25 June 2011

Court Rules and Court Forms Online

Here's a handy table of links to the rules and forms for British Columbia's courts, including the Supreme Court form templates available from my website. Bookmark this link to return to this page as a quick reference.

Provincial Court of British Columbia


Legislation
Rules
Forms
Examples of what the more common court forms should look like when filled out properly are also available on my website; see my index of Sample Documents.
Supreme Court of British Columbia

Legislation
Rules
Forms
Examples of what the court forms should look like when filled out properly are also available on my website; see my index of Sample Documents.
Court of Appeal for British Columbia

Legislation
Rules
Forms

18 June 2011

Cut-and-Paste Guardianship Definitions

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which will affect the law on guardianship. See my post "Family Law Act Introduced!" for more information. I have posted the Joyce and Horne models of joint guardianship, adapted for joint custody under the Divorce Act and shared parental responsibilities under the Family Law Act, to the blog of Courthouse Libraries BC.

In family law, guardianship is the right to participate in parenting a child. A guardian usually has the right to get information from, and give instructions to, a child's teachers, doctors, counsellors, coaches, dentists and so forth. A guardian usually has the right to make important life choices for a child and determine which school the child will go to, the course of the child's medical treatment, the child's religious instruction, the child's discipline, the nature of the child's diet and so on. Of course when parents have separated and they are both guardians, which, frankly, is the result more often than not, they must work together to handle these issues, and that can be difficult. Parents with joint guardianship must find a way of working together to exchange information about their children and make decisions about major events and issues in their children's lives.

Although there are a number of different ways to manage conflict between separated parents about guardianship issues, the easiest is usually to define the rights and obligations involved in joint guardianship so that each parent knows what they must and mustn't do. There are three standard models of guardianship, the Joyce model, the Charleton model and the Horn model, and I've reproduced them in this post for readers to cut-and-paste and use as you wish.

The Joyce Model

Mr. Justice Joyce created this model to provide guidance on joint guardianship where only one parent had custody, however his model is commonly used whenever parents have joint guardianship, including when parents have joint guardianship and no determination is made about custody.

The parents will have joint guardianship of the child, defined on the following terms:
1. the parents will be the joint guardians of the estate of the child;
2. in the event of the death of either parent, the surviving parent will be the sole guardian of the person of the child;
3. the parent who has the primary responsibility for the day to day care of the child will have the obligation to advise the other parent of any matters of a significant nature affecting the child;
4. the parent who has primary responsibility for the day to day care of the child will have the obligation to discuss with the other parent any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction and general welfare of the child;
5. the parent who does not have the primary care of the child will have the obligation to discuss the foregoing issues with the other parent and both parents will have the obligation to try to reach agreement on those major decisions;
6. in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the parent with primary responsibility for the day to day care of the child will have the right to make such decision and the other parent will have the right, under s. 32 of the Family Relations Act, to seek a review of any decision which he or she considers contrary to the child's best interests; and,
7. each parent will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers.
Common variations of this model include: ditching the language about who has "primary care" and who doesn't; assigning one or more subjects of exclusive decision-making authority to each parent; and, revising paragraph 6 to require the parents to consult a counsellor, therapist, parenting coordinator or mediator if they cannot agree on a decision.

The Charleton Model

This model was developed by Mr. Justice Garner in a Supreme Court judgment called Charleton v. Charleton rendered in 1980.

The parents shall have joint guardianship of the child, and joint guardianship will include the following rights and powers:
1. the parents shall each have a full and active role in providing a sound moral, social, economic and educational environment for the child;
2. the parents shall consult with one another in planning the religious upbringing, educational programs, athletic and recreational activities, health care (excluding emergency health care) as well as significant changes in the social environment of the child;
3. the power and authority granted hereby shall not be exercised by either of the parents so as to frustrate or unduly affect the life of the other; and,
4. the parents shall each exert their best efforts to cooperate in future plans consistent with the best interests of the child.
The Horn Model

This model was developed by Master Horn and differs from the two previous models in that it mostly discusses the sharing of information about a child.

The parents shall have joint guardianship of the child with guardianship including the following rights:
1. to be informed of the child's medical and dental practitioners;
2. to contact the child's medical and dental practitioners and obtain the child's medical and dental records;
3. to be consulted with respect to the selection of the child's alternative caregivers, such as daycare and preschool;
4. to consult with the children's alternative caregivers and teachers;
5. to be informed of events at the child's schools or daycare so that the parent without the primary care of the child may attend;
6. to be informed of parent/teacher nights so that the parent without the primary care of the child may attend;
7. to be consulted with respect to any significant health issues relating to the child; and,
8. to be consulted with respect to any significant change in the child's social environment.
This model can also be edited to remove the language about who has "primary care" and who doesn't, and to add some detail about what the right "to be consulted" means.

