Showing posts with label court rules. Show all posts
Showing posts with label court rules. Show all posts

27 July 2015

Sealing of Family Law Judgments: Supreme Court Issues Important Decision

Mr. Justice Abrioux of the British Columbia Supreme Court has just provided his reasons in M. v M., a high-conflict family law dispute featuring allegations of abuse and parental alienation, and the evidence of no less than six expert witnesses. Although the case is well worth reading for the court's treatment of these issues, and perhaps especially for its scathing criticism of one expert in particular, I was struck by the court's discussion of the law on the sealing of judgments, a problem that rarely sees the light of day.

Owing, I expect, to the nature of the allegations made, the father sought an order that the judge's decision be sealed. This application is unusual in family law cases for two reasons. First, because of Supreme Court Family Rule 22-8(1) and Provincial Court Family Rule 20(10) which restrict access to court files to lawyers and to the parties to a file. Second, because of the court's increasing habit of referring to the parties and their children by initials to protect their identities... like this case, M. v M.

Although counsel came up empty when the judge asked them to research the requested order, the judge did find some law on the matter starting from the other end of the problem, the principle that courts are open to the public (cites included so that the research needn't be reinvented, important bits in bold):
"[7] ... there are established principles which govern this situation. Absent exceptional circumstances, a court is not a private forum. See A.B. (Litigation Guardian of) v Bragg Communications Inc., 2012 SCC 46 at para. 11; R.B.L. v British Columbia, 2005 BCSC 1068 at para. 29; Reference re: Criminal Code of Canada, s. 293, 2010 BCSC 1351 at para. 53; Re Vancouver Sun, 2004 SCC 43 at para. 23. 
"[8] The principle of an open court applies to family law cases and matrimonial court material: K.V.P. v T.E. (1998), 56 B.C.L.R. (3d) 344 (S.C.); Michie v Michie, 2010 BCCA 232 at para. 10. As noted in K.V.P. at para. 7:
… The onus of demonstrating harm is a high one. It is not enough that the defendant may be embarrassed or that he and his family may be subject to unwanted publicity. …
"[9] I have concluded that the overriding principle of the openness of the courts should not be displaced in the circumstances of this case. 
"[10] It is an unfortunate reality litigants face when, unable to privately resolve their highly personal disputes, there is a trial of the proceeding, which is in the public domain. 
"[11] I am mindful of the children’s best interests and in these reasons for judgment will attempt to anonymize certain individuals and events to the extent possible. But as is evident from the recent lengthy reasons for judgment of Mr. Justice Kent in N.R.G. v G.R.G., 2015 BCSC 1062, a case that had several of the features of this proceeding, it is difficult for the court, notwithstanding its best efforts, to insulate children from the effects of published reasons for judgment. 
"[12] Insofar as this proceeding is concerned, the number of witnesses who testified, the regular attendance in the courtroom of many friends and supporters, particularly on the claimant mother's side, and the fact I will be directing that these reasons for judgment be provided to the treating therapists, militates against providing oral reasons for judgment. In any event, providing oral reasons would not necessarily preclude these reasons from entering the public domain."
And there you have it. The principle of court openness is an "overriding principle" which applies in family law matters just as it does in non-family civil matters, and which will not be circumvented absent "exceptional circumstances." Moreover, the tawdry complaints that so many high-conflict file seem to involve do not qualify as "exceptional." In fact, the publication of such complaints is just one of the risks that litigants take when when they insist on resolving their disputes at trial, and perhaps ought to serve as a disincentive to litigation.

I haven't supplied the links to the cases mentioned by Justice Abrioux. Those cases, including K.V.P., can be found on CanLII.

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27 October 2013

Supreme Court Publishes Rules for Divorces Under Civil Marriage Act

Regular readers will recall the August amendments to the federal Civil Marriage Act intended to allow non-resident same-sex couples marrying in Canada the ability to get divorced when they reside in countries which do not recognize same-sex marriages; see my post on the subject, "Civil Marriage Act Amended to Allow Non-Residents to Divorce."

Since the amendments were made, I am aware of two lawyers who have begun divorce proceedings under the Civil Marriage Act, as they were entitled to do, despite the absence of rules and forms. The Supreme Court has at last filled the gap and announced, effective 28 October 2013, a new Practice Direction on the issue, PD-43 (PDF). Here's the Practice Direction in a nutshell:
Claims for a divorce under the Civil Marriage Act are to be starting by one or both spouses filing a Requisition in Form 31. 
Where only one spouse is asking for the divorce and the other spouse consents to the divorce, the applicant spouse must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by both spouses, 
  3. the applicant's affidavit stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted, and
  4. the other spouse's affidavit consenting to the divorce.
Where only one spouse is asking for the divorce and the other spouse does not consent to the divorce, the applicant spouse must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by the applicant spouse, 
  3. the applicant's affidavit stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted, and
  4. an order from a court in the country where either spouse lives saying that the other spouse cannot consent to the divorce issues because of mental incapacity, that the other spouse is unreasonably withholding his or her consent to the order or that the other spouse cannot be found.
Where both spouses are asking for the divorce, they must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by both spouses, and 
  3. an affidavit from each spouse stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted.
If the court is satisfied that the divorce should be given, the divorce will be effective from the date of the order without an appeal period. The court registry will issue a Certificate of Divorce to a spouse who requests one. 
The Practice Direction sets out examples of the forms to be used — and remember that these are civil court forms, not the usually family law court forms usually used in divorce cases — as well as handy and important reminders such as these:
  • the Practice Direction does not apply to divorces under the federal Divorce Act; and,
  • no claims for other orders, like about support, the care of children or the divisions of property made be made in divorce proceedings under the Civil Marriage Act.


