Family Court (Script 110)

From Clicklaw Wikibooks

What is Family Court?

Family Court is a division of the British Columbia Provincial Court. Other divisions of the Provincial Court deal with criminal, traffic and small claims cases. Provincial Court judges hear family law cases, youth and adult criminal cases and small claims cases. Provincial Court might have a separate courtroom where family law cases are heard, or family law cases might be heard in one of the regular courtrooms on a particular day of the week. Usually there is a day each week or every other week when the court will hear family law and child protection cases.

What does Family Court handle?

Family Court deals with a limited number of family law issues under the BC Family Law Act, including:

  • guardianship of a child
  • parental responsibilities
  • parenting time
  • contact with a child
  • child support and spousal support
  • protection and conduct orders

Family Court also deals with child protection cases with the Ministry of Children & Family Development under the BC Child, Family and Community Service Act.

Family Court does not deal with family law issues under the federal Divorce Act, in particular divorce, family property, custody, adoption and family debts.

Who can apply to Family Court?

Family Court is available to everyone who has family law issues, including couples who are married, couples who aren’t married, people who have had a child together and anyone, such as a relative, who has an interest in a child.

What issues have to go to Supreme Court?

Family Court cannot grant a divorce, it cannot divide property or debts, it cannot make orders about family property, it cannot change an order that was made under the Divorce Act and it cannot make adoption orders. These matters have to be taken to Supreme Court if an order has to be made. The Supreme Court can deal with all family law issues, including all of the issues that the Provincial Court deals with.

Although both courts can make orders about child care and child support, the Supreme Court will generally not make an order about an issue that has already been decided by the Provincial Court, except where the Provincial Court decision is being appealed to the Supreme Court.

Appearing without a lawyer in Family Court

There is no rule that people have a lawyer when they are going to court. The Family Court Rules are written in plain language and the court’s forms are easy to fill out. But most people who represent themselves in court will still benefit from some legal advice.

Why go to Family Court?

Family Court can make orders about the care of a child, child support, spousal support and protection orders. Family Court has other advantages:

  • Family Justice Counsellors can help resolve some family law issues. Their services are free.
  • The court forms are easier to fill out than Supreme Court forms.
  • No court fees are charged.
  • The rules of court are simpler than the rules of the Supreme Court.
  • Duty counsel are sometimes available to help people who don’t have their own lawyer.

First, go to the courthouse and talk to the clerk at the family law counter

Different registries of the Family Court have different rules about how cases get started. Some registries require that parties (the people with the dispute) meet with a Family Justice Counsellor before they can see a judge. Other registries require parties to take the Parenting After Separation course before they can see a judge. The clerk at the family law counter can provide valuable information on how to start a case and what to do to see a judge.

Family Justice Counsellors aren’t lawyers, but they are trained to deal with family law issues in Family Court. They can help families with guardianship of the child, parental responsibilities and parenting time, contact and support issues, and can help to resolve issues through negotiation and mediation. The counsellor may refer people to a Legal Aid office or suggest hiring a lawyer.

The Parenting After Separation program teaches parents how to make careful and informed decisions about their separation and to ensure that these decisions take into account the best interests of their child. It's a good idea to take the program whether the court requires it or not.

What to do in an emergency?

There is a waiting time for an appointment to see a Family Justice Counsellor or for the next Parenting After Separation program. Be sure to tell the court clerk if the spouse or partner is violent. The clerk will explain how the Family Court can make a protection order in an emergency, without an appointment with a Family Justice Counsellor or the Parenting After Separation program.

How are Family Court cases resolved?

There are a few ways that family law cases are resolved.

  • If the parties to the family law case can talk to each other, they may be able to settle their dispute through negotiation, mediation or a collaborative process. The settlement might be recorded in a written agreement or it might be recorded in an order that the parties agree the judge will make, called a consent order. Most family law cases are settled by an agreement or consent order.
  • If the parties cannot settle the case themselves, a Family Court judge will decide it after a hearing.
  • The Family Law Act also allows people to resolve family law cases through arbitration. The decisions of arbitrators are called awards and are legally enforceable.

What is negotiation?

Negotiation is a bargaining process in which the parties try to reach an agreement about their dispute. People can negotiate with each other with lawyers helping them or without lawyers. Sometimes other family members, elders or other respected community members may help with the negotiation process.

What is mediation?

In mediation, an independent person meets with the parties to help them discuss their issues and find a settlement. Mediators don’t make decisions for people. They help them make decisions for themselves. Mediation may require two or more meetings to reach a settlement.

Family Justice Counsellors are trained mediators. Parties can use a Family Justice Counsellor as their mediator or they can hire a private mediator. Family law mediators are usually lawyers with special training in mediation and can also be hired privately. Family law mediators must be certified—make sure they are if you choose one.

For more information on mediation, refer to Script 111 on “Mediation and Collaborative Settlement Processes”.

What are collaborative settlement processes?

Collaborative settlement processes are a kind of negotiation where the parties work with lawyers and agree that they will do everything possible to reach a settlement without going to court. The parties and the lawyers work together to find a settlement. Specialists like counsellors, child psychologists and financial experts may be used to help find a settlement. Collaborative processes are centered on the parties’ unique circumstances and the child’s best interests. The communications are open and transparent.

For more information on collaborative processes, check Script 111 on “Mediation and Collaborative Settlement Processes”.

