Resolving Family Law Problems in Court

The process of starting or responding to a court proceeding and wrapping it up at trial can be complicated, but it is manageable if you learn about the court process before you start it, or as soon as you are served with court papers.

This chapter offers an overview of how family law litigation works, and provides some general points to consider regardless of whether you go to BC Supreme Court or BC Provincial Court.

For specific guidance on the stages and processes for the two levels of court in BC that hear family law trials, see the dedicated chapters for:

• Family Law Litigation in Supreme Court, and
• Family Law Litigation in Provincial Court

This section provides a thumbnail sketch of the basic court process common to all family law court proceedings, with some details for just the Provincial Court and some for just the Supreme Court.

Hold on for a minute, do you really have to go to court?

Sometimes, you really have no choice except to start a court proceeding. But you should think twice before you do, and make sure that litigation is your best choice.

The end of a relationship, especially a long relationship, is an emotionally charged, stressful time. Court is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to start a court proceeding, think about these things first:

Your future relationship with your ex. Right now you might hate your ex and want to make their life miserable. You might not feel that way in a year or two. If you don't have children, it might be entirely possible for you to simply walk out of each other's lives and into the sunset. If you do have children, however, you don't have that option. Your relationship as lovers and partners might be over, but your relationship as parents will continue forever.

Your children, and your relationship with your children. Your children will be aware that there is a certain degree of conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in a court proceeding, it can be tremendously difficult to shield the children from the litigation, from your emotional reactions to the litigation, and from your conflict with their other parents. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely, and often in ways you don't expect.

Your own worries and anxieties. Litigation is always an uncertain process. No one, not even your lawyer, can guarantee that you will be completely successful about any particular issue. At the end of the day, fundamental decisions will be made by a complete stranger — a judge — about the things that matter the most to you, and the judge's decision is not something you can predict with any certainty. On top of that, litigation, especially when you're doing it yourself, is very stressful. The forms and processes will be new to you, and each court appearance will likely be a fresh cause of anxiety and uncertainty.

Your wallet. If you opt to hire a lawyer, be prepared to pay and to pay a lot. Sometimes a lawyer can help you get things done quickly and with a minimum of fuss and bother, but if emotions are running high, you stand to pay a whopping legal bill, especially if you go all the way through to trial. Even if you don't hire a lawyer, litigation can be expensive, and if you are unsuccessful you can also be ordered to pay the other side's court costs.

There are other ways of solving your problem than litigation. Going to court is only one of the ways to bring your dispute to an end. Other, less confrontational and less adversarial approaches include negotiation, mediation, collaborative negotiation and arbitration. All of these other approaches generally cost a lot less, and, because they are cooperative in nature, they'll give you the best chance of maintaining a working relationship with your ex after the dust has settled. These options are discussed in more detail in the chapter Resolving Family Law Problems out of Court.

Now, in fairness, there are times when going to court may be your only choice. It may be critical to start a court proceeding when:

1. there has been family violence in your relationship, whether involving you or your children;
2. there have been threats to your physical safety, or to the safety of your children;
3. your ex has threatened to take the children out of town, out of the province, or out of the country against your wishes;
4. there is a threat or a risk that your ex will damage, hide, or dispose of property;
5. you urgently need to get some financial help;
6. negotiations have failed and, despite your very best efforts, you and your ex can't agree on how to solve your differences; or,
7. your ex refuses to communicate with you about the legal issues that need to be resolved.

While you should think twice before deciding that court is your only option, starting a lawsuit doesn't mean that you can't continue to try to negotiate a resolution outside of the court process.

For more information about the emotions that surround the end of a long-term relationship, and how these emotions can affect the course of litigation, read the section Separating Emotionally in the chapter Separating and Getting Divorced. You should also track down and read a copy of Tug of War by Mr. Justice Brownstone from the Ontario Court of Justice. He gives a lot of practical advice about the family law court system, when it works best and when it doesn't work at all.

You might also want to read a paper I wrote for people who are representing themselves in court proceedings, "The Rights and Responsibilities of the Self-Represented Litigant".