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08 September 2013

How to Link to the Rules of Court and the Family Law Act on the BC Laws Website

The BC Laws website, run by the provincial Queen's Printer, and the CanLII website, run by the Federation of Law Societies of Canada, are the two best resources for finding British Columbia legislation online. I personally find the CanLII website a bit cluttered and messy to use and print from, although the beta version of the new website improves things a great deal, but CanLII will let you like to point-in-time historic versions of legislation and keeps copies of old statutes, like the Family Relations Act. Although the BC Laws website is somewhat easier to access and print from, it only provides access to current legislation.

Assuming that you're using the BC Laws website, you may bump into a problem because of their decision to post the Family Law Act, the Supreme Court Family Rules and the Provincial Court Family Rules broken up into parts; CanLII has regrettably followed BC Laws' lead. Here's how you can create reliable links to the new act and the rules of court.

Family Law Act

If you cut-and-paste the address for s. 81 of the Family Law Act from the BC Laws website, this is what you'll get:
However, you can get the same result with this much shorter link:
The trick here is to know which part the section you want to link to is found and adjust the link address accordingly. The first part, "www.bclaws.ca/ EPLibraries/ bclaws_new/ document/ID/ freeside/11025_" is stable for all links to the act. The part you adjust is the last bit, "05#section81".

In this example, "05#section81" means part 5, section 81. If you wanted to link to s. 211 on needs of the child assessments, because s. 211 is in part 10 you would link to:
Likewise, to link to s. 15, which you'll find in part 2, the address you would use is:
Supreme Court Family Rules

The same basic idea applies for links to the Supreme Court Family Rules. If you cut-and-paste the address of SCFR 15-2.1(1) on the affidavits required for guardianship applications, this is what you'll get:
Ick. However, you can get the same result with this shorter link:
The first part, "www.bclaws.ca/ EPLibraries/ bclaws_new/ document/ID/ freeside/169_2009_", stays the same for all links to the SCFR. What changes is the last bit, "03#rule15-2.1subrule1". In this example "#rule15-2.1subrule1" means SCFR 15-2.1 and subrule (1) of that rule. Explaining the "03" is a little more complicated. BC Laws has published the SCFR in six bundles:
  1. Parts 1 to 9;
  2. Parts 10 to 14;
  3. Parts 15 to 23;
  4. Appendix A (court forms);
  5. Appendix B (costs awards); and,
  6. Appendix C (fees payable to the court and witnesses).
The "03", you see, comes from SCFR 15-2.1 being in the third bundle. Get it?

To take another example, if you wanted to link to SCFR 4-3 about when a reply to a Notice of Family Claim is due, you would use this link:
The last part, "01#rule4-3", refers to SCFR 4-3 which is found in the first bundle. If you wanted to get fancy and link to SCFR 4-3(2) specifically, you'd add "subrule2" to the end of the address:
Similary, to link to SCFR 11-3 on summary trials, because that rule is in the second bundle you'd link to:
Provincial Court Family Rules 

The Provincial Court Family Rules are simpler because it is published in only two bundles; the complete rules are in the first bundle and the court forms are in the second bundle. The address of the PCFR is:
To link to a specific rule, turn "00" into "01", for the first bundle, and add "#rule" plus the number of the rule you want to link to. For example, to link to PCFR 7 on family case conferences you would use this address:
To link to PCFR 13(3) on the use of affidavits at hearings or trials, you'd use this address:
Wasn't that easy?

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09 April 2013

Consolidated Rules and Forms Now Available

The Queen's Printer has almost finished assembling versions of the Supreme Court Family Rules and the Provincial Court Family Rules which consolidate the existing rules and forms with the series of amendments that came into effect with the Family Law Act. The Supreme Court forms are still missing Form F101, the affidavit required for applications for appointment as the guardian of a child.

A list of additional electronic resources is available in my post "Family Law Act Online Resources".

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19 March 2013

Family Law Act Online Resources

Now the dust has begun to settle, I thought it would be helpful to put together a collection of links related to the new legislation. Here it is, and I will be updating it as the Queen's Printer is able to generate updated material. Bookmark this post by clicking on the title.

Legislation and Regulations
Rules of Court and Practice Materials
Rules of Court
Ministry of Justice Resources
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19 January 2013

Supreme Court Announces Assize Project in Vancouver

Chief Justice Bauman has announced (PDF) the implementation of a pilot project to test an assize scheduling system for long civil chambers applications in the Supreme Court's Vancouver registry. The pilot project began on 7 January 2013. The pilot project is only available for cases that do not involve criminal law, family law or judicial reviews.

Chambers Applications

Every court day, masters and justices hear applications in chambers. Applications are requests for orders, usually temporary or short-term orders, that are made using affidavit evidence and are expected to take a relatively short time to hear, anywhere from five minutes to two days. Chambers is the courtroom where applications are heard.

Normally, someone who wants to make an application will just pick the court day that the application will be heard. Although some days are predictably busier than others, things usually work out pretty well; most of the time, there's enough time to at least get the shorter chambers applications heard. However, when an application is going to take a half an hour or more to be heard, things can get pretty hairy.

There are only four and a half hours in the normal court day. (Court starts at 10:00 and runs to the lunch break at 12:30, with a fifteen minute recess partway through. Court resumes at 2:00 and runs until 4:00, with another fifteen minute recess.) This is not a lot of time. Applications of less than an hour routinely chew through all of the morning, leaving a handful of applications left that might take half an hour, a whole hour or two hours to be heard. As a result, these longer applications often get bumped to another day. I never count on a two-hour application being heard in Vancouver on the day it's scheduled, and it's only an even chance than a one-hour application will go ahead. The situation is worse in New Westminster.

This is not the problem the new pilot project is meant to address.

