of life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting him- or herself to the children as an alternate parent.

====What if there are a lot of "new" relationships?====

Sometimes a newly separated spouse feels the need to go out and explore his or her options, so to speak, and engages in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to deal with, but to be introduced to a parade of new people that a parent appears to be romantically involved with can be enormously confusing, and potentially lead to resentment and an alignment with the other parent.

In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive the new relationship will last.

If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before he or she introduces the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationships.

===Becoming an unmarried spouse===

Someone who is separated but still married can become a spouse in an unmarried relationship. Not everyone is in a rush to get a divorce once a marriage breaks down, and some people don't get around to getting a divorce until many years have passed since they separated.

If you are separated from your married spouse, you are still married and will continued to be married to that person until you get a divorce. If you enter into a new romantic relationship while you are separated, and live with the new person in a "marriage-like relationship" for more than two years or have a child with that person, you will be considered to be in an unmarried spousal relationship; it doesn't matter whether you're divorced or not.

If you find that you're married and also in a new relationship that qualifies as a spousal relationship:

*you may have an obligation to pay child support for your partner's children as a stepparent,
*you will have an obligation to support any children you and your partner have together,
*you may have an obligation to pay spousal support to your partner, and
*there may be family property and family debt that you might be required to share with your partner.

These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* ''[http://canlii.ca/t/840g Estate Administration Act]''
* ''[http://canlii.ca/t/84g0 Wills Variation Act]''

===Links===

* [http://clicklaw.bc.ca/resource/1640 Legal Services Society’s Family Law Website: Separation]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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Separating Emotionally

2017-05-09T21:25:00Z

Thomas Wallwork:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}The previous section discussed the law about separation. This section talks about the emotional dimensions of separation. The laws and the courts only deal with a narrow slice of all the things that go on when a relationship ends and often ignore, because they must, the larger emotional and psychological issues.

These issues, however, influence a couple's ability to work together after separation and often play a huge role in determining how a separating couple will go about resolving their legal problems. An understanding of the emotions involved in separation can help to reduce conflict and the cost of resolving the legal issues involved in separation.

This section applies to both married and unmarried couples. It provides an introduction to separating emotionally, looks at the grieving process that accompanies the end of a long-term relationship, and discusses how the emotional aspects of separation can impact on the resolution of the legal issues a couple might have to deal with.

==Introduction==

Ending a long-term relationship, whether married or unmarried, is not just a matter of packing your bags and walking out the front door. Separation stirs up incredibly powerful emotions that can take a surprisingly long time to work through; many counsellors liken these emotions to the grieving process that follows the death of a loved one. Chief among these emotions are love, anger, remorse, and sadness, and separating couples often find themselves experiencing these emotions in a very intense manner and cycling through them over and over.

These emotions often wind up clouding a person's judgment. You can find yourself doing things and saying things you never thought you would, or doing things you promised you'd never do again. You can find yourself looking at your partner and wondering who the hell this person really is, and how can he or she be so different from the person you were together with for so long. Unrecognized and unmanaged emotions can take over the emotional and legal processes of separation like a runaway train and take you down tracks you never anticipated.

The emotions involved in separation are normal. Everyone experiences them, although we each process these emotions in our own way. From a lawyer's perspective, the key problems that must be processed in the midst of these distorted and confused feelings are:

#settling the legal issues that crop up at the end of a relationship,
#obtaining reasonable instructions from the client,
#separating anger from the negotiation process,
#separating anger from the litigation process, and
#ensuring that the conflict doesn't spill out onto the children.

The vast majority of couples can resolve their issues through negotiation or mediation, no matter how angry they are with one another. Where a couple simply cannot separate the emotional baggage of separation from the resolution of the legal issues that come at the end of their relationship, litigation may be inevitable.

Many studies have shown that mediation and collaborative settlement processes produce agreements that are better for both parties and better for the children, and that last longer than the results of litigation. Mediation and collaborative processes can help a couple to work through their individual emotional issues and can produce an agreement that isn't so much a legal contract as it is a moral contract. Parents especially tend to deal with each other, and with their children, with a lot less rancour following a mediated or collaborative resolution of their problems.

Litigation is sometimes necessary, even when a couple is capable of a less antagonistic choice: when a party threatens to flee with a child; where there is a history of abuse or where abuse seems imminent; and, where a party is threatening to do something rash with family property. When litigation is provoked by emotions arising from the end of the relationship and isn't really necessary, then you can run into some serious and expensive problems:

*One or both people will adopt an entrenched and unreasonable position about things like the children and other family issues, sometimes a position that they would never have considered taking. Sometimes positions are adopted out of spite or vindictiveness.
*The emotional tension will worsen, particularly when you see things you thought were long buried in the past put into an affidavit. There will be backstabbing, accusations, and wounded feelings.
*There is an increased risk of the children being used to goad the other parent, although sometimes unintentionally.
*There is an increased risk of the alienation or estrangement of a child from a parent, and the permanent impairment of the child's relationship with that parent.
*There will be many interim applications and the litigation may not be settled even with a trial. In circumstances like these, the litigation many never truly end, especially when there are children involved.
*The litigation will cost an enormous amount of money, and you risk losing the equity in the family assets to court fees and legal fees.
*At the end of the day, you risk being permanently unable to communicate effectively with your former partner. This can be a serious problem when children are involved.

As a result of all of this, it can be critical to get a grip on your emotions right out of the starting gate. While all of these emotions are common, natural, and entirely understandable, failing to recognize and manage them can lead to disastrous short- and long-term consequences to your emotional well-being, your relationship with your children, your children's emotional well-being, and your financial situation. If you are having trouble managing your feelings and you have children, see a counsellor as soon as possible.

===Parenting after separation===

When a couple have children, they must accept that they will remain a permanent part of each other's lives, whether they like it or not. A couple may no longer be partners, but they will always be parents. The parental relationship does not end with the romantic relationship.

It is impossible to emphasize enough how important it is to always put the children first. This may sound a bit trite, but putting the children ahead of yourself can be an extremely challenging task when you are also trying to cope with the intense emotions involved in separation. It can be tremendously difficult to refrain from badmouthing your former partner to the children, "forgetting" to drop them off on time, and using them as a weapon.

The [http://www.justicebc.ca/en/fam/help/pas/index.html Parenting After Separation (PAS) program] is available throughout British Columbia. In my view, all couples with children can benefit from this program, no matter how well or poorly you think you and your former partner get along.

The Parenting After Separation program can offer important advice about talking to your children about the separation, talking about your former partner with the children, and talking with your former partner in ways that avoid hurting and wounding and are focused on the children.

Information about parenting after separation, including contact information for the different agencies that offer the PAS program, is available in the [[Children in Family Law Matters|Children]] chapter, in the section [[Parenting After Separation]]. As well, some very good research papers and literature reviews about parenting after separation, the costs of high-conflict separation, and other topics relating to the child's well-being and outcomes following separation can be found at the website of the [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/topic-theme/index.html Department of Justice]. These papers are of a uniformly high quality and are well worth the read.

===A few notes from JP Boyd===

I am not a psychologist, a psychiatrist or a counsellor. As a result, this section should be read with a grain of salt as it is based on my observations of my clients' experiences and a healthy dose of common sense. For the same reason, this section should not be used as an authority for the propositions it sets out.

There are a ton of resources available to help you cope with the separation process and keep the emotionally harmful aspects of the process away from your children. In addition to public programs, many counsellors specialize in helping people work through the emotional turmoil that often follows the end of a long-term relationship. Since counsellors are unregulated, anyone can hang a shingle saying that they offer counselling services. What you should be looking for are people with the designation of Registered Clinical Counsellor (RCC), Certified Canadian Counsellor (CCC) or Registered Psychologist (RPsych).

*The website [http://www.counsellingbc.com/ counsellingbc.com] offers a list of subscribing counsellors by area of practice.
*The [http://bc-counsellors.org/ BC Association of Clinical Counsellors] also maintains a referral list of its members.
*The [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy] has a referral list and helpful information about how to choose a counsellor.

==The grieving process==

Many counsellors liken the process of emotionally separating from a long-term relationship to the grieving process that happens when a loved one dies. In general, this process can be expected to take one to two years to complete. Dr. Elizabeth Kubler-Ross, in her book ''[http://www.worldcat.org/title/on-death-and-dying/oclc/4238 On Death and Dying]'', describes a five-stage model of grief, and how grief affects our ability to make decisions in each stage.

*'''Shock and denial:''' "This isn't happening to me!" An initial paralysis at hearing the bad news; trying to avoid the inevitable. People usually avoid making decisions or taking action at this point.
*'''Anger:''' "Why is this happening to me?" A frustrated outpouring of bottled-up emotion. Making decisions at this point is difficult because all one's energy gets put into the emotion rather than problem-solving, and the other partner is usually vilified.
*'''Dialogue and bargaining:''' "I promise I'll be a better person if..." Seeking in vain for a way out; seeking paths that might offer a solution. People generally become more willing to explore alternatives.
*'''Depression and detachment:''' "I just don't care anymore." A final realization of the inevitable. It is hard to make reasonable decisions at this stage because of the sense of resignation.
*'''Acceptance:''' "I'm ready for whatever comes." Finally finding the way forward. Decisions are much easier to make because people have found new purpose, having begun to accept the loss.

Dr. Robert Emery agrees that the Kubler-Ross model applies to separating, but he looks at the grief process in a slightly different way. In his book ''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', Dr. Emery describes the grieving process as a cycle of love, anger, and sadness, which gets repeated in varying degrees of intensity as a person works his or her way through the Kubler-Ross stages, from shock and denial through to acceptance of the end of the relationship.

In his excellent book ''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', Dr. Emery says this:

<blockquote>"Over time the intensity of the emotions diminishes and people usually find that the feelings begin to blend. Early on, the grief of divorce is experienced as an intense period of feeling nothing but love, followed by an equally intense period of feeling nothing but anger, followed by an equally intense period of feeling nothing but sadness. ... Over time, however, the intensity of the feelings begins to wane, and the cycles of each emotion begin to blur and run into the other two. This overlapping of emotion results in a realistic, less emotionally painful view of the divorce.</blockquote>
<blockquote>"When the blending does not occur, people get stuck in one emotional cycle or another. Someone who gets stuck on love may deny the reality of the breakup and pine for reconciliation; someone caught up in anger will act out of vindictiveness and a need for revenge; those mired in sadness will assume an exaggerated and unrealistic sense of responsibility for what has occurred."</blockquote>

For most people, the difficult thing is that knowing about the stages of divorce and the grief cycle does precious little to actually solve the problem. You can intellectually know what's going on, but knowing what's going on doesn't mean that the emotions go away; there is no magic light switch that you can flip to turn your emotions off. Knowing about the emotional roller coaster can, however, keep you aware of what is motivating your reactions to your former partner and help you contain your emotions while you are negotiating the fallout from the end of your relationship.

It is important to remember that you and your former partner are probably not going to be at the same stage of the grieving process. One person can come to the conclusion the relationship is over long before separation and reach acceptance, while the other person is still in shock and denial that the relationship has ended. This is another factor that will aggravate feelings between you and your former partner.

Each person's goal at the end of the day is to find acceptance, that moment when you don't recognize your former partner's voice on the telephone right away. As Dr. Emery has observed, the opposite of love isn't hate; it's indifference.

===A warning about allies===

All of us seek allies as we cope with the end of a relationship. It's human nature. Allies may be found in family members, friends, co-workers, or a new boyfriend or girlfriend. While we all appreciate the support that allies can offer, allies can also polarize your position about your former partner, and sometimes encourage you to take an unreasonable and entrenched position when you need to be more flexible.

Allies take sides. That's just what they do. Imagine going to your mom or dad in tears, complaining about your former partner. Your parent's job isn't to say "Well, really Bob is a fine person and a great father, you really should lighten up a little and remember his good qualities." Their job is to comfort you, and that often means saying "Yeah, you're right, I can't believe what a complete ass Bob is being! Whatever did you see in him anyway?"

You shouldn't stop seeking reassurance and comfort from your allies, but you should try to be alert to the influence allies can have, even though they're not intentionally trying to worsen the issues you and your former partner are dealing with.

===A warning about parenting===

Some people best manage a breakup by walking out the door and never looking back, and doing their grieving alone. This just isn't possible where there is property to manage and divide, and it's especially not possible when a couple have children. You can't change your phone number, you can't stop answering the phone, and you can't refuse to see your former partner if you have children. You are still mom or dad, and you'll always be mom or dad and have a relationship with the other parent until or unless your children predecease you.

As a result, it is even more critical for you to properly manage the roller-coaster emotions of separation when you have children. You may be caught up in a whirlwind of anger and remorse at the present, but you have to think of the long-term effect of any rash behaviour. Do you want to be able to attend your child's graduation ceremony? Do you want to go to your child's wedding? How do you want your child to think of you in five years?

It is enormously difficult, but you simply must keep a button on your emotions while you grieve. Dr. Emery offers these suggestions in ''The Truth about Children and Divorce'':

*First, draw clear boundaries around your relationship with your former partner. Let your partner know what you're prepared to talk to him or her about, what information you're prepared to share, and what if anything you're prepared to do with the children together.
*Second, use those boundaries to form a more business-like relationship with your former partner. The two of you may not be friends, but together you are engaged in the "business" of parenting your children. Keep your emotional distance from your former partner.
*Third, respect these new rules. Don't intrude past those boundaries and keep your discussions focused on parenting. It may be hard not to react when your former partner pushes your buttons, but you're best off following this old saying: don't say anything if you don't have anything nice to say.

===A warning about children===

It can be extremely tempting to rely on your children to comfort you as you go through the grieving process. One word: ''don't''. Whatever else you do, don't do this.

Children will be well aware when something's wrong. They will know when you're upset, when you're withdrawn, and when you're crying. Younger children will react with confusion and possibly fear. Older children who are more emotionally sophisticated will want to comfort you. There's nothing wrong with this either, but you do need to control your emotions.

When a child becomes too involved in soothing a parent, there are two main risks: you may develop an overly adult relationship with the child and burden the child with too much information about what's going on, information that is usually age-inappropriate; or, the child may turn into a caretaker, handling your emotions, picking up the housework that's falling behind, and assuming a parenting role towards any younger children.

According to Dr. Emery, "extreme emotional care taking is developmentally inappropriate and can have long-term consequences on children's mental health." Children who grow up too soon are robbed of their right to be children. In the long-term they have trouble forming meaningful relationships, they may be emotionally distant, and they may be compulsively over-responsible.

==Resolving the issues==

There are a variety of ways to resolve the issues that arise when a relationship ends, the most common of which are negotiation, mediation, and litigation. Collaborative law is sort of a cross between negotiation and mediation.

Litigation is a contest between two parties, at the end of which, following trial, there is a winner and a loser. That's a bit of a gloss on things, but litigation really is adversarial in nature, and if the parties can't come to an agreement between themselves, a trial will be held and a judge will impose a resolution on the parties.

With mediation and negotiation, it's the parties themselves who come up with the resolution of their issues. Mediation in particular is cooperative in nature, and requires both parties to commit themselves to a dialogue aimed at finding a solution. There is no winner and no loser, as mediation and negotiation both demand accommodation, and neither party gets exactly what they want; these processes are about compromise.

Unless there is a pressing and manifest urgency, in my view negotiation and mediation are to be preferred over litigation. While it is absolutely true that in some situations court is the only way out, most people can find compromise no matter how wound up their emotional states happen to be.

In ''The Truth about Children and Divorce'', Dr. Emery describes three general categories of divorcing couples: the angry divorce, the distant divorce, and the cooperative divorce. While these categories are not exactly exhaustive and are drawn from an American legal construct, they are useful in discussing the impact of emotional separation on negotiation, mediation, and litigation.

===The cooperative separation===

Couples engaged in a cooperative separation have usually worked out a lot of their emotions and resolved much of their grief. They recognize their emotions for what they are, and avoid acting out of spite or tearfully reminiscing about the lost relationship. These couples attempt to work things out between themselves, with or without help from lawyers and mediators.

Cooperative separations usually result in a separation agreement or an order that they agree the court should make. Often, what little litigation may occur is limited to simply getting the divorce order.

===The distant separation===

Couples in a distant separation are able to keep their conflict from their children, but are still dealing with feelings of hurt, resentment, anger, and pain. While there is plenty of intense anger, this emotion usually fades to a growing dislike or indifference. These couples have done a lot less emotional work on their feelings, and their recollections of the relationship are characterized by bitterness rather than sadness.

These couples are not friends but know better than to become enemies, perhaps because of the children or past experience with the court system. They deal with each other minimally, without a great deal of warmth or demonstrated anger.

===The angry separation===

This, of course, is the type of separation to be wary of. These separations are also known as "high-conflict" separations. Couples in an angry separation have trouble letting go of the marriage, and feel intense pain and anger. Their emotions are usually raw and neither party has done a great deal to manage their feelings.

These couples have the hardest time dealing with each other and the legal issues between them, as they focus on "fault" and "blame," and are often unable to stop themselves from lashing out hurtfully. Resolving the issues is the most difficult for these couples, and they are the most prone to protracted, ugly litigation.

Couples in an angry separation, particularly those with children, generally need to get professional help in dealing with the emotional fallout from the end of the relationship if they are to avoid court and learn to cope with each other and their feelings in the months and years to come.

Angry separations are the sort that lawyers most often wind up dealing with. The epic battles couples engaged in an angry separation are capable of can barely be described. The legal issues arising from the breakup are rarely concluded within two years, and, when there are children, can run for six or more years! A trial rarely resolves issues between these couples, as they will often keep fighting long afterward about real or imagined changes in their respective circumstances following judgment. These couples are also living proof that money doesn't buy happiness — it buys you litigation, and lots of it.

===Anger===

By now, you will have guessed that the irrational thinking anger triggers can be the most important roadblock to resolving family law issues in a cooperative manner. Anger is an incredibly powerful emotion characterized by Dr. Emery as "the toxic residue of unresolved grief."

Anger also does a lot of very odd things that not many people are aware of. Ignorance of these different functions of anger can slow the grieving process, entrench unreasonable positions, and protract the resolution of the issues flowing from the end of a relationship.

====Anger avoids other emotions====

Anger can be used to divert blame from yourself and avoid feelings of guilt. People experiencing anger as a shield are often avoiding accepting responsibility for, perhaps, an affair or being the one who announced the end of the relationship. It can also stop you from experiencing the other primary emotions in the grieving process, sadness and love.

====Anger prolongs the relationship====

Intense anger can also signal that you are not yet done with the relationship. Conflict can be a way of drawing a former partner closer by getting their attention and maintaining the emotional relationship. Underneath this kind of anger remains love and a continuing attachment to a former partner, as illogical as this sounds.

====Anger hides fear====

The process of separation contains a lot of threats, whether real or imagined. Many of these threats are obvious: the risk of losing an asset, the risk of not being able to have another romantic relationship, the risk of losing one's children. Fear triggers the fight-or-flight response; anger can be a manifestation of the fight response.

====Anger blinds====

Anger can stop you from recognizing positive steps your former partner is taking to resolve issues, and lead you to assume that your partner is acting on false pretenses or on a hidden agenda. This kind of anger breeds suspicion that is often unwarranted.

Anger can also stop you from acknowledging your former partner's good qualities, especially around parenting issues. Avoiding admitting these qualities makes it easier to hold onto an objectively unreasonable position.

====Anger is easy====

For people who are emotionally bottled up, the emotions wrapped up in the grieving process can be very difficult. Both sadness and love can be difficult to acknowledge and deal with, particularly when feeling those emotions is associated with a loss of face. As a result, anger can be the easiest emotion to deal with and less painful to experience.

====The results of anger====

Apart from slowing down the grieving process, anger inevitably delays the resolution of the issues that come from the end of a relationship. An enraged person is not going to be able to negotiate since negotiation involves making concessions; an enraged person is mostly going to want to litigate. People in this state of mind make threats like "I'm going to take you for everything you've got," or "you'll never see the children again." They will also tell their lawyers that "it doesn't matter what it costs or whether I'm likely to lose, it's the principle of the thing!"

Sometimes these threats come true, and the consequences to both parties can be enormous.

*Someone who takes an unreasonable position out of anger will lose, but in carrying out their crusade they risk draining all of the family's assets to fund the litigation.
*Rage can permanently impair a couple's relationship with one another. Where there are no children, this may not be a problem, but where there are children this can be disastrous. You may not give a fig about your former partner, but what memories will your children have of the next five years of their lives?
*People can jump to ridiculous conclusions by expecting the worst from their former partner, leading to conflict after conflict ― and court application after court application. Redness on the buttocks of a toddler becomes evidence of molestation, rather than simple diaper rash.
*Rage can trigger "affidavit wars," in which each person makes inflated claims about the purported evils of the other. Minor events are exaggerated beyond all proportion. The costly "war" is triggered because the other party is put to the burden of addressing each inflated claim. Very rarely is a party able to refrain from making reciprocal claims about the misconduct of the other: "I drink all the time? Actually, I only drink socially but you smoked pot when you were pregnant." What is a judge to make of claims like these?
*Anger can strip you of your ability to see common sense and lead you to adopt positions that are objectively unreasonable and doomed to fail. In the process of failing, however, you can expect to spend a lot of money and further damage the tensions in your relationship with your former partner.

Rage, as Dr. Emery observes, is a symptom of unresolved grief. Whatever the cause, failing to move beyond anger can be poisonous to you, to your former partner, to your children, and to your relationship with your children. Some counselling, whether by yourself or with your former partner, can be critical in moving forward and out of anger.

===Choosing your lawyer===

Your choice of lawyer can play a large part in determining how your separation unfolds. Many lawyers are quite open to mediation and collaborative settlement processes, while a few others see litigation as the only means of resolving a dispute, particularly lawyers who have a reputation as being bulldogs. Other lawyers do not take their duty to respond promptly to correspondence particularly seriously, which will delay things and may result in an unnecessarily large number of interim applications. Still other lawyers see their duty as limited to militantly carrying out their clients' instructions, without supplying a great deal of options or cautions as to the likely effect of those instructions.

The best family law lawyers give their clients a common-sense analysis of their situation, based on probable outcomes and their expert knowledge of the law, and encourage their clients to take positions that are objectively reasonable. These lawyers will usually pursue settlement, both before and after litigation has started, and see litigation as a last resort. They are open to negotiation and mediation and other out-of-court processes, although they may prefer a result-oriented mediation process rather than the lengthier traditional mediation process that also tries to address emotional issues.

While some people, particularly those in angry separations, feel an almost irresistible urge to go out and hire the toughest bulldog around to exact revenge against their former partner, bulldogs rarely see any resolutions other than: a settlement on exactly the unreasonable, extortionate terms their clients want; or, a knock-down drag-'em-out trial. These lawyers cost the most, and you can expect the litigation process to drag out for an ungodly amount of time — with absolutely no guarantee of a better result than what you would have had if you'd taken a different, less antagonistic approach.

Even if you are in an angry separation, step back and take a breath. Remember that even though you may hate your former partner at present, you will have to live with the consequences of hasty litigation and your unreasonable positions well into the future. You might also lose your house to pay your lawyer's fees.

How do you find a lawyer? By reputation. Ask around; talk to friends who have had to deal with family lawyers before; ask for referrals from the other professionals in your life. You can also window shop. You don't have to hire the first lawyer you have a consultation with; go ahead and set up meetings with a bunch of different lawyers. You can find additional information about hiring a lawyer in the chapter about [[Introduction to the Legal System for Family Matters|The Legal System]], in the section [[You & Your Lawyer]].

You should also know that many lawyers who litigate are also accredited family law mediators. If the lawyer you're speaking to is also a family law mediator, you may want to enquire about the possibility of using his or her services to mediate your dispute before you say much more about your case. If you give the lawyer too much information about your situation, he or she may not be able to assume the impartial role demanded of a mediator.