Okay, I'm going to court. Which court do I go to?

Before getting any deeper into this chapter, go review the first section of the chapter Understanding the Legal System for Family Law MattersYou will also want to read this chapter's section on The Court System. You'll learn there are two courts that hear trials in British Columbia, the Provincial Court and the Supreme Court. These courts are very different from one another.

The Provincial Court deals with issues relating to parenting children, child support, spousal support, companion animals (i.e. pets), and orders protecting people under the Family Law Act. The Supreme Court has the authority to deal with all of those issues, but can also deal with issues about parentage, dividing property and debt, and orders protecting property under the act. Only the Supreme Court has the authority to make orders under the Divorce Act, including orders for divorce. This chart shows which trial court can deal with which family law problem:

	Supreme Court	Provincial Court
Claims under the Divorce Act	All claims	No claims
Claims under the Family Law Act	All claims	Some but not all claims
Divorce	Yes	No
Guardianship and parenting children	Yes	Yes
Time with children	Yes	Yes
Child support	Yes	Yes
Children's property	Yes	No
Spousal support	Yes	Yes
Family property and family debt	Yes	Pets only
Orders protecting people	Yes	Yes
Orders protecting property	Yes	No

The rules of the Supreme Court can be very complicated and fees are charged for many steps in the court process, including filing the paperwork that starts a court proceeding, making an application, or going to trial. The Provincial Court process is intended to be more affordable and easier to navigate without a lawyer's help, although there are still many different forms and the paperwork can be long and complicated. Visit Legal Aid BC's Family Law website for more information, including If you have to go to court and Trials in Provincial Court.

It is possible to start a proceeding in the Provincial Court to deal with things like child support, and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. It can be complicated to split your family law issues between two courts. A lot of people find it easier just to deal with everything in one court, but because of the limits of the authority of the Provincial Court, the Supreme Court is the only choice available.

What's the court process going to be like?

If you need the court to make an order about something, even about something you might agree to, like a divorce, you must start a court proceeding. There are certain steps you must take, certain fees you must pay, and certain forms you must fill out before you get to your trial. Although the staff at the court registries are friendly and do their best to be helpful, they cannot provide legal advice, fill out forms for you or tell you how to manage your court proceeding. It is your job to prepare these materials, gather the evidence you need, and take the other steps necessary to bring your proceeding to a judge at trial.

Court proceedings are also called cases, lawsuits, and actions. There are two types of court proceedings, criminal matters and civil matters. Criminal matters concern the government's claim that someone has broken a criminal law, like the Criminal Code or the Controlled Drugs and Substances Act. Civil matters concern claims between people, companies and governments. Family law cases are civil matters.

A few definitions

Before going further, it'll help to learn some of the terminology used in litigation. (You can find more definitions in the Common Legal Words and Phrases chapter of this resource.)