11 June 2011

Court of Appeal Releases Decision on the Cancellation of Arrears of Child Support and Special Expenses

The Court of Appeal has just released its decision in Semancik v. Saunders, a helpful case which reviews and summarizes the law on many common issues relating to applications to cancel arrears of child support and the payment of children's special expenses. Here are the highlights of the court's review of the law:
  • Under s. 96 of the Family Relations Act, the court may only reduce arrears of child support if it would be "grossly unfair" not to do so.
  • A 1999 decision of the Supreme Court called Earle v. Earle held that this requires an applicant to prove (1) a significant and long lasting change in circumstances, and (2) that it would be grossly unfair not to cancel the arrears. Arrears will usually only be cancelled if the applicant proves that he or she is unable to pay “now and in the future.”
  • The principles given by the Supreme Court of Canada in D.B.S. v. S.R.G. on orders involving retroactive child support under the Divorce Act also apply to retroactive child support orders under the provincial Family Relations Act.
  • The D.B.S. principles also apply to orders involving retroactive payment for children's special expenses.
  • There is, however, an important distinction between orders for child support and orders for special expenses. "In the case of child support, the payor parent’s income is determinative. That parent knows what his or her income is and can determine the amount of the child support obligation from the [Child Support] Guidelines. In the case of [special] expenses, it is the recipient parent who knows the details of the expenses. If that parent does not communicate that information to the payor parent, the payor parent cannot fulfill his or her legal obligation to contribute."
  • Adult children should be required to make a reasonable contribution to the costs of their post-secondary education when those costs are claimed as a special expense. A "reasonable contribution" does not mean that an adult child should be expected to cover the cost entirely or to contribute all of his or her income to these costs.

03 June 2011

New Amendments to the New Rules

An Order in Council (PDF) came into effect on 26 May 2011 amending the published version of the Supreme Court Family Rules and the forms prescribed by the rules. The rules and forms, as amended, will be in force on 1 July 2011. The changes to the rules are mostly fairly minor:
  1. Rule 7-1: The JCC rule is amended to provide that the tape recording of a JCC may not be accessed except by court order.
  2. Rule 14-5: The rule which requires a trial to be removed from the trial list if Trial Certificates are not filed is amended to give the court some discretion in the matter.
  3. Rule 17-1: The rule on petition proceedings is amended to tie the deadline for replying to a Petition to the place the petition respondent was served rather than the place where the petition respondent resides, and to tidy up the language about petition respondents' right to seek directions on adjourned hearings.
  4. Rule 18-3: The rule about appeals brought from the provincial court is amended to tie the deadline for replying to a Notice of Appeal to the place the respondent was served rather than the place where the respondent resides.
  5. Rule 20-5: The rule on applications for indigency status is amended to remove the option of filing proof of receipt of welfare benefits and require applicants to file an affidavit in Form F86.
The changes to the forms are similarly minor, but there are a lot more of them. The following forms have been amended:
  1. F3 - Notice of Family Claim (Schedule 1)
  2. F5 - Counterclaim (Schedule 1)
  3. F15 - Affidavit of Personal Service
  4. F36 - Certificate of Pleadings
  5. F37 - Child Support Affidavit for desk order divorce
  6. F38 - Affidavit for desk order divorce
  7. F44 - Notice of Trial
  8. F45 - Trial Brief
  9. F54 - Restraining Order
  10. F58 - Writ of Sequestration
  11. F59 - Writ of Possession
  12. F60 - Writ of Delivery
  13. F61 - Writ of Delivery or Assessed Value
  14. F73 - Petition
  15. F79 and F80 - Notice of Appeal
  16. F86 - Affidavit in Support of Indigent Application
  17. F95 - Fax Cover Sheet
  18. F100 - Certificate of Mediation
For more information on the Supreme Court Family Rules, see the New Rules 101 chapter of my website or click on the "court rules" label below.

Update: 18 June 2011

I have now updated the court form templates available on my website to reflect the changes required by the new Order in Council.
  • Templates for the most commonly used court forms in family law matters are available in the chapter Resources & Links > The Courts, in the discussion of the Supreme Court.
These templates are published in Word format.