===Required reading===

*''[http://www.worldcat.org/title/renegotiating-family-relationships-divorce-child-custody-and-mediation/oclc/30474579&referer=brief_results Renegotiating Family Relationships]'', by R.E. Emery
*''[http://www.worldcat.org/title/truth-about-children-and-divorce-dealing-with-the-emotions-so-you-and-your-children-can-thrive/oclc/53485317&referer=brief_results The Truth about Children and Divorce]'', by R.E. Emery (Read this book!)
*''[http://www.worldcat.org/title/rebuilding-when-your-relationship-ends/oclc/5707044&referer=brief_results Rebuilding: When Your Relationship Ends]'', by B. Fisher and R.E. Alberti
*''[http://www.worldcat.org/title/healing-hearts-helping-children-and-adults-recover-from-divorce/oclc/30739454&referer=brief_results Healing Hearts: Helping Children and Adults Recover from Divorce]'', by E. Hickey and E. Dalton
*''[http://www.worldcat.org/title/helping-your-kids-cope-with-divorce-the-sandcastles-way/oclc/37300625&referer=brief_results Helping your Kids Cope with Divorce the Sandcastles Way]'', by M.G. Neuman
*''[http://www.worldcat.org/title/joint-custody-with-a-jerk-raising-a-child-with-an-uncooperative-ex-a-hands-on-practical-guide-to-communicating-with-a-difficult-ex-spouse/oclc/682894488&referer=brief_results Joint Custody with a Jerk: Raising your Child with an Uncooperative Ex]'', by J.A. Ross

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===

* [http://clicklaw.bc.ca/resource/1640 Legal Services Society’s Family Law Website: Separation]
* [http://www.justice.gc.ca/eng/pi/fcy-fea/index.html Department of Justice Website: Supporting families experiencing separation and divorce]
* [http://www.counsellingbc.com BC Counsellors by Practice Area]
* [http://bc-counsellors.org/ BC Association of Clinical Counsellors]
* [http://www.bcamft.bc.ca/ohana/website/index.cfm?p=95575656796 BC Association for Marriage and Family Therapy]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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[[Category:JP Boyd on Family Law]]

Divorce and the Law on Getting Divorced

2017-05-09T21:24:35Z

Thomas Wallwork:

{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
}}
{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Divorce]
}}Divorce is the legal termination of a marriage by an order of the court. Without this order, a couple will remain married to each other no matter how long they've been separated. Although a divorce order represents the formal conclusion of a marriage, where children are involved or one spouse is financially dependent on the other, issues about the payment of support and the care of the children will continue.

This section provides an overview of the grounds for divorce, and discusses the nature of a divorce order and the effect of foreign divorce orders in Canada. It also reviews the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter [[Family Relationships]] within the section [[Marriage & Married Spouses]].

==Preconditions for applying for a divorce in BC==

If you want to get a divorce in BC, you must first satisfy three conditions:

#You must be legally married. If your marriage was legally valid in the place you got married, it counts as a legal marriage in BC. To prove you were legally married you will need to provide a marriage certificate issued in the country where you were married. If you can't get a marriage certificate, you'll need to find witnesses who saw you get married. These witnesses will need to either testify or swear an affidavit saying that they saw you get married.
#Generally, you or your spouse must live in BC and have lived here for at least a year. The one exception to this rule is if you were married in BC, and you lived somewhere in the last year that wouldn't let you get divorced. If you take advantage of this exception, you can only get a divorce in BC. Claims about children, property division, and child and spousal support must be dealt with where you and your spouse live.
#You must prove that you have been separated from your spouse for a year, or that your spouse treated you cruelly, or that your spouse had sex with someone else.

==The grounds for divorce==

Under the federal ''[[Divorce Act]]'' there is really only one reason why you can apply for a divorce order, ''marriage breakdown''. Under s. 8 of the act, there are three reasons why marriage breakdown may have occurred:

#the intentional separation of the spouses for at least one year;
#the adultery of a spouse; and,
#one spouse's treatment of the other with such mental or physical cruelty that it is impossible to continue the marriage.

In Canada, all divorces proceed on a no-fault basis, regardless of the ground of divorce relied upon. ''No-fault'', in this context, means that the reasons for marriage breakdown have nothing at all to do with the court's consideration of issues like custody and support. No matter how upset someone is by a spouse's misbehaviour, it will have no impact on how the legal issues are addressed.

Most divorces are based on separation. The only advantage of seeking a divorce based on cruelty or adultery is that the divorce is available relatively quickly; you needn't wait for a year's worth of separation to pass before you are eligible for the order. However, while you are eligible to begin divorce proceedings as soon as you learn of the adultery or experience the cruelty, you must be able to prove that the other spouse committed the wrongful behaviour you allege.

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough so that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

===Separation===

To obtain a divorce based on separation for a period of at least one year, you and your spouse must have lived separate and apart for that year. The period of living separate and apart can pass while living under the same roof, however the marital qualities of your relationship with your spouse must have ended.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one-year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one-year period will not start running until after the couple separates again.

===Adultery===

A spouse who is claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Proof of adultery normally consists of an affidavit from either your spouse or the person with whom your spouse committed the adulterous act, admitting to the adultery. You cannot seek a divorce based on your own adulterous conduct.

Many people will have seen the movie "Intolerable Cruelty," which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children, and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

===Cruelty===

A spouse who claims that the other spouse is guilty of cruelty must prove his or her claim in court. Cruelty can consist of physical abuse or mental abuse, and may also give rise to a claim for an award of damages as a result of the cruelty. Before the court will pronounce the divorce order, it must be satisfied that the party making the claim has not ''condoned'' the cruelty.

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

===Conspiracy, connivance and condonation===

If a court finds that there has been conspiracy, connivance, or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

If there has been ''condonation'', the marital offence used to found the divorce claim, adultery or cruelty, has been forgiven. If the act has been forgiven, the court cannot pronounce a divorce order since the marital relationship hasn't broken down.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

===Child support===

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid according to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce. Remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support, or it may make an order that merely refers to the payor's obligation to pay child support without fixing an amount payable.

==The divorce order==

In order to get a divorce order, the court must be satisfied that:

*the marriage legally exists,
*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began, or one of the parties lived somewhere in the last year that would not permit the divorce because the marriage was not recognized there,
*the ground on which marriage breakdown in claimed has been proven, and,
*if there are children, an adequate amount of child support is being paid.

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

===Corollary relief===

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support, and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

===The appeal period===

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This is to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, you should advise the court of the need for haste, and a waiver of appeal will have to be filed.

===Certificate of divorce===

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years, or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing. For an overview of this process, go to the How Do I? section of this resource and read [[How Do I Get my Certificate of Divorce%3F]] It's located under Marriage, Separation & Divorce.

==Foreign divorce orders==

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Of course, there is a small catch. Either spouse must have been "ordinarily resident" in the country in which the divorce was obtained for at least one year before the divorce proceedings started. In other words, if you've lived in Sri Lanka for less than a year before you started your application for divorce, your divorce may not be recognized in Canada even though it's perfectly good in Sri Lanka. As long as you had lived in Sri Lanka for more than one year before you started your application, your divorce there will be valid in Canada.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. You can find more information about the property entitlements of married spouses in the chapter [[Property & Debt in Family Law Matters|Property & Debt]], in the section [[Dividing Property & Debt in Family Law Matters|Dividing Property & Debt]].

==The do-it-yourself divorce==

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without ever having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

You can get your divorce yourself using the desk order divorce process, without having to retain a lawyer. While some of the court forms can be a bit daunting, there are plenty of resources, such as this website, that can help you unravel the mysteries and complete the process on your own.

Generally speaking, a desk order divorce is appropriate in two situations:

#when the only issue between you and your spouse is getting a divorce; or,
#when you have other issues, but those have been settled, either through a separation agreement or an agreement about the terms of a consent order.

In the first case, a desk order application will be for a divorce alone. In the second case, a desk order application will be an application for a divorce plus ''corollary relief'', that is, orders apart from the divorce order itself, such as orders dealing with care of children, support, or the division of assets.

Most court proceedings go like this: the claimant files a Notice of Family Claim and serves it on the respondent; the respondent then files a Response to Family Claim and sometimes a Counterclaim. If the respondent fails to file a Response to Family Claim, the claimant's court proceeding is said to be ''uncontested''. This means that the respondent is assumed to either agree with the relief sought by the claimant or to have chosen not to defend the claim. In such circumstances, the claimant is free to seek a ''default judgment'' against the respondent.

A desk order divorce application is essentially an application for a default judgment, whether the claimant's court proceeding is for a divorce order alone or for a divorce order with corollary relief, and is governed by Rule 10-10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].

For a brief summary of this process, go to the ''How Do I?'' section of this resource and read [[How Do I Get Divorced?]] It's located under ''Marriage, Separation & Divorce''.

===Choosing between the sole application process and the joint application process===

There are two types of desk order divorce actions:

#the sole application process, in which only one spouse is responsible for ushering the process through; and,
#the joint application process, in which the spouses work together to get the job done.

There are a few important differences between sole applications and joint applications.

*Joint applications are quicker and cheaper, but the spouses will have to cooperate with each other. In a sole application, no cooperation is required.
*A sole application takes a little longer since the person bringing the action has to serve the other spouse with the Notice of Family Claim and wait 40 days before proceeding. In a joint application, service is not necessary and you can apply for the divorce order right away.
*In a sole application, the spouses are called the claimant and respondent. In a joint application, the spouses are called claimant 1 and claimant 2.
*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

===The sole divorce application===

These instructions are for the sole divorce application process:

'''Step One'''

<blockquote>Prepare your Notice of Family Claim. Make three copies of the original.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring the original Notice of Family Claim and the three copies you have made of it. Also bring the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the courthouse. File all of these materials and pay the $210 court fee. The court will stamp the action number and the court seal on all copies of your Notice of Family Claim, keep the original, and give you back the three duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>Serve your ex with your Notice of Family Claim. You cannot serve your ex yourself; you must arrange for someone else to do it. Give the person who will be your process server two copies of your Notice of Family Claim, along with a photograph of your ex. The process server will serve one copy of the materials on your ex, and will use the photograph and the remaining copy in his or her Affidavit of Personal Service to prove that your ex was served.</blockquote>

'''Step Four'''

<blockquote>Once your ex is served, wait 40 days. Technically, you only need to wait 31 days from the date of service, but it doesn't hurt to add a few days just to be sure. If your ex files a Response to Family Claim or Counterclaim in this period, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.</blockquote>

'''Step Five'''

<blockquote>Prepare your Requisition asking the court for the divorce order, your Divorce Affidavit in support of the application, a draft of the order you want the court to make, and the Registrar's Certificate. If you have children, you will also have to prepare a Child Support Affidavit, which sets out the details of your income and your spouse's income and the terms on which child support will (or won't) be paid.</blockquote>

'''Step Six'''

<blockquote>Go to the court registry you filed your materials at, and file your Requisition, your Affidavit, your Child Support Affidavit if required, your Registrar's Certificate, your draft order, and your process server's Affidavit of Personal Service. Pay the $80 court fee.</blockquote>

'''Step Seven'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Eight'''

<blockquote>Start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to get the entered order, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Nine'''

<blockquote>Wait 32 days from the date the divorce order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Ten'''

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

===The joint divorce application===

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about four to eight weeks in total.

These are the main differences between the joint application process and the sole application process:

*The parties are known as claimant 1 and claimant 2.
*A special form, Notice of Family Claim is required.
*Both parties sign the Notice of Family Claim.
*The Notice of Family Claim does not need to be served on anyone, and there is no waiting period that must pass before the application for the divorce order can be made.
*Both parties must swear an affidavit in support of the application for the divorce order.
*All of the documents can be filed at once, although at least one of the affidavits in support of the application must be sworn after everything else is filed, even if only by a few minutes.

If either party withdraws from the joint application process before the divorce order is made, there's a problem. Read the discussion in "What happens if a response or counterclaim are filed?" at the end of this section.

These instructions are for the joint divorce application process:

'''Step One'''

<blockquote>Prepare a joint Notice of Family Claim. Prepare and execute one Divorce Affidavit in support of the application; prepare your blank Registrar's Certificate; prepare and complete your Requisition to apply for the divorce order; and, prepare your draft order. Make two copies of everything. Prepare but do not execute the other Divorce Affidavit.</blockquote>

'''Step Two'''

<blockquote>Go to your local registry of the British Columbia Supreme Court. Bring all the documents listed in Step One and the original of your government-issued Marriage Certificate. Fill out the Registration of Divorce Proceeding form, which will be available at the family and divorce counter. File all of these materials (except the unexecuted affidavit) and pay the $290 court fee. The court will stamp the action number and the court seal on all copies of your joint Notice of Family Claim, keep the original, and give you back the two duplicates. Your Marriage Certificate will go into the court file.</blockquote>

'''Step Three'''

<blockquote>While you're at the registry counter, execute the remaining affidavit in support of the application for divorce, and pay the $40 court fee.</blockquote>

'''Step Four'''

<blockquote>Once you've filed your application, wait four weeks.</blockquote>

'''Step Five'''

<blockquote>Once four weeks have passed, start calling the court registry to see whether your order is ready for you to pick-up. This should take four to eight weeks, depending on how busy the court is. When your order is ready, go to the courthouse to pick the entered order up, and then mail a copy to your ex.</blockquote>

Once you've got your entered divorce order and 31 days have passed, you are officially divorced, and you have a court order bearing the seal of the court to prove it. Some people may find that a Certificate of Divorce is necessary in order to remarry. If you wish to get this Certificate, this is what you must do:

'''Step Six'''

<blockquote>Wait 32 days from the date the order was made. The date will be shown on the first page of the order.</blockquote>

'''Step Seven'''

<blockquote>Prepare your Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

With the exception of the special form, Notice of Family Claim, all of the forms used in the joint process are the same as the sole process, except that the parties aren't called claimant and respondent, they're called claimant 1 and claimant 2.

===Free services===

[http://accessprobono.ca/ Access Pro Bono] offers free meetings with lawyers who can review your forms with you before you file them in court. Although the lawyers available through this program are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The [http://www.cle.bc.ca/ British Columbia Continuing Legal Education Society] has published an excellent guide to the desk order divorce process called the ''Desk Order Divorce Manual'', which has samples of the different clauses you may need to complete your court forms. This book is available at your local courthouse library.

The [http://www.familylaw.lss.bc.ca/guides/divorce/ Legal Services Society of BC] also has an excellent online step-by-step guide to the divorce process.

===Services that are not free===

====Lawyers====

You're usually best off if you hire a lawyer to handle your divorce for you, as your lawyer will be familiar with the nuances and complications of the desk order divorce process and can give you expert advice about the short- and long-term advantages and disadvantages of the arrangement you've worked out with your spouse. This can be critical where the terms or circumstances of your divorce are unusual or complicated.

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

====Commercial services====

A local company called [http://www.self-counsel.com/ Self-Counsel Press] publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.

There are a number of commercial services available online that will prepare all of the necessary documents for you, including:

*[http://www.divorceoptions.ca www.divorceoptions.ca]
*[http://www.untietheknot.ca www.untietheknot.ca]
*[http://www.britishcolumbiadivorce.ca www.britishcolumbiadivorce.ca]

If I understand things correctly, untietheknot.ca will also file your documents in court for you. A Google search for the phrase "<tt>desk order divorce BC</tt>" should provide you with a few other options, but whatever you do, make sure you're using a service that offers the forms required for a divorce in British Columbia!

===What happens if a response or counterclaim are filed?===

The do-it-yourself divorce process is based on the idea that either everyone agrees to get divorced or no one is going to object to the divorce. The process will go off the rails if:

*'''Sole application:''' the respondent files a Response to Family Claim or a Counterclaim; or,
*'''Joint application:''' a claimant withdraws from the process and files a Response to Family Claim or a Counterclaim.

In either situation, the divorce action will cease to qualify as an ''undefended family law case'' within the meaning of Rule 1-1(1) and cannot proceed as a desk order. The divorce action will continue like any other contested family law case and proceed to trial if a settlement cannot be reached.

==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/80mh Child Support Guidelines]

===Resources===

*[http://www.divorceoptions.ca DivorceOptions.ca]
*[http://www.untietheknot.ca Untie The Knot Divorce Service]
*[http://www.britishcolumbiadivorce.ca Canadian Divorce Online]

===Links===

* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/divorce.php Legal Services Society’s Family Law Website: Divorce]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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Separating and Getting Divorced

2017-05-09T21:01:10Z

Thomas Wallwork:

{{JPBOFL Start Chapter
|Related = [[Separation]]{{·}}[[Separating Emotionally]]{{·}}[[Divorce]]
}}
{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
|ChapterEditors = [[Vanessa Van Sickle]] and [[Thomas Wallwork]]
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{{LSSbadge
| resourcetype = more information on
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}A couple ''separates'' when one or both spouses decide that their relationship is over and then take steps to act on that decision. When an unmarried couple separates, their relationship is over. The relationship of married spouses, on the other hand, isn't legally over until they are divorced, one of them dies, or their marriage is annulled.

This chapter begins by taking a quick look at separation and divorce, and talks about a few urban myths about separation and divorce. The following sections look in more detail at the [[Separation|legal and practical aspects of separation]] and the [[Separating Emotionally|emotional dimensions of separation]]. The do-it-yourself divorce process is reviewed in a fair amount of detail in the [[Divorce]] section at the end of this chapter.

Everything in this chapter applies just as much to same-sex couples as it does to opposite-sex couples.

==Introduction==

The rules about separation and divorce are fairly straightforward, despite some common misunderstandings.

Separation simply means making the decision that a relationship has broken down. You don't have to move out to separate. You just have to tell your spouse that things have come to an end and that you'd like to end the relationship, and then act on that decision.

Divorce is the legal termination of a married relationship. A divorce requires an order of the court ending the marriage. A couple who have been separated for a dozen years are still married, and they'll remain married until they get a court order for their divorce. Unmarried spouses do not need to get divorced; their relationships are over when they separate.

===Separation===

Separation is simple: the parties must simply start living "separate and apart" from one another, whether under the same roof or in separate homes. Contrary to popular opinion, you do not need to see a lawyer or file some sort of court document to obtain a separation. You just need to call it quits, tell the other spouse that it's over, and take whatever steps are necessary to put an end to the partnership qualities of your relationship.

For married couples, separation signals the breakdown of their relationship but does not release them from the bonds of their marriage.

For unmarried couples, including unmarried couples who qualify as spouses under the ''[[Family Law Act]]'', separation is all that's required to end the relationship.

The date a couple separates is very, '''very''' important, because the date of separation is a very important element in determining child support, spousal support, and the division of property and debt.

===Annulment===

If one or more of the requirements of a valid marriage are lacking, the marriage may be annulled or cancelled. To obtain an annulment, one of the parties must make an application for a declaration that the marriage is void. A marriage may be annulled if:

*a female spouse was under the age of 12 or a male spouse was under the age of 14 (the common law ages of puberty),
*one or both of the spouses did not consent to the marriage,
*a male spouse is impotent or a female spouse is sterile going into the marriage,
*the marriage cannot be consummated,
*the marriage was a sham, or
*one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

You can find more information about void marriages, voidable marriages, and annulment in the chapter [[Family Relationships]], in the
section [[Marriage & Married Spouses]].

===Divorce===

Divorce is the legal end of a valid marriage. To obtain a divorce, one spouse must sue the other in the [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court], and in general at least one of the spouses must have been "ordinarily resident" in British Columbia for the preceding year. To qualify for a divorce order, a spouse must prove that the marital relationship has broken down for one of three reasons:

#separation for a period of not less than one year,
#adultery, or
#mental or physical cruelty.

It is possible to oppose an application for a divorce order, although this rarely happens. In general, once one of the grounds for divorce has been established, the courts will allow the divorce application, despite the objections of the other spouse.

For various reasons, getting divorced can sometimes be a low priority in some people's lives. Frankly, most people have better things to do with their time than filing the paperwork necessary to get divorced, especially if that's the only legal issue to deal with. With the passage of time, spouses can lose track of each other, and it sometimes happens when one spouse decides to move on the divorce issue the other spouse can't be found, and the divorce order gets made without the other spouse being told about it! If you're not sure if you're divorced, see [[How Do I Find Out if I'm Divorced?]] It's located in the section ''Marriage, Separation & Divorce'' in the ''How Do I?'' part of this resource.

==A few surprisingly common misunderstandings==

A lot of people seem to labour under certain misconceptions about what marriage, separation and divorce actually involve. Part of these misunderstandings, I'm sure, come from television and movies; others are urban myths that get spread over a few pints at the pub.

===Separation and the "legal separation"===

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a formal marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announces that the relationship is over and there's no chance of getting back together, boom, you're separated.

To be crystal clear:

*you do not need to "file for separation" to be separated (in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits),
*there are no court documents or other papers you have to sign to be separated, and
*you don't need to appear before a judge, lawyer, shaman or anyone else to be separated.

To be separated, you just need to decide that your relationship is over and say so.

====Separation and remarriage====

The fact that a married couple are separated isn't enough to let either of the spouses remarry, however. You must be formally divorced by an order of the court in order to remarry. If you do remarry without being divorced from the first marriage, the new marriage will be invalid.

====Separation and new spousal relationships====

On the other hand, the fact that a married couple has separated won't prevent you from having new relationships, including a new relationship that would qualify as an unmarried spousal relationship. Technically, this is adultery, but no one is likely to care. The [[Separation]] section of this chapter has a lot of information about new relationships after separation.

===Divorce and the "automatic divorce"===

As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can have been separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you'll still be married. It'd be nice (and cheaper) if the passage of time gave rise to an automatic divorce, but it doesn't work that way.

====Divorce and separation agreements====

It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the issues arising when a couple separates, like the division of assets or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.

====Divorce after death====

It is not true that you remain married if your spouse dies. Once that happens, your marriage is at an end. You do not need to obtain a divorce.

====Divorce for want of sex====

It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be declared void, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a couple's separation, but at law whether you and your spouse are having sex or not is irrelevant.

The one exception to this last rule has to do with the ''consummation'' of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have an "invincible repugnance" to the act of sexual intercourse or some physical condition that makes sex impossible.



==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''

===Links===
* [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Legal Services Society’s Family Law Website: Divorce and separation basics]
* [http://clicklaw.bc.ca/resource/2291 Legal Services Society's Family Law Website: Proving you're separated if you and your spouse still live together]

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Divide Our CPP Pensions after We're Divorced?

2017-05-09T20:57:44Z

Thomas Wallwork:

{{JP Boyd on Family Law How Do I TOC|expanded=miscellaneous}}
Properly speaking, Canada Pension Plans are ''equalized'', not divided, and what's being equalized are the spouses' ''pensionable credits''.

CPP credits accumulate from the mandatory CPP payroll deductions taken from almost everyone's employment income. These credits build up over the years and are used by the CPP people in Ottawa to calculate the amount of the monthly CPP benefit payments each person will begin to receive when they reach the age of 65, or earlier, if they elect to take their pensions earlier, or later, if they elect to take them later.

Divorced married spouses and separated unmarried spouses may apply to equalize their CPP credits. British Columbia is one of the few provinces that allow couples to ''not'' equalize their CPP credits. However, if you decide not to equalize your CPP credits you must have either a court order or a separation agreement that expressly states that the credits won't be equalized. If there's no documentation of an agreement not to equalize CPP credits, either former spouse can apply for an equalization without the consent of the other spouse. It's automatic.

The amount of the CPP credits that will be equalized is the amount each spouse accumulated during their relationship after CPP has performed certain adjustments to account for things like periods out of the workforce on parental leave. The total amount of these credits is divided between each spouse. For people who have had a lower income than their former spouse, the equalization of CPP credits will increase the amount of the CPP pension they will eventually receive.

To apply for the equalization of your CPP credits, apply to Human Resources Development Canada. You can reach HRDC at:

<blockquote>1-800-277-9914 
[http://www.hrsdc.gc.ca/ www.hrsdc.gc.ca]</blockquote>

For further information about the division of property when spouses break up, you may wish to review the chapter [[Property & Debt in Family Law Matters]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Become a Lawyer?

2017-05-09T20:57:11Z

Thomas Wallwork:

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

In a nutshell, to become a lawyer you must graduate law school, complete a kind of year-long apprenticeship called articles, and be called to the bar to practice as a lawyer.

==Getting into law school==

There are two things you need to get into law school: some post-secondary schooling and the LSAT.