• Family law action or Family law proceeding: A general term for any kind of family law issue that is brought before the courts. A family law action is a type of civil action (i.e. it's not a criminal case), and is started by a person (or persons) seeking the court's help in resolving questions or disputes about their legal rights, obligations, or status in relation to other family members. A family law action can include other civil claims related to family law issues, but both the BC Supreme Court and Provincial Court treat family law actions differently from general civil claims. Each level of court has specific sets of court rules related to family law actions, which include unique forms for family law matters. Court records for family law actions are not as open to the public as general civil claims, and are treated differently by the courts' records access policies.
• Cases, proceedings, matters, etc.:
  • Provincial Court:
    • Family law matter is defined in the Provincial Court Family Rules and does not appear in the Supreme Court Family Rules, the Family Law Act, or the Divorce Act. A family law matter is narrowly defined as a "case" before the Provincial Court about: parenting arrangements (including parental responsibilities and parenting time), child support, contact with a child, guardianship of a child, spousal support, and/or property division in respect of a companion animal. Applications for family law matters are dealt with in Part 3 of the Provincial Court Family Rules, and the definition is narrow because other types of matters — such as protection orders (for family violence), priority parenting matters, relocation (of a child) — are dealt with differntly under those rules. The Provincial Court has a totally different set of rules for child protection and adult guardianship matters, so even though these are areas of family law, they are not included in the definition of family law matter. Lastly, the term does not include Divorce Act claims, adoption matters, or (most) claims for property or pension division, since the Provincial Court has no jurisdiction over those kinds of cases.
    • Priority parenting matter is defined in the Provincial Court Family Rules and does not appear in the Supreme Court Family Rules, the Family Law Act, or the Divorce Act. A priority parenting matter is brought before the Provincial Court by a party wanting to resolve a specific and time-sensitive issue regarding a child. These are distinct from other family law matters, and are brought to the court on a priority basis. They include claims about: consents for health-related treatment where delay poses a risk to child; consents or documents (e.g. passport) related to travel or activity where delay poses a risk to child; relocation of a child (where no agreement or court order exists and move could harm child's relationships); orders resolving the wrongful removal of a child (including international child abduction). Unlike regular family law matters, priority parenting matters may be heard in any registry, without a Family Management Conference, before Early Resolution Registry requirements or other registry conditions are satisfied (e.g. a parenting education course, or a needs assessment meeting), and much sooner in time (7 days).
  • BC Supreme Court:
    • Family law case is defined in the Supreme Court Family Rules and does not appear in the Provincial Court Family Rules, the Family Law Act, or the Divorce Act. A family law case is broadly defined as a "proceeding" (including joint or undefended ones) before the BC Supreme Court where the claims relate to: orders under the Divorce Act or the Family Law Act, orders for adoption, common law claims based on unjust enrichment (if in a marriage-like relationship), and/or orders under FHRMIRA (legislation dealing with family homes on First Nations reserve land).
  • Family law dispute is a defined term from the Family Law Act meaning any dispute respecting a matter to which the Family Law Act itself relates. The term does not really show up in the Supreme Court Family Rules or the Provincial Court Family Rules. It should not be confused with family dispute resolution process (which appears in the Divorce Act), or family dispute resolution professional (which appears in the Family Law Act and the family rules of both courts).
  • Divorce proceeding is defined in the Divorce Act and means a "proceeding" where either or both spouses seeks a divorce order, either on its own or along with a child support order, a spousal support order, or a parenting order. The Provincial Court cannot hear Divorce Act proceedings, so this term is only applicable in BC Supreme Court.
  • Corollary relief proceeding is defined in both the Divorce Act and the Supreme Court Family Rules and means a "proceeding" where either or both former spouses (i.e. people who are already divorced) seek a child support order, a spousal support order, or a parenting order under the Divorce Act (so not the Family Law Act). The Provincial Court cannot hear Divorce Act proceedings, so this term is only applicable in BC Supreme Court.
• Claim: A claim is an assertion of a legal right to an order or to a thing. It can also refer to the remedy or relief sought by a party to a court proceeding. Claims are usually contained in the initial court forms that the parties file (i.e. pleadings). The claim usually includes a summary of the relevant facts alleged by the claimant, the laws the claimant says are relevant, and the claimant's list of the orders they want the court to make.
• Application: In both BC Supreme Court and Provincial Court an application often refers to any request that a party makes for a court to grant an order or provide a decision. In BC Supreme Court, it implies an interim step taken by a party to get an order after the pleadings or initial court forms have been filed and a family law proceeding is already commenced. In Provincial Court, however, application refers to both the court form that starts a family law proceeding and the interim steps taken afterwards.
• Claimant: The person who starts a family law case in BC Supreme Court is called the claimant. There can be more than one claimant, but we will use the singular for simplicity.
• Applicant: In the Provincial Court, the person who starts a family law matter or other proceeding is the applicant. In the litigation chapters, applicants may also be referred to as "claimants".
• Respondent: Any person a claimant (in BC Supreme Court) or applicant (in Provincial Court) names and seeks orders against in a family law action is called a respondent. There can be more than one respondent, but we will use the singular for simplicity.
• Parties: The claimant (or applicant) and the respondent are, together, called the parties to the family law action (no matter how many actual claimants or respondents there might be).
• Reply or Response: A respondent who objects to all or some of the orders sought by a claimant will file a document that responds to, or answers, the claimant's claim. This document is usually the Response to Family Claim, in a BC Supreme Court action, and a Reply to an Application about a Family Law Matter, in a Provincial Court action. In their response or reply, the respondent states if they agree or disagree with (some or all of) the facts alleged by the claimant, and if they agree or disagree with (some or all of) the orders the claimant is asking for.
