Trials and Supreme Court Family Law Proceedings - Revision history

Nate Russell: /* Trials versus summary trials in BC Supreme Court */

2025-06-27T02:10:39Z

Trials versus summary trials in BC Supreme Court

Nate Russell: /* Trials versus summary trials in BC Supreme Court */

2025-06-27T01:44:09Z

Trials versus summary trials in BC Supreme Court

← Older revision		Revision as of 01:44, 27 June 2025
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	# the court is of the opinion that it would be unjust to decide the issues.		# the court is of the opinion that it would be unjust to decide the issues.

	Regarding the first point, if there is a lot of conflicting evidence about important facts in the affidavits, there ~~could~~ be a factual dispute ~~that raises what's called~~ a ''credibility issue''. ~~Credibility issues are bad for summary trials~~, ~~and~~ a ~~lot of~~ summary ~~trials don't go ahead because of them~~. Remember, summary trials use affidavits, and a judge ~~is not able to~~ observe the witnesses ~~or parties give~~ evidence and ~~respond~~ to cross-examination. There is not a lot for a judge to see except written words on paper, so they can't easily determine whether one ~~individual~~ is more ~~believable (i~~.e. ~~credible)~~. ~~This said~~, credibility issues are not the only possible barrier. Sometimes the recorded evidence is just not enough, ~~and the judge When~~ a court can't "find the facts necessary" to make a decision, a summary trial is inappropriate.		Regarding the first point, if there is a lot of conflicting evidence about important facts in the affidavits — and if there isn't other admissible evidence that can help break the tie — the judge cannot might not be comfortable deciding the factual dispute in a summary trial. To put it another way, if resolving conflicting evidence would require determining a ''credibility issue'' (i.e. deciding which person to believe), then a summary trial might not be appropriate. Remember, summary trials use affidavits, and a judge can't observe the witnesses talking about their evidence and responding to cross-examination. There is not a lot for a judge to see except written words on paper, so they can't easily determine whether one party is more credible than the other. Credibility issues are bad for summary trials, and a lot of summary trials don't go ahead because of them. This is not to say that every conflict in the affidavit evidence is fatal to a summary trial application, but it does mean that a credibility issue will mean it's even more important to have other admissible evidence that corroborates one person's version of the facts, and hopefully contradicts the other side's affidavit evidence. Also, credibility issues are not the only possible barrier to a court finding the necessary facts. Sometimes all of the recorded evidence together is just not enough for a judge to make their decision. Whatever the evidentiary deficiency, if a court can't "find the facts necessary" to make a decision, a summary trial is inappropriate.

	Regarding the second point, a court will consider several factors in deciding if a summary trial is ''not unjust'':		Regarding the second point, a court will consider several factors in deciding if a summary trial is ''not unjust'':

Nate Russell at 19:59, 25 June 2025

2025-06-25T19:59:27Z

← Older revision		Revision as of 19:59, 25 June 2025
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	{{JP Boyd on Family Law TOC\|expanded = bcsc}}{{JPBOFL Editor Badge		{{JP Boyd on Family Law TOC\|expanded = bcsc}}{{JPBOFL Editor Badge
	\|CoAuthor = [[Iris Turaglio]]		\|CoAuthor = [[Iris Turaglio]]
			\|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
	}}If you are unable to settle your case to your satisfaction, you will need to go to trial to get a ''final order'' from a judge.		}}If you are unable to settle your case to your satisfaction, you will need to go to trial to get a ''final order'' from a judge.

Nate Russell at 19:54, 25 June 2025

2025-06-25T19:54:02Z

← Older revision		Revision as of 19:54, 25 June 2025
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	{{REVIEWED \| reviewer = [[Iris Turaglio]], ~~8 November 2024~~}}		{{REVIEWED \| reviewer = [[Iris Turaglio]], 5 May 2025}}

	{{JP Boyd on Family Law Navbox\|type=chapters}}		{{JP Boyd on Family Law Navbox\|type=chapters}}

Nate Russell at 19:50, 25 June 2025

2025-06-25T19:50:17Z

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Nate Russell at 23:49, 5 May 2025

2025-05-05T23:49:56Z

← Older revision		Revision as of 23:49, 5 May 2025
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	*the cost of taking the case forward to a regular conventional trial compared to the amount of money or wealth at stake,		*the cost of taking the case forward to a regular conventional trial compared to the amount of money or wealth at stake,
	*the course of the proceedings,		*the course of the proceedings,
	*whether credibility is a critical factor in the determination of the dispute, and		*whether the summary trial may create unnecessary complexity in the resolution of the dispute (e.g. where the issue is deeply inter-related with other unresolved issues in the case, such that deciding it separately could lead to duplication of evidence, inconsistent findings, or "piecemeal" decision-making, which the courts do not like).
	*whether the summary trial may create an unnecessary complexity in the resolution of the dispute.

