When an action is commenced in the Supreme Court of British Columbia, there are numerous procedures that may be utilized and there are some procedures that must be done by the party litigants.
At the Quay Law Centre, we are thoroughly familiar with the Supreme Court processes and procedures when it comes to handling family law issues. Our lawyers can help you make sound decisions regarding how to handle any type of motion or court appearance. Contact us at 604-527-1161 today to learn more about our services.
Commencing the Action
In British Columbia, an action that deals with family law issues such as divorce, custody, child support, spousal support or a division of assets is commenced with a document known as a Notice of Family Law Claim. The party that begins the action is known as the Claimant.
Defending the Action
The party that defends the action is known as a Respondent. The Respondent replies to the Notice of Family Claim with a document called a Response to Family Claim. In addition, a Counterclaim can be filed if the Respondent is seeking his or her own claims.
Both the Notice of Family Law Claim and the Counter Claim highlight the background and issues between the parties.
Judicial Case Conferences
Although there are some exemptions to the Rules, both the Claimant and the Respondent must attend a Judicial Case Conference (JCC) before being permitted to bring any applications for interim orders before the court.
The JCC is a process where a Judge or Master reviews with the parties’ and their counsel the relevant background and issues to determine what, if any, procedural or substantive agreements might be reached. Even minor agreements can save the parties time and money. Examples of potential agreements include agreeing what each party’s income is for the purpose of child support, agreeing on a temporary arrangement for the children or how some of the assets may be used in the interim by the parties. Reaching an agreement at a JCC may save the parties from bringing an interim application regarding such issues.
The JCC process is “without prejudice,” which means it is confidential and the comments or offers made at the JCC cannot be used against either party if a settlement is not reached. In fact, although JCCs are taped, the tapes by law cannot be transcribed without a court order.
Where substantive agreements cannot be reached, potential procedural agreements can be achieved, which can again save time and money for the parties. These types of agreements could include the following: agreements to mutually provide documentary disclosure by an agreed upon date, or agreements regarding examination for discovery dates and trial dates, if required.
Importantly, a court cannot impose any substantive order at a JCC; all such orders can only be made by consent.
Each party litigant has the obligation to disclose all relevant documents to the other party. Relevance is determined by the issues between the parties. The breadth or scope of disclosure is now partly determined by the amounts in dispute. Under law, it is the lawyer’s obligation to determine what documents are relevant. It is the client’s obligation to alert the lawyer to the documents and provide them for review. The obligation is ongoing and continues for any new documents that arise.
Parties need to appreciate how important document disclosure is. Courts can significantly penalize a party that fails to meet its obligations to provide documents.
In a typical case, interim applications can be brought to obtain court orders for the following:
- Primary care of the children
- Parenting time with the children
- Guardianship of the children
- Child support [both basic support and for special expenses]
- Spousal support
- Documentary disclosure
- Section 91 Orders [Injunctions preventing a party from disposing of property before trial]
- Procedural orders
Based on the facts of a particular case, other types of orders can be sought by a party. However, the above list covers most of the typical applications. Interim applications are argued based on the evidence put into affidavits, and the financial issues are put into a sworn Financial Statement.
Most interim orders made will prevail until trial. At trial, a court will make a final determination on all the issues after hearing all the evidence and evaluating the parties . The majority of interim orders are not varied until trial, but there is a limited scope to do so.
Examination for Discovery
Each party is entitled to prepare for trial by conducting an examination for discovery of the other party (Discovery). Discovery is a procedure where counsel for one party questions the other party about the issues in dispute. The evidence is under oath and recorded by a court reporter. It can be transcribed, and a transcript can be produced and used at trial in certain circumstances.
Discovery is designed to accomplish a number of goals, including the following:
- To understand the position of the other party;
- To confirm the position of the other party;
- To obtain admissions against the other party;
- To obtain admissions to benefit your case;
- To appreciate the other parties’ reliance on or with respect to the documents in the case;
- To strengthen your case, and to weaken the case of the other party.
At trial, if the other party’s testimony has changed from an answer provided at Discovery, the Discovery transcript can be used to impeach the credibility of the other party.
Accordingly, Discovery is an important process. It is critical that the client advise the lawyer of all background well before the Discovery to best enable the lawyer to deal with the issues.
Given the nature of Discovery and the need for counsel to thoroughly prepare for the process, the parties tend to know each other’s cases quite well at its completion. As a result, Discovery can often facilitate settlement discussions.
Judicial Settlement Conferences
Parties can seek a Judicial Settlement Conference (JSC) in order to have a Judge provide insight, thoughts and recommendations as to how a file might be resolved.
For the same reasons as in a JCC, the JSC process is without prejudice to the parties. Therefore, what is said in the JSC cannot be used against either party. Furthermore, the Judge who presides over the JSC cannot be the trial Judge should settlement not result.
Other Settlement Processes
In many cases, the parties through their lawyers can negotiate either a complete resolution or at least a resolution of certain issues.
Further, parties are free to arrange settlement meetings between themselves and their counsel. These are often referred to as four-way meetings. These meetings may involve professional family law mediators.
There is a growing realization that arbitration can be used as a method to resolve files. In arbitrations, a private arbitrator acts as a judge, hearing the evidence and then rendering a judgment that has the force of law. Important to note however, is that the arbitrator is privately retained.
To learn more about the court process and to schedule a consultation, contact Quay Law Centre at 604-527-1161. From our multiple offices, we represent clients in the Metro-Vancouver area, including Surrey, Fraser Valley, Tri-Cities, Burnaby, and any other area throughout B.C., Canada and internationally.