• Counterclaim: A respondent is not limited to merely responding to the claimant's claim. They also can make a claim and give the court their own list of orders they want the court to make. In BC Supreme Court they do this by filing a separate specific counterclaim form, while in Provincial Court the counterclaim is made in the same form that contains their reply. In BC Supreme Court, if the respondent is served with a Petition to Court, the respondent will need to apply to court to convert the claim from a petition-based proceeding into a full action (typically the Petition to Court would then be deemed to be a Notice of Family Claim, and the respondent could then file a Response to Family Claim in addition to a Counterclaim). A counterclaim is similar to a claim. It provides a summary of the relevant facts of the family law action, the laws the respondent says are relevant, and the respondent's wish list of the orders the respondent will want the court to make in the court action.
• Response to Counterclaim: A claimant who objects to all or some of the orders requested in the counterclaim will file a specific form depending on the court they are in. This document is similar to a reply, but the claimant states if they agree or disagree with (some or all of) the facts contained in the counterclaim, and if they agree or disagree with (some or all of) the orders the respondent is asking for.
• Pleadings: The documents that a claimant and a respondent file in court to start or reply to family law action are called pleadings. In most BC Supreme Court family law actions, the pleadings are the Notice of Family Claim, the Response to Family Claim, Counterclaim, and Response to Counterclaim. In Provincial Court, these are typically the Application about a Family Law Matter and the Reply to an Application about a Family Law Matter.
• Judicial Case Conference (or JCC): In BC Supreme Court family law actions this is likely the first court appearance where the parties must attend. A JCC happens early on, takes about an hour and a half, and is a somewhat informal process. The parties and their lawyers (if they have them) sit down at a table with a judge to discuss a possible resolution of some or all of the orders requested in the claim and counterclaim. A JCC is like a mini mediation. The judge cannot make any orders (other than some procedural orders) unless the parties agree, and what is discussed is confidential and cannot be used outside of the JCC proceedings.
• Interim Application: An interim application is an application that a claimant or respondent brings to court, when they want the court to make a temporary (interim) order. Interim applications are made after the court action has been started, after the parties have attended whatever mandatory conferences the court requires, and before trial. A party can sometimes apply for an order that allows them to bring their interim application before a conference is held.
• Affidavit: A legal document in which a person provides evidence of certain facts and events in writing. Affidavits are important in applications and summary trials because written testimony is generally the only form of evidence that the court will hear from parties and witnesses outside of a proper trial setting. The person making the affidavit (called the deponent) must confirm that the statements made in the affidavit are true, and they must be signed in front of a commissioner for taking oaths (usually a lawyer, a notary public, or a court official) who takes the oath or affirmation of the deponent. Affidavits are used as evidence, and as a substitute for having the person make the statements in court before a judge. An affidavit often includes documents (that are attached to the affidavit as exhibits) to support the facts stated in the affidavit. For example, if the deponent says that they received a text message from one of the parties stating their plan to move to Alberta, a printed copy of the text message can be printed and attached to the affidavit as an exhibit. Depending on the type of interim application a party brings, they will usually need to file an affidavit together with their application.
• Financial statement: Both levels of court have a special form for the parties to swear or affirm their financial statements. It is basically an affidavit specifically tailored to provide financial information about the party who swears or affirms it. A party in a family law action that involves child support, spousal support, the division of property, or the division of debt will need to prepare a financial statement, and fill in information and provide specific documents according to the orders being requested by the parties.
• Trial: The court makes its final decision about the orders the parties request in their claim and counterclaim at trial. A trial is a formal hearing where the parties and their lawyers (if they have them), appear before a judge and present their evidence by calling on live witnesses to give testimony. The parties or their lawyers provide their argument (submissions) which tells the court why it should make the orders listed in their claim or counterclaim. In BC Supreme Court, a summary trial is the same as a trial except that the evidence from parties and their witnesses is given by affidavit, as opposed to each person appearing in-person to tell the court their evidence. A BC Supreme Court summary trial can resolve some or all of the orders the parties are asking for in their claim or counterclaim. For simplicity, when we use the term trial, we refer to both summary trials and traditional trials.
• Costs: This has a specific meaning in BC Supreme Court. Costs are what one party must pay another party based on a formula set out in the Supreme Court Family Rules. Costs are usually payable by the unsuccessful party, but costs orders can also be made against parties that behave poorly or act unreasonably. Since a party might receive a costs award in one application where they were successful, have mixed success in another application, then be unsuccessful at trial, etc., costs are usually tallied up and sorted out after litigation has ended. Parties may then settle costs by agreement, or go before the Registrar to have them determined for them. Costs mean that there are some financial consequences for pursuing a weak claim (or resisting a stronger one), but costs will almost never compensate even the most successful party for what they actually spent on legal fees and other expenses. Judges retain a lot of discretion to decide costs consequences for specific hearings, deprive or reward costs for parties, and use costs as a mechanism to discourage unreasonable behaviour.
• Judge: Both levels of court have their own judges. In the BC Supreme Court there are a few different judicial roles relevant to family law actions. In BC Supreme Court, the term judge typically refers to a full Justice of the court, someone with the power to make final or interim decisions for any type of claim, and under any kind of procedure. An Associate Judge (formerly called a Master of the court) has more restricted jurisdiction, but is an important judicial officer especially for family law cases in the BC Supreme Court. Associate judges can hear and decide on interim applications (where interim and procedural orders are made) but they cannot preside at trial or issue a final judgment. The other judicial role within the BC Supreme Court to be aware of is that of the Registrar, who can preside over limited and specific types of hearings (e.g. hearings to settle costs). The kind of BC Supreme Court judge that might hear your application depends on the orders you are asking the court to make. In the litigation chapters "judge" is used to refer to all types of judges in both courts.