When an application will take two hours or longer, the rules of court require that the application be scheduled with the court's trial coordinator. In theory this means that each application is assigned to a judge who will be free that day and has the time to hear it. In reality, some applications are assigned to a judge and others wind up being listed on the dreaded overflow list.

Being on the overflow list is not good. A judge may become available to hear your application that day or a judge may not; either way, you wind up cooling your heels in the registry for at least an hour or two on the off-chance that you'll be lucky enough to land a judge before giving up and going back to the office.

This is the problem the new pilot project is meant to address.

The Assize Project

An assize system is a way of scheduling hearings which works in blocks of one or two weeks. If someone wants an application to be heard, all they get to pick is the assize period in which it might be heard. At the beginning of the period, a judge or the trial coordinator will triage all the applications set for that period and sort them from most important to least important, with the most important applications getting priority and going first. Applications that can't be scheduled wait to see what happens with the other applications being heard in that period; if an application gets done faster than expected or is adjourned, the unscheduled application next in priority gets heard.

In theory, this is a more flexible way of using judicial time which accommodates applications that unexpectedly collapse, allows every hour a judge is available to be occupied with an application, and therefore gets more applications heard in the same amount of time.

However, as the announcement from the Chief Justice clearly indicates: "placing an application on the assize list does not guarantee that the application will be heard." The other major downside is that the people making the applications have to be available during the entire assize period because you never know when your application will be heard, if it gets heard at all.

Getting on the Assize List 

 An application may be put on the assize list if all of these factors are met:
  1. The application will take between two hours and two days to be heard.
  2. All of the lawyers and anyone who is representing him- or herself agrees to the application being put on the assize list.
  3. Everyone is available for at least three of the five days in the assize period.
  4. The case does not involve family law or judicial reviews.
The assize periods available for booking are listed on the scheduling page of the Supreme Court's website.

I'm looking forward to seeing how the pilot project pans out. If it works, I expect the project will expand to family law cases, and although I will have a great deal of difficulty working my schedule to be available during an entire assize period, if the new system gets long applications heard more frequently than they are at present, I'm all for it.

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01 January 2013

Out With the Old, In With the New: Changes to plan for in 2013

The last few years have welcomed a range of important reforms affecting the practice of family law in British Columbia, including the new Supreme Court Family Rules, recalculated child support tables, the extension of the Notice to Mediate Regulation to family law matters and the expansion of the family law justice centre court model beyond Nanaimo. 2013 is going to be no different. In fact, in 2013 we are going to undergo reforms of a scope and magnitude not seen in the last thirty years. If the changes implemented in 2010, 2011 and 2012 were not your cup of tea, you are going to hate 2013. Read on.

 The Family Law Act

The coming-into-force of the new Family Law Act will be the major event of 2013, no doubt about it. The new act will replace the Family Relations Act, which has been at the core of the law on domestic relations in British Columbia since 1972. 

Here are the highlights of the changes to expect on 18 March 2013:
  • Family violence: Under the new act, family violence will be a factor which must be considered when the court is making decisions about children. The court will also be able to make protection orders to protect children and adults who are at risk of family violence.
  • Parentage: We will have a complete code for determining a child's parentage, including when a child is conceived as a result of assisted reproduction. When assisted reproduction is used, a child may have more than two legal parents.
  • Children's best interests: The list of factors that parents and the court must consider when making decisions about children will grow significantly, and will include family violence and a presumption that children's views should heard.
  • Guardianship: The new act will give us a new definition of guardianship which takes us back in time to the old common law meaning of the term. Under the new act, subject to some exceptions, parents will usually be a child's guardians during their relationship and after separation. A guardian will be able to appoint a person to act as guardian in the event of his or her illness or death.
  • Parental responsibilities: The decisions a child's guardians must make about raising the child will be called parental responsibilities, and will cover everything from where the child goes to school and how the child's health care is managed to signing permission slips for field trips. Only guardians will have parental responsibilities.
  • Parenting time and contact: The time a guardian has with a child will be called parenting time. The time that someone who isn't a guardian has with a child will be called contact.
  • Child support: Under the new act, the child support duties of a stepparent will be secondary to those of a parent, and the amount that the stepparent must pay will be determined considering the length of time the child and stepparent lived together and the child's standard of living during that time. A person paying support may also be required to carry life insurance to secure his or her obligation.
  • Spousal support: People who have lived together for less than two years and have had a child together will be eligible for spousal support. Orders and agreements for spousal support may be reviewable. A person paying support may also be required to carry life insurance to secure his or her obligation.
  • Property and debt: The new act will let people keep the property they owned going into to the relationship but require them to share any property or debt acquired after the date of marriage or the date they began to live together, whichever was first, plus the increase in value of any property brought into the relationship. People will also be able to keep other kinds of property they acquire during the relationship, such as inheritances, court awards and insurance payments. The property and debt provisions of the new act will apply to married and unmarried spouses.
Some amendments are likely planned to fix the very small number of problems in the new legislation that were overlooked in the drafting process. However, the next session of the Legislative Assembly, which will probably not begin until February or so, is going to be somewhat preoccupied with matters leading to the mandatory provincial election in May. As a result, it is very unlikely that the Family Law Act will be amended until the fall sitting.

You can read more about the Family Law Act in my Family Law Act Information & Resources page or in the helpful website on the new act put together by the Ministry of Justice.

The Regulations to the Family Law Act

Two main regulations will come into effect with the Family Law Act, the Family Law Act Regulation and the Family Law Act Pension Regulation. There are a few dozen other regulations that will come into effect at the same time, but these are largely housekeeping regulations that change other regulations to refer to the Family Law Act rather than the Family Relations Act.

The Family Law Act Pension Regulation deals with, well, pensions. No surprises there.