===Previous schooling===

Academically, you normally need an undergraduate university degree in something. It doesn't matter what the focus of your undergrad was, or whether it was a B.Comm. a B.Sc. or a B.A., you just have to have a degree. Some universities will also accept into law school students with a minimum of two years of an undergraduate program; however, this will depend on the university you're applying to, how many applicants they have and, of course, your marks.

===The LSAT===

LSAT stands for Law School Admission Test. All North American law schools require that you write this test before you apply for admission. The LSAT is run by a private testing company, not by any particular school, and tests are offered on a quarterly basis in cities across the continent. If I recall correctly, the same exact test is written by thousands of people across Canada and the US on the same weekend. Your score is not a percentage, it's a weighted score. In other words, the result you get is a statement of how you ranked compared to the thousands of other people who wrote the test. If you ranked in the 50th percentile, for example, you did as well as half the people that wrote the test. If you ranked in the 80th percentile, you did better than 80% of the people that wrote the test.

At this point you're probably wondering what the LSAT is. Put simply, the LSAT tests your vocabulary, language skills, and inductive and deductive reasoning. There are fill-in-the-blank questions, questions testing your understanding of a brief essay, and logical reasoning tests. There's also an unscored essay section.

At least one company that I'm aware of sells study guides and actual past LSAT exams that you can test yourself on; you can find these sorts of study guides at places like Chapters and your local university book store.

===The LSAT, your grades and law school admissions===

Do your undergraduate marks count? Yes. Some universities look at a combination of your marks and your life experience; others look at just your marks and don't give a damn about whatever else you've been up to in your life. The sort of marks you'll need depends very much on the university you're applying to. Some have a lot of demand and, as a result, their mark expectations are higher; others have less demand to get into law school and have lesser grade expectations. In general, you should have an undergraduate average of no less than, say, 75% before you even think of applying to law school.

Of course, your LSAT ranking is important too. Some universities look at your undergraduate grades and your LSAT score independently, and factor in your life experience. Some, like UBC, apply the numbers strictly and look only at a mathematical combination of the two.

==Law school==

Law school in Canada is three years long. At the end of it, if you've graduated, you get an LL.B., a "Bachelor of Laws," or a J.D., a "Juris Doctor" or doctor of laws. First year is generally the toughest, since that's when you realize that law school is entirely unlike any other schooling you've ever had and the curriculum is standardized, with little room for personal choice.

Law schools are generally fairly uptight about how they process their students. In your undergrad you probably asked for or knew someone who asked for academic exemptions and leaves of absence and things like that. In law school you are expected to be career-focused and have your mental and personal house in order before you start, and, as a result, this sort of academic leeway is rarely and parsimoniously dispensed.

Is law school fun? No. Is it as hard as you've heard? No, not at all. Once you've figured out how law school works, it'll be smooth sailing for you, as long as you know how to apply yourself and have halfway decent work habits. Remember, the study of a thing is a lot different than the practice of a thing.

One last point about law school. Give your first year a good go. Try your best but don't be devastated by the difference between your undergrad marks and your law school marks. Do your best to apply what you learned in first year to your studies in second year. Your second year marks are critical, for the reasons that follow. In general, you can relax a bit in your third year.

==Articling==

Articling is the second-last hurdle you have to pass before you become a lawyer. Articles are a kind of year-long apprenticeship, just the way masons, fabric dyers and carpenters apprenticed to master crafters in the middle ages. The point of articles is to give you a hands-on introduction to the practice of law under the tutelage of a senior lawyer, your ''principal''. As an articled student, you are insured by your principal and are permitted to practise law in a certain limited capacity. You are also subject to certain restrictions and requirements of the provincial law society and its rules of conduct and practice.

The law school doesn't hand out articles, however. You have to find them yourself. Articling is a job; an articled student is an employee of his or her principal, and you've got to apply for the position.

The vast majority of law students apply for articles at the end of their second year of law school, after the marks have been released. The articles will start almost immediately after third year ends, so people usually spend the summer after second year scrounging for employment. As a result, your second year marks are critical to your ability to obtain articles. For the same reason, your third year marks are a lot less important, since you have, hopefully, already found articles.

No matter what, you must have articled before you can become a lawyer. As a result, it is critical that you find an articling position if you want to practise law.

==PLTC: The bar admission course==

All provincial law societies require law school graduates to complete both their articles and a bar admission course before allowing you to practise law. In British Columbia, the bar admission course is a three-month course called PLTC, the ''Professional Legal Training Course'', and it's completed during the year in which you article. Sometimes your principal will pay for the cost of the course; some articles don't provide for this and you'll have to pay the course tuition yourself.

PLTC is an academic introduction to the basics of actually practising law in the real world, from client interview techniques to professional ethics to common trust account errors. PLTC is not fun; it is boring, tedious and unpleasant. Nevertheless it is a critical course that you must complete with near-perfection if you want to work as a lawyer. When I did PLTC, you had to have a minimum combined exam and exercise score of 11 out of 12 points, or 91.66%, to pass.

==Admission to the bar==

When you've completed PLTC and your articles are almost complete, your principal will have to furnish the law society with a sworn declaration stating that you are ready and competent to practise as a lawyer. You must ensure the law society gets your principal's declaration or you will not be ''called to the bar'', which is a term for the formal ceremony admitting you as a lawyer. PLTC will forward your marks to the law society for you.

==Summary==

Here's what you need to do to become a lawyer in the order you need to do it:

#complete all or most of one undergraduate university degree,
#write the LSAT,
#send your undergraduate transcripts plus your LSAT test scores to the law schools you'd like to go to,
#complete first year law school without having a breakdown or dropping out,
#once you've finished second year, look for and obtain your articles,
#complete third year without doing too much damage to your liver,
#start your articles and, at some point during that year, complete PLTC,
#apply for admission to the bar with your articling report (PLTC will forward your grades to the law society on its own), and
#be called and sworn in to the bar; the law society will provide you with a schedule of call ceremonies.

Good luck! Give me a call if you'd like.

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Prepare for My First Meeting with a Lawyer?

2017-05-09T20:54:43Z

Thomas Wallwork:

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==Information==

The lawyer will need to know certain basic facts about you and your relationship, particularly if there is a chance the lawyer will be starting a court proceeding on your behalf. So make sure you either have this information at the tips of your fingers or have it written down.

===Basic information===
The lawyer will need to know this basic information:
*your address, occupation, annual income and date of birth,
*your spouse's full name, address, occupation, annual income and date of birth,
*the date each of you began living in British Columbia,
*the date the two of you started to live together,
*if you're married, the date of your marriage and the name of the city or town where you got married,
*the date of your separation, if you're separated,
*the full names and birthdates of any children,
*the care arrangements that are presently in place for the children,
*your surname at birth and your surname before you got married, if you are married,
*your spouse's surname at birth and his or her surname before you got married, if you are married,
*whether you were unmarried, divorced or widowed when you married, if you are married, and
*whether your spouse was unmarried, divorced or widowed when you married, if you are married.

===Financial information===
The lawyer will need to know this financial information:
*the approximate balance of all financial accounts, including savings, RRSP and investment accounts, and the names of the financial institutions holding the accounts,
*approximate credit card balances, and the names of the credit card companies,
*the balances of any loans and lines of credit,
*the full details about any personal and family debts,
*basic information about any stock or bond portfolios,
*whether either of you has a pension and, if so, the name of the pension plan,
*the addresses of any real estate either of you might own and information about how those properties are owned,
*the approximate market value of any real estate and the amount of any mortgages, and
*the full details about any assets or property that either of you own that is located outside British Columbia.

===Concerns and risks===
The lawyer will also need to know:
*any health concerns about you, your spouse and the children,
*any pending financial risks, like bankruptcy or a loss of employment,
*any pending personal risks, such as risk of abuse or the abduction of the children, and
*the basic reasons why your relationship came to an end.

Don't worry if you don't have all this information available right away. There is almost always time to collect this information afterwards, and the lawyer you meet will most likely have a list of other information that you'll have to gather in any event.

==Documents==

You really only need to worry about documents if you're already in the middle of a court proceeding or negotiations between you and your ex have started.

If litigation is under way, the lawyer will want to see all the legal documents (also called "pleadings") that have been produced thus far. If you can't truck the whole file down to the lawyer's office, at least make sure you bring:

''Supreme Court''

#the Notice of Family Claim,
#the Response to Family Claim,
#the Counterclaim, if any,
#any Financial Statements that may have been prepared,
#a copy of all orders made so far, and
#if you're seeing the lawyer about an interim application, a copy of the Notice of Application and the supporting affidavits.

''Provincial Court''

#the Application to Obtain an Order or the Application to Change an Order,
#the Reply,
#any Financial Statements that may have been prepared,
#a copy of all orders made so far, and
#if you're seeing the lawyer about an interim application, a copy of the Notice of Motion.

If you're in the midst of negotiations, you will want to bring:

#a copy of any offers made so far, and
#any Financial Statements that may have been prepared.

If you're planning on starting a divorce proceeding, you'll definitely need to bring:

#your original certificate of marriage (the ugly brown government document, not the flowery document you might have received from whomever performed the marriage), and
#a photograph of your spouse.

==Payment==

Before you even darken the lawyer's door, make sure you know whether or not the lawyer is going to be charging for your first appointment.

Some lawyers offer an initial consultation for free; if so, they will usually advertise that first meetings are free. Other lawyers will offer an initial consultation for a reduced fee.

Most lawyers charge for initial meetings at their usual hourly rate. Do not assume that there will be no charge for your initial appointment. If you must make an assumption, assume that the lawyer will be charging you at the lawyer's normal hourly rate.

If the lawyer is going to be charging for your first visit, he or she will usually expect payment once the meeting is done. All lawyers will take cash and cheques, and many will also take credit cards. Make sure you are able to pay for your first meeting when you book it.

==For more information==

You can find more information about choosing a lawyer in the chapter [[Introduction to the Legal System for Family Matters]] within the section [[Lawyers & the Law Society]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Change My Address for Service?

2017-05-09T20:53:22Z

Thomas Wallwork:

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

An ''address for service'' is the address at which a party to a court proceeding agrees to receive correspondence in connection with the proceeding.

This address is very important, because the other parties are able to officially deliver or serve most documents on you just by popping them in the mail to that address. If you move and don't change your address for service, you risk not finding out about important events in your case.

In the Supreme Court, addresses for service are established by the claimant in his or her Notice of Family Claim and by the respondent in his or her Response to Family Claim. To change this address later, you must fill out a Notice of Address for Service in Form F10, file it in court, and send copies to the other parties at their addresses for service.

In cases before the Provincial Court, almost every court form allows you to specify your address for service, and the most recent address for service will be considered your proper address for service. If you need to change your address for service but don't have a new court form to file, you can change your address for service by filling out a Notice of Change of Address in Form 11, filing it in court and serving copies on the other parties. You don't have to personally serve the other parties; you can mail the form to their addresses for service.

Addresses for service in both the Provincial Court and the Supreme Court can include a fax number for service and an email address for service, although these extra addresses aren't required by the rules. Remember to send out a notice if these addresses change or if you need to cancel a fax number for service or an email address for service.

You can find more information about serving documents in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Tell Everyone That I'm Representing Myself?

2017-05-09T20:52:52Z

Thomas Wallwork:

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It often happens that someone who was represented by a lawyer winds up representing him- or herself. When this happens, you must notify the other parties and the court of the change.

In cases before the Provincial Court, all you have to do is fill out a Notice of Change of Address in Form 11, file it in court and serve copies on the other parties. You don't have to personally serve the other parties; you can mail the form to their addresses for service. It will be obvious from the change in your address that your lawyer no longer represents you.

In cases before the Supreme Court, you have to fill out a Notice of Intention to Act in Person in Form F88, file it in court, and serve copies on the other parties by ordinary service, either by mail to their addresses for service, or by fax to their fax number for service, or by email to their email address for service, if they have one.

You can find more information about serving documents in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Fix an Error in an Order?

2017-05-09T20:52:25Z

Thomas Wallwork:

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If you've found a mistake in an order that has been entered in court, whether an order of the Provincial Court or of the Supreme Court, you must apply to court to correct the order. Applications like these are limited to clerical errors or omissions; applying to correct an order is not a short cut to an appeal of the order!

Applications to correct orders are usually limited to things such as misspellings, incorrect dates or bits of the oral order that were left out of the written order.

==Provincial Court==

===Forms involved===

{| class="wikitable sortable" border="1"
|+
|-
! scope="col" class="sortable"| Number
! scope="col" class="sortable" | Name
! scope="col" class="unsortable" | Blank PDF
! scope="col" class="unsortable" | Blank Word
! scope="col" class="unsortable" | Blank HTML
! scope="col" class="unsortable" | Completed Example
! scope="col" class="unsortable" | Other Resources
|-
{{:PCFR Form 16 Notice of Motion}}
|}

===Steps===
You will have to prepare a [[PCFR Form 16 Notice of Motion|Notice of Motion]] to bring an application to correct an order in the Provincial Court. The notice will simply say that you're applying to correct the order of judge so-and-so, made on such-and-such a date.

The application will be made under Rule 18(8) of the Provincial Court (Family) Rules, which gives a judge the authority to correct "a clerical mistake or omission in an order."

==Supreme Court==
===Forms involved===
{| class="wikitable sortable" border="1"
|+
|-
! scope="col" class="sortable"| Number
! scope="col" class="sortable" | Name
! scope="col" class="unsortable" | Blank PDF
! scope="col" class="unsortable" | Blank Word
! scope="col" class="unsortable" | Blank HTML
! scope="col" class="unsortable" | Completed Example
! scope="col" class="unsortable" | Other Resources
|-
{{:Form F31 Notice of Application}}
|-
{{:Form F30 Affidavit}}
|}

===Steps===
You will have to prepare a [[Form F31 Notice of Application|Notice of Application]] and [[Form F30 Affidavit|Affidavit]] to correct an order in the Supreme Court. The notice will simply say that you're applying to correct the order of judge or master so-and-so, made on such-and-such a date. The affidavit will simply discuss the problem in the order and provide some proof about what the order ought to say, such as the court clerk's notes from the original hearing.

In the Supreme Court, the application will be made under Rule 15-1(18) of the Supreme Court Family Rules, also called the ''slip rule'', which gives the court the authority to correct a "clerical mistake" in an order resulting from "an accidental slip or omission." This rule also allows the court to amend an order to decide an issue that should have been decided but wasn't. The scope of the Supreme Court rule is a bit broader than the Provincial Court rule.

===More information===

You can find more information about orders in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Find an Order or Another Court Document?

2017-05-09T20:51:50Z

Thomas Wallwork:

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This information is for people who have already been to court and need to find a copy of a document prepared in that court proceeding, such as a court order or an affidavit.

There is no central registry for court records and documents. To get a copy of a court document you must go to the particular court that dealt with your proceeding, since that's the court registry that will have your file.

Family law files are sealed from the general public, except for lawyers and the parties to the proceeding. Make sure you bring some photo ID.

If you no longer live near the court that dealt with your proceeding, it may be possible to have someone who lives there pick it up for you. That person will need, at a minimum, a letter from you authorizing him or her to search your court file. Check with the court registry to find out exactly what they'll need to see to before they release your file to someone other than you.

There are a few other things that are good to know:

*the court will not let you take your file out of the courthouse,
*the court will not let you take a document from your file, but you can get photocopies made (be warned, copying is $1 per page in the Supreme Court),
*the court will only have files that are less than three or so years old available at hand,
*files that are three to seven years old may be in on-site storage, and there will be a delay of a few hours before the court can get the file for you, and
*files older than seven or so years are usually stored off-site, and there will be a delay of a few days while the file is retrieved.

You can find more information about orders and other court documents in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Get a Child's Views in a Report for the Court?

2017-05-09T20:51:06Z

Thomas Wallwork:

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==Views of the child reports==

Under s. 37(1) of the ''[[Family Law Act]]'', when the court or the parties are making orders and agreements about guardianship, parenting arrangements, or contact with a child, the parties and the court must consider the best interests of the child only. Under s. 37(2)(b), the child's views are to be taken into account when assessing the child's best interests.

There are two main ways to get the views of a child before the court:
#through a ''views of the child report'' (an evaluative report) prepared by an expert, like a social worker, registered clinical counsellor, psychologist or psychiatrist, or
#through a non-evaluative lay views of the child report (a non-evaluative report) prepared by someone who has training in interviewing children, like a family justice counsellor or a lawyer, and may also include a trained mental health professional.

Other ways of getting the child's views before the court include the child writing a letter to the judge, having an independent lawyer prepare an affidavit for the child, or asking the judge to interview the child in his or her office.

A note of caution about giving a letter from your child to the judge, though: judges are often very concerned about having children involved directly in the court proceedings. The judge might also think you pressured your child into writing the letter. It is far better to get an evaluative or a non-evaluative report if your child wants a voice in the court proceedings.

==Evaluative reports==

Section 211(1)(b) of the ''Family Law Act'' allows the court to appoint someone to assess the views of a child in relation to a family law dispute, and to make orders about how the report will be paid for.

When a mental health professional is asked to ''assess'' the child's views, the process is more than an interview because the assessor is being asked to give the court an opinion. The assessor may want to meet with the child for two or more interviews; the assessor may speak with the child's parents or other important people in the child's life; and, the assessor may administer one or more tests to the child.

The finished report will present the child's views to the court along with the assessor's evaluation of the strength and consistency of the child's views and the extent to which what the child has said really reflects the child's actual preferences.

Evaluative reports like this are cheaper to get than needs of the child assessments, but will still cost somewhere between $2,500 and $5,000. They can usually be completed in two to three months.

==Non-evaluative reports==

Non-evaluative views of the child reports, also called ''hear the child reports'' or ''voice of the child reports'', can be ordered under ss. 37(2)(b) and 202 of the ''Family Law Act'' and are prepared by family justice counsellors, lawyers with special training, and mental health professionals.

These reports are different than evaluative reports because they don't ''evaluate'' anything; they merely report what the child has told the reporter with no analysis, opinion or commentary. They simply say "I spoke to Brandon and Brandon said..." without any editorializing.

The reports of family justice counsellors are free, but because there is such a demand for these reports and so few family justice counsellors trained to prepare them, there can be a delay of up to six months before the report is available.

The reports of lawyers and mental health professionals can be prepared as quickly as the reporter's calendar allows, sometimes the same day but more typically within a week. The cost of these reports can range from $500 to $3,000, depending on the number of children involved and the reporter's rate. The website of the [http://hearthechild.ca BC Hear the Child Society] lists the society's roster of trained lawyers and mental health professionals and where they practise.

==Arranging for the report==

The parties can agree that a views of the child report will be prepared, but if they can't agree, an application can be made to court for an order that a report be prepared. The order will usually specify exactly who is being retained to prepare the report and can also specify how the report will be paid for.

Once the report is ordered or agreed upon, either party can get in touch with the person who will be preparing the report. The reporter will tell you what happens next, when the interviewing process will begin, and when the completed report will likely be ready. The reporter can also give you some tips on how to explain the interview to your children.

You can find more information about views of the child reports in the chapter [[Children in Family Law Matters]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Get a Needs of the Child Assessment?

2017-05-09T20:49:44Z

Thomas Wallwork:

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==Needs of the child assessments==

Under s. 37(1) of the ''[[Family Law Act]]'', when the court or the parties are making orders and agreements about guardianship, parenting arrangements, or contact with a child, the parties and the court must consider the best interests of the child only. Under s. 211, the court can appoint a person to assess one or more of:

*the needs of a child in relation to a family law dispute,
*the views of a child in relation to a family law dispute, or
*the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

These reports, called ''needs of the child assessments'', were formerly known as "section fifteen reports" or "custody and access reports" under the old ''Family Relations Act''. They can be very helpful in resolving a dispute about the care of children and the court will usually give a great deal of weight to the assessor's opinion.

==Picking the assessor==

Needs of the child assessments are routinely prepared by family justice counsellors, social workers, registered clinical counsellors, psychologists and psychiatrists.

Family justice counsellors are employees of the Ministry of Justice based in registries of the Provincial Court. Their reports are free, but because there is such a high demand for these reports and there are so few family justice counsellors who are trained to prepare them, the delay from requesting a report to getting it done might be anywhere from eight to 14 months.

In general, private reports prepared by social works and mental health professionals can be done faster, but they come at a cost. The reports prepared by psychologists typically cost between $6,000 and $10,000.

==Arranging for the assessment==

The parties can agree that a needs of the child assessment will be prepared, but if they can't agree, an application can be made to court for an order that an assessment be prepared. The order will usually specify exactly who is being retained to prepare the report and can also specify how the report will be paid for.

Once the assessment is ordered or agreed upon, either party can get in touch with the person who will be performing the assessment. The assessor will tell you what happens next, when the interviewing process will begin, and when the completed assessment will likely be ready.

You can find more information about needs of the child assessments in the chapter [[Children in Family Law Matters]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Schedule a Judicial Case Conference for Hearing?

2017-05-09T20:49:01Z

Thomas Wallwork:

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}}

A judicial case conference (JCC) is a special type of hearing in the Supreme Court, involving the parties, their lawyers and a judge or master, that is intended to explore the issues in a court proceeding in the hope of finding a way to settle all or part of the proceeding. JCCs are private and held off the record, and while a recording is made of the proceedings, you'll need the judge's permission to listen to the recording at a later date.

JCCs are governed by Rule 7-1 of the [http://canlii.ca/t/5203n Supreme Court Family Rules]. You should read this rule before your JCC, especially the list of the court's powers that appears at Rule 7-1(15).

JCCs can be very helpful, especially if the judge or master is prepared to be pushy with the parties and their lawyers. It is fairly common for proceedings to settle at JCCs. Where a settlement is reached the judge will make a consent order on the spot, at the end of the hearing.

If you are married and it seems likely that you'll be able to get the court proceeding wrapped up at the JCC, if you file a court form called a registrar's certificate a couple of days before the JCC you may be able to get divorced at the JCC too.

Unlike family case conferences in the Provincial Court, JCCs are mandatory whenever a family law court proceeding has started. Except for a few limited circumstances, a JCC must be heard before the first application is heard. However, you are not limited to this first JCC. You can schedule additional JCCs as you like, within reason.

JCCs are scheduled through the trial coordinator, who will give you a list of dates to choose from. When you have a date that works for everyone, the date is reserved using a special Requisition form that the trial coordinator will supply. You must send a copy of the filed Requisition to the other side.

There is more information about judicial case conferences in the chapter, [[Resolving Family Law Problems in Court]] within the section [[Case Conferences in a Family Law Matter]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Appeal a Court of Appeal Decision?

2017-05-09T20:47:39Z

Thomas Wallwork:

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A decision of the Court of Appeal is appealed to the Supreme Court of Canada, the highest court in Canada, and the court from which there is no other avenue of appeal.

Unlike appeals to the Court of Appeal, there is no automatic right to appeal family law decisions to the Supreme Court of Canada, and you must first apply for leave to appeal. If you are successful, then and only then you will be allowed to proceed with your appeal.

The court does not hear evidence or have a formal hearing on leave applications, and only rarely issues reasons explaining why it granted or denied leave in a particular case. In family law cases, leave is denied much more often than it's allowed.

In general, the court is more likely to grant leave where a case raises an issue that should be decided for the benefit of everyone, not just the couple involved in the Court of Appeal decision.

Appeals to the Supreme Court of Canada are far more complicated than appeals to the Court of Appeal, not least because of the requirement of applying for permission to bring the appeal. As a result, it is critical that you hire a lawyer to bring an appeal to that court, and this wikibook won't say much more about the matter than that. ''Hire a lawyer.''

The website of the [http://www.scc-csc.gc.ca Supreme Court of Canada] will give you a very thorough overview of the court's role, the rules of court, and the court's special forms. It has a helpful [http://www.scc-csc.gc.ca/contact/faq/qa-qr-eng.aspx FAQ section], including a whole section on applying for leave to appeal.

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Appeal a Final Supreme Court Decision?

2017-05-09T20:46:59Z

Thomas Wallwork:

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A final decision of the Supreme Court is made by a judge following trial or by the agreement of the parties without a trial. Orders made by the agreement of the parties are called ''consent orders''.