The court process in a nutshell

Even though there are many important differences between BC Provincial Court and BC Supreme Court, they follow a similar sequence of steps:

The claimant starts the proceeding. Someone has to start the litigation process, and the person who takes initiative for seeking a court order is called the claimant. The claimant starts a court proceeding by filing a claim in court and serving the filed claim on the respondent. The claims says what orders the claimant wants the court to make. Serving the filed claim involves having the claim hand-delivered to the respondent by someone other than the claimant.

The respondent files a response. The respondent has a fixed amount of time after being served to reply to the court proceeding by filing a response in court. (The number of days is indicated in the document filed by the claimant to start the court proceeding.) The response says which of the orders sought by the claimant are agreed to by the respondent and which are opposed. The respondent can also ask the court for orders they want. If the respondent wants a court order, the respondent will file a claim of their own, called a counterclaim. The response and any counterclaim must be delivered to the claimant.

The claimant files a reply. The claimant has a fixed amount of time after receiving the counterclaim to reply to any claim made by the respondent. This reply to the counterclaim is filed in court. The reply says which of the orders sought by the respondent are agreed to by the claimant and which are opposed. The claimant's reply must be delivered to the respondent.

The parties exchange information. Next, the parties gather the information and documents they need to explain why they should have the orders they are asking for. Because trials are not run like an ambush, the parties must exchange their information and documents well ahead of trial. This way everyone knows exactly what is going on and how strong each person's case is. There are different processes in Supreme Court and Provincial Court for exchanging information, which are covered in their own sections for the chapters dedicated to each court. In BC Supreme Court there is another important step related to exchanging information, which is called discovery. Supreme Court litigants are usually required to attend an examination for discovery. This is an opportunity for each party to ask the other parties questions about things that are relevant to the legal issues so that everyone knows the evidence that will be given at the trial. BC Supreme Court discovery procedures also offer an opportunity to obtain more documents and information from the other side.