The Family Law Act Regulation covers a number of important subjects including:
  • the roles and responsibilities of Family Justice Counsellors
  • the training and experience people will have to have to work as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators under the new act
  • adopting the federal Child Support Guidelines as the Guidelines for the Family Law Act and translating the new act for the purposes of those Guidelines
The Ministry of Justice has written a helpful guide to the Family Law Act Regulation (PDF). You can find links to the new regulations in PDF format in my post "Regulations to Family Law Act Published."

The Family Relations Act

The Family Relations Act, and the regulations made under the Family Relations Act, will all be repealed when the Family Law Act comes into force on 18 March 2013. The repealed regulations include the Child Support Guidelines Regulation, the Division of Pensions Regulation and the Family Relations Act Rules and Regulations Regulation.

The Divorce Act

I am not aware of any changes planned for the Divorce Act. However, it's worth saying that among the things that will be staying the same under the Divorce Act are:
  • Custody: The right to physical possession of a child and certain rights, almost like those of a guardian, to make decisions regarding the care and upbringing of the child.
  • Access: The time a person has with a child under an order or agreement.
  • Child support: The obligation of a spouse or stepparent to contribute to the costs of raising a child, as determined under the Child Support Guidelines.
  • Spousal support: The obligation of a spouse to contribute to the living expenses of the other spouse, where that spouse has demonstrated an entitlement to receive it.
As a result, when the Family Law Act comes into force, married spouses will be subject to two slightly different rules for determining child support and spousal support, and to two very different schemes for the care and control of children.

The Child Support Guidelines

I am not aware of any changes planned for the Child Support Guidelines. The Guidelines tables were last amended on 31 December 2011, which means that the next amendment is unlikely to occur prior to 2016.

The Rules of Court

Both the Supreme Court Family Rules and the Provincial Court (Family) Rules will be amended on 18 March 2013 to accommodate the Family Law Act. Both sets of rules will be updated to:
  • implement the new terminology used by the Family Law Act (for example, parental responsibilities, parenting time and parentage tests)
  • address the new concepts introduced in the act (for example, parenting coordination, conduct orders and protection orders)
  • address new processes established by the act (for example, the enforcement of orders and applications to enforce or set aside the determinations of parenting coordinators)
  • delete reference to concepts not carried forward by the act (for example, restraining orders, parental support and declarations of irreconcilability)
The changes to the Provincial Court rules were somewhat more extensive given their antiquity, however the Minister of Justice has promised a complete overhaul of the rules for sometime in 2013 or 2014.

I expect that further updates to both sets of rules will be announced in the next few months to address the requirements of s. 51(2) of the new act concerning applications to be appointed as a child's guardian:
"An applicant under subsection (1) (a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act."
An overview of the changes can be found at the Ministry's website on the new legislation. I have also discussed the updates to the rules in my post "Family Law Act: Changes to Rules of Court."

The Limitation Act

A brand new Limitation Act will come into force on 1 June 2013. Among other things, the new act exempts arrears of child support and spousal support from any limitation period, which means that once arrears have accumulated under ss. 148 or 163 of the Family Law Act, or the equivalent sections of the Family Relations Act, they can always be enforced.

I have briefly discussed the new new act in my post "New Legislation Will End Limitation Period for Claims on Arrears of Support." The old Limitation Act can be found on the excellent website of the Queen's Printer.

Family Day

Thanks to Premier Clark's ambitious families first agenda, our province's first Family Day will be celebrated with a day off on the second Monday of February; this year, on 11 February 2013. Huzzah!

New Practice Standards for Lawyers

On 7 September 2012, the Law Society adopted new practice standards (PDF) for lawyers wishing to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators when the new Family Law Act comes into force. The new standards are onerous but are, in my view, appropriately high.


People who are not lawyers and wish to practice as Family Law Mediators, Family Law Arbitrators and Parenting Coordinators must meet the training requirements set out in the Family Law Act Regulation; lawyers who wish to practice in these areas must meet both the requirements of the regulation and the standards set by the Law Society.

New Code of Professional Conduct for Lawyers

The Law Society has implemented a new Code of Professional Conduct (PDF) to replace the old Professional Conduct Handbook, effective today. The code covers most aspects of lawyers' ethical obligations, including confidentiality, conflicts of interest and advertising, and is part of an effort to promote greater uniformity among the practice codes of the various provinces and territories.

I have discussed the new code in my post "New Code of Professional Conduct in Force in January." You can read more about the new code in the Law Society's Bencher's Bulletin newsletter.

Designated Paralegal Pilot Project

Beginning on 1 January 2013, the scope of practice allowed to paralegals under the Law Society's pilot project will expand to allow designated paralegals to appear in court.

In the Vancouver, New Westminster and Kamloops Supreme Court registries only, designated paralegals may apply for a wide variety of uncontested orders, largely concerning procedure and file management, and may make contested applications for the following orders:
  • compelling the production of documents
  • changing the place of an examination for discovery
  • the payment of child support where the children are below the age of majority and the payor's annual income is less than $150,000
In the Caribou/Northeast District and Surrey Provincial Court registries only, designated paralegals may apply for the same sort of uncontested orders and may make contested applications for the following orders:
  • compelling the production of documents
  • compelling the production of financial statements and financial documents
  • the payment of child support where the children are below the age of majority, the payor's annual income is less than $150,000 and the application does not involve situations of shared or split custody or a claim of undue hardship
For more information, see the paralegals page on the Law Society's website.

Provincial Sales Tax

Remember the PST? It's back on 1 April 2013. Lawyer's fees are subject to PST and GST; fees charged by lawyers acting as mediators are subject only to GST.

Happy new year.

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06 October 2012

Family Law Act: Changes to Rules of Court

The Ministry of Justice, in its increasingly useful webpage on the new Family Law Act, has posted information about changes to the Supreme Court Family Rules and the Provincial Court (Family) Rules that will come into effect on 18 March 2013 at the same time as the new legislation.