A judge's final decision is appealed to the Court of Appeal. Because consent orders are made with everyone's agreement, they are almost impossible to appeal. Nevertheless, if an appeal can be made, it will be made to the Court of Appeal, just like a judge's final order.

You should think twice before you decide that you want to appeal a decision, as appeals can be surprisingly expensive. They're usually not as expensive as trials are, but the cost is still substantial. As well, it isn't always necessary to appeal a decision. Orders, even final orders, which deal with children and spousal support can often be varied following the decision. Of course to vary an order, there must have been significant change in circumstances since the decision was made.

The person bringing an appeal is called the ''appellant''. The other party is called the ''respondent''. The trial court, the Supreme Court, is called the ''lower court'' or ''the court below'', and the judge who heard the trial is called the ''trial judge''.

Appeals to the Court of Appeal are governed by two things, the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the [http://canlii.ca/t/85bg Court of Appeal Rules]. You should be familiar with both the act and the Rules because both contain guidelines and deadlines for the conduct of an appeal. Reading the Rules is not enough!

==Making your appeal==

To appeal a decision, you must file a Notice of Appeal, in Form 7 of the Court of Appeal forms, in the registry of the Court of Appeal and serve it on the other side. The Notice of Appeal is a set form that you must fill out. In it you will have to say:

#when the order was made,
#which judge made the order,
#that you are making an appeal from a trial decision,
#whether the appeal is from a decision involving the ''Divorce Act'' and/or the ''Family Law Act'',
#whether the appeal is from a decision involving the care of child and/or support,
#what order you want the Court of Appeal to make, and
#how long the trial took.

Once you've filled out your Notice of Appeal, you must file it in the registry of the Court of Appeal. They will charge you a fee for this, and you'll notice that all of the fees charged by the Court of Appeal are higher than those of the Supreme Court. The registry will stamp your Notice of Appeal with the seal of the court, a date stamp, and the file number of your action. You must then serve the Notice of Appeal on the other side.

Be aware that you have 30 days from the day after the decision was made to file your Notice of Appeal. The 30 days starts running from the date the decision is made (when the judge ordered you or the other party to do or not do something), not when you receive reasons for that decision. Once the 30 days have run out you will not be able to make your appeal unless you make a special application to the court for an extension of time. In general, the Court of Appeal is very strict and will demand that you obey the deadlines and rules exactly.

==Reasons for appealing a decision==

When a judge makes a decision following a hearing, the judge does three things. First, the judge makes a decision about the evidence and what the facts of the case are; this is called making a ''finding of fact''. Second, the judge decides what the law applicable to the case is. Third, the judge applies the law to the facts. These last two steps are called ''findings of law''.

You cannot appeal a decision simply because you don't like it. You must have a proper legal reason for bringing the appeal.

In most cases, you will not be able to appeal a decision because of a mistake in the judge's findings of fact, called an ''error of fact''. As the appeal court does not hear the evidence all over again, unless the trial judge made an enormous error in deciding the facts of the case, the facts that you will rely on at your appeal are the facts as the trial judge found them to be.

Most often, appeals are based on errors in the judge's conclusions about the applicable law or how the judge applied the law to the facts, called an ''error of law.'' In appeals like these, the argument is based on a claim that the judge didn't apply the correct legal test or failed to properly apply the correct legal test.

Since appeals normally deal with legal issues rather than factual issues, they can be quite complex and involve a lot of technical arguments. If you are appealing a judge's decision, you should seriously consider hiring a lawyer.

==Deadlines and procedures==

===Notice of Appeal===

You have 30 days from the day after the order was made (not the date the order is formally written up and entered in the court registry, but the date the order is issued by the judge) to file your Notice of Appeal and serve it on the other side. It is a good idea at this point to find out when your appeal can be heard. At the court registry's direction, you will have to arrange a date for the hearing and ensure that the respondent is available on that date.

===Notice of Appearance===

After the respondent has been served with your Notice of Appeal, he or she will have 10 days to file a Notice of Appearance and serve it on you, acknowledging your appeal. At this point, the respondent may choose to serve a Notice of Cross Appeal against you. This is the respondent's own separate appeal from the trial decision.

===Preparing the Appeal Book and transcripts===

This is where things start to get expensive. Within 60 days of filing your Notice of Appeal, you must obtain a transcript of the testimony in the court appealed from, file the transcript with the court, and serve a copy on the respondent.

The transcript you must obtain is a transcript of all the oral evidence given at trial. You will have to contact a court reporting company (they're in the Yellow Pages) and make arrangements for them to transcribe the tapes that were made of the court proceedings.

Also within 60 days after bringing an appeal, you must prepare an Appeal Record in Form 9 of the Court of Appeal forms, file it with the court, and serve a copy on the respondent.

Within 30 days after filing the Appeal Record, you must prepare an Appeal Book in Form 12, file it with the court, and serve a copy on the respondent. The Appeal Book contains:
#the pleadings that were filed in the original court proceeding (the Notice of Family Claim, the Response to Family Claim, and the Counterclaim) plus all of the interim orders that may have been made in that proceeding,
#the documentary exhibits that were entered at the trial, and
#copies of the order you are appealing from, together with the trial judge's reasons for judgment.

You must prove to the registrar that you have taken whatever steps are necessary to obtain these materials and prepare your Appeal Book. When preparing your Appeal Book, you must pay close attention to the rules and the form provided in the Court of Appeal Rules. There are a couple of companies that will prepare your Appeal Book for you; they are listed in the Yellow Pages.

You will need a total of six copies of each of these documents — the transcript, the Appeal Record, and the Appeal Book — since the court gets four, you'll need one, and the respondent gets one as well.

Since transcripts can often run to several hundred pages, as can Appeal Books, the cost of this step can be quite high.

===Settling the Appeal Book and transcripts===

After you've got your Appeal Book together and received the transcripts, you must deliver a copy to the respondent for his or her approval. If the respondent does not approve, you will have to arrange a hearing before the court registrar to settle the content of the Appeal Book or transcript. To apply to settle the content, you must file an Appointment in Form 29 and serve one filed copy on the respondent at least five days before the date of the hearing.

===Filing your factum===

You have 30 days from the time you filed your Appeal Record to file your factum. A factum, which is to be prepared in Form 10 of the Court of Appeal forms, is your written argument as to why the appeal court should make the order you want.

Factums contain five parts:

#'''Statement of facts:''' A statement of the facts of the appeal, as the trial judge found them to be.
#'''Errors in judgment:''' A statement as to how you think the trial judge erred in law.
#'''Argument:''' Your formal argument, about the law, how the judge applied the law to the facts, and how the judge should have applied the law.
#'''Nature of order sought:''' A statement of the order you'd like the Court of Appeal to make.
#'''List of authorities:''' A list of the case law you rely on in your argument.

Again, factums are extremely formal, and there are all sorts of rules you must follow in preparing your factum, among which are the following:

*there is a limit on how many pages long your factum can be,
*the cover of your factum must be in a buff or beige colour (the respondent's must be green),
*all pages in your factum except for the index have to be printed on the back side of the page (so that when your factum is open, the text appears on the left page and the right page is blank),
*each line of your factum must be numbered, and
*each page must be numbered.

Like I said, factums are extremely formal.

Make a total of six copies of your factum and file them in court. The court will keep four copies, you will keep one, and you must serve the sixth on the respondent.

===The respondent's factum===

The respondent has 30 days from his or her receipt of your factum to file and serve you with his or her own factum. The respondent's factum is his or her argument against your position, and will also contain any additional arguments the respondent wants to make in support of his or her cross appeal.

===Filing the certificate of readiness===

When an appeal is ready for hearing, you must file a certificate of readiness in Form 14 of the Court of Appeal forms. An appeal is ready for hearing:
*when the Appeal Record and your factum and Appeal Book are filed, or
*if an order has been made dispensing with the need for your factum, when your Appeal Book is filed.

Your certificate is a statement that the appeal is ready to be heard and provides a time estimate of how long the hearing will take.

===Preparing your book of authorities===

The day of your hearing is at hand. At this point, you must prepare a book of authorities. This is a binder containing all of the case law and statutes that you are relying on in the argument you've set out in your factum. You should arrange the cases in the order that you set them out in the list of authorities in your factum. Make five copies. One copy is for you, another is for the respondent, and the court will get the remaining three. You will give the court their copies on the day of the hearing of your appeal.

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Appeal a Final Supreme Court Decision?

2017-05-09T20:45:08Z

Thomas Wallwork: /* Making your appeal */

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

A final decision of the Supreme Court is made by a judge following trial or by the agreement of the parties without a trial. Orders made by the agreement of the parties are called ''consent orders''.

A judge's final decision is appealed to the Court of Appeal. Because consent orders are made with everyone's agreement, they are almost impossible to appeal. Nevertheless, if an appeal can be made, it will be made to the Court of Appeal, just like a judge's final order.

You should think twice before you decide that you want to appeal a decision, as appeals can be surprisingly expensive. They're usually not as expensive as trials are, but the cost is still substantial. As well, it isn't always necessary to appeal a decision. Orders, even final orders, which deal with children and spousal support can often be varied following the decision. Of course to vary an order, there must have been significant change in circumstances since the decision was made.

The person bringing an appeal is called the ''appellant''. The other party is called the ''respondent''. The trial court, the Supreme Court, is called the ''lower court'' or ''the court below'', and the judge who heard the trial is called the ''trial judge''.

Appeals to the Court of Appeal are governed by two things, the ''[http://canlii.ca/t/84h4 Court of Appeal Act]'' and the [http://canlii.ca/t/85bg Court of Appeal Rules]. You should be familiar with both the act and the Rules because both contain guidelines and deadlines for the conduct of an appeal. Reading the Rules is not enough!

==Making your appeal==

To appeal a decision, you must file a Notice of Appeal, in Form 7 of the Court of Appeal forms, in the registry of the Court of Appeal and serve it on the other side. The Notice of Appeal is a set form that you must fill out. In it you will have to say:

#when the order was made,
#which judge made the order,
#that you are making an appeal from a trial decision,
#whether the appeal is from a decision involving the ''Divorce Act'' and/or the ''Family Law Act'',
#whether the appeal is from a decision involving the care of child and/or support,
#what order you want the Court of Appeal to make, and
#how long the trial took.

Once you've filled out your Notice of Appeal, you must file it in the registry of the Court of Appeal. They will charge you a fee for this, and you'll notice that all of the fees charged by the Court of Appeal are higher than those of the Supreme Court. The registry will stamp your Notice of Appeal with the seal of the court, a date stamp, and the file number of your action. You must then serve the Notice of Appeal on the other side.

Be aware that you have 30 days from the day after the decision was made to file your Notice of Appeal. The 30 days starts running from the date the decision is made (when the judge ordered you or the other party to do or not do something), not when you receive reasons for that decision. Once the 30 days have run out you will not be able to make your appeal unless you make a special application to the court for an extension of time. In general, the Court of Appeal is very strict and will demand that you obey the deadlines and rules exactly.

==Reasons for appealing a decision==

When a judge makes a decision following a hearing, the judge does three things. First, the judge makes a decision about the evidence and what the facts of the case are; this is called making a ''finding of fact''. Second, the judge decides what the law applicable to the case is. Third, the judge applies the law to the facts. These last two steps are called ''findings of law''.

You cannot appeal a decision simply because you don't like it. You must have a proper legal reason for bringing the appeal.

In most cases, you will not be able to appeal a decision because of a mistake in the judge's findings of fact, called an ''error of fact''. As the appeal court does not hear the evidence all over again, unless the trial judge made an enormous error in deciding the facts of the case, the facts that you will rely on at your appeal are the facts as the trial judge found them to be.

Most often, appeals are based on errors in the judge's conclusions about the applicable law or how the judge applied the law to the facts, called an ''error of law.'' In appeals like these, the argument is based on a claim that the judge didn't apply the correct legal test or failed to properly apply the correct legal test.

Since appeals normally deal with legal issues rather than factual issues, they can be quite complex and involve a lot of technical arguments. If you are appealing a judge's decision, you should seriously consider hiring a lawyer.

==Deadlines and procedures==

===Notice of Appeal===

You have 30 days from the day after the order was made (not the date the order is formally written up and entered in the court registry, but the date the order is issued by the judge) to file your Notice of Appeal and serve it on the other side. It is a good idea at this point to find out when your appeal can be heard. At the court registry's direction, you will have to arrange a date for the hearing and ensure that the respondent is available on that date.

===Notice of Appearance===

After the respondent has been served with your Notice of Appeal, he or she will have 10 days to file a Notice of Appearance and serve it on you, acknowledging your appeal. At this point, the respondent may choose to serve a Notice of Cross Appeal against you. This is the respondent's own separate appeal from the trial decision.

===Preparing the Appeal Book and transcripts===

This is where things start to get expensive. Within 60 days of filing your Notice of Appeal, you must obtain a transcript of the testimony in the court appealed from, file the transcript with the court, and serve a copy on the respondent.

The transcript you must obtain is a transcript of all the oral evidence given at trial. You will have to contact a court reporting company (they're in the Yellow Pages) and make arrangements for them to transcribe the tapes that were made of the court proceedings.

Also within 60 days after bringing an appeal, you must prepare an Appeal Record in Form 9 of the Court of Appeal forms, file it with the court, and serve a copy on the respondent.

Within 30 days after filing the Appeal Record, you must prepare an Appeal Book in Form 12, file it with the court, and serve a copy on the respondent. The Appeal Book contains:
#the pleadings that were filed in the original court proceeding (the Notice of Family Claim, the Response to Family Claim, and the Counterclaim) plus all of the interim orders that may have been made in that proceeding,
#the documentary exhibits that were entered at the trial, and
#copies of the order you are appealing from, together with the trial judge's reasons for judgment.

You must prove to the registrar that you have taken whatever steps are necessary to obtain these materials and prepare your Appeal Book. When preparing your Appeal Book, you must pay close attention to the rules and the form provided in the Court of Appeal Rules. There are a couple of companies that will prepare your Appeal Book for you; they are listed in the Yellow Pages.

You will need a total of six copies of each of these documents — the transcript, the Appeal Record, and the Appeal Book — since the court gets four, you'll need one, and the respondent gets one as well.

Since transcripts can often run to several hundred pages, as can Appeal Books, the cost of this step can be quite high.

===Settling the Appeal Book and transcripts===

After you've got your Appeal Book together and received the transcripts, you must deliver a copy to the respondent for his or her approval. If the respondent does not approve, you will have to arrange a hearing before the court registrar to settle the content of the Appeal Book or transcript. To apply to settle the content, you must file an Appointment in Form 29 and serve one filed copy on the respondent at least five days before the date of the hearing.

===Filing your factum===

You have 30 days from the time you filed your Appeal Record to file your factum. A factum, which is to be prepared in Form 10 of the Court of Appeal forms, is your written argument as to why the appeal court should make the order you want.

Factums contain five parts:

#'''Statement of facts:''' A statement of the facts of the appeal, as the trial judge found them to be.
#'''Errors in judgment:''' A statement as to how you think the trial judge erred in law.
#'''Argument:''' Your formal argument, about the law, how the judge applied the law to the facts, and how the judge should have applied the law.
#'''Nature of order sought:''' A statement of the order you'd like the Court of Appeal to make.
#'''List of authorities:''' A list of the case law you rely on in your argument.

Again, factums are extremely formal, and there are all sorts of rules you must follow in preparing your factum, among which are the following:

*there is a limit on how many pages long your factum can be,
*the cover of your factum must be in a buff or beige colour (the respondent's must be green),
*all pages in your factum except for the index have to be printed on the back side of the page (so that when your factum is open, the text appears on the left page and the right page is blank),
*each line of your factum must be numbered, and
*each page must be numbered.

Like I said, factums are extremely formal.

Make a total of six copies of your factum and file them in court. The court will keep four copies, you will keep one, and you must serve the sixth on the respondent.

===The respondent's factum===

The respondent has 30 days from his or her receipt of your factum to file and serve you with his or her own factum. The respondent's factum is his or her argument against your position, and will also contain any additional arguments the respondent wants to make in support of his or her cross appeal.

===Filing the certificate of readiness===

When an appeal is ready for hearing, you must file a certificate of readiness in Form 14 of the Court of Appeal forms. An appeal is ready for hearing:
*when the Appeal Record and your factum and Appeal Book are filed, or
*if an order has been made dispensing with the need for your factum, when your Appeal Book is filed.

Your certificate is a statement that the appeal is ready to be heard and provides a time estimate of how long the hearing will take.

===Preparing your book of authorities===

The day of your hearing is at hand. At this point, you must prepare a book of authorities. This is a binder containing all of the case law and statutes that you are relying on in the argument you've set out in your factum. You should arrange the cases in the order that you set them out in the list of authorities in your factum. Make five copies. One copy is for you, another is for the respondent, and the court will get the remaining three. You will give the court their copies on the day of the hearing of your appeal.

{{REVIEWED | reviewer = [[Thomas Wallwork]], September 27, 2014}}

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How Do I Appeal an Interim Supreme Court Decision?

2017-05-09T20:42:34Z

Thomas Wallwork:

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

An ''interim order'' is any order that is made before a final order. Interim orders are made in the Supreme Court by a master or judge in chambers. Final orders are made by a judge following trial or with the agreement of the parties. The rules about appealing interim orders change, depending on whether the order was made by a judge or a master.

==Master's orders==

Interim orders made by masters in family law matters can be appealed as of right to a judge of the Supreme Court.

===Forms involved===

{| class="wikitable sortable" border="1"
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|-
! scope="col" class="sortable"| Number
! scope="col" class="sortable" | Name
! scope="col" class="unsortable" | Blank PDF
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! scope="col" class="unsortable" | Completed Example
! scope="col" class="unsortable" | Other Resources
|-
{{:Form F98 Notice of Appeal from Master Registrar or Special Referee}}
|}

===Steps===
Under Rule 22-7, an appeal is brought by filing a Notice of Appeal in Form F98 within 14 days of the date the order was made. This deadline applies to orders made under the Supreme Court Family Rules or the ''Family Law Act''. The appeals of orders made under the ''Divorce Act'' are governed by that act, and s. 21(3) says that an appeal must be made within 30 days.

The date the appeal will be heard is written on the Notice of Appeal. It is a good idea to leave this part of the form blank until you've had a chance to talk to the court registry staff. Depending on how long your appeal will take to be heard and the court's schedule, they may want to select the date of the hearing for you.

It's important to know that filing a Notice of Appeal does not, on its own, operate to cancel the order pending the appeal. You can, if you want, apply to the master who made the order for an order that the order will be ''suspended'' until the appeal is heard.

==Judge's orders==

Interim orders made by judges can only be appealed to the Court of Appeal. Unlike interim orders made by masters, only orders made under the ''Divorce Act'' can be appealed as of right. Orders made under the Supreme Court Family Rules or the ''Family Law Act'' can only be appealed with the permission of the Court of Appeal.

Appeals of ''Divorce Act'' orders must be made within 30 days by filing a Notice of Appeal from the Court of Appeal forms. Appeals of orders made under the Supreme Court Family Rules or the ''Family Law Act'' must be made within 30 days by filing a Notice of Application for Leave to Appeal from the Court of Appeal forms.

The requirements for the remainder of the appeal process are set out in the Court of Appeal Rules and are fairly complicated, and you should seriously consider hiring a lawyer to help you with your appeal.

It's important to know that filing a Notice of Appeal does not, on its own, operate to cancel the order pending the appeal. You can, if you want, apply to the judge who made the order for an order that the order will be ''suspended'' until the appeal is heard.

==Reasons for appealing a decision==

When a master or judge makes a decision following a hearing, he or she does three things. First, the court makes a decision about the evidence and what the facts of the case are; this is called making a ''finding of fact''. Second, the court decides what the law applicable to the case is. Third, the court applies the law to the facts. These last two steps are called ''findings of law''.

You cannot appeal a decision simply because you don't like it. You must have a proper legal reason for bringing the appeal.

In many cases, you will not be able to appeal a decision because of a mistake in the court's findings of fact. Because an appeal court does not hear the evidence all over again, unless the master or judge made an enormous error in deciding the facts of the case, the facts that you will rely on at your appeal are the facts as the court found them to be.

Most often, appeals are based on errors in the court's conclusions about the applicable law or how the judge applied the law to the facts, called an ''error of law''. In appeals like these, the argument is based on a claim that the court didn't apply the correct legal test or failed to properly apply the legal test.

Since appeals normally deal with legal issues rather than factual issues, they can be quite complex and involve a lot of technical arguments. If you are appealing an interim decision, you should seriously consider hiring a lawyer.

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Appeal a Provincial Court Decision?

2017-05-09T20:40:00Z

Thomas Wallwork:

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

Under s. 233(1) of the ''[[Family Law Act]]'', only final decisions of the Provincial Court can be appealed. Appeals of final decisions of that court are made to the Supreme Court. Interim decisions of the Provincial Court can only be challenged by a judicial review under the aptly named ''Judicial Review Procedure Act''. This information is about appeals to the Supreme Court.

==Forms involved==
{| class="wikitable sortable" border="1"
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! scope="col" class="sortable" | Name
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! scope="col" class="unsortable" | Completed Example
! scope="col" class="unsortable" | Other Resources
|-
{{:Form F80 Notice of Appeal}}
|}

==Making an appeal to the Supreme Court==

To appeal a decision, you must file a form called a [[Form F80 Notice of Appeal|Notice of Appeal]] in Form F80 within 40 days of the decision. Appeals from the Provincial Court are governed by Rule 18-3 of the Supreme Court Family Rules. This form is a lot more complex than the forms you've used in the Provincial Court. In in the form you must say:

#when the order you are appealing was made,
#the name of the judge who made the order,
#that you are bringing your appeal pursuant to s. 233 of the ''Family Law Act'', and
#the reason or reasons why you are bringing the appeal.

Once you've filled out your Notice of Appeal, you must file it in the registry of the Supreme Court. The Supreme Court will charge you a fee to do this. The registry will stamp your Notice of Appeal with the seal of the court, a date stamp, and the file number of your new court proceeding. You must then serve the notice on the other person by personal service, and file another copy of the notice in the Provincial Court registry where the order was made

==Reasons for appealing a decision==

When a judge makes a decision following a hearing, the judge does three things. First, the judge makes a decision about the evidence and what the facts of the case are; this is called making a ''finding of fact''. Second, the judge decides what the law applicable to the case is. Third, the judge applies the law to the facts. These last two steps are called ''findings of law''.

You cannot appeal a decision simply because you don't like it. You must have a proper legal reason for bringing the appeal and show that the judge made an error in his or her findings of fact or an error in his or her findings of law.

In most cases, you will not be able to appeal a decision because of a mistake in the judge's findings of fact. Because appeal courts do not hear the evidence all over again, unless the trial judge made an enormous error in deciding the facts of the case, the facts that you will rely on at your appeal are the facts as the trial judge found them to be.

Most often, appeals are based on errors in the judge's conclusions about the applicable law or how the judge applied the law to the facts, called an ''error of law''. In appeals like these, the argument is based on a claim that the judge didn't apply the correct legal test or failed to properly apply the legal test.

Since appeals normally deal with legal issues rather than factual issues, they can be quite complex and involve a lot of technical arguments. If you are appealing a judge's decision, you should seriously consider hiring a lawyer.

==Deadlines and procedures==

After the other side has been served with your Notice of Appeal, he or she will have seven days to file a [[Form F77 Notice of Interest|Notice of Interest]] in Form F77. This form is used to acknowledge your appeal.

Normally you would have to apply to the court for some directions about how your appeal will be conducted. However, because your appeal is about a family law problem, the directions for your appeal are set out in the standard set of directions in [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/practice_directions/family/FPD%20-%2010%20Standard%20Directions%20for%20Appeals%20from%20Provincial%20Court%20-%20Family%20Law%20Act%20(website).pdf Supreme Court Family Practice Direction 10], which is available on the court's website and at the court registry.

According to the Practice Direction, you must order a transcript of the Provincial Court hearing that resulted in the decision you are appealing. Within 30 days after filing your Notice of Appeal, you must provide proof that you have ordered these transcripts.