The parties attend case conferences. Case conferences are meetings with a judge to talk about the court proceeding. They often provide an opportunity to talk about settlement option and to ask for orders about steps in the court proceeding as the proceeding heads to trial. For more about case conferences, see the sections about Case Conferences in the chapters dedicated to each court.

Go to trial. Assuming that settlement isn't possible, court proceedings are resolved by trials. At trial, each of the parties presents their evidence and explains to the judge why the judge should make the orders they're asking for. The judge may make a decision resolving the decision on the spot; most often, however, the judge will want to think about the evidence and the parties' arguments and will give a written decision after taking some time, often giving the decision weeks or even months later.

Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process. You can even decide to try mediation in the middle of a court proceeding, and, if you are getting tired of the court process or are worried about how long it will take to have a trial, you can abandon the court process altogether and go to arbitration.

The role of interim applications

While working your way through the court process, you may find that it's sometimes necessary to ask for interim orders. These are temporary orders that address a short-term problem or need, or that help the court proceeding get to trial. In family law cases, people often ask for interim orders to protect someone when family violence is an issue, to deal with the payment of child support or spousal support, to get a parenting schedule in place, to determine how the children will be cared for, or to protect property while waiting for the trial.

It is common for parties to make interim applications in BC Supreme Court. The process for interim orders in BC Supreme Court is a miniature version of the larger process for getting a claim to trial.

Here is a quick look at how interim applications work in BC Supreme Court:

The applicant starts the application. The person who wants the interim order, the applicant, starts the application process by filing an application and an affidavit in court, and delivering the filed application and affidavit on the other party, called the application respondent. The application describes the orders the applicant wants the court to make. The affidavit describes the facts that are relevant to the application and the orders the applicant is looking for. For more information about affidavits, see the page, How Do I Prepare an Affidavit?, in the Helpful Guides & Common Questions part of this resource.

The application respondent files a response. The application respondent, the person who is responding to the application, has a certain (and fairly short) amount of time after receiving the application and affidavit to file a response and an affidavit in court. The response says which orders the person agrees to and which they object to. The affidavit describes any additional facts that are important to the application. The response and affidavit must be delivered to the applicant.

The applicant may file another affidavit. The applicant has a certain amount of time after receiving the application respondent's materials to file another affidavit in court. This affidavit is a response to the application respondent's affidavit and describes any additional facts that are important to the application. This affidavit must be delivered to the application respondent.

Go to the hearing. Assuming that settlement isn't possible, the only way to resolve the application is to have a hearing. At the hearing, each of the parties will present the evidence set out in their affidavits and explain to the judge why the judge should, or shouldn't, make the orders asked for. Most of the time the judge will make a decision resolving the decision on the spot; sometimes, however, the judge will want to think about the evidence and the parties' arguments, and will give a written decision later.

In BC Provincial Court, this process is very different. For details please consult the chapters dedicated to each court, which include sections explaining how applications work:

• Interim Applications and Supreme Court Family Law Proceedings, and
• Interim Applications and Provincial Court Family Law Proceedings

There are lots of details we've skipped over in this brief overview, including details about important things like experts, different types of case conferences, and the rules of evidence, but this is the basic process in a nutshell. These other details are governed by each court's set of rules. The rules of court are very important, and the rules of the BC Provincial Court are very different than the rules of the BC Supreme Court.

You can probably guess that getting a court proceeding to trial can be a long and involved process, and that if you have a lawyer representing you, it'll cost a lot of money to wrap everything up. Making these procedural delays worse, trial dates are often in short supply. In both Vancouver and Victoria, for example, you may not be able to get dates for a one-week trial any sooner than 18 months.

It's important to remember that you and the other party can agree to resolve your dispute out of court at any time in this process. If you haven't done so already, please read the chapter Resolving Family Law Problems out of Court.

Rules promoting settlement

Just because a court proceeding has started, it doesn’t mean you will be going to court. The majority of cases settle prior to trial; in fact, the number of civil court proceedings in the Supreme Court of British Columbia that are resolved by trial is less than 5%! There are a few reasons why this is the case. First, trials are time-consuming and expensive. Second, you can never be absolutely sure what the result is going to be. You're always rolling the dice when you go to trial. Third, you can usually find a way to settle a dispute sooner than the first available trial date.