Rule Changes

The amendments to both courts' rules include:
  • implementing the new terminology used by the Family Law Act (for example, parental responsibilities, parenting time and parentage tests);
  • addressing the new concepts introduced in the act (for example, parenting coordination, conduct orders and protection orders); 
  • addressing new processes established by the act (for example, the enforcement of orders and applications to enforce or set aside the determinations of parenting coordinators); and,
  • deleting reference to concepts not carried forward by the act (for example, restraining orders, parental support and declarations of irreconcilability).
Provincial Court Rules

Additional amendments are made to the Provincial Court (Family) Rules, unrelated to the new legislation, largely to correct minor errors and inconsistencies and improve to overall clarity of the rules. Among the more significant amendments are:
  • allowing service by email;
  • allowing service of applications outside British Columbia;
  • requiring addresses for service when filing applications and motions;
  • allowing lawyers to search court files; and,
  • allowing the electronic filing of documents.
Consequential changes are made to the forms required by the rules, including those used to commence and reply to a court proceeding, the form used to commence a motion and financial statements. According to an announcement from the Attorney General, a more complete overhaul of the rules is anticipated at some point in the relatively near future, perhaps in 2013 or 2014.

 For the exact details of the current changes to the rules and forms, read the Order in Council (PDF) that will implement the changes. For a general introduction, read the ministry's overview (PDF).

Supreme Court Rules

 Additional amendments to the Supreme Court Family Rules include:
  • requiring personal service of applications to set aside agreements; and,
  • addressing and assessing awards of expenses.
Consequential changes are made to the forms required by the rules, including those used to commence and reply to a court proceeding, the form used to commence a motion, the forms used for restraining orders, financial statements and the forms used in the divorce process.

 For the exact details of the changes to the rules and forms, read the Order in Council (PDF) that will implement the changes. For a general introduction, read the ministry's overview (PDF).

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19 June 2012

Effective Date Announced for Family Law Act

The Ministry of Justice has announced that the new Family Law Act will come fully into force on 18 March 2013. Mark your calendars!

Among other things, the coming-into-force date means that a persons who fall within the act's definition of "spouse" in s. 3 will be entitled to bring an application under the new act for spousal support or the division of property as long as:
  1. married spouses were divorced or had their marriage annulled on or after 18 March 2011, or
  2. unmarried spouses separated on or after 18 March 2011.
The provisions for these time limits can be found at s. 198.

Update: 20 June 2012

In an email distributed today, the Attorney General writes:
"The implementation date has been set for early 2013 with a number of considerations in mind. 
It will allow the Ministry of Justice sufficient time to make the necessary systems changes.  Over the next several months, the regulations required under the Act will be finalized.  And, perhaps most importantly, we want to allow legal practitioners and other professionals who provide support to families dealing with separation and divorce to familiarize themselves with the broad scope of changes before the Act comes into force. 

"In addition to the implementation date, the necessary changes have also now been made to the Supreme Court and Provincial Court family rules.  These changes, which will also come into force March 18, 2013, will ensure court processes are consistent with the new family law changes."
The Attorney General also announced that the Provincial Court (Family) Rules will be revised after the coming-into-force of the Family Law Act, which, given her announcement that the amendments necessary to accommodate the new act are ready to go, seems to suggest that a broader reform of that court's rules is also in the works:
"In addition to the amended family rules announced today, I can confirm that the Provincial Court of British Columbia intends to proceed, in conjunction with the Ministry of Justice, with a further phase of Provincial Court family rules amendments following the coming into force of the new Act."

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04 June 2012

Court Services Suspends Hearing Day Fees in Supreme Court

The Law Society advises that the Court Services Branch of the Ministry of Justice — the benighted office responsible for running courts throughout the province — has suspended the processing of payments or issuance of invoices for hearing fees under the Supreme Court Civil Rules and Family Rules.

Hearing days fees are fees charged by the Supreme Court for trials. Under Appendix C, Schedule 1 of the Family Rules, hearing day fees are payable on a tariff which increases with the length of trial:
  • nothing for each of the first 3 days;
  • $500 per day for the 4th to the 10th days; and,
  • $800 per day for 11th day and onwards.
The catch, however, is that the person responsible to pay these fees isn't the party who wins or loses or the person who is awarded their costs, it's the party who sets the action for trial! This can lead to some dickering and brinksmanship about who will wind up setting an action for trial.

The Branch's decision to stop collecting these fees arises out of the court's recent decision in Vilardell v. Dunham, In this case, the claimant had asked the court for an order that she be exempted from paying the hearing fees and, once the trial was done, the court heard her argument on the issue, with submissions by the Canadian Bar Association British Columbia and Trial Lawyers Association of British Columbia as intervenors. At the application, the issue was not whether the claimant could afford the fees (she could, she was a veterinary surgeon), but whether the rules' provisions for the fees were constitutional. This is the relief the claimant sought:
"(b)a declaration that the imposition of fees for the hearing of a trial infringes a right of access to justice and thereby offends the rule of law and is therefore inconsistent with the Canadian Constitution;
"(c) a declaration that the imposition of fees for the hearing of a trial infringes s. 96 of the Constitution Act, 1867 and is therefore unconstitutional;
"(d) a declaration that the imposition of fees for the hearing of a trial infringes s. 7 of the Charter and is not justified under s. 1 of the Charter;
"(e) a declaration that the imposition of fees for the hearing of a trial infringes s. 28 of the Charter by denying women the equal protection of s. 7 which denial is not justified under s. 1 of the Charter;"
I won't recite the court's analysis; it is masterful and deserves a thorough review rather than the hackneyed summary I could provide. At the end of the day, the court held that:
  • access to justice is a fundamental constitutional right which may not be abrogated by Parliament or the provincial Legislature;
  • the constitutional obligation of the provinces to administer justice does not not include the power to hinder the court's functioning;
  • the hearing day fees imposed by the province are a barrier to access to justice; and,
  • hearing day fees are unconstitutional.
According to the Law Society, "the Branch has been advised that the ruling is being appealed by government and a decision is pending regarding whether or not to file a motion to apply to the court for an order staying further proceedings." Stay tuned.