==The cost of appeals==

There are two fees that you'll have to pay to have your appeal heard. First, you'll have to pay a fee to file your Notice of Appeal. Second, and more expensively, you'll have to pay for the transcript of the Provincial Court hearing.

Transcripts are produced by private companies. A court reporter employed by the company retrieves the tape of the hearing from the court and painstakingly transcribes each and every word. JC Word, for example, a Vancouver firm, charges about $200 to $300 to transcribe a half-day hearing. On top of that, you'll have to provide complete copies of your transcripts to the other side and the court.

Be warned! Appeals can be expensive.

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Conduct Myself in Court at an Application?

2017-05-09T20:38:38Z

Thomas Wallwork:

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

==The courtroom==
[[File:CourtroomSeatingChart.png||left|link=|Layout and seating arrangements in typical courtroom]]

The drawing here shows how most courtrooms are laid out. In some courtrooms the witness box will be on the right rather than the left. Other courtrooms may have seating for a jury; others may have a separate entrance and seating for criminally accused; others may have a very small or a very large area for the gallery.

===Checking in===

Get to the courthouse about 20 minutes ahead of the time shown on your Notice of Application or Notice of Hearing. In the Provincial Court, hearings generally start at 9:30. In the Supreme Court, the court day starts at 10:00.

Somewhere around the entrance to the courthouse there will be a bulletin board with lists of all the hearings that are going on that day and which courtroom each hearing is in. Find your courtroom, and get there early.

The clerk will open the courtroom about 10 or 15 minutes before the court day starts. Enter the courtroom and walk to where the clerk sits. Tell the clerk who you are. The clerk will find your file on the day's list and will ask you how long you expect the hearing to take.

After you've checked in, take a seat in the gallery. Lawyers will sit in the row of chairs just beyond the gallery, past the bar, although in some busy courtrooms like the chambers courtrooms in Vancouver and New Westminster, all of the seating is considered past the bar. In a case like that, where there is no obvious gallery, sit wherever you find a seat.

===The start of the court day===

The court day starts when the judge enters the courtroom. The clerk will make an announcement when the judge is entering the room. Stand up when the judge enters the room, and sit down only when the judge sits down.

The clerk will then start calling the day's cases, one by one. In the Supreme Court, the clerk calls the cases in order from the shortest cases to the longest cases. In the Provincial Court, the clerk will call the cases where one or both parties are represented by lawyers before moving on to the cases where neither party has a lawyer.

===When your case is called===

Walk up to the long table in front of the clerk, and take a position to the right or left. It usually doesn't matter which side you choose.

While you're doing this, the judge will probably be taking some notes. Remain standing until the judge looks up from his or her notes. The person who is making the application, the ''applicant'', should introduce him- or herself first, followed by the other person, the ''respondent'', introducing him- or herself:

<blockquote>Applicant: "Good morning, my name is Jane Doe and this is my application."</blockquote>
<blockquote>Respondent: "I am John Doe."</blockquote>

Once that's done, the respondent can sit down. Usually, the applicant will then move to the little lectern at the centre of the table and make his or her pitch about why the judge should make the orders he or she is asking for. When the applicant is done, the applicant sits down and it's the respondent's turn to stand up, move to the lectern, and say why the application is a bad idea.

==Etiquette==

The judge, the court clerk and the other party are deserving of your respect and courtesy. Plus, you really want the judge to think well of you. Here are some general guides.

===Dress===

For women, something along the line of business casual will do. It doesn't matter whether you're wearing a dress, skirt or slacks. Avoid excessively casual clothing like jogging suits, sweatshirts, runners and such. If you feel driven to wear make-up, remember that you're going to a formal event, not a night out at the Roxy.

Men should also think business casual. If you have a sport jacket, wear that along with a clean pair of pants. Ties and proper suits are nice but not necessary at all. Your shirt should be of the button-up variety and not have a beer logo on it. Don't wear a hat in court.

The general goal is to look respectable and respectful, not like you just rolled out of bed or are gearing up for a night out on the town. Do your best to make it look like it matters to you that you're in court.

===Addressing the judge===

In the Provincial Court, the judge should be addressed as ''Your Honour''. Masters of the Supreme Court are also addressed as ''Your Honour''. Justices of the Supreme Court are addressed as ''My Lord'' or ''My Lady''. Do not call the judge or master "sir," "ma'am," or "dude," or anything else for that matter.

===Addressing the other side===

If the other side is a lawyer, "Mr. Smith" or "Ms. Smith" will do. Ignore how the lawyers address each other in front of the judge.

If the other side doesn't have a lawyer, it's usually all right to use first names, but it's better to address each other formally as "Mr. _____" and "Ms. _____".

===Standing up and sitting down===

Always stand when the judge is speaking to you or when you're speaking to the judge, unless of course you are unable to stand. Sit down at all other times.

==General rules==

*Always be early. Simply being on time is your last resort.
*Don't interrupt, no matter how much you want to. Interrupting is rude and makes the transcript impossible to read, if it needs to be read. Above all, never interrupt the judge.
*Don't use foul language. Be polite and courteous at all times.
*Never say that the other side is "lying" or is a "liar." There's usually a better way of getting your point across, without using harsh, judgmental language like that. Say, "my understanding of events is that..." or "perhaps Mr. Smith misremembers what happened, I recall that..."
*Stay calm at all times. No outbursts!
*By the same token, don't make faces or grunt when the other person is talking. You will have your chance to reply; rolling your eyes is not going to convince the judge that you're right.
*If you have an objection to make, do your best to save it until the other side is done. If you simply cannot wait, stand up, wait until the judge recognizes you and explain what your concern is.
*Try your best to speak slowly. The judge will be taking notes of what everyone is saying, and it can be very difficult to keep up with someone who's talking a mile a minute.
*If the judge chastizes you for something, take what the judge is saying to heart — especially if it concerns your conduct in court — and take it like an adult. No pouting.
*If there's something you don't understand, ask for an explanation. Stand and wait until the judge recognizes you, and ask for clarification.

==When your case is done==

After the judge delivers his or her judgment, stand up and thank the court, whether you won or lost, and leave the courtroom.

It is extremely poor form to gloat over a victory, or, otherwise, to sulk and rage about a loss. Take it like a grownup and leave the courtroom. Save your boasting or complaining for your friends.

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Address the Lawyer When I'm Representing Myself?

2017-05-09T20:36:03Z

Thomas Wallwork:

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

When you're in court, you'll see the lawyers on opposing sides address each other as ''my friend'' or, in the case of lawyers who are Queen's Counsel, as ''my learned friend''. You shouldn't do this, unless you're a lawyer too. (Besides, I doubt very much that you're going to be inclined to call the lawyer representing your ex "my friend.")

If you're representing yourself, just refer to the lawyer acting for your spouse by the lawyer's last name, as "Mr. ________" or "Ms. ________."

You can find information about what to expect in court in [[How Do I Conduct Myself in Court at an Application?]] You can find information about court processes in the chapter [[Resolving Your Legal Problem in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Address the Judge?

2017-05-09T20:35:39Z

Thomas Wallwork:

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

How you address the judge depends on which court you are in. Each court has a particular honorific that should be used when addressing the judge, and the judge is properly addressed by that honorific, not as "sir," "ma'am," or something else.

Judges of the Court of Appeal and Supreme Court are addressed as ''My Lord,'' or ''My Lady,'' or ''Your Lordship,'' or ''Your Ladyship,'' depending on the grammatical context.

Masters and registrars of the Supreme Court are addressed as ''Your Honour.'' Provincial Court judges are also called ''Your Honour.''

It used to be the case that justices of the peace were properly referred to as ''Your Worship,'' but this practice is fading somewhat, and it is now acceptable to refer to them as ''Your Honour.''

You can find information about what to expect in court in [[How Do I Conduct Myself in Court at an Application?]] You can find information about court processes in the chapter [[Resolving Your Legal Problem in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Fix an Error in an Affidavit or Add to an Affidavit?

2017-05-09T20:35:02Z

Thomas Wallwork:

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

Once you've sworn your affidavit, it's done. With one exception, the only way you can fix a mistake in that affidavit or add additional information to it is to make a new affidavit.

It's not uncommon to have three, four or even fifteen affidavits prepared in the course of a court proceeding in a family law dispute. These affidavits are mostly made to update the court on events occurring since the previous affidavit was sworn.

Note that new affidavits don't replace any of the previous affidavits, they just add to the written evidence already in the court file. Every affidavit stands on its own.

==Adding new information==

If you have to add new information or documents that should have been in the previous affidavit, you'll have to do up a new affidavit. In the beginning of the affidavit, just state that you're making the affidavit to give the court new information, and then set out the additional information you need to give the court.

In the example below, paragraph 1 is the standard beginning paragraph of an affidavit. Paragraph 2 explains that the affidavit is filed to give additional information. The other paragraphs add a new document and give some new information.

:{|
|- valign="top"
| align=right | <tt>1.</tt> || <tt>I am the Claimant in this matter, and as such have personal knowledge of the facts hereinafter deposed to.</tt>
|- valign="top"
| align=right | <tt>2.</tt>||<tt>I make this my affidavit to supplement the evidence given in my second affidavit, sworn in this matter on 1 April 2012 (the "Second Affidavit").</tt>
|- valign="top"
| align=right | <tt>3.</tt>||<tt>At paragraph 32 of the Second Affidavit, I describe how the Respondent and I bought our 1978 Chevy Pinto. I have now found the sales receipt for that purchase, which shows that I paid all of the down payment. Attached to this my Affidavit as EXHIBIT "A" is a true copy of the sales receipt, dated 1 April 2002.</tt>
|- valign="top"
| align=right | <tt>4.</tt>||<tt>At paragraph 44 of the Second Affidavit, I discuss how the Respondent and I bought the green filing cabinet. I have had the chance to give further thought to this purchase, and I now recall that it had four drawers. I accidentally omitted this fact in the Second Affidavit.</tt>
|}

...and so on.

==Fixing less important information==

If you've made a typo in an affidavit that's already been sworn, you don't have to prepare a whole new affidavit. This is what you do:

#Take the sworn affidavit to a lawyer or notary public, preferably the lawyer or notary who executed the affidavit.
#When you're in front of the lawyer or notary, correct the mistakes on the affidavit in pen (cross out the incorrect information and write the correct information about it).
#Write your initials in the margin of the page beside the line you have corrected. The lawyer or notary will put his or her initials there too. Repeat until you have corrected all errors.
#The notary or lawyer will then have to re-swear your affidavit, which just means that you'll have to give your oath that the corrected affidavit is true and sign the affidavit again, below your old signature, and the lawyer or notary will sign the affidavit again.

This will not be appropriate for all mistakes. You can fix a number, change an "I did" to an "I did not," fix a misspelling, or even delete a whole paragraph. It is not appropriate to fix major mistakes about important facts and claims. To fix those, you really should prepare a new affidavit to explain yourself.

==Fixing important information==

If you've made a major error in an affidavit that's already been sworn, you must prepare a whole new affidavit to explain why you've changed your evidence and what your mistake was.

In this example, the first two paragraphs introduce the new affidavit and explain why it is being made. Paragraphs 3, 4 and 5 show how different types of mistake could be corrected. The last paragraph confirms that, with the exception of the corrected information, the balance of the earlier affidavit is true.
:{|
|- valign="top"
| align=right | <tt>1.</tt>||<tt>I am the Claimant in this matter, and as such have personal knowledge of the facts hereinafter deposed to.</tt>
|- valign="top"
| align=right | <tt>2.</tt>||<tt>I make this my affidavit to correct certain evidence given in my second affidavit, sworn in this matter on 1 April 2012 (the "Second Affidavit").</tt>
|- valign="top"
| align=right | <tt>3.</tt>||<tt>At paragraph 12 of the Second Affidavit, I discuss how the Respondent and I bought the green filing cabinet. I have had the chance to give further thought to this purchase, and I now recall that it was a black filing cabinet and that it had four drawers not three. I was mistaken with respect to these two facts in the Second Affidavit.</tt>
|- valign="top"
| align=right | <tt>4.</tt>||<tt>At paragraph 15 of the Second Affidavit, I state that the Respondent was late in picking the children up from school on 1 April 2005. Since I made the Second Affidavit, I have had the chance to review my calendar and refresh my memory, and I realize that the Defendant was not late in picking the children up that day.</tt>
|- valign="top"
| align=right | <tt>5.</tt>||<tt>At paragraph 18 of the Second Affidavit, I state that the Respondent has two cars. I have read the Respondent's third affidavit, sworn in this matter on 12 April 2012, and I admit that the Respondent is correct when he says that he has but one car. The evidence I gave in the Second Affidavit on this point was incorrect. I had forgotten that the Defendant sold the Chevy Pinto in 2002.</tt>
|}

...and so on. Finish with this:

:{|
|- valign="top"
| align=right | <tt>13.</tt>||<tt>In all other respects the evidence given by me in the Second Affidavit is true and accurate.</tt>
|}
You must be careful about correcting major mistakes, especially those that are important to a claim you or your former spouse are making. Too many corrections may make you look sloppy and careless, and could possibly undermine your credibility. The best way to avoid problems like this is to ensure that each affidavit you make is accurate as possible before you swear it.

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Prepare a Supplemental Affidavit?

2017-05-09T20:33:55Z

Thomas Wallwork:

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

In many family law court proceedings, it is not uncommon to have three, four or even fifteen affidavits prepared in the course of things. In most cases, the first affidavit describes the background facts about who the couple are, when they met, when they separated, who their children are and so forth. Affidavits after that usually update the court about events occurring since the previous affidavit was sworn.

New affidavits don't ''replace'' any of the previous affidavits, they just add to the written evidence in the court file. Each affidavit stands on its own.

To make a new affidavit after the first affidavit, follow all the steps described in [[How Do I Prepare an Affidavit?]] and make sure that you change the number of the affidavit given in the top right-hand corner of the first page. Instead of:

<tt><blockquote><blockquote>This is the 1st affidavit 
of J.A. Doe in this case 
and was made on 1 April 2013</blockquote></blockquote></tt>

...the second affidavit might read:

<tt><blockquote><blockquote>This is the 2nd affidavit 
of J.A. Doe in this case 
and was made on 15 April 2013</blockquote></blockquote></tt>

Apart from this minor change, affidavits prepared after the first affidavit are prepared in exactly the same way as the first affidavit was prepared.

Note that you can refer to previous affidavits in your new affidavit. Just be sure to identify the affidavit by the date the affidavit was made and by the person who made it. If you're going to be referring to specific parts of that affidavit, mention the paragraph numbers as well.

:{|
|- valign="top"
| align=right | <tt>13.</tt>||<tt>In my third affidavit, sworn on 10 August 2012, I state at paragraph 42 that I was the parent who was primarily responsible for taking the children to their medical appointments. I was also the parent primarily responsible for attending to the children's dental, counselling and therapeutic appointments. I was also the parent who attended the children's parent-teacher meetings.</tt>
|- valign="top"
| align=right | <tt>14.</tt>||<tt>The Respondent alleges, at paragraph 17 of his second affidavit, sworn on 1 August 2012, that he was the parent who booked and paid for the children's ballet and hockey lessons. The truth of the matter is that while he did pay for two or three of the children's hockey lessons, I was the parent who spoke to their coaches and instructors, arranged for their enrollment, and paid for the majority of the cost of these lessons.</tt>
|}
For more information, see [[How Do I Prepare an Affidavit?]] and [[How Do I Fix an Error in an Affidavit or Add to an Affidavit?]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Prepare an Affidavit?

2017-05-09T20:33:13Z

Thomas Wallwork:

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

An affidavit is a written statement, made on oath or affirmation, about facts that are personally known to the person making the affidavit, the ''deponent''. Because an affidavit is sworn to be true or is affirmed to be true, it is evidence of the facts that it sets out, just as if the facts were given in oral evidence at a trial. Affidavits are formal legal documents.

*'''Supreme Court:''' If your family law action is in the Supreme Court, the form you must usually use is [[Form F30 Affidavit|Form F30]] and the rules about affidavits are set out in Rule 10-4 of the Supreme Court Family Rules.
*'''Provincial Court:''' If your family law action is in the Provincial Court, the form you must usually use is Form 17 and the rules about affidavits are set out in Rule 13 of the Provincial Court Family Rules. The form is available online. See the [[Provincial Court Forms (Family Law)|Provincial Court Forms]] section.

==Formal requirements==

The text of an affidavit is set out in numbered paragraphs. It's a good idea to state who you are and how you have personal knowledge of the facts that you are describing in the first paragraph of your affidavit (this is taken care of in the form required by the Provincial Court), and to say why you are swearing the affidavit in the second paragraph. For example, in the first paragraph you must say something like:

:{|
|- valign="top"
| align=right | <tt>1.</tt>||<tt>I am the Claimant in this matter, and as such have personal knowledge of the facts hereinafter deposed to.</tt>
|}

In the second paragraph you might say:

:{|
|- valign="top"
| align=right | <tt>2.</tt>||<tt>I make this my affidavit in support of my application by Notice of Application dated 1 April 2013.</tt>
|}

If you are having a friend or relative make the affidavit, the first paragraph might read:

:{|
|- valign="top"
| align=right | <tt>1.</tt>||<tt>I am the sister of the Claimant in this matter, and as such have personal knowledge of the facts hereinafter deposed to.</tt>
|}

Every page of your affidavit must be numbered, including each page of any exhibits you might have attached. An ''exhibit'' is a document, including a picture, that is included in an affidavit to support to the facts described in the affidavit.

In the Supreme Court, you must put, in the upper-right hand corner of the first page, the name of the person swearing the affidavit, the sequential number of the affidavit in the affidavits sworn by that person so far, and the date the affidavit was sworn on. For example, if you are Jane Alice Doe, and this is your third affidavit, you would put this:

<tt><blockquote><blockquote>This is the 3rd affidavit 
of J.A. Doe in this case 
and was made on 1 April 2013</blockquote></blockquote></tt>

Once your affidavit is done, you must have it ''notarized''. Affidavits can be notarized by lawyers, notaries public and certain court clerks, or anyone else who is authorized to take oaths in British Columbia.

The lawyer or notary public will ask you whether you understand the contents of your affidavit and then ask you to swear an oath or affirm that the contents are true.

If you say yes, the lawyer or notary will ask you to sign your name to the affidavit and will watch as you sign the document.

The lawyer or notary will then sign his or her name and provide certain additional information about where the affidavit was notarized, and the date and so forth. The lawyer or notary will ask you to produce government-issued photo identification, like a driver's licence, to prove that you are who you say you are.

After you've had your affidavit notarized, make at least four copies. The original is filed in court and another copy or two, depending on the circumstances, must be sent to the other side. Make sure you keep an extra copy for yourself!

==Telling your story==

Following the introductory paragraph, tell your story in an orderly manner. Remember to keep things as simple as possible and avoid irrelevant information. The easiest way to do this is to ask yourself if a stranger would understand what you've written. If you don't think a stranger would understand what you're talking about, you should probably rewrite your affidavit!

Your goal is also to explain things in an easy-to-understand way for the judge. The judge will not know who "Phil" is unless you've introduced Phil somewhere else in your affidavit. Nor will the judge understand what "the other car" means, unless you've already described which cars you have and who owns them. You must not assume that the judge knows everything about you. The judge won't. Again, ask yourself if a stranger would understand your story.

In order to make things as simple as possible, I usually break my affidavits down into four basic sections following the initial introductory paragraph:

*'''Application:''' State what you're asking the court for. If you're responding to an application, tell the court your position on each of the claims the applicant is making.
*'''Background:''' Describe who you are, who the other side is, when your relationship started and stopped, who your children are and how old they are, when the court proceeding started, and any significant orders that have been made since litigation started.
*'''Circumstances:''' Describe the immediate circumstances that triggered the application to court and anything significant that's happened since. This should be the part where you provide the facts in favour of your application or in opposition to the applicant's application.
*'''Summary:''' If necessary summarize your position and perhaps describe the order that you want the court to make.

Affidavits drafted by me often look something like this:
:{|
|- valign="top"
| align=right | <tt>1.</tt>||<tt>I am the Claimant in this matter and as such have personal knowledge of the facts hereinafter deposed to.</tt>
|-
| align=right | ||<tt>'''Application'''</tt>
|- valign="top"
| align=right | <tt>2.</tt>||<tt>In my application, by Notice of Application dated 15 January 2010, I seek an order that the Respondent be restrained from removing the children, Sally Ann Doe, born on 1 January 2008, and John Fred Doe, born on 1 January 2009, from Kelowna, British Columbia, and an order that the Respondent pay support to me for the benefit of the children.</tt>
|- valign="top"
| align=right | <tt>3.</tt>||<tt>In the Respondent's application, by Notice of Application dated 1 January 2010, he seeks an order that I pay spousal support to him. I oppose the Respondent's application because he works full-time and is self-sufficient.</tt>
|- valign="top"
| align=right | ||<tt>'''Background'''</tt>
|- valign="top"
| align=right | <tt>4.</tt>||<tt>I am 32 years old and am presently employed as an accountant by the firm Smith Smith and Smith. I earn approximately $42,000 per year.</tt>
|- valign="top"
| align=right | <tt>5.</tt>||<tt>The Respondent is 34 years old and works full-time as a bricklayer with ABC Contracting. He earns about $38,000 per year.</tt>
|- valign="top"
| align=right | <tt>6.</tt>||<tt>The Respondent and I met in the summer of 1996, and moved in together on 1 January 1997. We lived together in a unmarried relationship until 1 January 2012, when the Respondent left our home.</tt>
|- valign="top"
| align=right | <tt>7.</tt>||<tt>The Respondent and I have two children, Sally Ann Doe, who is 5 years old and in Grade 1 at Foggy Bottom Elementary, and John Fred Doe, who is 4 years old and in pre-school at ABC Community Centre.</tt>
|- valign="top"
| align=right | <tt>8.</tt>||<tt>I started this action on 1 July 2012, when I filed my Notice of Family Claim. I am asking for an order that the Respondent and I share parental responsibility for the children, that the children live mostly with me and that the Respondent have parenting time with the children every other weekend and overnight every Wednesday. I also seek an order that the Respondent pay child support to me for the benefit of the children.</tt>
|- valign="top"
| align=right | <tt>9.</tt>||<tt>On 1 September 2012, Master Smith made an order that the Respondent and I share parental responsibility for our children. The Master did not make an order for parenting time or child support, but the Respondent has been seeing the children on weekends and has been paying $200 per month to me as child support.</tt>
|}
...and so on. Once I'm done introducing the basic background of the parties, I'll describe the events that led the applicant to be making the specific application before the court.

:{|
|-
| align=right | || <tt>'''Circumstances of application'''</tt>
|- valign="top"
| align=right | <tt>21.</tt>||<tt>On 25 December 2012, the Respondent had Sally and John from noon until 7:00pm. We had agreed that he would return the children to my home at that time.</tt>
|- valign="top"
| align=right | <tt>22.</tt>||<tt>The Respondent did not return the children as we agreed. I phoned him to find out what was wrong at 8:00pm. He told me that he was keeping the children until 27 December 2012 because his family wanted to see them on Boxing Day. He also said that he and the children would be moving to Calgary, Alberta.</tt>
|- valign="top"
| align=right | <tt>23.</tt>||<tt>The Respondent has family in Calgary. I am afraid that he intends to remove the children from Kelowna, where they have spent all of their lives and where they have family and friends.</tt>
|}
...and so on. If necessary, usually when an affidavit is particularly long or the facts are particularly complicated, I may summarize the orders I'm asking for and why I'm asking for them.

:{|
|-
| align=right | || <tt>'''Summary'''</tt>
|- valign="top"
| align=right | <tt>45.</tt>||<tt>As a result of the Respondent's conduct I believe that the Respondent may decide to take the children to Calgary. I seek an order that the Respondent be restrained from removing our children from Kelowna without my express permission or the further order of this Honourable Court.</tt>
|}

Remember to tell your story in the first person. It is ''you'' who is telling your story, and you are me, myself or I, not "the Claimant" or "the Respondent."

