Rules Promoting Settlement in Family Matters
- 1 Resolving a court proceeding without a trial is still possible
- 2 Supreme Court
- 3 Provincial Court
- 4 Resources and links
Resolving a court proceeding without a trial is still possible
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.
There are many reasons why it's important that family law court proceedings are resolved by agreement. From the court's point of view, settlement helps to protect the children from ongoing conflict, settlement frees up valuable court and administrative resources that can be applied to other cases, and settlement lessens the likelihood that the proceeding will require ongoing court hearings in the future. From the point of view of the parties, settlement is cheaper than trial, helps to protect the children from ongoing conflict, and allows you to stop living in limbo and instead get on with your life. Resolution by agreement allows you more control and creativity about the terms of settlement and gives everyone involved the best chance of having a tolerable relationship with each other as time goes on.
Lawyers also have an interest in settling matters, for all of the same reasons as the courts and the parties. In addition, lawyers have a professional and an ethical duty to promote settlement wherever possible, provided that a proposed settlement is not an unreasonable compromise of their clients' interests. This is written into the Code of Professional Conduct for Lawyers.
The laws and rules of court for family law proceedings have evolved to provide additional opportunities for settlement and steer people away from trial and out of court. In fact, section 4 of the provincial Family Law Act says that the purposes of the part of the Act on dispute resolution 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.
In general, you should try to resolve a court proceeding without going to trial, if you can; however, the settlement, whether it's reached with the help of a judge or not, must be fair and reasonable. (It's always a relief to settle a court proceeding, but if the settlement is significantly unfair to either party a return to court may be inevitable!) All parties must agree that a proposed settlement is reasonable and agree to end the court proceeding on the terms of that settlement.
This section will discuss the options available in the Supreme Court and the Provincial Court to try to settle your proceeding before trial.
Request another judicial case conference
A judicial case conference, usually referred to as a JCC, is a relatively informal, off-the-record, private meeting between the parties, their lawyers, and a master or judge in a courtroom. A JCC must be held in all contested family law court proceedings. Further information about JCCs can be found in the section Case Conferences in a Family Law Matter of this Chapter.
The initial JCC is usually held early on in the proceeding, but parties may request an additional JCC at any time, even if the parties already had one. Under Rule 7-1(15) of the Supreme Court Family Rules the court has very broad powers at a JCC, including the following, to promote settlement:
- identify the issues that are in dispute and those that are not in dispute and explore ways in which the issues in dispute may be resolved without recourse to trial,
- mediate any of the issues in dispute,
- without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial.
Request a settlement conference
Settlement conferences are available in the Supreme Court at the request of both parties. They are usually not mandatory but can be ordered by a judge or master. They are relatively informal, off-the-record, private meetings between the parties, their lawyers, and a master or judge in a courtroom for the purpose of exploring all possibilities of settlement (See Rule 7-2 of the of the Supreme Court Family Rules). For more information about the purpose and scheduling of a settlement conference, see the section on Case Conferences, in this Chapter.
Serve a Notice to Mediate
A Notice to Mediate can be served by any party in a family law proceeding in the Supreme Court. The purpose of the Notice to Mediate is to let the other party know you want to mediate and to make them attend mediation, unless there is an exception. A Notice to Mediate must be served at least 90 days after the Response is filed and 90 days before the trial date. The parties have to attend mediation unless one of the following exceptions applies:
- there has already been a mediation session,
- there is a protection order against one party,
- the mediator advises the participants the mediation is not appropriate or that the mediation process will not be productive, or
- the court orders that a party is exempt because, in the court’s opinion, it is impracticable or materially unfair to require the party to attend.
The Notice to Mediate (Family) Regulation provides the guidelines for proceeding with the mediation. The parties mutually select a mediator within 14 days after service of the Notice to Mediate. If the parties cannot agree, any party may apply to a roster organization for the appointment of a mediator. The process for the appointment of a mediator is set out in section 8 of the Notice to Mediate (Family) Regulation For more information about the Notice to Mediate see the Legal Services Society of British Columbia's Family Law website's information page "Getting a divorce" under the section "Making mediation happen in a family law case in Supreme Court."