If a settlement is reached, put it in writing

A settlement is an agreement. Agreements that resolve a family law issue should be in writing. This helps people remember exactly what the settlement was and stops people from changing their minds later on.

Written agreements that record the terms of settlement are usually called separation agreements. The terms of settlement can also be recorded by minutes of settlement, which are usually much shorter than separation agreements.

Agreements that are put into the form of a court order are called consent orders. Both parties must sign their written agreement or consent order. In the case of consent orders, an additional court form must be signed to show that the parties agree to the court making the order. In some cases, an affidavit is required to explain to the court why the parties reached an agreement. For example, if the parties are not using the Federal Child Support Guidelines, a judge will want an explanation why before approving a consent order.

If a separation agreement or consent order is prepared without a lawyer, each party should get independent legal advice from a family law lawyer before signing the agreement or order. It is important that each party understands exactly what the agreement means and how it affects the legal rights and obligations. Having legal advice can help to protect a settlement if a party later challenges the agreement.

What is arbitration?

Arbitration is like going to court, except that parties choose and hire and arbitrator and they decide how the arbitration hearing will work. In other words, a family law arbitrator will make a binding decision to resolve family law issues out of court. Although parties will have to pay for the arbitrator, arbitration hearings are private and can often be scheduled sooner than court hearings. Family law arbitrators must be certified.

What is Med/Arb?

Med/Arb is a mix of mediation and arbitration. The process starts as mediation. If the parties agree on all issues at mediation, the process ends. If the parties do not reach an agreement on all the issues, the mediator will then act as an arbitrator and may make a final decision.

This process lets people try to reach an agreement, but if they can’t, they can still get a final decision without going to court.

Sometimes people have to go to trial

If people cannot settle their family law issues and have to go to a trial, they will have a hearing before a Family Court judge. Witnesses give oral testimony (they tell the court their side of the case) and present documents or other evidence. Often, the people themselves are the only witnesses. After all of the evidence has been given to the judge, each side will make arguments to the judge and explain why the judge should make a particular order. The judge will then make an order resolving the issues.

What is a family case conference?

Before trial, the judge may ask the people to attend a family case conference to see if the dispute can be resolved without a trial. Family law cases are often resolved at these conferences. When the people can agree, the judge will make a consent order at the conference. Judges can make orders about procedures without the agreement of the people involved. But any other orders require their agreement.

What is a needs of the child assessment?

If arrangements about the care of a child are disputed, the Judge may ask a Family Justice Counsellor or another person, like a social worker, a psychologist or a counsellor, to prepare a Needs of the Child Assessment. These are called section 211 reports (they are written under section 211 of the Family Law Act). The assessor will write a report to the Judge about the needs of the child, the views of the child if the child is old enough, and the ability of the parties to meet the child’s needs.

These reports often describe the parenting arrangements that the assessor believes are in the best interests of the child. But because of high demand, reports prepared by Family Justice Counsellors can take a year or more to complete. Psychologists and other counsellors can write a private report faster, but the fees are often $15,000 or more. Some insurance plans will pay some of the fees.

How are a child’s wishes considered?

If issues about the care of a child who is at least 6 years old are disputed, a judge may ask a professional with special training to prepare a report. These professionals may be a Family Justice Counsellor, Parenting Coordinator, Social Worker, Psychologist, Counsellor, or a lawyer with special training. Many parents also agree to have a report done privately without a court order.

The reports explain a child’s wishes, but that doesn’t mean a child gets to choose. Parenting decisions are made by the parents, or if they cannot agree, the court. Children must not be forced, or encouraged, to make a choice. That would put them in the middle of the conflict.

There are two main types of reports:

  • Hear the child reports are prepared by lawyers, counsellors and social workers. These reports just describe what a child says during an interview with an expert. They do not evaluate the child’s wishes or provide opinions about the accuracy of those wishes.
  • Views of the child reports are prepared by a Family Justice Counselor, Psychologist, Counsellor, or Parenting Coordinator, and will include some evaluation. They will often give an opinion on the reliability of the child’s statements. For example, does the child understand the implication of their wishes, or have they been coached? Views of the child reports may also include recommendations.

Costs range from around $1,000 for a Hear the child report to $3,500 for a Views of the child report. Reports ordered by a court through the Family Justice Centre are free, but they can take up to 6 months.

More information

  • For information on Family Court or to make an appointment with a Family Justice Counsellor, call Service BC at 604.660.2421 in Metro Vancouver, 250.387.6121 in Greater Victoria, and 1.800.663.7867 elsewhere in BC. Ask for the nearest Family Justice Centre.
  • Check the Family Justice website.
  • Check the Parenting After Separation (PAS) program. Call Service BC at 1.800.663.7867 for the nearest Family Justice Centre that can find the closest session.
  • Check the online PAS course provided by Justice Education Society of BC. This program is available in English, Chinese and Punjabi.
  • Check the Justice Access Center webpage on “Family matters” for more on mediation and other alternatives to court.
  • Consider getting unbundled legal services. They let you choose what legal services you want and what you can afford, so you don’t pay for things you could easily do yourself. But these services are not for everyone. They are for people who want to control their own legal issues. The BC Family Unbundling Roster website has a list of family law lawyers who offer these services.

[updated October 2018]

The above was last reviewed for legal accuracy by Michael Butterfield and Erin Bowman, and edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

Personal tools