As I've said, the judgment is masterful. Here is my favourite passage, from paragraph 425:
"The court cannot fulfill its democratic function as an independent and impartial arbiter between government and the individual, or between individuals, if the government limits those who may come before the court by means of financial or procedural deterrents."

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14 April 2012

Supreme Court Protocol for Case Planning in High Conflict Cases

I have learned that the Supreme Court of British Columbia has developed a protocol for the appointment of case planning judges in high conflict family law cases. This process helps to address a gap between the Supreme Court Civil Rules which provide for case planning conferences, and the appointment of a case planning judge to actively manage a case through to trial, and the Supreme Court Family Rules which do not.

The protocol borrows somewhat from civil Practice Direction 4, "Case Planning and Judicial Management of Actions," and provides that a party may address the appointment of a case planning judge at the initial Judicial Case Conference. If the judge or master hearing the JCC agrees that the appointment is appropriate, the judge or master will make a recommendation, with reasons, to the Chief Justice of the Supreme Court. If the Chief Justice agrees, which I expect would be the case with most recommendations, a case planning judge will be appointed.

If a case has already been through the JCC process and contested applications have been heard, a party may request a JCC for the purposes of addressing the appointment of a case planning judge through trial scheduling. (With such requests, trial scheduling will book a half hour instead of the usual hour and a half.) At the JCC, the requesting party will explain why the appointment would be appropriate, and the JCC judge will make a recommendation to the Chief Justice if he or she agrees.

As an alternative, counsel may write to the Chief Justice through trial scheduling to request that at a case planning judge be appointed, but the JCC approach is preferred. (In my view, requests of this nature should be reserved for circumstances in which the attendance of the parties at the JCC, as is usually required, would be significantly inconvenient or put a party at risk, or where the request for the appointment is made with the agreement of both parties.) Remember that correspondence with the court in family law matters is governed by civil Practice Direction 27, "Corresponding with the Court."
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07 April 2012

Modest Changes to Supreme Court Rules and Forms

Pursuant to an Order in Council made on 29 March 2012, certain changes to the Supreme Court Family Rules and the forms prescribed by the rules will come into effect on 25 April 2012. The changes are minor and aim to clean up a few of the court forms and make it easier to schedule Trial Management Conferences.
  • Rule 14-3 will be amended to allow judges or masters to conduct Trial Management Conferences. Under the current rule, only judges may hear these conferences.
  • Forms F37 and F38, the affidavits used in the desk order divorce process, will require you to delete unnecessary text, including the instructions provided in the forms.
  • Forms F51 (Order Made After Application), F52 (Final Order), F54 (Restraining Order) and F85 (Order for Indigent Status) will require you to delete unnecessary text, including the instructions provided in the forms.
Order in Council 192 has not yet been published. A summary and explanation of the changes can be found in the Supreme Court's announcement of 3 April 2012.

I will update the court form templates and sample forms available on my website before the changes take effect. The orders can be found in the chapter Resources & Links > The Courts in the Supreme Court section; the affidavits can be found after my description of the do-it-yourself divorce process in Marriage & Divorce > Divorce.

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24 February 2012

New Administrative Notice for Chambers Applications

The Chief Justice of the Supreme Court has published a new administrative notice, AN-10 (PDF), about how late application records are to be handled. Under Rule 10-6(14), the applicant is required to file an application record, a binder containing all of the documents for the application, by 4:00pm two business days before the date set for the hearing.

Under the new administrative notice, when an application record is not filed in time, the application will be struck from the list and will not be heard.

The applicant may apply for leave to have the application put back on the list using a special form of requisition in Form F17. (The form appears at Appendix A of the administrative notice.)

Where an application respondent shows up ready to go on the day of the hearing only to discover that the application has been struck from the list, the application respondent may apply for his or her costs of the appearance using another special form of the F17 requisition. (The form appears at Appendix B of the administrative notice.)

Late filers, beware!
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07 January 2012

Supreme Court Decision Summarizes Law on Costs

In the recent case of Schuller v. Roback, the court has been called upon the explain the thorny, vexing and generally irksome area of the law known as "costs." Costs has a special legal meaning; it's not the bill of the client's lawyer and it's not the client's out-of-pocket expenses for photocopying, court fees and so forth. Costs are a way of compensating someone for the overall expense and hassle they've been put to as a result of having to go to court, and costs are only available in the Supreme Court.

Costs are usually awarded to the person who is mostly successful in a law suit or an application, and in a way they function like an idiot tax. It the person making the application wins, the respondent shouldn't have fought the application and has to pay the applicant's costs; if the person making the application loses, the application shouldn't have been brought in the first place and the applicant has to pay the respondent's costs.

The rule on costs is Rule 16-1 and says that the court can award costs as ordinary costs or "special costs." Ordinary costs are calculated under Appendix B to the rules; special costs are awarded only in those rare cases where someone's conduct has been utterly unreasonable or frustratingly obstructive and amount to the whole of the lawyer's total bill plus disbursements. Under Appendix B, ordinary costs are calculated according to a schedule of fixed rates for particular activities, like drafting pleadings, arguing an application or writing letters, that are common to all law suits and the rates vary depending on whether the case was less difficult than usual, usual, or more difficult than usual. Ordinary costs assessed at the scale for usual difficulty might amount to 40 to 50% of a lawyer's bill.