In the Supreme Court, a successful party can be entitled to recover costs and disbursements from the losing party, but there are exceptions. See Rule 16-1 of the Supreme Court Family Rules.
Costs are intended as partial payment of legal fees and normally do not amount to more than approximately 30% of a party’s actual legal fees. Under the Supreme Court Family Rules you are awarded certain costs for specific steps taken in the proceeding. See Appendix B in the Supreme Court Family Rules. Costs for some of the steps are valued according to the level of difficulty of each case. There are three levels of difficulty:
- less than ordinary difficulty,
- ordinary difficulty, and
- more than ordinary difficulty.
Ordinary difficulty is the default if the court makes no determination on difficulty. The steps you can claim costs for are shown in Form F71 Bill of Costs, and they're called tariff items.
The following is an example of costs that could be payable for a 3 day trial:
|1||Correspondence, conferences, instructions, investigations or negotiations and preparation, filing and service of notice of family claim, response to family claim, counterclaim or response to counterclaim.||$3,000|
|2||Process for discovery and inspection of documents.||$2,000|
|3||Preparation for and attendance at each examination for discovery. Claim $1,000 for each day or part day. Assume 1 day for each party.||$2,000|
|4||Preparation for and attendance at each contested application. Claim $1,000 for each half day of attendance. Assume 1 (one) half day of attendance.||$1,000|
|5||Preparation for and attendance at each judicial case conference or settlement conference. Claim $1,000 for each half day of attendance. Assume 1 JCC.||$1,000|
|6||Preparation for each uncontested application or trial management conference. Claim $500 each. Assume 1 trial management conference.||$500|
|7||Preparation for and attendance at trial of family law case or of an issue in a family law case. Claim $2,000 per day for each day or part of a day of trial up to 5 days, and $3,000 for each additional day or part of a day trial. Assume 3 days of trial.||$6,000|
In addition to the costs of $15,500 for the 3 day trial, the winning party could also be entitled to their disbursements. Disbursements are out of pocket expenses, such as filing fees, witness fees, travelling and subsistence expenses, discovery transcript fees, experts’ fees, and fees for medical/legal reports, photocopies, couriers, postage, and the like. Generally, most disbursements are recoverable, provided they are considered to be reasonable and necessary. The potential of a cost award being made at a hearing or trial can provide an incentive for the parties to settle and agree to not have to pay costs to each other. It can encourage parties to be more reasonable in their positions and try to narrow the issues that need court intervention. For more information about costs, see the Legal Services Society's Family Law website's information page "If you have to go to court" under the section "Costs and expenses."
Offer to Settle
You can make an offer to settle at any time during a court proceeding. A formal offer to settle under Rule 11-1 of the Supreme Court Family Rules has special potential costs consequences if the trial proceeds and the decision of the judge is not as favourable as the offer. To qualify as a formal offer under Rule 11-1 the offer must:
- be in writing,
- be served on all parties in the proceeding, and
- contain the following sentence:
"The [Claimant/Respondent], [name of party], reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."
An offer to settle cannot be disclosed until all issues in the family law case, other than costs, have been determined. An offer to settle is not an admission. The court can consider an offer to settle when determining whether or not to make a costs order and there are a number of options for a court to consider. For example a court may award a party double costs for every step taken from the date the offer was served.
The incentive of formal offers to settle is to encourage parties to make reasonable offers and for parties to accept reasonable offers. A party receiving a formal offer to settle needs to consider the risks of proceeding to trial. If the offer is as good as or better than what the judge decides, the party who made a reasonable offer may be awarded double or extra costs from the date of the offer if that party is successful at trial. A party who did not accept a reasonable offer that is as good as or better than what the judge decides may be denied costs even if they were successful at trial.
The court will take into consideration the following when considering an offer to settle:
- whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date,
- the relationship between the terms of settlement offered and the final judgment of the court,
- the relative financial circumstances of the parties, and
- any other factor the court considers appropriate.
An offer to settle does not expire if a counter offer is made. For more information on making an offer to settle see the Legal Services Society's Family Law website's information page "If you have to go to court." Under the section "Trials in Supreme Court, see "Making an offer to settle."
