Difference between revisions of "Court Procedures in Family Law (3:XV)"

{{REVIEWED LSLAP | date= August 18, 2021}}

The Supreme Court is the only court that hears actions under the ''DA''. Under the ''FRA'' and ''FLA'', the Supreme Court has both statutory and inherent jurisdiction to decide all support, division of property, parenting time, and access matters. Therefore, all ''FLA'' issues can be incorporated into a divorce action.  

== D. Provincial Family Court ==

Provincial Family Court has jurisdiction under the ''FLA'' over matters of parenting time, access, support and guardianship, subject to the jurisdiction of the superior courts and the federal government. The ''FLA'' provides greater powers for the enforcement of Orders which are available to the Provincial Court. Provincial Family Court has jurisdiction over the enforcement of support orders whether made in Supreme Court or Provincial Family Court ([http://canlii.ca/t/23nk0 ''Butler v Butler'' (1981), 27 BCLR 268 (BCCA)]) and has original jurisdiction to make support orders and to vary or rescind its own orders. Provincial Family Court can also make, vary, rescind, or enforce its own parenting time/access orders, but does not have the power to make orders regarding occupancy of the family home ([http://canlii.ca/t/24lhr ''Polglase v Polglase'' [1979] BCJ No 58 (QL)]). Where the Supreme Court has made an order respecting parenting time, access, support, or child support, Provincial Family Court will be unable to vary that order, although the Court can enforce the order.  

=== 2. Contacting Provincial Family Court ===

Counsellors attempt to avoid court disputes by obtaining a Consent Order. If this is not possible, pertinent details regarding parenting time and support will be obtained, and forms will be prepared for court.  

* Provide information regarding the court processes, available options, and current legislation;  

* Offer conciliation and mediation services;  

* Investigate the matters under dispute;  

* Help with court applications and general preparation for court; and  

* Screen for family violence situations and direct parties to the appropriate services.  

=== 4. Provincial Family Court Proceedings ===

Most proceedings in Provincial Court are commenced by filing an Notice to Resolve a Family Law Matter (Form 1). The application commences an action in Provincial Court, and requests a specific remedy. The application can be filed at either the court registry or in a family justice registry. For procedure see Provincial Court Family Rules.

* A blank reply form (Form 6);

* A blank financial statement form (Form 4), if the applicant is seeking an order for child and/or spousal support or a variation of child and/or spousal support; and  

* A filed copy of the applicant’s financial statement and applicable documentation under Rule 3, if applicable  

* Complete a reply in Form 6, following the instructions on the form;

* File that reply, together with three copies of it, in the registry where the application was filed; and  

* If applicable, file the original and three copies of the respondent’s financial statement and applicable documentation referred to in Rule 3.

* Consent to one or more of the orders in the application;  

* Disagree with anything claimed in the application, stating the reasons for the disagreement;  

* Counterclaim for a variety of relief, including but not limited to guardianship, allocation of parenting responsibilities, parenting time, child support, spousal support, or a protection order under the ''FLA''; and/or  

* Apply to the Court for an order to change existing orders or agreements.

Family Justice Registries are designated by Part 6, Rule 87 of the Provincial Court Family Rules. Under the definitions in the Rules, "family justice registry" means the Vancouver (Robson Square), Surrey, Kelowna or Nanaimo registry. Under Rule 89, at these registries, the parties will be obliged to comply with additional requirements before the application is heard (unless the parties fall into the exception outlined in Rule 90). Both parties will meet with a Family Justice Counsellor. If a settlement cannot be reached with the assistance of the counsellors, the matter will be referred to court.   

For more information, see the website: http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/family-justice-counsellors.  

==== f) Trial Preparation Conferences ====

The parties may be ordered to hold a trial preparation conference during which the judge may rule on any issues not requiring evidence, make an order, discuss the procedure that will be followed at trial, order that certain evidence be produced, or make arrangements for disclosure of one party’s evidence to the other.  

A judge may order a family case conference, or one may be requested. The conference is informal and off the record. The meeting is between the relevant parties and a judge and is intended to reach a settlement. Note that the judge has the authority to make orders whether or not the parties agree to the order. Rule 336 of the Provincial Court (Family) Rules governs Family Case Conferences.  

Witnesses are summoned to the Court by subpoena. However, a subpoena is not necessary if the witness is prepared to appear in court voluntarily. If a subpoenaed witness does not appear in court, a warrant may be issued for his or her arrest. To require the attendance of a witness, a party must complete a subpoena in Form 23, and serve a copy of the subpoena on the witness personally at least seven days before the date the witness is required to appear.  

In Provincial Family Court, the person who subpoenas the witness is responsible for that witness’ reasonable estimated travel expenses.  

At trial, evidence may be given orally or by sworn affidavit. Evidence may be given by affidavit at a trial or hearing only if permission is granted by a judge, either on application brought by notice of motion. This evidence must be in Form 45.  

Three copies of a notice of motion (Rule 18) must be filed in the court registry and one copy must be served on the other parties at least seven days before the date for hearing the notice of motion in court when a party wishes:  

* An interim order to be made (''FLA'' s. 216);  

* To file documents in another registry;  

* To have a pre-trial conference;  

* To cancel a subpoena;  

* For an order to produce documents;  

* For an order requiring that paternity tests be taken;  

* To use another method of service (no notice required);  

* To settle the terms of an order;  

* To extend a time limit;

* To change or cancel an ''ex parte'' order;  

* To have a file transferred;  

* To have disclosure; or  

* To obtain directions on procedures not in the ''Provincial (Family) Court Rules''.  

Provincial Family Court trial is an adversarial proceeding. Clients are there to give the judge enough facts so that they can make a decision about the application. However, the judge often gets involved in the presentation of evidence, especially where one party is not represented by counsel.  

==== l) Procedure for Enforcement of Parenting Orders ====

An Application Form (Form 9) and copy of the custody order must be filed in the registry.  

If any of the ''Provincial Court (Family) Rules'' (British Columbia) are not complied with, the judge may disregard the incorrect procedure or order, order the hearing or trial to continue as if the respondent were absent, or give any direction they think is fair. Please check the Cumulative Regulation Bulletin 2014 for any non-consolidated amendments to this regulation that may be in effect. The Provincial Court Family Rules replaced the Provincial Court (Family) rules May 2021; please review the rules to ensure that you are in compliance with the updated version.