==Rules about content==

Only certain kinds of information are permitted in an affidavit. If your affidavit is written for use at a trial, you cannot describe things you believe are true or have heard from someone else. You can only set out information that you have actual, personal knowledge of. If you are writing your affidavit for the purposes of an interim application, however, you may include both things you believe to be true as well as hearsay.

===Hearsay===

''Hearsay'' means saying anything you don't know yourself but have learned from someone else. It also includes repeating someone else's statements in your own affidavit. It's hearsay, for example, to say "Sally told me that she went to the park at noon on Saturday." It is not hearsay to say "I saw Sally in the park at noon on Saturday" or "Sally and I went to the park and noon on Saturday."

Hearsay is permitted in affidavits used for interim applications. However double hearsay is not, nor is anonymous hearsay.

''Double hearsay'' is saying something like "Frida told me that Sally said she was in the park at noon on Saturday." In other words, double hearsay is stating as a fact what someone told someone else.

''Anonymous hearsay'' is saying what someone told you but without identifying the person who told you, like "Someone told me that Sally was in the park at noon on Saturday", or "I have been advised that Sally was in the park at noon on Saturday, but I cannot identify the person who told me that she was in the park".

===Opinions===

The other thing that is generally not permitted in an affidavit is ''opinion evidence''. Only people with special, recognized skills, like doctors or engineers or psychologists are allowed to write about their opinions in affidavits. Again, some opinion evidence is permitted in affidavits used for interim applications, however it is never permitted in affidavits prepared for trial.

The easy way to spot opinion evidence is by sentences that start with "I think..." or "I believe that..." For example, saying "I believe that Sally is not a good mother because she spends too much time in the park" is really your opinion about Sally's parenting skills; it is not a statement of fact and is not allowed in your affidavit.

===Expressions of emotion===

A lot of people want to put everything in their affidavits, including how they feel about things or how they reacted to something. Don't do this. The court won't pay much attention to it, and you risk the court having a bad impression of you rather than of your ex. Good lawyers will carefully winnow out statements like "I was shocked and appalled that Bob would actually do such a thing." You should get rid of that sort of thing as well.

The court does not care how something made you feel; the court is interested in ''facts''. Overblown and hysterical statements will undermine the credibility the court is prepared to extend to you. Statements like "I was disgusted to see Sally in the park on Saturday," "I could see the anger in her eyes as she came at me" or "I couldn't believe what a rotten person Sally was" will not go over well in court.

==="Never" and "always"===

Avoid using the words "never" and "always," or any other absolute statement of frequency, as it is rarely the case that something ''always'' happened or ''never'' happened. Saying "Bob never helped with the children" is an invitation to the court to discount what you're saying. Even if you did 99% of the work with the children, Bob is certain to have done something with them, and that means that "never" and "always" aren't true.

Just as over-the-top statements of emotion will undermine your credibility, so will using statements that are as absolute as "always" and "never." Instead of words like those, just say "I did virtually all of..." or "Sally rarely helped with..."

==Exhibits==

''Exhibits'' are documents that you attach to your affidavit, usually to support some point you're making in your affidavit. If, for example, you say that your income is $42,000 per year, you might want to attach your most recent T4 slip or your most recent income tax return to show that your income is in fact $42,000 per year.

Exhibits can be almost anything: a receipt, a printout of your child's school's website, a letter, a doctor's note, a company search result, a report card, a speeding ticket, a photograph, an appraisal, a bank statement, a Valentine's Day card... pretty much anything. If something can be reduced to paper, it can be an exhibit.

When you attach an exhibit, you have to introduce it in your affidavit. You can't just attach reams of documents to the back. You have to explain what the document is in your affidavit and say that the document you are attaching is a "true copy" of the original. Each exhibit is identified sequentially by a letter, "A," "B," "C," and so forth. For example:
{|
|- valign="top"
| align=right | <tt>16.</tt>||<tt>I have a lovely home on two acres of land. There are three bedrooms, a sauna, an outdoor swimming pool and a private petting zoo for when Michael comes over. Attached to this my Affidavit as EXHIBIT "G" are true copies of photographs of my home.</tt>
|- valign="top"
| align=right | <tt>17.</tt>||<tt>My home is worth about $350,000. Attached to this my Affidavit as EXHIBIT "H" is a true copy of the 2013 BC Assessment for my home.
|}
Each separate exhibit is marked as an exhibit and shows which exhibit it is. Lawyers and notaries public will have a stamp that they use to give the basic information. The stamp says something like this:

<tt><blockquote><blockquote>This is Exhibit "___" in the Affidavit of _________________ , sworn before me at _______________________ , British Columbia, this ___ day of ___________ , 20_____ .</blockquote></blockquote></tt>

The stamp also provides a space for the lawyer or notary's signature, and the phrase "A Commissioner for the taking of Oaths for the Province of British Columbia". Filled out, the stamp will read like this:

<tt><blockquote><blockquote>This is Exhibit "'''D'''" in the Affidavit of '''Jane Alice Doe''', sworn before me at '''Nanaimo''', British Columbia, this '''20th''' day of '''March''', 20'''13'''.</blockquote></blockquote></tt>

The important thing about exhibits is that they are ''hearsay''. Just because you've attached something as an exhibit doesn't make the statements made in the exhibit true. While business information like a bank statement or a receipt will be taken as true, subjective information — like the contents of a letter from your mother, brother, friend or co-worker — won't be automatically accepted by the court.

This is important to understand, because lots of people want to attach testimonials and other sorts of information to their affidavits to make them look as good as possible, or to make their ex look as bad as possible. For example, "Sally is the best mother I have ever seen; she obviously treasures her children and they mean the world to her" or "Bob is a terrible parent who used to throw rocks at the children when they were infants to see if they'd flinch." What will the court get out of such obviously biased information? Not a lot.

The letter from your mother is hearsay, just as if you'd said what your mother told you in your affidavit. The court will accept as true the fact that your mother wrote the letter, but it won't necessarily accept what your mother says in the letter as true. If what your mom has to say is so important, get her to prepare an affidavit of her own. That is something that the court will pay attention to.

==Summary==

Be calm, be cool, be collected. Tell your story in a logical, orderly manner so that a judge who doesn't know you from a hole in the ground will understand what the heck you're talking about, what you want, and why you want it.

Avoid inappropriate expressions of emotion and stick to those facts that you have personal knowledge of when you can. You want to come across as a sane, reasoning human being, not a hysterical jumble of raw emotion.

If you have any documents that support the statements you're making, attach them to your affidavit as exhibits. Use documents that are neutral and unbiased, like a bank statement or an appraiser's report, but avoid inflammatory and subjective documents like letters from friends and relatives.

Above all, when you're done, ask yourself this: would a complete stranger know what I'm talking about? If you can't answer that question, give your affidavit to a complete stranger, your next-door neighbour for example, and find out!

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Reply to an Interim Application in a Family Law Matter in the Supreme Court?

2017-05-09T20:28:44Z

Thomas Wallwork:

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

==Notice of the application==

You will be entitled to notice of almost every application the other side, the ''applicant'', intends to bring to court. The most common exceptions to this general rule are when:

*the applicant makes an application without notice to you when the application is urgent (called an ''ex parte'' or ''without notice application''),
*the applicant is applying for permission to compress the usual timelines for the hearing of his or her application (called a ''short leave application''),
*the applicant is asking to be exempted from the requirement that a judicial case conference be held before the first interim application, or
*you are the respondent and you haven't filed your defence to the applicant's Notice of Family Claim.

When the applicant is required to give you notice of his or her application, the applicant will send you a copy of his or her Notice of Application and any new affidavits the applicant will rely on at the hearing. These documents are to be sent to your address for service, which may include your fax number for service or your email address for service if you've given one, at least eight business days before the date of the hearing.

The Notice of Application will tell you:

*the orders that the applicant will be asking the court to make,
*the facts the applicant says support the application,
*a summary of the applicant's argument in favour of the application,
*the rules, acts or regulations the applicant will be relying on, and
*the affidavits the applicant will be using to argue the application.

The affidavit ought to tell you why the applicant wants the court to make the orders he or she is asking for and state the facts that support the making of those orders.

==Replying to the application==

In most cases, to reply to an application you will prepare and file an Application Response in Form F32 and at least one new affidavit. The forms are online. See the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section.

Your Application Response tells the applicant and the court:

*the orders that you agree to the court making,
*the orders that you intend to oppose,
*the orders that you might agree to if certain conditions are met,
*your understanding of the facts that relate to the application,
*a summary of your argument against the application,
*the rules, acts or regulations you'll be relying on, and
*the affidavits that you will be relying on at the hearing of the application.

You should do two things in any new affidavit you prepare in replying to an application:
#you should respond to any important statements in the applicant's affidavit that you disagree with or think are inaccurate, and
#you should tell the court about the facts that support your position on the application.

You must send two copies of your filed materials to the applicant at least five business days after you were served with the application materials.

==The applicant's reply==

The applicant may decide to prepare a new affidavit to reply to something you've said in your affidavit. The applicant must give you a copy of any new affidavits by 4:00pm on the business day that is one full business day before the hearing.

You do not have an automatic right to serve an affidavit of your own in reply to this new affidavit. You can prepare another affidavit if you want, but be prepared for the judge or master hearing the application to refuse to admit your affidavit.

==Application records==

The Application Record is a three-ring binder that contains all of the application materials, with an index and separated by tabs, that is assembled by the applicant. The Application Record is prepared for the benefit of the judge or master hearing the application.

The applicant will give you his or her index to the Application Record by 4:00pm on the business day that is one full business day before the hearing. Make up your own Application Record using the applicant's index. This will make sure that you, the applicant and the judge are all on the same page when you're referring to the materials in the Application Record.

==The rules==

*Rule 6-2: How to serve documents by ordinary service
*Rule 7-1: The JCC rules
*Rule 10-4: The rule about affidavits
*Rule 10-5: Directions for bringing interim applications
*Rule 10-6: The usual application procedure

==For more information==

You can find a more complete discussion of the interim application process and the different timelines and deadlines in the chapter [[Resolving Family Law Problems in Court]] within the section [[Interim Applications in Family Matters]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Reply to a Priority Parenting Matter Application in the Provincial Court?

2017-05-09T20:27:41Z

Thomas Wallwork:

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

==Replying to the application==

The person making an interim application, the ''applicant'', must serve you with his or her Notice of Motion in Form 16 at least seven days before the date of the hearing, along with any other documents he or she will be using at the hearing. The hearing date will usually have been fixed by the court registry, not by the applicant.

There is no document that you must file to reply to the application, although it is possible to respond using the Reply form used to respond to Applications to Obtain an Order. The Reply form is available online. See the [[Provincial Court Forms (Family Law)|Provincial Court Forms]] section.

Whether you file a Reply or not, you must show up on the date set for the hearing or the court may make the order sought by the applicant. Make sure that you bring any important documents with you that will help at the hearing of the application.

==The rules==

*Rule 12: How to make an interim application
*Rule 13: The rule about affidavits
*Rule 5: The Family Justice Registry rule

==For more information==

You can find a more complete discussion of the interim application process and the different timelines and deadlines in the chapter [[Resolving Family Law Problems in Court]] within the section [[Interim Applications in Family Matters]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?

2017-05-09T20:27:09Z

Thomas Wallwork:

{{JP Boyd on Family Law How Do I TOC|expanded=interim}}
{{LSSbadge
|resourcetype = self-help guides for getting an interim Supreme Court family order
|link = [http://www.familylaw.lss.bc.ca/guides/interim/agree/supreme/apply/index.php when parties agree] and [http://www.familylaw.lss.bc.ca/guides/interim/cantAgree/index.php when parties can't agree]
}}

==When to make an application==

In a genuine emergency, you can make an application any time after a Notice of Family Claim has been filed, with no notice or very little notice given to the other side.

In most other cases, you will have to wait until a judicial case conference (JCC) has been heard, although Rule 7-1 has a list of exceptions to this general rule.

Once there a JCC has been held, however, applications can be brought at any time.

==How to start the application process==

The first court forms you'll need are:
#a Notice of Application (Form F31), and
#an Affidavit (Form F30).

The forms are available online. See the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section.

The Notice of Application tells the court and the other side:

*when you want the application heard,
*the orders that you want the court to make,
*the basic facts supporting your application,
*a summary of your argument in support of your application,
*the rules, acts or regulations that you say allow the court to make the orders you're asking for, and
*the affidavits you'll be relying on when you argue the application.

The affidavit explains who you are, the orders you want the court to make, and why you want the court to make those orders. Your affidavit contains the evidence you will be relying on in support of your application.

When you're ready to go, you must file your Notice of Application and affidavit in court and serve a copy of the filed documents on the other side, the ''application respondent'', by ordinary service. Ordinary service is accomplished by mailing the documents to the other side's address for service, by faxing them to a fax number for service, or by emailing them to an email address for service.

You must serve your materials on the application respondent at least eight business days before the hearing date.

==The application respondent's reply==

In most cases, the application respondent will have five business days to reply to your application by filing an Application Response in Form F32 and any affidavits that the application respondent intends to use. An Application Response tells the court and the applicant:

*the orders that the application respondent agrees to,
*the orders that the application respondent intends to oppose,
*the orders that the application respondent might agree to if certain conditions are met,
*the basic facts against the application,
*a summary of the application respondent's argument against the application, and
*the affidavits the application respondent will be relying on when the application is argued.

Although Rule 10-6, the rule that explains how interim applications are brought, says that someone who doesn't file an Application Response isn't entitled to notice of when the application will be heard, do not expect that the court will simply let your application go ahead in default of an Application Response. The court will want to give the other side every chance to defend your application.

==Your reply to the application respondent's reply==

If you wish to reply to something the application respondent has said in his or her affidavit, you can make a new affidavit of your own. You must deliver this affidavit to the application respondent by 4:00pm on the business day that is one full business day before the hearing.

==Application records==

You must prepare an Application Record for the hearing of your application. An Application Record is a three-ring binder that contains all of the application materials, with an index and separated by tabs. The Application Record is for the benefit of the judge or master hearing your application, so prepare it as neatly and carefully as you can; the judge will appreciate the effort.

Application Records will usually contain the following documents in the following order:

#an index,
#your Notice of Application,
#the Application Response,
#your affidavits,
#the application respondent's affidavits, and
#any new affidavit you have prepared in reply to the application respondent's affidavits.

You must file your Application Record by 4:00pm on the business day that is one full business day before the hearing. Make sure you provide a copy of your index to the application respondent at the same time.

==The rules==

*Rule 6-2: How to serve documents by ordinary service
*Rule 7-1: The JCC rules
*Rule 10-4: The rule about affidavits
*Rule 10-5: Directions for bringing interim applications
*Rule 10-6: The usual application procedure

==For more information==

You can find a more complete discussion of the interim application process and the different timelines and deadlines in the chapter [[Resolving Family Law Problems in Court]] within the section [[Interim Applications in Family Matters]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Make a Priority Parenting Matter Application in the Provincial Court?

2017-05-09T19:58:46Z

Thomas Wallwork:

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

==When to make an application==

You can make an application any time after an Application to Obtain an Order has been filed.

If the registry the action is filed in is a Family Justice Registry, you may have to meet with a family justice counsellor before you can make your application.

Where there is a genuine emergency, however, you can make your application without having to first see the family justice counsellor, and without having to give notice or very much notice to the other side.

==How to make an application==

The only court form you will need is a Notice of Motion (Form 16). The form is available online. See the [[Provincial Court Forms (Family Law)|Provincial Court Forms]] section. Your Notice of Motion tells the court the orders that you want the court to make.

You must file your Notice of Motion in the court registry where the Application to Obtain an Order was filed. The court registry staff may book a date for the hearing of your application right there or they may want you to go to a first appearance hearing with the other side before booking the date. The hearing date will be written on your Notice of Motion.

You must serve the filed Notice of Motion on the other side at least seven days before the date set for the hearing, along with a copy of any documents you intend to use at the hearing.

==The rules==

*Rule 12: How to make an interim application
*Rule 13: The rule about affidavits
*Rule 5: The Family Justice Registry rule

==For more information==

You can find a more complete discussion of the interim application process and the different timelines and deadlines in the chapter [[Resolving Family Law Problems in Court]] within the section [[Interim Applications in Family Matters]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Stop Defending a Family Law Action in the Supreme Court?

2017-05-09T19:57:34Z

Thomas Wallwork:

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

If you are a respondent, you may want to end your defence to a court proceeding. If you have filed a Counterclaim, you may want to stop that claim as well.

This often happens where a settlement has been reached.

To stop defending a court proceeding, you must file a Notice of Withdrawal in Form F40, and deliver a copy of the filed form to everyone else named in the action. This will allow the claimant to proceed as if no Response to Family Claim had ever been filed, and possibly apply for a default judgment.

To stop a claim against a claimant and completely abandon an action, you must file a Notice of Discontinuance in Form F39, and deliver a copy of the filed form to everyone else named in the action.

The forms are available online. See the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section.

While there is no fee charged to file a Notice of Discontinuance or Notice of Withdrawal, Rule 11-4(4) says that the claimant may be entitled to claim his or her court costs of the action up to the date of withdrawal or discontinuance.

==For more information==

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

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Change Something in My Response to Family Claim or Counterclaim?

2017-05-09T19:57:00Z

Thomas Wallwork:

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

==The pleadings==

''Pleadings'' are the documents that start a court proceeding or reply to a court proceeding. For the person who starts a family law proceeding, the ''claimant'', this is:

<ol start="1">
<li>Notice of Family Claim,
</ol>

and sometimes also:

<ol start="2">
<li>Response to Counterclaim.
</ol>

For the person who is replying to a court proceeding, the ''respondent'', these documents are usually:

<ol start="3">
<li>Response to Family Claim
<li>Counterclaim
</ol>

Sometimes a party's pleadings need to be changed, or ''amended''. Usually, a change is required because a fact is wrong, like a date or a name. At other times, a change is required to raise a new defence or to make a new claim.

For example, say a claimant had a job when an action started and then lost it halfway through the case. If the claimant now needs spousal support but didn't make that claim in his or her Notice of Family Claim, the claimant would need to amend his or her pleadings to include the new claim.

==The rules==

Pleadings are important because they describe the basic nuts and bolts of a party's claim or defence, and the facts that are said to support the claim or defence. They are the foundation of the court proceeding and the basis upon which each party will prepare for trial. As a result, there are special rules about amending pleadings. These are set out in Rule 8-1 of the Supreme Court Family Rules.

Firstly, you can't just amend your pleadings when you feel like it:

*under Rule 8-1(1)(a), you can make one set of changes, however major or minor, at any time before the Notice of Trial has been filed,
*under Rule 8-1(1)(b), you can make another set of changes with the written consent of the other party, and
*to make changes in any other circumstances, you'll first need to get the court's permission.

Secondly, you must mark all of your amendments. All of the changes are to be underlined in red ink to make it obvious exactly what's been changed. When a lot of text has been changed, say the size of a whole paragraph or more, the lines can be made to run up the left and right sides of the amended text instead of under each and every line of text.

Next, the title of the changed document always starts with the word ''Amended'', such as the Amended Notice of Family Claim or the Amended Counterclaim, to distinguish the new, changed document from the original. When an amended document is amended again, the title of the new document begins with the phrase ''Further Amended'', as in the Further Amended Notice of Family Claim.

You'll also need to change add some information to the top of the first page to indicate why you were able to change your pleadings, and when the original document was filed. For example, for a change made before delivery of the Notice of Trial, you would write:

<blockquote>"Amended pursuant to Rule 8-1(1)(a). Original filed on 25 October 2012."</blockquote>

Finally, you must file the amended documents in the court registry where the action was started. You must then serve the new pleadings on the other side by ordinary service within seven days.

==For more information==

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

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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

2017-05-09T19:56:14Z

Thomas Wallwork:

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

Once you have been served with the claimant's Notice of Family Claim, you have a choice:

*you can do nothing, indicating that you either agree with the claimants' claim or don't object to it,
*you can defend the claimant's claim — that is, you can oppose it, or
*you can defend the claimant's claim and make your own claim against the claimant.

If you decide to respond to the claimant's claim, you'll need to fill out and file a Response to Family Claim. If you decide to make a claim of your own against the claimant, you'll also need to fill out and file a Counterclaim. The forms are available online; see the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section.

You must file your Response to Family Claim and Counterclaim within 30 days of being served with the Notice of Family Claim. This deadline runs from the date you were served, not the date the Notice of Family Claim was filed in court. You must file your forms at the court registry where the claimant filed the Notice of Family Claim. The court registry is indicated at the upper right-hand corner of the first page of the Notice of Family Claim.

==The forms==

Your Response to Family Claim is your reply to the claimant's Notice of Family Claim. In this form, you will say which of the facts set out by the claimant you agree with and disagree with, and which of the claimant's claims you agree with and disagree with.

Your Counterclaim is a mirror of the form used by the claimant in the Notice of Family Claim. You must fill out each section of the form and attach all the schedules that relate to the claims you wish to make. While you can use the claimant's Notice of Family Claim as a guide, be careful to include all of the relief you are seeking and use the actual court form to check that you haven't missed anything, since the claimant may not be asking for all of the same orders that you are.

==What happens next?==

Once you've filed your Response to Family Claim and, if you want, your Counterclaim, you and the other side must attend at a judicial case conference (JCC) before anything else can happen. In the chapter [[Resolving Family Law Problems in Court]], read the section [[Case Conferences in a Family Law Matter]]. It provides more information about JCCs and the exceptions to the requirement that a JCC be held.

If either of you is making a claim for child support, spousal support, or the division of property and debt, you will also have to complete a Financial Statement. Your Financial Statement will be due before the JCC.

==More information==

You can find more information about replying to a family law action in Supreme Court in the chapter [[Resolving Family Law Problems in Court]]
within the section [[Replying to a Court Proceeding in a Family Matter]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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

2017-05-09T19:55:25Z

Thomas Wallwork:

{{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. 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 = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Stop a Family Law Action in the Supreme Court?

2017-05-09T19:52:03Z

Thomas Wallwork:

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

Only the claimant to a Supreme Court proceeding can stop the court proceeding without the proceeding going to trial or being settled.

No one can stop a court proceeding for the claimant or force the claimant to stop a proceeding.

While it often happens that a proceeding is abandoned, typically when no one does anything in the action for a long time, that doesn't stop the court proceeding altogether or cancel any orders that have already been made.

To bring everything to a halt, the claimant must file a Notice of Discontinuance in Form F39, and deliver a copy of the filed notice to everyone else named in the proceeding. If the claimant does this too late, after a court proceeding has already been set for trial, the claimant can only stop everything with the consent of the other parties or a court order.

While there is no fee charged to file a Notice of Discontinuance, Rule 11-4(4) says that the respondent may be entitled to claim his or her court costs of the proceeding up to the date it is discontinued.

==More information==

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

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Change Something in My Notice of Family Claim?

2017-05-09T19:51:09Z

Thomas Wallwork:

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

==The pleadings==
''Pleadings'' are the documents that start a court proceeding or reply to a court proceeding.

For the person who starts an proceeding, the ''claimant'', this is:

<ol start="1">
<li>Notice of Family Claim,
</ol>

and sometimes also:

<ol start="2">
<li>Response to Counterclaim.
</ol>

For the person who is replying to a court proceeding, the ''respondent'', these documents are usually:

<ol start="3">
<li>Response to Family Claim
<li>Counterclaim
</ol>

Sometimes a party's pleadings need to be changed, or ''amended''. Usually, a change is required because a fact is wrong, like a date or a name. At other times, a change is required to raise a new defence or to make a new claim.

For example, say a claimant had a job when an action started and then lost it halfway through the case. If the claimant now needs spousal support but didn't make that claim in his or her Notice of Family Claim, the claimant would need to amend his or her pleadings to include the new claim.

==The rules==

Pleadings are important because they describe the basic nuts and bolts of a party's claim or defence, and the facts that are said to support the claim or defence. They are the foundation of the court proceeding and the basis upon which each party will prepare for trial. As a result, there are special rules about amending pleadings. These are set out in Rule 8-1 of the Supreme Court Family Rules.

Firstly, you can't just amend your pleadings when you feel like it:

*under Rule 8-1(1)(a), you can make one set of changes, however major or minor, at any time before the Notice of Trial has been filed,
*under Rule 8-1(1)(b), you can make another set of changes with the written consent of the other party, and
*to make changes in any other circumstances, you'll first need to get the court's permission.

