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Difference between revisions of "Court Procedures in Family Law (3:XV)"
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Court Procedures in Family Law (3:XV) (view source)
Revision as of 19:37, 10 August 2022
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=== 4. Provincial (Family) Court Proceedings === | === 4. Provincial (Family) Court Proceedings === | ||
==== a) Application to Obtain an Order ==== | ==== a) Registries (Dependent upon location) ==== | ||
*a. Early Resolution Registries – Surrey and Victoria | |||
*b. Family Justice Registries – Kelowna, Nanaimo, Vancouver (Robson Square) | |||
*c. All other BC Registries | |||
==== b) Application to Obtain an Order ==== | |||
Most proceedings in Provincial Court are commenced by filing a 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. | Most proceedings in Provincial Court are commenced by filing a 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. | ||
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* A filed copy of the applicant’s financial statement and applicable documentation under Rule 3, if applicable | * A filed copy of the applicant’s financial statement and applicable documentation under Rule 3, if applicable | ||
==== | ==== c) Reply ==== | ||
The respondent must file a reply within 30 days of being served with a copy of the application, otherwise a default judgment may be sought in favour of the applicant. If the respondent disagrees with the remedy sought, they should be advised to obtain legal counsel to dispute the applicant’s claim. | The respondent must file a reply within 30 days of being served with a copy of the application, otherwise a default judgment may be sought in favour of the applicant. If the respondent disagrees with the remedy sought, they should be advised to obtain legal counsel to dispute the applicant’s claim. | ||
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* Apply to the Court for an order to change existing orders or agreements. | * Apply to the Court for an order to change existing orders or agreements. | ||
==== | ==== d) Early Resolution Registries ==== | ||
The requirements for filing an application with an Early Resolution Registry include: | |||
a. Filing a notice to resolve (Form 1) (see above); | |||
b. Providing a copy of notice to all other parties (see above); | |||
c. Participating in a needs assessment (Rule 16); | |||
d. Completing a parenting education program (Rule 17); | |||
e. Participating in at least one consensual dispute resolution (Rule 18). | |||
==== e) Family Justice Registries ==== | |||
Under Rule 89, at these registries, the parties will be obliged to comply with similar requirements outlined under Early Resolution Registries before the application is heard (unless the parties fall into the exception outlined in Rule 90). The major difference being that the consensual dispute resolution is not required under Family Justice Registries, however, 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) Parenting After Separation Program ==== | |||
a. Pursuant to Rule 94 of the Provincial Court (Family) Rules, both parties must complete a Parenting After Separation Program if there is a dispute over issues respecting children. Unless otherwise exempt by a local manager of the Family Justice Services Division of the Ministry of Attorney General. A party must submit a request through Form 20 and exemptions can be granted based on: | |||
**a. The party cannot access the online version, | |||
**b. The parenting education program is not offered in a language in which the party is fluent, | |||
**c. The party cannot complete an online version due to literacy challenges, | |||
**d. The party cannot complete the parenting education program due to a serious medical condition, or | |||
**e. A consent order is filed that resolves all issue involving children | |||
b. The program is a free three-hour session and open to all parents and others (for example, grandparents) where parenting time, guardianship, access, and support issues are involved. For more information, see [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas/do-i-have-to-take-pas#:~:text=In%20all%20provincial%20court%20locations,about%20a%20family%20law%20matter Do I have to take a Parenting After Separation Course?] | |||
==== | ==== g) 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 arrange for disclosure of one party’s evidence to the other. | 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 arrange for disclosure of one party’s evidence to the other. | ||
If a trial preparation conference is to be held, each party must file and serve a trial readiness statement in Form 22 | If a trial preparation conference is to be held, each party must file and serve a trial readiness statement in Form 22, seven days before the conference is scheduled (Rule 110). If no trial preparation conference is scheduled, then the statement must be submitted a minimum of 30 days prior to the first date of trial. | ||
