Difference between revisions of "Court Procedures in Family Law (3:XV)"

The Supreme Court is the only court that hears actions under the ''DA''. Under the ''FRA'' and ''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.  

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 [[Foreword to Small Claims (20:I) | Chapter 20: Small Claims Procedure]] for more details. Also, one may be able to make a trust claim in Small Claims Court.  

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 ([http://canlii.ca/t/23nk0 ''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 time/access orders, but does not have the power to make orders regarding occupancy of the family home ([http://canlii.ca/t/24lhr ''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.  

=== 2. Contacting Provincial Family Court ===

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 a 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.  

=== 4. Provincial Family Court Proceedings ===

Most proceedings in Provincial Court are commenced by filing an 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.

Pursuant to Rule 21 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. Under the new Provincial Court Family Rules which come into force in May 2021, this requirement will be pursuant to Rule 94.

The program is a free three-hour session and open to all parents and others (for example, grandparents) where custody, 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.

==== f) Trial Preparation Conferences ====

The parties may be ordered to hold a trial preparation conference during which the judge may rule on any issues not requiring evidence, make an order, discuss the procedure that will be followed at trial, order that certain evidence be produced, or make arrangements for disclosure of one party’s evidence to the other.  

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 336 of the Provincial Court (Family) Rules governs Family Case Conferences.  

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 his or her 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.  

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, either on application brought by notice of motion. This evidence must be in Form 45.  

Three copies of a notice of motion (Rule 18) 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'' s. 216);  

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.

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.  

An Application Form (Form 9) and copy of the custody order must be filed in the registry.

 

 

The most effective and simplest method of enforcing Support Orders is to register with the [https://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program]. For more information call or write the Enrolment Office, Box 5789, Victoria, BC, V8R 6S8; telephone: (250) 356-8889, toll-free: 1-800-663-7616.

==== n) Orders ====

Orders come into effect on the day that they are made, unless the judge orders otherwise. If the party in whose favour the order is made is unrepresented, a clerk must prepare the order. Otherwise the favoured party’s lawyer will prepare the order.  

==== o) Compliance with Provincial Court (Family) Rules ====

If any of the ''Provincial Court (Family) Rules'' (British Columbia) are not complied with, the judge may disregard the incorrect procedure or order, order the hearing or trial to continue as if the respondent were absent, or give any direction they think is fair. Please check the Cumulative Regulation Bulletin 2014 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.