	Judges often refer to the older case of ''[https://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 BCLR (2d) 202 (CA)), when explaining the test for whether a family law case is appropriate for summary trial. When some but not all of the issues between the parties might be appropriate for a summary trial, the courts can still be reluctant to hold a summary trial if it would result in "litigation by slices".		Judges often refer to the older case of ''[https://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 BCLR (2d) 202 (CA)), when explaining the test for whether a family law case is appropriate for summary trial. When some but not all of the issues between the parties might be appropriate for a summary trial, the courts can still be reluctant to hold a summary trial if it would result in "litigation by slices". See also ''[https://canlii.ca/t/fw131 Kaler v. Kaler]'', 2013 BCCA 57.

	Summary trials are more common where lawyers are involved, but they are also very useful for self-represented litigants to know about. They avoid much of the procedural steps and complexities of a trial (both preparing for trial, and conducting one). Specifically, because summary trials are dealt with under Rule 11-3 of the Supreme Court Family Rules (and by the way Part 11 is entitled "Pre-Trial Resolution Procedures"), they are not subject to all of the rules and procedures described in the rest of the section below.		Summary trials are more common where lawyers are involved, but they are also very useful for self-represented litigants to know about. They avoid much of the procedural steps and complexities of a trial (both preparing for trial, and conducting one). Specifically, because summary trials are dealt with under Rule 11-3 of the Supreme Court Family Rules (and by the way Part 11 is entitled "Pre-Trial Resolution Procedures"), they are not subject to all of the rules and procedures described in the rest of the section below.

Nate Russell at 20:35, 2 April 2025

2025-04-02T20:35:44Z

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

	The process for bringing interim applications is covered in this chapter, under the section [[Interim Applications in Family ~~Matters~~]].		The process for bringing interim applications is covered in this chapter, under the section [[Interim Applications and Supreme Court Family Law Proceedings]].

	=== Court-appointed experts ===		=== Court-appointed experts ===

Nate Russell at 23:33, 31 March 2025

2025-03-31T23:33:56Z

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Nate Russell at 23:46, 27 March 2025

2025-03-27T23:46:59Z

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Nate Russell: Interim page for live site pending family law litigation chapters update

2024-01-12T00:01:37Z

Interim page for live site pending family law litigation chapters update

New page

← Older revision		Revision as of 02:10, 27 June 2025
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	Summary trials can seem like a good option because they often mean fewer days in court, often don't involve cross-examination of the parties, and are commonly easier and less expensive for the parties. They can be appropriate where there is enough clear (i.e. not conflicting) evidence for the judge to make a decision. But summary trials are not suitable for all family law cases.		Summary trials can seem like a good option because they often mean fewer days in court, often don't involve cross-examination of the parties, and are commonly easier and less expensive for the parties. They can be appropriate where there is enough clear (i.e. not conflicting) evidence for the judge to make a decision. But summary trials are not suitable for all family law cases.

	You need to look at Rule 11-3(15) to understand when a summary trial is not appropriate. A court might not grant judgment in a summary trial ~~applications~~ if:		You need to look at Rule 11-3(15) to understand when a summary trial is not appropriate. A court might not grant judgment in a summary trial application if:
	# the court is unable to find the facts necessary to decide the issues, or		# the court is unable to find the facts necessary to decide the issues, or
	# the court is of the opinion that it would be unjust to decide the issues.		# the court is of the opinion that it would be unjust to decide the issues.

	Regarding the first point, if there is a lot of conflicting evidence about important facts in the affidavits — and if there isn't other admissible evidence that can help break the tie — the judge ~~cannot~~ might not be comfortable deciding the factual dispute in a summary trial. To put it another way, if resolving conflicting evidence would require determining a ''credibility issue'' (i.e. deciding which person to believe), then a summary trial might not be appropriate. Remember, summary trials use affidavits, and a judge can't observe the witnesses talking about their evidence and responding to cross-examination. There is not a lot for a judge to see except written words on paper, so they can't easily determine whether one party is more credible than the other. Credibility issues are ~~bad for~~ summary trials, and a lot of summary ~~trials~~ don't go ahead because of them. This is not to say that every conflict in the affidavit evidence is fatal to a summary trial application, but it does mean that a credibility issue will ~~mean~~ it's even more important to have other admissible evidence that corroborates one person's version of the facts, and hopefully contradicts the other side's affidavit evidence. Also, credibility issues are not the only possible barrier to a court finding the necessary facts. Sometimes all of the recorded evidence together is just not enough for a judge to make their decision. Whatever the evidentiary deficiency, if a court can't "find the facts necessary" to make a decision, a summary trial is inappropriate.		Regarding the first point, if there is a lot of conflicting evidence about important facts in the affidavits — and if there isn't other admissible evidence that can help break the tie — the judge might not be comfortable deciding the factual dispute in a summary trial. To put it another way, if resolving conflicting evidence would require determining a ''credibility issue'' (i.e. deciding which person to believe), then a summary trial might not be appropriate. Remember, summary trials use affidavits, and a judge can't observe the witnesses talking about their evidence and responding to cross-examination. There is not a lot for a judge to see except written words on paper, so they can't easily determine whether one party is more credible than the other. Credibility issues are problematic in summary trials, and a lot of summary trial applications don't go ahead because of them. This is not to say that every conflict in the affidavit evidence is fatal to a summary trial application, but it does mean that a credibility issue will make it even more important to have other admissible evidence that corroborates one person's version of the facts, and hopefully contradicts the other side's affidavit evidence. Also, credibility issues are not the only possible barrier to a court finding the necessary facts. Sometimes all of the recorded evidence together is just not enough for a judge to make their decision. Whatever the evidentiary deficiency, if a court can't "find the facts necessary" to make a decision, a summary trial is inappropriate.