There are fewer incentives in the Provincial Court (Family) Rules for settlement. Costs are not payable in Provincial Court, except that a judge has the discretion under Rule 11 to order the party requiring the expert's attendance pay for an expert’s attendance at court if the judge determines that it was unnecessary to call the person to attend.
Request a family case conference
Family case conferences may be ordered by a judge if guardianship, parenting arrangements, or contact with a child are contested issues. A judge has a number of powers at a family case conference that can assist with settlement including to mediate any of the issues in dispute and, without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial. To set a family case conference you can request one by bringing a Notice of Motion (Form 16). For further information, see the description of Family Case Conferences in the section on Case Conferences in this chapter. For a summary of how to schedule a case conference, see How Do I Schedule a Family Case Conference for Hearing? in the How Do I? part of this resource.
- Provincial Court Act
- Provincial Court Family Rules
- Supreme Court Act
- Supreme Court Family Rules
- Court Rules Act
- Notice to Mediate (Family) Regulation
- Provincial Court Family Practice Directions
- Supreme Court Family Practice Directions
- Supreme Court Administrative Notices
- Supreme Court Trial Scheduling
- Provincial Court website
- Supreme Court website
- Supreme Court website: Litigants' Guide to Judicial Case Conferences
- Legal Services Society's Family Law website's information pages "Getting a divorce" (with information on making a mediation happen) and "If you have to go to court" (with information on making an offer to settle plus judicial and family case conferences)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shannon Aldinger and Julie Brown, June 11, 2019.|
|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.|
Normally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court," and "Supreme Court of Canada."
A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family court proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.
The testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence," and "jurisdiction."
A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements," and "offer."
In law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action."
The guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court.
The processes used to conclusively resolve legal disputes including negotiation, collaborative settlement processes, mediation, arbitration, and litigation.
A term under the Family Law Act which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities," and "parenting time."
A term under the Family Law Act that describes the visitation rights of a person, who is not a guardian, with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities."
A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."
A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.
In law, an order sought by a party to a court proceeding or application, usually as described in their pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application," and "pleadings."
In law, a person named as an applicant, claimant, respondent, or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."
A provincially-appointed judicial official with limited jurisdiction, usually charged with making decisions before and after final judgment in a court proceeding, including the hearing of interim applications, the assessment of lawyers' bills, and the settling of bills of cost. See "interim application," "judge," and "jurisdiction."
In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence."
In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent."
A dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator."
An order available under the Family Law Act for the protection of a person at risk of family violence. Protection orders include orders restraining someone from harassing, contacting, or stalking a person, and restraining someone from going to a person's home, place of employment, or school. See "application," "ex parte," and "restraining order."
In law, a lawyer's advice to their client; a lawyer's analysis of a legal problem; the views of an expert as to a matter at issue in an action. See "expert evidence" and "opinion evidence."
A calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees."
In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent."
The assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.
In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.
A step in a court proceeding in which a party may demand that the other party produce specific documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be at trial. See "examination for discovery."
The right of a party to a court proceeding to look at and copy documents held by the other party that relate to any matters at issue in the proceeding; part of the discovery and production process. See "disclosure" and "discovery."
The cross-examination of a party under oath or affirmation about the matters at issue in a court proceeding conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers, and a court reporter. The court reporter produces a transcript of the examination, which may, in certain circumstances, be used at trial. See "discovery."
A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."
A person with direct, personal knowledge of facts and events; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath," and "opinion evidence."
A mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration," and "family law arbitrator."
A proposal made by one party to the other, prior to the trial of a court proceeding (or its conclusion) or the hearing of an application, setting out the terms on which the party is prepared to settle the trial or application. Offers to settle can have important consequences with respect to costs if the offer is close to what the judge decides following trial, but must be clear and precise, and contain certain language required by the Supreme Court Family Rules. See "costs."
In law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact."
In contract law, the expression, either orally or in writing, of a willingness to be bound by a proposed agreement, contract, or settlement. See "offer to settle."
A judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," "findings of fact," and "final judgment."
A mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision," and "declaration."
A judge's decision that finally determines some or all of the claims in a court proceeding, following which there is no other recourse open to a dissatisfied party except an appeal. See "decision."