Anyhow, the reason why I'm writing about Schuller v. Roback is because the law on costs in family law is all over the place. In the past there seemed to be two kinds of cases on costs in family law, one which said that family law is special and awards of costs can upset the delicate balance the trial judge has achieved making orders for support and division of assets, and other which said that family law is like any other kind of civil law and the party who is mostly successful should get his or her costs. Although the costs-are-costs cases seem to have won the battle, you still see an awful lot of cases where no costs order is made or the judge orders each party to bear their own costs... even when the result looks an awful lot like one party was more successful than the other.

In Schuller, after judgment had been given, the applicant sought an order that each party bear their own costs while the respondent asked for an order that he have "double costs" of the application, assessed at the rate for cases of more than usual difficulty.

First, the court discussed the basic idea about which party should have his or her costs, beginning with the leading case under the old rules.
"[15] Under the former Rule 57(9), costs normally followed the event, and went to the party who enjoyed 'substantial success.' This Court's discretion to depart from awarding costs to the successful party must be exercised judicially: Gold v. Gold."
The rule about costs under the new rules of court is Rule 16-1(7) and says that "costs of a family law case must be awarded to the successful party unless the court otherwise orders."
"[16] The new Rule does not incorporate the same reference to 'substantial success' but the Court retains the discretion to refuse an award for costs despite the success of the party making application for costs: Gain v. Gain.

"[17] In Gold the Court described the considerations that should instruct the Court in evaluating a claim for costs:
The question, then, is: when should the Court order otherwise? ... when the court should order otherwise is a matter of discretion, to be exercised judicially by the trial judge, as directed by the Rules of Court. To lay down any strict guidelines or even to attempt to give exhaustive examples is not, I think, helpful because the facts and issues in each family law case vary so greatly. Factors such as hardship, earning capacity, the purpose of the particular award, the conduct of the parties in the litigation, and the importance of not upsetting the balance achieved by the award itself are all matters which a trial judge, quite properly, may be asked to take into account. Assessing the importance of such factors within the context of a particular case, however, is a matter best left for determination by the trial judge."
Costs, then, continue to be discretionary under the new rules as they were under the old, but the starting point is set out in Rule 16-1(7): costs go to the successful party. But who is responsible for proving that costs should be awarded in any other manner?
"[18] The onus of persuading the court that it should depart from the usual rule that the successful party is entitled to costs rests on the unsuccessful litigant: Rattenbury v. Rattenbury."
And what happens when there is divided success, when each party is partially successful?
"[24] In cases where one party has achieved substantial success, the court may nonetheless award only a portion of the substantially successful party’s costs: Cohen v. Cohen, Newstone v. Newstone and Rolls v. Rolls."
Next, the court discussed the rules about when someone should have "double costs" under Rule 11-1(5). This rule says that when someone makes an offer to settle — a written proposal of terms on which an application or a law suit could be resolved — the court can deprive someone of costs even if they've won or give an offeror double costs whether they've won or lost, taking into account the factors set out a subrule (6):
In making an order under subrule (5), the court may consider the following:
(a) 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 served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.
Essentially, said the court, an award of double costs is intended to punish a party who rejects a reasonable offer:
"[31] The issue of awarding double costs was recently reviewed in Hartshorne v. Hartshorne. The rationale for the Rules ... emphasizes that an award of double costs is a 'punitive measure against a litigant for that party's failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted'."
The court then looked at the circumstances of the parties, the application and the offer to settle, considering the 11-1(6) factors and the decision in Hartshorne:
"[35] In my view [the respondent's] offer was delivered in a timely way. However it was a lengthy proposal and not easily evaluated. The offer included a readjustment of the division of family assets which was a claim not properly before the Court at this time. ...

"[36] In my view this offer was overbroad and while it was open for acceptance it would not have been reasonable for [the applicant] to accept the terms. I also note that some terms were simply 'nuisance' terms that [the applicant] could not accept.

"[37] Subrule (6)(b) also refers to the relationship between the offer and the final judgment of the court. Again, the offer addressed many issues on which [the respondent] did not succeed ... [the respondent] failed to achieve a result equal to or better than his offer on [a number of points] ...

"[39] ... In view of the results of the ... applications, [the applicant's] failure to accept the offer from [the respondent] was not unreasonable and she should not suffer the punishment contemplated in Hartshorne.

[40] Subrule (6)(c) invites the court to consider the relative financial circumstances of the parties. Although I have considered that [the applicant's] financial circumstances do not rise to the level of hardship for the purposes of refusing [the respondent's] claim for costs, I am mindful that her obligations and means are limited. In my view, the state of [the applicant's] financial circumstances also militates against an order for double costs.