Secondly, you must mark all of your amendments. All of the changes are to be underlined in red ink to make it obvious exactly what's been changed. When a lot of text has been changed, say the size of a whole paragraph or more, the lines can be made to run up the left and right sides of the amended text instead of under each and every line of text.

Next, the title of the changed document always starts with the word ''Amended'', such as the Amended Notice of Family Claim or the Amended Counterclaim, to distinguish the new, changed document from the original. When an amended document is amended again, the title of the new document begins with the phrase ''Further Amended'', as in the Further Amended Notice of Family Claim.

You'll also need to change add some information to the top of the first page to indicate why you were able to change your pleadings, and when the original document was filed. For example, for a change made before delivery of the Notice of Trial, you would write:

<blockquote>"Amended pursuant to Rule 8-1(1)(a). Original filed on 25 October 2012."</blockquote>

Finally, you must file the amended documents in the court registry where the action was started. You must then serve the new pleadings on the other side by ordinary service within seven days.

==More information==

You can find more information about the Supreme Court documents you will need in the chapter [[Resolving Family Law Problems in Court]] within the section [[Starting a Court Proceeding in a Family Matter]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Substitutionally Serve Someone with Legal Documents?

2017-05-09T19:49:50Z

Thomas Wallwork:

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
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|resourcetype = a self-help guide for
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howToArrangeAlternativeService.php arranging alternative (substitutional) service]
}}

The Supreme Court Family Rules require that a person being sued be notified about the court proceeding and be given copies of the Notice of Family Claim starting the proceeding in a certain formal manner. This is called ''personal service''.

Personal service is normally accomplished by physically handing a copy of the Notice of Family Claim to the respondent; really, the documents only need to touch the respondent's body. This is not always possible. If you do not know where the person you want to sue lives, or if that person is avoiding being served, you may have to apply to court for an order that you have permission to personally serve the respondent in a way other than the way set out in the rules. This is called substituted service.

==Applying for an order for substituted service==

You must get the court's permission before the court will accept any other means of service than that set out in Rule 6-3.

Once you have filed your Notice of Family Claim you must apply for an order that you be allowed to serve the respondent substitutionally. You will have to prepare a Notice of Application describing the order that you want the court to make and your affidavit in support of your application.

Your affidavit should set out the reasons why personal service is impossible. If it's because you don't know where the respondent is, you should say so. You should also say that you have no means of contacting the respondent, for example, through family or friends. If you can't serve the respondent because he or she is avoiding service, you should describe how you've tried to serve the respondent and how often you've tried.

Because the respondent hasn't been served you can make your application right away, without having the follow the usual rules that give the respondent time to reply to your application. You can file your application and have your application heard the same day. Apart from this, the remainder of your application will be just like the normal application process that is described in [[How Do I Make an Interim Application in a Family Law Matter in the Supreme Court?]] in the ''How Do I?'' section on ''Interim Applications''.

==Options for substituted service==

===Posting in the registry===

If you have no idea at all where the respondent might be, you can ask the judge to allow you to serve the respondent by posting a copy of your Notice of Family Claim in the court registry for a certain period of time, usually no less than 30 days. This is the cheapest means of alternative service, and you really have to show that you've got no idea where the respondent is, no relatives or friends to contact him or her through, and no idea where the respondent works.

If the court grants this order, the court will specify how long the Notice of Family Claim must remain posted. Your job will be to take the judge's order and a copy of your Notice of Family Claim to the court registrar. The registrar will arrange for the posting, take note when it was put up, and take note when it was taken down.

===Notices in the classified ads===

[[File:SubServAd.gif|right|link=|Legal notices ad for substituted service]]If you have a general idea of where the respondent might be (in Vernon, in the Peace District, in the Lower Mainland, for example) you can ask the court for an order that you serve the respondent by posting an ad in the legal notices section of the area's local paper. The judge will usually specify the newspaper and for the number of issues the ad must be run in.

An example of this means of substituted service under the old Rules of Court appears at right. In this ad, the plaintiff (claimant) J.H.H. is suing the defendant (respondent) I.L. for orders involving the care and control of a child, child support, and probably other relief. (Note that in the course of making the order for substituted service in this example, the judge hearing the application also made other orders relating to child support, and custody and guardianship of the child. This is a bit unusual. Normally the courts will not make those sorts of orders without notice to the other party, even if that party's whereabouts are unknown.) You can see how this ad:

#advises the defendant of the fact of the lawsuit, and provides important information about the style of cause, the court registry and the court file number,
#states the terms of the order for substitutional service (posting in one issue of the weekend newspaper),
#tells him or her how to get a copy of the plaintiff's materials, and
#gives the name and contact information for the lawyer representing the plaintiff.

Under Rule 6-4(3), newspaper ads must be in Form F11. This form looks a bit different than the example given here.

Be wary of pursuing this means of substituted service: the costs can be quite high, as newspapers sometimes charge special rates for legal notices. The example on the right, which came from an old issue of the ''Vancouver Sun'' probably cost between $400 and $550.

===Service through friends, relatives and employers===

You may know another way by which the court proceeding can be brought to the respondent's attention with a fair degree of certainty. The court may allow service to occur through a third party, providing that there is reason to believe that the respondent has a fair amount of contact with the third party and that the third party can be relied on to bring the proceeding to the respondent's attention. Typical examples are:

*through the respondent's work (co-workers or employers, who will probably be in contact with the respondent on a reliable basis),
*through family (a relative that you know the respondent keeps in touch with),
*through friends (friends who see the respondent on a pretty regular basis), and
*through the respondent's residence (a landlord or other people sharing the respondent's apartment).

If you are certain that leaving your materials with one of these people will ensure that your court proceeding is brought to the respondent's attention, the judge may give you an order to that effect. The order will usually say something to the effect of:

<blockquote><tt>service upon the Respondent may be effected by delivering a copy of the Notice of Family Claim with any adult resident at Apartment 123 at 456 Main Street in Anytown, British Columbia</tt></blockquote>

or

<blockquote><tt>service upon the Respondent may be effected by delivering a copy of the Notice of Family Claim to his employer, John Doe, of John Doe's Autobody, whose place of business is at Unit 123 at 456 Main Street in Anytown, British Columbia</tt></blockquote>

This means of service is usually reserved for respondents who are or appear to be avoiding service.

===Other means of service===

The court really does have a wide latitude when it comes to making orders for substituted service. Among other things, the court can order that the respondent be served by:

*posting a copy of the documents to the door of his or her home or office,
*posting a copy of the documents in the local post office, or
*mailing it to the respondent by registered mail.

The particular method the court considers appropriate will always depend on the circumstances and what is reasonable in those circumstances.

==The effect of substituted service==

The goal of serving someone substitutionally is to try to alert that person to the fact of the court proceeding and tell him or her how to get more information about the proceeding.

The effect of an order for substituted service is that a person will be deemed to have been served once all the terms of the order for substituted service are met.

Whether the respondent is actually alerted to the proceeding is another story. The point here is that the court will consider the respondent to have been properly served. This will allow you to go on with your court proceeding in the normal manner once you've met the terms of your substituted service order, whether the respondent has found out about your claim or not.

The most important thing to know about substituted service, is that the time before you can do anything else in your court proceeding — such as applying for a default judgment, or making an application for temporary relief — doesn't start ticking until after the terms of the order of substituted service have been fulfilled. In other words, it isn't until the terms of the order are done that you can start counting the time until your next application to court.

For example, say the order allows you to serve someone by posting a copy of your pleadings in the court registry for 45 days. It isn't until the forty-sixth day that you can start counting time. Since the respondent has 30 days to file a Response to Family Claim, you will have to wait 76 days (46 plus 30) from the date you got the order and the order was posted before you can ask for a default judgment or make any other application to the court.

==More information==

You can find more information about the Supreme Court procedure for serving documents in the chapter [[Resolving Family Law Problems in Court]] within the section [[Starting a Court Proceeding in a Family Matter]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Personally Serve Someone with Legal Documents?

2017-05-09T19:46:54Z

Thomas Wallwork:

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
{{LSSbadge
|resourcetype = self-help guides for serving documents
|link = [http://www.familylaw.lss.bc.ca/guides/mini/servingSCDocuments/index.php in Supreme Court] and [http://www.familylaw.lss.bc.ca/guides/mini/servingPCDocuments/index.php in Provincial Court] and [http://www.familylaw.lss.bc.ca/guides/mini/howToServeDocsOutsideBC.php outside BC]
}}
In general, the only documents that have to be ''personally served'' on someone in the course of a Supreme Court proceeding are:

#the claimant's Notice of Family Claim,
#the application materials when an application is made to change a final order, and
#the application materials when an application is being made for a finding that someone is in contempt of court.

Personal service is required when starting a court proceeding. Once the other side files his or her Response to Family Claim, almost all legal documents after that can simply be delivered to each side by ''ordinary service'', at their respective addresses for service.

The easiest way to ensure personal service is properly done is to hire a process server, but you can arrange for someone else to do it for you.

==What's the difference between personal service and ordinary service?==

Personal service, also called ''service of process'' is the formal delivery of a document to someone in a manner that can be proven in court and which complies with the Supreme Court Family Rules about service. In a nutshell, personal service means personally giving someone a document, usually by handing it to them.

''Ordinary service'' means simply sending a document to someone by mail, fax or sometimes email. A document is served by ordinary service by sending the document to the address for service set out by the claimant in the Notice of Family Claim and by the respondent in the Response to Family Claim.

==Personal service==

The requirements for valid personal service are set out in Rule 6-3 of the Supreme Court Family Rules. The Notice of Family Claim must be physically handed to the respondent; dropping it through the mail slot won't do.

Since the court will require proof that the respondent was properly served, the person who did the service should prepare an Affidavit of Personal Service in Form F15. For this reason, the person doing the service usually must:

*be provided with a photograph of the respondent, so that he or she can confirm that the person served looked like the person in the photograph,
*ask the respondent to confirm that he or she is the person named in the Notice of Family Claim, or
*ask the respondent to produce his or her driver's licence (or other official government photo identification) and confirm that the name on the licence matches the name in the Notice of Family Claim and that the person served looks like the photograph on the licence.

The claimant in a family law proceeding cannot serve the respondent personally. You must get someone else to do it for you! That person can be anyone who is age 19 or older and sane.

==Substituted service==

Of course, not everyone is willing to be nice about things and cooperate with service. When the respondent is avoiding service, you can get an order that he or she be served in some other way than the usual, proper way. This is called ''substituted service''.

You will have to prove that you can't serve the respondent in the normal manner before you will be allowed to serve them substitutionally, so you'll have to provide the court with an affidavit from your process server describing how the respondent is avoiding service, or your own affidavit stating that you don't know where the respondent is and that he or she can't be found.

The court has a fairly wide latitude when it comes to making orders for substituted service. The court can order that the respondent be served by:

*posting a copy of the documents to the door of his or her home or office,
*running ads in the legal notices section of a newspaper distributed where the respondent lives,
*leaving a copy of the Notice of Family Claim with an adult living where the respondent is thought to live,
*mailing it to the respondent by registered mail, or
*posting a copy of the documents in the court registry.

The court will likely impose conditions on the substitutional order, like extending the time for the respondent to reply. Once those conditions are met, service will be considered to have been effected. You will have to prepare an affidavit proving that you have met the conditions the court has set.

See [[How Do I Substitutionally Serve Someone with Legal Documents?]]

==Contempt applications==

You must personally serve a party when you are making an application that he or she be found in contempt of court. Rule 21-7 requires that the other side be personally served with the Notice of Application asking that the party be found in contempt of court plus copies of the affidavits that will be used in support of your application.

==More information==

You can find more information about the Supreme Court procedure for serving documents in the chapter [[Resolving Family Law Problems in Court]] within the section [[Starting a Court Proceeding in a Family Matter]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Waive Filing Fees in the Supreme Court?

2017-05-09T19:44:04Z

Thomas Wallwork:

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
{{LSSbadge
|resourcetype = a self-help guide for
|link = [http://www.familylaw.lss.bc.ca/guides/waiveFees/index.php getting an order to waive Supreme Court fees]
}}
"Indigent" means being broke, ''flat'' broke.

The Supreme Court registry charges certain fees for a whole host of common court activities, such as for filing court forms and making applications to a judge. Some of these fees can be quite high and become a barrier to someone seeking access to the justice system. These fees are set out in Appendix C of the Supreme Court Family Rules.

Rule 20-5 allows the court to waive all or some of these fees for all or part of a court proceeding if the court is satisfied that you are indigent. You must make an application for a finding that you are indigent.

==Making the application==

Most people apply for indigent status at the same time that they're filing their Notice of Family Claim, or a Response to Family Claim or Counterclaim. The point, of course, is to avoid the fees that you'd normally pay to file these documents. You can also apply for indigent status in the middle of a court proceeding if you need to.

The court registry will has blanks of the forms you need to fill out. The forms are also available online; see the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section. You'll need a Requisition in Form F17 and an Affidavit in Form F86. The Affidavit will require you to describe the amount and sources of your income, your monthly expenses, your job skills and your education.

If you file your materials before 10:00am, the registry will likely send you before a judge that morning, otherwise you may have to wait for the next day chambers is held. You do not have to give notice to the other side of your intention to make this application, and no fees are charged to apply for indigent status.

When your application is called, you'll have to explain to the master or judge why it is that you can't afford the court fees. Living on welfare, Employment Insurance, Old Age Security or CPP benefits is usually enough. It will be helpful if you can provide copies of your welfare statements, EI statements or other evidence to prove your income.

If the court allows your application, you can then go back to the registry and file your pleadings — and all future materials — free of charge. If the court doesn't allow your application, well, you'll have to pay and that's that.

==Exceptions to the rule==

It is important to know that the court has an unlimited discretion to grant or refuse applications for indigent status. More importantly, even if you are broke, Rule 20-5(1) sets out three specific grounds for the court to refuse your application:

#if your claim is unreasonable, or if your defence to the claimant's claim is unreasonable,
#if your claim is "scandalous, frivolous or vexatious," or
#if your claim or your defence is, for any other reason, an "abuse of the process of the court."

In other words, if you're one of those people who sues the Queen, the Prime Minister, the Premier and the Attorney General every time they sue their neighbour for playing their music too loudly, you can expect that your application for indigent status will be turfed. If your claim is legitimate and well-founded, and you meet the general criteria for indigency, you should expect to be awarded indigent status.

==For more information==

You can find more information about Supreme Court procedure and filing fees in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Start a Family Law Action in the Supreme Court?

2017-05-09T19:42:09Z

Thomas Wallwork: /* Filing your materials */

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
{{LSSbadge
|resourcetype = a self-help guide for
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howToStartFamilyCaseSC/apply/index.php starting a family law action in Supreme Court]
}}

==The court forms to start your claim==

Most of the time you'll need to fill out a form called a Notice of Family Claim, Form F3.

In certain, relatively uncommon circumstances a family law proceeding is started with a Petition, Form F73. (Petitions are used when someone is asking for the return of a child under the Hague Convention on child abduction, and other orders that can be dealt with in a single hearing.)

Form F3 is available online. See the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section. The court will not provide you with a guide to filling this form out, so you must be as precise and accurate as possible.

There are a lot of free online resources that can help you complete these forms, but if you have any questions, you should really see a lawyer.

The Notice of Family Claim sets out the basic information about who you are, who the other side is, and describes the sorts of claims you are making.

You have to attach additional schedules to your Notice of Family Claim depending on the orders you are asking for. The schedules require you to provide more detailed information about your marriage, your children, your property and debts, and so forth.

==Other forms you might need==

If you are married and you are asking that the court make an order for your divorce, you must file the original copy of your marriage certificate. (This is the government document, not the certificate you received from the person who married you.)

If your claim involves the family home or other property, you may also want to prepare a certificate of pending litigation (called a CPL). (More information about CPLs is available in the section on certificates of pending litigation under the Land Title Act in the chapter [[Protecting Property & Debt in Family Law Matters]].)

If your claim involves support, property or debt, you'll also wind up filling out a Financial Statement in Form F8. This isn't due until later on in the court proceeding but you can and should get started now.

If your claim involves guardianship of a child and you are not already a guardian, you'll need to fill out a special affidavit in Form F101. You don't have to file this form right away when you're starting a court proceeding, but the form can take some time to fill out and you will need to order records checks from the police and the Ministry of Children and Family Development. You might as well get on this now.

==Filing your materials==

When you've finished filling out your Notice of Family Claim, make three complete copies and take everything, including your marriage certificate and your CPL (if needed) to the courthouse.

If you are seeking a divorce, you will also be required to fill out a [[Registration of Divorce Proceedings (Form) |Registration of Divorce Proceeding form]]. This form must be completed using the [http://www.justice.gc.ca/eng/fl-df/divorce/pdf/form.pdf online form], printed off (do not complete it by hand), and submitted to the court registry with your [[Form F3 Notice of Family Claim|Notice of Family Claim]]. The court staff will send this document off to the [http://www.justice.gc.ca/eng/fl-df/divorce/crdp-bead.html Central Registry of Divorce Proceedings] in Ottawa.

It will cost $200 for you to file your Notice of Family Claim ($210 if you are asking for an order for divorce as part of the Notice of Family Claim) plus another fee to file your CPL, if you need one.

The court will give your action a file number, and stamp all four copies of your materials with the seal of the court, a date stamp and the file number of your action. If you have filed a CPL, the court will stamp that too. Note that you must also file your CPL at the Land Title and Survey Authority for it to take effect; they will charge you another fee.

==What happens next?==

Once you've filed your Notice of Family Claim, you must arrange to have it served on the other side. You cannot serve the other person yourself, you must get someone else to do that for you, whether that person is a professional process server or a helpful friend.

After the other person has been served, he or she will have 30 days to file a Response to Family Claim. The other side may also file a form called a Counterclaim. If this happens, the other side is making a claim of his or her own against you.

When you have received the other person's Response to Family Claim, you will have to set up a judicial case conference (JCC). You can do this with a special form of Requisition that the registry will have on hand.

A JCC is an informal hearing before a judge or master intended to review the issues between the parties, and see what issues can be agreed on and what can't be. The judge or master will also canvass different ways of settling the action.

It can be very important to have a JCC as soon as possible, as most applications for interim orders can't be made until a JCC happens. There are some exceptions to this rule:

*if you are making an application for a financial restraining order against your spouse,
*if the other side consents to the order you want, or
*if there is an emergency and you have to make your application without notice to the other side.

More information about JCCs and the rules that govern them is available in the section [[Case Conferences in a Family Law Matter]] in the chapter [[Resolving Family Law Problems in Court]].

==More information==

You can find more information about starting a family law action in Supreme Court in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Start a Family Law Action in the Supreme Court?

2017-05-09T19:40:11Z

Thomas Wallwork:

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
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|resourcetype = a self-help guide for
|link = [http://www.familylaw.lss.bc.ca/guides/mini/howToStartFamilyCaseSC/apply/index.php starting a family law action in Supreme Court]
}}

==The court forms to start your claim==

Most of the time you'll need to fill out a form called a Notice of Family Claim, Form F3.

In certain, relatively uncommon circumstances a family law proceeding is started with a Petition, Form F73. (Petitions are used when someone is asking for the return of a child under the Hague Convention on child abduction, and other orders that can be dealt with in a single hearing.)

Form F3 is available online. See the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section. The court will not provide you with a guide to filling this form out, so you must be as precise and accurate as possible.

There are a lot of free online resources that can help you complete these forms, but if you have any questions, you should really see a lawyer.

The Notice of Family Claim sets out the basic information about who you are, who the other side is, and describes the sorts of claims you are making.

You have to attach additional schedules to your Notice of Family Claim depending on the orders you are asking for. The schedules require you to provide more detailed information about your marriage, your children, your property and debts, and so forth.

==Other forms you might need==

If you are married and you are asking that the court make an order for your divorce, you must file the original copy of your marriage certificate. (This is the government document, not the certificate you received from the person who married you.)

If your claim involves the family home or other property, you may also want to prepare a certificate of pending litigation (called a CPL). (More information about CPLs is available in the section on certificates of pending litigation under the Land Title Act in the chapter [[Protecting Property & Debt in Family Law Matters]].)

If your claim involves support, property or debt, you'll also wind up filling out a Financial Statement in Form F8. This isn't due until later on in the court proceeding but you can and should get started now.

If your claim involves guardianship of a child and you are not already a guardian, you'll need to fill out a special affidavit in Form F101. You don't have to file this form right away when you're starting a court proceeding, but the form can take some time to fill out and you will need to order records checks from the police and the Ministry of Children and Family Development. You might as well get on this now.

==Filing your materials==

When you've finished filling out your Notice of Family Claim, make three complete copies and take everything, including your marriage certificate and your CPL (if needed) to the courthouse.

If you are seeking a divorce, you will also be required to fill out a [[Registration of Divorce Proceedings (Form) |Registration of Divorce Proceeding form]]. This form must be completed using the [http://www.justice.gc.ca/eng/fl-df/divorce/pdf/form.pdf online form], printed off (do not complete it by hand), and submitted to the court registry with your [[Form F3 Notice of Family Claim|Notice of Family Claim]]. The court staff will send this document off to the [http://www.justice.gc.ca/eng/fl-df/divorce/crdp-bead.html Central Registry of Divorce Proceedings] in Ottawa.

It will cost $210 for you to file your Notice of Family Claim plus another fee to file your CPL, if you need one.

The court will give your action a file number, and stamp all four copies of your materials with the seal of the court, a date stamp and the file number of your action. If you have filed a CPL, the court will stamp that too. Note that you must also file your CPL at the Land Title and Survey Authority for it to take effect; they will charge you another fee.

==What happens next?==

Once you've filed your Notice of Family Claim, you must arrange to have it served on the other side. You cannot serve the other person yourself, you must get someone else to do that for you, whether that person is a professional process server or a helpful friend.

After the other person has been served, he or she will have 30 days to file a Response to Family Claim. The other side may also file a form called a Counterclaim. If this happens, the other side is making a claim of his or her own against you.

When you have received the other person's Response to Family Claim, you will have to set up a judicial case conference (JCC). You can do this with a special form of Requisition that the registry will have on hand.

A JCC is an informal hearing before a judge or master intended to review the issues between the parties, and see what issues can be agreed on and what can't be. The judge or master will also canvass different ways of settling the action.

It can be very important to have a JCC as soon as possible, as most applications for interim orders can't be made until a JCC happens. There are some exceptions to this rule:

*if you are making an application for a financial restraining order against your spouse,
*if the other side consents to the order you want, or
*if there is an emergency and you have to make your application without notice to the other side.

More information about JCCs and the rules that govern them is available in the section [[Case Conferences in a Family Law Matter]] in the chapter [[Resolving Family Law Problems in Court]].

==More information==

You can find more information about starting a family law action in Supreme Court in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Start a Family Law Action in the Supreme Court?

2017-05-09T19:39:23Z

Thomas Wallwork: /* Filing your materials */

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
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==The court forms to start your claim==

Most of the time you'll need to fill out a form called a Notice of Family Claim, Form F3.

In certain, relatively uncommon circumstances a family law proceeding is started with a Petition, Form F73. (Petitions are used when someone is asking for the return of a child under the Hague Convention on child abduction, and other orders that can be dealt with in a single hearing.)

Form F3 is available online. See the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section. The court will not provide you with a guide to filling this form out, so you must be as precise and accurate as possible.

There are a lot of free online resources that can help you complete these forms, but if you have any questions, you should really see a lawyer.

The Notice of Family Claim sets out the basic information about who you are, who the other side is, and describes the sorts of claims you are making.

You have to attach additional schedules to your Notice of Family Claim depending on the orders you are asking for. The schedules require you to provide more detailed information about your marriage, your children, your property and debts, and so forth.

==Other forms you might need==

If you are married and you are asking that the court make an order for your divorce, you must file the original copy of your marriage certificate. (This is the government document, not the certificate you received from the person who married you.)