	Regarding the second point, a court will consider several factors in deciding if a summary trial is ''not unjust'':		Regarding the second point, a court will consider several factors in deciding if a summary trial is ''not unjust'':
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	*any urgency and prejudice likely to arise by reason of delay,		*any urgency and prejudice likely to arise by reason of delay,
	*the cost of taking the case forward to a regular conventional trial compared to the amount of money or wealth at stake,		*the cost of taking the case forward to a regular conventional trial compared to the amount of money or wealth at stake,
	*the course of the proceedings (if litigation has dragged on a long time and the parties are both trying to wind it down, a judge might find good reason to try and end it quickly, but if the history of the litigation ~~includes people~~ that are highly motivated towards conflict this can reduce the likelihood that a court will agree to decide it by summary trial)		*the course of the proceedings (for example, if litigation has dragged on a long time and the parties are both trying to wind it down, a judge might find good reason to try and end it quickly, but if the history of the litigation shows that the parties are highly motivated towards conflict, this can reduce the likelihood that a court will agree to decide it by summary trial), and
	*whether the summary trial may create unnecessary complexity in the resolution of the dispute (e.g. where the issue is deeply ~~inter-related~~ with other unresolved issues in the case, such that deciding it separately could lead to duplication of evidence, inconsistent findings, or "piecemeal" decision-making, which the courts do not like).		*whether the summary trial may create unnecessary complexity in the resolution of the dispute (e.g. where the issue is deeply interrelated with other unresolved issues in the case, such that deciding it separately could lead to duplication of evidence, inconsistent findings, or "piecemeal" decision-making, which the courts do not like).

	Judges often refer to the older case of ''[https://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 BCLR (2d) 202 ~~(CA))~~, when explaining the test for whether a family law case is appropriate for summary trial. When some but not all of the issues between the parties might be appropriate for a summary trial, the courts can still be reluctant to hold a summary trial if it would result in "litigation by slices". See also ''[https://canlii.ca/t/fw131 Kaler v. Kaler]'', 2013 BCCA 57.		Judges often refer to the older BC Court of Appeal case ''[https://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 BCLR (2d) 202, when explaining the test for whether a family law case is appropriate for summary trial. When some but not all of the issues between the parties might be appropriate for a summary trial, the courts can still be reluctant to hold a summary trial if it would result in "litigation by slices". See also ''[https://canlii.ca/t/fw131 Kaler v. Kaler]'', 2013 BCCA 57.

	Summary trials are more common where lawyers are involved, but they are also very useful for self-represented litigants to know about. They avoid much of the procedural steps and complexities of a trial (both preparing for trial, and conducting one). Specifically, because summary trials are dealt with under Rule 11-3 of the Supreme Court Family Rules (and by the way Part 11 is entitled "Pre-Trial Resolution Procedures"), they are not subject to all of the rules and procedures described in the rest of the section below.		Summary trials are more common where lawyers are involved, but they are also very useful for self-represented litigants to know about. They avoid much of the procedural steps and complexities of a trial (both preparing for trial, and conducting one). Specifically, because summary trials are dealt with under Rule 11-3 of the Supreme Court Family Rules (and, by the way, Part 11 is entitled "Pre-Trial Resolution Procedures"), they are not subject to all of the rules and procedures described in the rest of the section below.

	If you are considering summary trial, note that:		If you are considering summary trial, note that:
	* they must be heard at least 42 days before the scheduled trial date (see Rule 11-3(3)), ~~and~~		* they must be heard at least 42 days before the scheduled trial date (see Rule 11-3(3)),
	* you must set one down for hearing in accordance with Part 10 of the [https://canlii.ca/t/8mcr Supreme Court Family Rules], and		* you must set one down for hearing in accordance with Part 10 of the [https://canlii.ca/t/8mcr Supreme Court Family Rules], and
	* summary trials are a form of ''chambers proceeding'' under Part 10, so their process follows that of interim application under Rule 10-3 (except that the notice periods are longer).		* summary trials are a form of ''chambers proceeding'' under Part 10, so their process follows that of interim application under Rule 10-3 (except that the notice periods are longer).