[41] In view of [the applicant's] circumstances, the fact that the offer to settle was not one that could reasonably have been accepted and that [the respondent's] measure of success was divided leads me to conclude that this is not a case warranting an award to [the respondent] of double costs.
Summarizing these factors, in rejecting the respondent's claim for double costs as a result of his offer to settle under Rule 11-1(5), the court took into account:
  • whether the offer was delivered in a timely manner relative to the application;
  • the complexity of the offer;
  • whether the offer dealt with issues not before the court on the application;
  • the presence of terms unacceptable on their face;
  • the number of issues on which the result was as good as or better than the offer; and,
  • the applicant's financial circumstances.
Finally, the court considered the respondent's claim for costs assessed at more than usual difficulty.
[45] ... Bouck J. described the test of what is necessary to succeed in a claim for costs at the higher scale in Bradshaw Construction Ltd v. Bank of Nova Scotia:
To get an assessment out of the category of 'ordinary' difficulty under Scale 3, into the categories of 'more than ordinary difficulty'; Scale 4, or to 'matters of unusual difficulty'; Scale 5, it is necessary to show a higher degree of difficulty. Scale 5 uses the word 'unusual'. Its dictionary meaning is 'not often occurring or observed, different from what is usual; out of the common, remarkable, exceptional.' Therefore, the question is whether the collection and proof of the difficult facts were uncommon, remarkable or exceptional events? I do not believe they were.
"[46] The evidence did not rise to the level of more than ordinary difficulty. The affidavits recounted each parties' understanding of the facts and there was little conflict or difficulty in explaining the facts ... this application did not engage uncommon, remarkable or exceptional events or circumstances ... nothing in the applications engaged a difficult issue of law or fact. [The respondent's] efforts were not uncommon, remarkable or exceptional."
At the end of the day, the respondent failed to receive double costs or have his costs assessed at more than the usual level of difficulty. Because success was divided, the ordinary costs awarded to the respondent were offset by the ordinary costs awarded to the applicant. And as for the costs of the application on costs?
"[58] The parties will each bear their own costs of this application."
This case is perhaps unremarkable in its result, however it deserves to be noted for its extremely helpful digest of the case law on costs and its application of the cases determined under the old rules to the new rules.
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18 September 2011

Supreme Court Releases Important Decision on Standard of Interpretation

The Supreme Court of British Columbia has released an important new decision, Luu v. Wang, on the degree of competency required of those who interpret English-language affidavits being sworn by non-English-speaking deponents.

The problem begins with the somewhat ambiguous provisions of Supreme Court Civil Rule 22-2(7) (Rule 10-4(7) of the Family Rules):
"If it appears to the person before whom an affidavit is to be sworn or affirmed that the person swearing or affirming the affidavit does not understand the English language, the affidavit must be interpreted to the person swearing or affirming the affidavit by a competent interpreter who must certify on the affidavit, by endorsement in Form 109, that he or she has interpreted the affidavit to the person swearing or affirming the affidavit."
Since every document filed in court must be in English (SCCR 22-3(2), SCFR 22-1(2)), this rule is meant to explain how you deal with someone who needs to make an affidavit (a "deponent") but doesn't speak English. In a nutshell, a "competent interpreter" is required to read the affidavit to the deponent, who must then sign a certificate on the affidavit confirming that the rule has been complied with.

The problem in Luu was that rule doesn't define what "competent" means and doubt had been cast on the neutrality of the interpreter. This is what the certificate required by the Rules says:

ENDORSEMENT OF INTERPRETER

1. I have knowledge of the English and _____________ language and I am competent to interpret from one to the other.

2. I am advised by the person swearing or affirming the affidavit and believe that the person swearing or affirming the affidavit understands the _____________ language.

3. Before the affidavit on which this endorsement appears was made by the person swearing or affirming the affidavit, I correctly interpreted for the person swearing or affirming the affidavit from the English language into the _____________ language, and the person swearing or affirming the affidavit appeared to fully understand the contents.

Signature of Interpreter

This doesn't set an objective standard of competency either. It merely requires the interpreter to believe that he or she is competent to interpret and say so, and makes no demand that the interpreter be neutral.

The judge resolved the problem by referring to a 1994 criminal case from the Supreme Court of Canada, R. v. Tran, in which the court held that:
  1. the right to an interpreter is guaranteed by s. 14 of the Charter of Rights and Freedoms;
  2. the translation must be impartial, objective and unbiased; and,
  3. this right is "held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses."
Accordingly, the judge in Luu concluded that:

"Where, like here, a reasonable doubt has been raised about the interpretation, the Court is in a position to conduct an inquiry into the qualifications of the interpreter or to set into motion a new interpretation which complies with the qualifications that should be expected of all interpreters.

"Here, there are legitimate reasons to doubt the objectivity of the interpreter. In the circumstances, I am satisfied that the Plaintiff has raised sufficient doubt regarding the competency and neutrality of the interpreter that it is appropriate to require a new affidavit from SZ.

" There will be an affidavit prepared in the Mandarin language. That affidavit will set out the same content as the August 11, 2011 affidavit of SZ. The new affidavit will be endorsed by an interpreter other than his daughter, BZ. The new interpreter must be one who is a certified interpreter."

I don't think it is necessary to read Luu as requiring that all interpreters be certified, but where there are doubts about the competence and neutrality of an interpreter, the court will inquire into the interpreter's skills, objectivity and impartiality. Since this problem comes up quite frequently in family law cases, where affidavits are commonly interpreted by relatives, friends, neighbours, nannies and dog walkers, if an affidavit is particularly important, it is highly advisable to have it interpreted by a neutral third party at the very least, and interpreted by a professional interpreter at best.
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24 August 2011

Court of Appeal Issues New Practice Directives

The Court of Appeal has announced (PDF) a new set of Practice Directives and Practice Notices which will come into effect and replace the old set on 19 September 2011. Practice Directives and Practice Notes are special rules issued by the Chief Justice to govern aspects of court procedure not covered by the formal Rules of Court.

Each level of court has it's own set of special rules like these. In the Supreme Court, "Practice Directions" are issued by that court's Chief Justice. The Practice Directions of the Provincial Court are issued by the Chief Judge.
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18 August 2011

Provincial Court Reviewing Rules: Lawyers' Feedback Sought

The Provincial Court has issued a Notice of Consultation (PDF) announcing that a committee has been struck to review the Provincial Court (Family) Rules to ensure the rules will work with any new provincial family law legislation which may be passed, such as that proposed by last summer's white paper (PDF).

In light of the opportunity offered by this review, the notice invites lawyers to provide their comments on how the current Provincial Court (Family) Rules could be improved generally. Comments are to be provided by email to Ms Erin Shaw at erinshaw@shaw.ca and must be received by 9 October 2011.
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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
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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.
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