Court Procedures in Family Law (3:XV)
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 18, 2021. |
A. Limitation Dates
1. Child Support
There is no limitation period for making a claim to child support, provided the child is still a “child” within the meaning of the FLA or the DA, as applicable, at the time of the originating application (de Rooy v. Bergstrom, 2010 BCCA 5; Crepnjak v. Crepnjak, 2011 BCCA 177). The general rule of thumb is that the Court will not order child support retroactive to more than three years from the date of the application (DBS v SRG, 2006 SCC 37).
Under the Limitations Act, there is no limitation date for claims on arrears of child support payments payable under a judgment or an agreement filed with the court under s 148(2) or 163(3) of the FLA.
2. Spousal Support
2(a) Married Spouses
Divorce Act
Spousal support can be claimed under the Divorce Act in a divorce proceeding or in a proceeding for corollary relief alone (ss 4 and 15.2). There is no limitation period within which married spouses or divorced spouses must bring a spousal support application. A claim for spousal support can be brought before or after an order for divorce. However, the longer a party waits, the less likely they will succeed in a claim for spousal support.
Family Law Act
Under s 198(3) of the FLA, a claim for spousal support must be brought no later than 2 years after the judgment granting a divorce or an order declaring the marriage to be a nullity. The two-year time limit does not apply to a review of spousal support under s 168 and 169 of the FLA.
The running of time limits is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional or a prescribed process.
Under s 198(3), a married spouse may make an application to set aside an order or agreement for spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.
Under the Limitations Act, there is no limitation date for claims on arrears of spousal support payments payable under a judgment or an agreement filed with the court under s 148(2) or 163(3) of the FLA.
2(b) Common-Law Spouses
Divorce Act
The Divorce Act does not apply to common -law spouses.
Family Law Act
Under s 198(3) of the FLA, a claim for spousal support must be brought no later than 2 years after the date of separation. The two-year time limit does not apply to a review of spousal support under s 168 and 169 of the FLA.
The running of time limits is suspended during any period in which persons are engaged in family dispute resolution with a family dispute resolution professional or a prescribed process.
Under s 198(3), a spouse living in a marriage-like relationship may make an application to set aside an order or agreement for spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.
Under the Limitations Act, there is no limitation date for claims on arrears of spousal support payments payable under a judgment or an agreement filed with the court under s 148(2) or 163(3) of the FLA.
3. Division of Property, Debt, and Pension
3(a) Married Spouses
Under section 198(3) of the FLA, a married spouse may begin a proceeding to divide property, debt, or a pension no later than 2 years after a judgment granting a divorce or an order declaring the marriage to be a nullity. The limitation period may be suspended if the spouses were engaged in family dispute resolution with a family dispute resolution professional or a prescribed process.
A spouse may make an application to set aside an order or agreement for property division no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.
Once a distribution scheme for family property is set, either by the Court or by agreement, it is always enforceable subject to the relevant case law.
3(b) Common-Law Spouses
Spouses living in a marriage-like relationship may begin a proceeding to divide property, debt, or a pension no later than 2 years after the date of separation (s 198(3)). The limitation period may be suspended spouses if the spouses were engaged in family dispute resolution with a family dispute resolution professional or a prescribed process.
A spouse living in a marriage-like relationship may make an application to set aside an order or agreement for property division no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.
Once a distribution scheme for family property is set, either by the Court or by agreement, it is always enforceable subject to the relevant case law.
B. Supreme Court
The Supreme Court is the only court that hears actions under the DA. Under the 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.
All Supreme Court procedures in family law proceedings are governed by the Supreme Court Family Rules effective July 1, 2010. (The Supreme Court Family Rules replace the former Rules of Court in respect of family law matters). Unless a client is familiar with these rules and able to strictly adhere to the formal procedures, this person should appear in Supreme Court with representation.
Actions are started when a claimant files a Notice of Family Claim or a Petition to Court. Matters may be decided through interlocutory applications or by trial. Interlocutory applications are hearings held in chambers. No witnesses are called. Instead, all evidence is taken from sworn affidavits. If the judge or master is satisfied with the credibility and substance of the evidence presented, then an interim order can be granted. A final order may be obtained at trial or by way of a summary trial on affidavit evidence if there are no serious issues of credibility.