If your claim involves the family home or other property, you may also want to prepare a certificate of pending litigation (called a CPL). (More information about CPLs is available in the section on certificates of pending litigation under the Land Title Act in the chapter [[Protecting Property & Debt in Family Law Matters]].)

If your claim involves support, property or debt, you'll also wind up filling out a Financial Statement in Form F8. This isn't due until later on in the court proceeding but you can and should get started now.

If your claim involves guardianship of a child and you are not already a guardian, you'll need to fill out a special affidavit in Form F101. You don't have to file this form right away when you're starting a court proceeding, but the form can take some time to fill out and you will need to order records checks from the police and the Ministry of Children and Family Development. You might as well get on this now.

==Filing your materials==

When you've finished filling out your Notice of Family Claim, make three complete copies and take everything, including your marriage certificate and your CPL (if needed) to the courthouse.

If you are seeking a divorce, you will also be required to fill out a [[Registration of Divorce Proceedings (Form) |Registration of Divorce Proceeding form]]. This form must be completed using the [http://www.justice.gc.ca/eng/fl-df/divorce/pdf/form.pdf online form], printed off (do not complete it by hand), and submitted to the court registry with your [[Form F3 Notice of Family Claim|Notice of Family Claim]]. The court staff will send this document off to the [http://www.justice.gc.ca/eng/fl-df/divorce/crdp-bead.html Central Registry of Divorce Proceedings] in Ottawa.

It will cost $210 for you to file your Notice of Family Claim plus another fee to file your CPL, if you need one.

The court will give your action a file number, and stamp all four copies of your materials with the seal of the court, a date stamp and the file number of your action. If you have filed a CPL, the court will stamp that too. Note that you must also file your CPL at the Land Title and Survey Authority for it to take effect; they will charge you another fee.

==What happens next?==

Once you've filed your Notice of Family Claim, you must arrange to have it served on the other side. You cannot serve the other person yourself, you must get someone else to do that for you, whether that person is a professional process server or a helpful friend.

After the other person has been served, he or she will have 30 days to file a Response to Family Claim. The other side may also file a form called a Counterclaim. If this happens, the other side is making a claim of his or her own against you.

When you have received the other person's Response to Family Claim, you will have to set up a judicial case conference (JCC). You can do this with a special form of Requisition that the registry will have on hand.

A JCC is an informal hearing before a judge or master intended to review the issues between the parties, and see what issues can be agreed on and what can't be. The judge or master will also canvass different ways of settling the action.

It can be very important to have a JCC as soon as possible, as most applications for interim orders can't be made until a JCC happens. There are some exceptions to this rule:

*if you are making an application for a financial restraining order against your spouse,
*if the other side consents to the order you want, or
*if there is an emergency and you have to make your application without notice to the other side.

More information about JCCs and the rules that govern them is available in the section [[Case Conferences in a Family Law Matter]] in the chapter [[Resolving Family Law Problems in Court]].

==More information==

You can find more information about starting a family law action in Supreme Court in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], September 27, 2014}}

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How Do I Start a Family Law Action in the Supreme Court?

2017-05-09T19:37:32Z

Thomas Wallwork: /* Other forms you might need */

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
{{LSSbadge
|resourcetype = a self-help guide for
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}}

==The court forms to start your claim==

Most of the time you'll need to fill out a form called a Notice of Family Claim, Form F3.

In certain, relatively uncommon circumstances a family law proceeding is started with a Petition, Form F73. (Petitions are used when someone is asking for the return of a child under the Hague Convention on child abduction, and other orders that can be dealt with in a single hearing.)

Form F3 is available online. See the [[Supreme Court Forms (Family Law)|Supreme Court Forms]] section. The court will not provide you with a guide to filling this form out, so you must be as precise and accurate as possible.

There are a lot of free online resources that can help you complete these forms, but if you have any questions, you should really see a lawyer.

The Notice of Family Claim sets out the basic information about who you are, who the other side is, and describes the sorts of claims you are making.

You have to attach additional schedules to your Notice of Family Claim depending on the orders you are asking for. The schedules require you to provide more detailed information about your marriage, your children, your property and debts, and so forth.

==Other forms you might need==

If you are married and you are asking that the court make an order for your divorce, you must file the original copy of your marriage certificate. (This is the government document, not the certificate you received from the person who married you.)

If your claim involves the family home or other property, you may also want to prepare a certificate of pending litigation (called a CPL). (More information about CPLs is available in the section on certificates of pending litigation under the Land Title Act in the chapter [[Protecting Property & Debt in Family Law Matters]].)

If your claim involves support, property or debt, you'll also wind up filling out a Financial Statement in Form F8. This isn't due until later on in the court proceeding but you can and should get started now.

If your claim involves guardianship of a child and you are not already a guardian, you'll need to fill out a special affidavit in Form F101. You don't have to file this form right away when you're starting a court proceeding, but the form can take some time to fill out and you will need to order records checks from the police and the Ministry of Children and Family Development. You might as well get on this now.

==Filing your materials==

When you've finished filling out your Notice of Family Claim, make three complete copies and take everything, including your marriage certificate and your CPL (if needed) to the courthouse.

You will have to fill out yet another form when you file your materials, a Registration of Divorce Proceeding. The court will provide this to you.

It will cost $210 for you to file your Notice of Family Claim plus another fee to file your CPL, if you need one.

The court will give your action a file number, and stamp all four copies of your materials with the seal of the court, a date stamp and the file number of your action. If you have filed a CPL, the court will stamp that too. Note that you must also file your CPL at the Land Title and Survey Authority for it to take effect; they will charge you another fee.

==What happens next?==

Once you've filed your Notice of Family Claim, you must arrange to have it served on the other side. You cannot serve the other person yourself, you must get someone else to do that for you, whether that person is a professional process server or a helpful friend.

After the other person has been served, he or she will have 30 days to file a Response to Family Claim. The other side may also file a form called a Counterclaim. If this happens, the other side is making a claim of his or her own against you.

When you have received the other person's Response to Family Claim, you will have to set up a judicial case conference (JCC). You can do this with a special form of Requisition that the registry will have on hand.

A JCC is an informal hearing before a judge or master intended to review the issues between the parties, and see what issues can be agreed on and what can't be. The judge or master will also canvass different ways of settling the action.

It can be very important to have a JCC as soon as possible, as most applications for interim orders can't be made until a JCC happens. There are some exceptions to this rule:

*if you are making an application for a financial restraining order against your spouse,
*if the other side consents to the order you want, or
*if there is an emergency and you have to make your application without notice to the other side.

More information about JCCs and the rules that govern them is available in the section [[Case Conferences in a Family Law Matter]] in the chapter [[Resolving Family Law Problems in Court]].

==More information==

You can find more information about starting a family law action in Supreme Court in the chapter [[Resolving Family Law Problems in Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], September 27, 2014}}

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

2017-05-09T19:36:09Z

Thomas Wallwork:

{{JP Boyd on Family Law How Do I TOC|expanded=starting}}
{{LSSbadge
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}}
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.

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 should 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, he or she 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, his or her 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 set up an appointment for you to meet with a family justice counsellor or schedule a date for an initial meeting with the court, called a first appearance. The family justice counsellor's job is to see whether any of your issues can be resolved, to give you information about the law and other dispute resolutions and to try, if you're interested, to mediate your dispute. The family justice counsellor can also prepare consent orders, that is, an order that you and the other person both agree the court should make.

If you are unable to reach an agreement after seeing the family justice counsellor, you can ask to be referred to a judge for a hearing of the issues. The court registry will book a time for the hearing and send a notice of the hearing to you and the other side.

==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 = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Find My Ex?

2017-05-09T19:35:03Z

Thomas Wallwork:

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In general, people need to find their ex for two reasons:
#because they want to start a court proceeding and need to find their ex to serve him or her with the papers that begin the proceeding, or
#to begin enforcing an order relating to child support or spousal support.

==Private services==

The fastest but most expensive way to find someone is to hire a ''skip tracer''. Skip tracers are people that are usually hired by creditors to find someone who's left town to avoid a debt, but they'll also take private contracts to find someone. Private investigators can also provide this sort of service, but generally PIs have more practice at finding information rather than people.

==Public services==

The Ministry of Justice has a search service that can help you to find someone when you need to enforce a court order or a separation agreement that has been filed in court that deals with:

*child support,
*spousal support,
*guardianship of a child,
*parental responsibilities and parenting time in respect of a child, or
*contact with a child.

The Ministry of Justice's service may be slow, but it has some fairly long arms. In addition to searching provincial records, they can also search federal data banks. To use their service, contact your local Provincial Court and ask them to submit a search request for you.

==Internet==

The explosive growth of the internet has resulted in a heck of a lot of information being readily available, sometimes in ways people don't think of. If you're looking for someone on the net, try an internet search using the person's first and last names, in quotes, like this:

<blockquote>"John Doe"</blockquote>

or

<blockquote>"J Doe"</blockquote>

The quote marks force the search engine to look for that exact phrase, which increases the likelihood that you'll find the person you're looking for. If you have an idea of where the person might be, add that to your search phrase, but put it outside the quotes, like this:

<blockquote>"John Doe" Kamloops</blockquote>

or

<blockquote>"John Doe" "British Columbia"</blockquote>

You could also try one of these services:

*[http://www.google.ca Google.ca], one of the best search engines around,
*[http://www.canada411.ca Canada411.ca], a Canada-wide phone book, or
*[http://www.411.com 411.com], which allows you to find a person by looking up their phone number or address.

Avoid pay services operated out of the United States, especially those that want you to enter your credit card number on their website. They may not be able to search within Canada.

==For more information==

You can find more information about starting an action in the chapter [[Resolving Family Law Problems in Court]] within the section [[Starting a Court Proceeding in a Family Matter]], and about enforcing orders within the section [[Enforcing Orders in Family Matters]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I File an Agreement in Court?

2017-05-09T19:34:04Z

Thomas Wallwork:

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

Written agreements about most family law issues can be filed in the Provincial Court or the Supreme Court under the ''Family Law Act'' and the rules of court:

* agreements on parental responsibilities and parenting time can be filed under s. 44(3) of the ''Family Law Act'',
* agreements on contact can be filed under s. 58(3),
* agreements on child support can be filed under s. 148(2), and
* agreements on spousal support can be filed under s. 163(3).

Agreements that are filed in court can be enforced as if they were orders of the court in which they are filed.

Among other things, this means that the Family Maintenance Enforcement Program can enforce an agreement for support exactly as it would enforce an order for support. Enforcement by FMEP is the usual reason why agreements are filed in court.

==When there is an existing court proceeding==

If a court proceeding has already been started, an agreement will normally be filed in the same court at same court registry where the proceeding was started. This helps to keep the whole court file together and prevents confusion about the status of the agreement and the status of the litigation.

If the action is in the Provincial Court, take one original copy of the agreement to the family law counter along with the file number of court proceeding. The court staff will help you with any paperwork. You don't need to see a judge or appear in court.

If the action is in the Supreme Court, take one original copy of the agreement to the family law counter along with something showing the style of cause of the court proceeding (the file number, the court registry, the name of the claimant and the name of the respondent). The court staff will give you a blank Requisition to fill out. You don't need to see a judge or appear in court.

==When a court action hasn't been started==

If there is no existing court action, it's up to you to decide where you'd like to file your agreement. Since FMEP will enforce an agreement whether it's filed in the Provincial Court or the Supreme Court, it's usually easiest just to go the courthouse nearest you.

All you need to take to the courthouse is one original copy of the agreement. The court staff will open a court file for the agreement and help you with any paperwork.

==Finding out if your agreement has been filed==

It can be a bit tricky to find out if an agreement has been filed in court or not, since there's no requirement that agreements be filed or that agreements that are filed be filed in the same court registry as any court proceedings between the parties to the agreement.

If there is an existing court action, go the court registry where the litigation began and ask to see the court file. Because family law files are sealed from the general public you'll need to bring some photo ID.

If there isn't an existing court action, you'll need to make at least two stops:
#First, go to the local Provincial Court to ask the staff to do a province-wide search to see if a Provincial Court file has been opened in your name and the name of the other party.
#Second, go to the closest Supreme Court to do the same search of Supreme Court files. You can also do the Supreme Court search using Court Services Online, but you won't be able to get any details of the court file other than that one exists.

==For more information==

You can find more information about family law agreements in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Change a Family Law Agreement?

2017-05-09T19:33:11Z

Thomas Wallwork:

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The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

All of these agreements can be changed once they've been executed, as long as the parties to the agreement agree that the agreement should be changed.

==What can be changed==

Normally, people only want to change one or two parts of an agreement while keeping the rest of the agreement intact. If you want a brand new agreement altogether, be careful. If the other party won't agree to throw out the old agreement, he or she will be entitled to go to court to enforce the old agreement, whether you're still happy with that agreement or not. This is, after all, why people execute contracts in the first place: they expect them to be permanent and they expect that the courts will hold people to the agreements they have made.

==Making the new agreement==

Since, in most cases, the original agreement is being kept, changes to that agreement are made in new agreements called "amending agreements", "addendum agreements," or some other language to that effect. The new agreement is a separate contract that says in what ways the original contract is being changed. The new agreement will:

*state, in the recitals, the name and the date of the agreement that is being changed,
*briefly, also in the recitals, explain why the change is necessary, and
*state, for each change, the paragraph affected in the old agreement and how that paragraph is to be changed.

You might handle the first and second points by saying something like this: "this agreement amends the Separation Agreement executed by the parties on 1 April 2010," and "following the execution of the Separation Agreement, the schedule of the parties' parenting time has become unworkable as a result of certain changes in their hours of employment."
The individual changes might be handled like this:

<blockquote><tt>4. Paragraph 12 of the Separation Agreement will be cancelled and is replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will return the children to Harry's care at 7:00pm or at the end of the evening shift, whichever is earlier. Sally will give Harry 24 hours notice in the event she is scheduled to work the evening shift on the days she is to return the children to Harry's care."</tt></blockquote></blockquote>
<blockquote><tt>5. Paragraph 36 of the Separation Agreement will be replaced with the following:</tt></blockquote>
<blockquote><blockquote><tt>"Sally will pay child support to Harry in the amount of $425 per month for as long as the children remain children of the marriage as defined by the ''Divorce Act''."</tt></blockquote></blockquote>

The key points here are that you must specifically identify the parts that are to be changed and how they are being changed, and the new language must be as clear and unambiguous as the language of the original agreement.

==Executing the new agreement==

The new agreement must be executed in front of witnesses in the same manner as the original agreement was executed. The witnesses to the new agreement do not need to be the same people who witnessed the original agreement.

==For more information==

You can find more information about changing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[May 9, 2017]], September 27, 2014}}

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How Do I Execute a Family Law Agreement?

2017-05-09T19:31:51Z

Thomas Wallwork:

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

The most common family law agreements are:
*''cohabitation agreements'', used when a couple plan on living together but don't plan on marrying,
*''marriage agreements'', used when a couple plan to marry, and
*''separation agreements'', used when married spouses or unmarried spouses have separated.

Other agreements might include ''interim agreements'', made after negotiations have started but before a final settlement, ''parenting agreements'', ''trust agreements'', ''confidentiality agreements'' and so on.

==Execution==

All family law agreements are executed in the same way: the person making the agreement signs it in the presence of someone else, while that person watches. That's it!

==Witnesses==

The person who witnesses the signature can be anybody, with just a few exceptions. Witnesses must be 19 years of age or older, they must be sane, and they shouldn't be another party to the agreement or someone who stands to benefit from the agreement. ''It is not necessary to pay to have a lawyer or notary public serve as witness.''

The role of the witness is to simply say that the witness knew the person signing the agreement and saw him or her sign the agreement: "I saw Frank sign the agreement, and I knew it was Frank because Frank has been my neighbour for the last six years" or "I saw Ming sign the agreement, and I knew it was Ming because I saw her driver's licence and the picture matched Ming's appearance and the name on the licence matched the name on the agreement."

Signing the agreement does not make the witness a party to the agreement or put the witness under any obligation at all to either party.

==Signing the agreement==

Family law agreements are executed by having each of the parties sign their names, using their normal signatures, in a spot on the last page of the agreement that looks like this:

<blockquote><tt>SIGNED by Yitzhak    ) 
on April 20, 2013,   ) 
at Salmon Arm, BC,   ) 
in the presence of:  ) 
                     ) 
___________________  )  ___________________ 
Signature            )  YITZHAK BERNSTEIN 
___________________  ) 
Name                 ) 
___________________  ) 
Occupation           ) 
___________________  ) 
Address              ) 
___________________  )</tt></blockquote>

The party to this agreement, Yitzhak in this case, signs his normal signature above the line on the right. The witness signs above the top line on the left and fills out the extra information about the witness' address and occupation.

It is also a good idea (but not required) that each of the parties and the witnesses initial each page of the agreement other than the page with the parties' signatures.

An agreement that has been executed by both parties is called a ''perfected agreement''.

==For more information==

You can find more information about making and executing a family law agreement in the chapter [[Family Law Agreements]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Hire a Parenting Coordinator?

2017-05-09T19:30:43Z

Thomas Wallwork:

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==Who should hire a parenting coordinator?==

Parenting coordinators aren't for everyone. The vast majority of separating parents have no need of a parenting coordinator.

Parenting coordinators are for those few couples who found themselves fighting before litigation started, fighting as the litigation wound to trial, fighting during the trial, and fighting long after the trial. For these parents, no conflict is too small to argue about and the conflicts seem endless. These are the parents who would benefit most from parenting coordination.

==When should you hire a parenting coordinator?==

At present, parenting coordinators trained through the BC Parenting Coordinators Roster Society are only available when there is a final parenting arrangement in place as a result of a final order or a separation agreement.

Parenting coordinators do not make fundamental changes to a parenting arrangement. While they can and will adjust an access schedule from time, they can't decide that a child will live with a different parent and they usually won't make long-lasting changes to a schedule of parenting time or contact. Parenting coordinators need a framework to work with, whether the framework is provided by a court order or an agreement.

Parenting coordinators will make minor adjustments to a parenting schedule as may be required from time to time. They can help resolve problems about parenting disputes, and they will help the parents to communicate with each other more effectively.

==How do you pick a parenting coordinator?==

The website of the [http://www.bcparentingcoordinators.com BC Parenting Coordinators Roster Society] has a list of their members, sorted alphabetically but with the members identified by the location of their practice and by their profession, whether lawyer, psychologist, registered clinical counsellor, social worker, or mediator, and usually with a link to the member's webpage or website.

When you've found one or two parenting coordinators with a good location and a background you like, give them each a call and maybe arrange to meet each of them. You aren't obliged to hire the first person you meet; wait until you've spoken to someone you feel comfortable with and who you think your ex will listen to.

Whatever you do, don't forget to ask the parenting coordinator about his or her current workload and when the parenting coordinator will be available to help.

==How do you hire a parenting coordinator?==

Picking a parenting coordinator you like is the easy part. The hard parts are:

*getting your ex to agree to try parenting coordination, and
*finding a parenting coordinator your ex can agree to.

As far as the first problem goes, parenting coordinators must be appointed by the parents' agreement or by a court order.

For the second problem, you may simply have to do some more shopping around. It may help to shift some of the burden to your ex. After suggesting your own list of two or three people, ask your ex for his or her list.

==For more information==

You can find more information about parenting coordination in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Start Arbitration with My Spouse?

2017-05-09T19:29:10Z

Thomas Wallwork:

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

==Pick the right moment==

You can't force your ex to go to arbitration with you, you can only do it with his or her agreement. Your ex isn't likely to agree to arbitration if he or she is still pissed off about a recent argument or is still resentful about the end of the relationship.

When you've got the right moment, suggesting arbitration can be as simple as calling your ex up and inviting him or her out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, but we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Simeng what happened with her and Robert, and she said that they resolved everything through arbitration."</blockquote>

At this point, it's all about getting your ex to try arbitration, and it's your job to sell the idea. Here are some reasons why arbitration is a really, really good idea:

*arbitration is private, there is no court file and the hearing is not open to the public,
*you can arbitrate with the help of lawyers or on your own,
*you can pick an arbitrator who's an expert in the issues that are the most challenging for your family,
*you can get the help of professionals like child psychologists, business valuators, and tax planners,
*with input of the arbitrator, you can design the rules that will apply to your hearing,
*with input of the arbitrator, you can decide on the amount of disclosure that will be needed for your hearing,
*the arbitrator's decision is just as final and just as binding as a court award,
*you can schedule the hearing date as soon as you want, where you want, and
*with faster hearings and a more efficient process to get there, arbitration is cheaper than litigation.

Going to trial will cost a minimum of $15,000 in lawyer's fees for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to try arbitration, tell him or her to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

==Hire an arbitrator==

Now that your ex has agreed to try arbitration, strike while the iron is hot: find an arbitrator and book a pre-arbitration meeting immediately.

Before hiring an arbitrator, make sure you've looked into his or her background to find out if they have special training in arbitration.

Lawyers who have training and are accredited to arbitrate by the Law Society are called family law arbitrators, and they will usually advertise themselves as such.

When picking an arbitrator, go to the website of a professional association like the Family Law Arbitrators Group. Associations like this will have a list of their members, the training and experience they require for membership and a short biography of each member.

If that doesn't work, call a family law lawyer. Most family law lawyers will know one or two arbitrators they can recommend, and will be happy to give you the arbitrators' names and phone numbers.

==For more information==

You can find more information about arbitration in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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How Do I Start a Collaborative Process with My Spouse?

2017-05-09T19:28:07Z

Thomas Wallwork:

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==Pick the right moment==

You can't force your ex to start a collaborative settlement process with you, you can only do it with his or her agreement. Your ex isn't likely to agree to try a collaborative approach to settlement if he or she is still pissed off about a recent argument or is still resentful about the end of the relationship.

When you've got the right moment, suggesting a collaborative settlement process can be as simple as calling your ex up and inviting him or her out for a cup of coffee at the local Tim Hortons:

<blockquote>"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, but we really need to make a few decisions and I don't think we're going to be able to do this on our own. I've asked my friend Harkamal what happened with her and Baljinder, and she said that they used a collaborative settlement process."</blockquote>

At this point, it's all about getting your ex to try a collaborative settlement process, and it's your job to sell the idea. Here are some reasons why a collaborative approach is a really, really good idea:

*a collaborative process will give you and your ex the best chance of leaving your relationship on good terms,
*you can both participate in making the important decisions about your kids, your money and your property,
*other helping professionals, like registered clinical counsellors and financial experts, can be brought into the process whenever extra help is necessary,
*everyone is committed to finding a settlement without going to court, including the lawyers,
*you can create the solution that is best for you and your family,
*settlements reached through negotiation tend to last longer than decisions imposed by a judge after a trial,
*a collaborative approach is much cheaper than going to court, and
*you'll be done in a fraction of the time that you would have spent in court.

Going to trial will cost a minimum of $15,000 in lawyer's fees for a two- or three-day trial. Most family law trials are one or two weeks long, and this figure ignores the costs of all the other things that have to happen before you walk into the courtroom on day one!

If this doesn't get your ex to agree to try a collaborative approach, tell him or her to ask separated friends, family members and co-workers how much it cost for their court proceedings and how long it took to go from start to finish.

==Hire collaborative lawyers==

Now that your ex has agreed to a collaborative settlement process, you each need to hire a lawyer trained in collaborative practices and get the process underway.

Lawyers who work in a collaborative practice model will say as much in their advertising. You can also do an internet search for "collaborative lawyer bc" that will give you a list of collaborative lawyers and, even better, collaborative practice groups in your neighbourhood.

Collaborative practice groups will have lists of their members who are lawyers, mental health professionals and financial specialists, and the odds are pretty good that if you find a collaborative lawyer who you think you'll work well with, the lawyer will be able to recommend a handful of other lawyers from the same practice group for your ex.

Before you hire your lawyer, first ask around. Have any of your friends used a collaborative lawyer, and what did they think of him or her? If that doesn't work, call a family law lawyer. Most family law lawyers, even family law lawyers who aren't trained in collaborative processes, will be able to recommend you to someone they think highly of.

==For more information==

You can find out more about collaborative processes in the chapter [[Resolving Family Law Problems out of Court]].

{{REVIEWED | reviewer = [[Thomas Wallwork]], May 9, 2017}}

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