During this conference, a judge will determine whether a trial will be held and in what manner. Rule 112 provides a fulsome list of matters the judge may give direction about, including evidentiary requirements, how the views of a child will be heard, and whether family violence is at issue. | During this conference, a judge will determine whether a trial will be held and in what manner. Rule 112 provides a fulsome list of matters the judge may give direction about, including evidentiary requirements, how the views of a child will be heard, and whether family violence is at issue. | ||
==== | ==== h) Family Management Conference ==== | ||
A judge | This will be the first step in which parties will appear in court if the above steps to find resolution fail. A judge can make an order during this conference whether or not both parties agree, and evidence can be presented. Therefore, it of the upmost importance parties have exhausted all previous opportunities to find a solution and/or prepare for their conference. The meeting is between the relevant parties and a judge and is intended to reach a settlement. More information can be found under Part 4 of the Provincial Court Family Rules within the Court Rules Act. | ||
==== | ==== i) Witnesses ==== | ||
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 their 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. | 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 their 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. | ||
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In Provincial (Family) Court, the person who subpoenas the witness is responsible for that witness’ reasonable estimated travel expenses. | In Provincial (Family) Court, the person who subpoenas the witness is responsible for that witness’ reasonable estimated travel expenses. | ||
==== | ==== j) Affidavit Evidence ==== | ||
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 (Rule 13) either on application brought by notice of motion under Rule 12 or under Rule 8(4)(g). This evidence must be in Form 45. | 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 (Rule 13) either on application brought by notice of motion under Rule 12 or under Rule 8(4)(g). This evidence must be in Form 45. | ||
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As of May 2021, Rules 145, 112 will replace the above rules under the new Provincial Court Family Rules, and Form 45 will be used in place of Form 17. | As of May 2021, Rules 145, 112 will replace the above rules under the new Provincial Court Family Rules, and Form 45 will be used in place of Form 17. | ||
==== | ==== k) Notices of Motion ==== | ||
Three copies of a notice of motion (Rule 118) 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: | Three copies of a notice of motion (Rule 118) 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: | ||
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'''NOTE:''' Different Provincial Court Registries have different procedures regarding evidence at interim hearings. Some allow Affidavits and others require leave to produce and file an Affidavit and prefer viva voce (spoken) evidence. Be sure to check the procedure at the Registry in question before filing materials. | '''NOTE:''' Different Provincial Court Registries have different procedures regarding evidence at interim hearings. Some allow Affidavits and others require leave to produce and file an Affidavit and prefer viva voce (spoken) evidence. Be sure to check the procedure at the Registry in question before filing materials. | ||
==== | ==== l) Trial ==== | ||
A 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. | A 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. | ||
==== | ==== m) Procedure for Enforcement of Parenting Orders ==== | ||
An Application Form (Form 29) and copy of the parenting order must be filed in the registry. | An Application Form (Form 29) and copy of the parenting order must be filed in the registry. | ||
==== | ==== n) Orders ==== | ||
Orders come into effect on the day that they are made unless the judge orders otherwise. If the party in whose favour the order is made is unrepresented, a clerk must prepare the order. Otherwise the favoured party’s lawyer will prepare the order. | Orders come into effect on the day that they are made unless the judge orders otherwise. If the party in whose favour the order is made is unrepresented, a clerk must prepare the order. Otherwise the favoured party’s lawyer will prepare the order. | ||
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If there is a dispute about the terms of an order, a party may apply to a judge to have the dispute settled. Once an order is signed and approved, it must be given to the court registry to be signed by the judge and filed with the Court. Otherwise, the order is not enforceable. At any time, a judge may correct a clerical error in an order. | If there is a dispute about the terms of an order, a party may apply to a judge to have the dispute settled. Once an order is signed and approved, it must be given to the court registry to be signed by the judge and filed with the Court. Otherwise, the order is not enforceable. At any time, a judge may correct a clerical error in an order. | ||
==== | ==== o) Compliance with Provincial Court Family Rules ==== | ||
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 2019 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. | 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 2019 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. | ||