It also helps that the rules of court — both the Provincial Court Family Rules and the Supreme Court Family Rules — are written to promote settlement and find ways of pushing litigants toward the offramps that lead away from trial. (It says something, I think, that the rules of the province's two trial courts are designed to discourage trials.) This section talks about these offramps, the rules that are intended to encourage people to propose settlement options, the rules that provide judges to help people negotiate settlements, and the rules that penalize people for going to trial without fully thinking things through.

Introduction to rules promoting settlement

There are many reasons why it's important to resolve family law disputes other than by trial. From the court's point of view, when separated spouses or parents are able to reach a settlement of their legal problems, their agreement:

1. helps to protect the children from their ongoing conflict
2. frees up valuable judicial and administrative resources for other cases, and,
3. decreases the likelihood that the dispute will require ongoing court hearings in the future.

From the point of view of the spouses or parents involved in the dispute, making an agreement:

1. is cheaper and faster than going to trial,
2. is more likely to give you more of what you want than a judicial decision,
3. shows you and your ex that you can resolve even difficult disputes on your own, and
4. resolves disputes and lets you move on with your life more quickly.

Settling a family law dispute gives spouses or parents a lot more personal control and creativity about the resolution of their dispute than is possible in court. It also gives everyone the best chance of being able to work together in the future.

(Lawyers also have an interest in settling matters, believe it or not, for all of the same reasons as the courts and the parties. As well, lawyers have a professional and an ethical duty to pursue settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This duty is so important that it has been written into lawyers' Code of Professional Conduct.)

The legislation on family law and the rules of court for family law proceedings have evolved over the last two or three decades to provide additional opportunities and incentives for settlement, and steer people out of court and away from trial whenever possible. In fact, the first division of Part 2 of the provincial Family Law Act is titled "Resolution Out of Court Preferred," and begins with a statement in section 4 which says that the purposes of the Part are to:

(b) to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court;

(c) to encourage parents and guardians to

(i) resolve conflict other than through court intervention, and

(ii) create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child.

Under section 8(2), lawyers are required to "discuss with the party the advisability of using various types of family dispute resolution to resolve the matter." (That awful, clumsy term family dispute resolution is defined in section 1(1) as including mediation, arbitration, and collaborative negotiation.) Lawyers have the same sort of obligation under section 7.7 of the federal Divorce Act:

(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

(a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

(b) to inform the person of the family justice services known to the legal adviser that might assist the person

(i) in resolving the matters that may be the subject of an order under this Act, and

(ii) in complying with any order or decision made under this Act; and

(c) to inform the person of the parties’ duties under this Act.

Whether or not your lawyer gives you this encouragement or information, section 7.3 of the Divorce Act requires you, and the other parties to your court proceeding, to at least try to resolve your disagreements out of court:

To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

In general, you should try to resolve a court proceeding without going to trial if you can. However, your settlement, whether it's reached with the help of a judge or not, must be fair and reasonable and roughly within the range of what would have happened if the issues in your proceeding had been resolved at trial. While it's always a relief to wrap up a court proceeding, if the settlement is really unfair to either party a return to court may be inevitable!

The Provincial Court

In 2021, BC received a complete overhaul of its Provincial Court Family Rules. Visit Legal Aid BC's Family Law website for more guidance on what the new rules require you to do, and how this can change depending on where you are located. The purpose of the revamped Rules is aimed at promoting settlement, helping parties resolve their case by agreement, or to help them obtain a fair outcome in way that minimizes conflict and promotes cooperation between parties.

Section 8 of the Rules clearly states that “parties may come to an agreement or otherwise reach resolution about family issues at any time”. That means that even if it’s the morning of your trial and you’re all ready to go, you and your ex can decide to settle without going to trial.