C. Small Claims Court
Clients can enforce agreements concerning the division of assets between persons in a common-law relationship and between those in other relationships in Small Claims Court. See Chapter 20: Small Claims Procedure for more details. Also, one may be able to make a trust claim in Small Claims Court.
D. Provincial Family Court
1. Jurisdiction
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 (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/access orders, but does not have the power to make orders regarding occupancy of the family home (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.
The Provincial Court offers free counselling and mediation services to family members considering separation or divorce. The Family Justice Counsellors (who may also be probation officers) will try to help the parties reach agreement on contentious matters.
2. Contacting Provincial (Family) Court
Clients should phone Provincial Court (and ask for the Family Court Division) in advance to arrange an interview. An Intake Officer will speak with the client, and if the problem is something the Provincial Court deals with, the client will be assigned to a Counsellor and an appointment will be arranged.
For a list of Family Courts in the Lower Mainland, see Chapter 22: Referrals.
3. Family Justice Counsellors
Family Justice Counsellors are not lawyers and do not necessarily know what the client’s rights and obligations are. Clients should seek legal advice before signing any agreement.
The Family Justice Counselling Service helps people seeking remedies for their family problems through the Court or through counselling and mediation services. The aim of the counsellors is not reconciliation. Where a couple indicates a willingness to restore the marriage, they will be referred to a marriage counsellor. There are also clerks who help clients understand and implement child support guidelines.
Counselling is non-adversarial. The counsellors are impartial third parties who will assist both spouses in coming to an out-of-court settlement, although the counsellors are not of uniform quality and expertise. After gathering minimal information, the Counsellor will normally send a letter to the other spouse to advise them of the situation and try to set up a meeting with the first spouse and the counsellor. All information received from a spouse is private and confidential and will not be given out except with the express permission of that person, or as required by law.
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.
The counsellors will:
- 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.
The client can choose to avoid the counselling service and appear in court directly. The counsellor towhom the client has been assigned will still offer assistance with the application forms, etc. The Family Justice Counsellors can be reached at (604) 660-6828 (Vancouver) or (604) 660-8636 (Burnaby).
Family Justice Counsellors deal exclusively with issues of children and support. In limited circumstances, and for clients with assets or debt less than $25,000, a Family Justice Counsellor can mediate an agreement.
4. Provincial (Family) Court Proceedings
a) 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.
The application must be filed with the registry, and must be personally served on the respondent by someone other than the applicant unless the judge orders otherwise. The following documents must be served with the filed copy of the application when it is served on the respondent:
- 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
b) 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:
- 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.
In the reply, the respondent may:
- 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.
c) Family Justice Registries
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.
d) Parenting After Separation Program
Pursuant to Rule 94 of the Provincial Court (Family) Rules, parties who file at a “designated registry” must also attend a Parenting After Separation Program if there is a dispute over issues respecting children. These include the following registries: Abbotsford, Chilliwack, Kamloops, Kelowna, Nanaimo, New Westminster, North Vancouver, Port Coquitlam, Prince George, Richmond, Surrey, Vancouver (Robson Square) and Victoria.
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: http://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas.
e) First Appearance
If the application is filed with the court registry, the clerk must serve the parties with notice of the time and place they are to attend court for a first appearance to fix a date for the hearing of the application. Note that this notice is titled “Trial Notice” although the matter is set for a fix-date hearing.
f) Pre-Trial 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.
If a trial preparation conference is to be held, each party must file and serve a trial readiness statement in Form 22 either 7 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.
g) Family Case Conference
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 36 of the Provincial Court (Family) Rules governs Family Case Conferences.
h) 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.
In Provincial (Family) Court, the person who subpoenas the witness is responsible for that witness’ reasonable estimated travel expenses.
i) 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.
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.
j) 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:
- An interim order to be made (FLA s216);
- 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.
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.
k) 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.
l) Procedure for Enforcement of Parenting Orders
An Application Form (Form 29) and copy of the parenting order must be filed in the registry.
m) 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.
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.
n) 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.
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