The new Rules have also divided various courthouse registries into different categories. For example, Victoria is an Early Resolution Registry, Nanaimo is a Family Justice Registry, and Prince George is a Parenting Education Program Registry. Each type of registry has different requirements and for Early Resolution Registries, parties have to try mediation before proceeding to court (unless the court agrees that mediation isn’t appropriate). For more information about each type of registry, see the section on Starting a Court Proceeding in a Family Matter, under the heading Early Resolution Registries.

No matter the registry in which you find yourself, there are certain steps you have to take before you’ll be able to argue before a judge. In most cases, the first time that parties will be before a judge will be at what’s called a Family Management Conference (also called an “FMC”), which is a settlement-focused appearance. If settlement isn’t possible at the FMC, the judge can make orders (by consent or not), make interim orders to address needs until resolution is reached, and determine next appropriate steps. Parties can also attend settlement conferences, where a judge can help the parties see if any or all issues can be settled before trial.

A notable difference between Supreme Court and Provincial Court is that costs are almost never payable in Provincial Court. That said, a word of caution: if a judge decides that cross examining an expert witness was unnecessary, then the party who decides to cross examine that expert can be responsible for the cost paid to that witness for their time testifying, which can be in the thousands of dollars.

The Supreme Court

The Supreme Court Family Rules also includes a few carrots and sticks to promote settlement. The biggest stick is the court's jurisdiction to make an order about costs. An order for "costs" is an order that one party pay for some or all of the expenses another party incurred dealing with the court proceeding. Costs are usually, but not always, awarded to the party who is most successful at trial. They can also be awarded to punish bad behaviour in the course of a court proceeding, or to penalize a party who failed to accept a reasonable settlement proposal.

The chapter on Family Law Litigation in Supreme Court discusses costs and other rules promoting settlement, including:

• Judicial case conferences: Rule 7-1 of the Supreme Court Family Rules requires that the parties attend a judicial case conference before they can send a Notice of Application or an affidavit to another party. A judicial case conference, usually referred to as a "JCC," is a relatively informal, off-the-record, private meetings between the parties, their lawyers, and a judge in a courtroom. The judge at a JCC holds a broad authority to take steps and make orders that promote settlement. What's really cool about JCCs is that a party may request a judicial case conference at any time, whether or not one or more judicial case conferences have already been held. If there's a chance of settlement as you head toward trial, take advantage of this rule and book another JCC!
• Settlement conferences: Rule 7-2 of the Supreme Court Family Rules allows for settlement conferences. These are are relatively informal meetings between the parties, their lawyers, and a judge that are solely concerned with finding a way to settle the court proceeding. Settlement conferences are private and held on a confidential, off-the-record basis, so that nothing said in the conference can be used against anyone later on.
• Offers to settle: At any time during a BC Supreme Court proceeding, a party can propose how all of the claims made in the claimant's Notice of Family Claim and in the respondent's Counterclaim should be wrapped up. A party receiving an offer to settle can decide to accept the offer or to refuse it. There are, however, important consequences for refusing a reasonable offer.
• Notice to Mediate Regulation: Under the Notice to Mediate (Family) Regulation, someone who is a party to a court proceeding in the Supreme Court can make the other parties go to mediation by serving a Notice to Mediate on them.

The list above is simply a preview of the ways that the BC Supreme Court promotes settlement. The chapter on Family Law Litigation in Supreme Court explains each one in more detail.

Resources and links

Legislation

• Provincial Court Family Rules
• Provincial Court Act
• Supreme Court Family Rules
• Supreme Court Act
• Court of Appeal Rules
• Court of Appeal Act
• Court Rules Act

Resources

• Provincial Court Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Court of Appeal Practice Directives
• Tug of War by Mr. Justice Brownstone
• "The Rights and Responsibilities of the Self-Represented Litigant" (PDF) by John-Paul Boyd

Links

• Legal Aid BC's Family Law website information on Provincial Court process:
  • Get a new family order in Provincial Court if you can’t agree
  • Provincial Court registries
• Courts of British Columbia website
• Provincial Court website
• Supreme Court website
• Supreme Court Trial Scheduling
• Court of Appeal website
• Guidebooks from the BC Supreme Court website
• Justice Education Society's Court Tips for Parents (videos)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kendra Marks, 2 January 2025.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.