MacLean Family Law reviewed the recent decision of JB v SC 2015 BCSC 213 and advises in today’s:
“Family disputes can involve lengthy court proceedings, interlocutory applications and injunctions, and findings of credibility. When spouses more-or-less agree on what happened between them, but disagree on what the outcome should be, their dispute may be suitable for a summary trial. These situations have occurred in numerous cases our summary trial lawyers have handled or are handling.”
MacLean Law’s robust team of family lawyers are multiple winners of Vancouver’s Top Choice Award for Family Law and led by one of Canada’s top family lawyers. You can meet with us with full confidence that we will accurately assess your case and prepare a powerful argument to maximize your chances of success. Our toll-free number is 1-877-602-9900. We have offices in Vancouver, St. John, Kelowna and Surrey.
BC Family Law Summary Trials Explained
BC Family Law Summary Trials are a shortened version of a regular trial available under Supreme Court Family Rule 11-3. Rather than have witnesses testify and be cross-examined, a summary trial is conducted using mainly the sworn statements of the parties, and documentary evidence. A dispute is suitable for summary trial when the court can find the facts it needs to make a judgement on documents alone, and when this process will be more expedient than the traditional trial process. This means, among other things, that if credibility of the sworn statements are at issue, the sworn statements conflict to a significant degree, or both, the application for summary trial will likely be denied unless judge can come to a fair decision.
The Court Has Broad Discretion in Granting or Denying an Application for Summary Trial
Our family, estate, and personal injury lawyers handle dozens of summary trials, and pursue the most effective means of meeting our client’s goals. Our lawyers act for spouses, ex-spouses, children, family members, and injured persons, helping them to attain justice.
In the BC Supreme Court case of JB v SC 2015 BCSC 213 the judge was able to decide a child parenting time dispute on affidavits of the parties:
(59) Rule 11-3 is the summary trial rule under the Supreme Court Family Rules, B.C. Reg. 169/2009 [Family Law Rules]. Subrule (15) deals with judgments on summary trial applications and it says:
(15) On the hearing of a summary trial application, the court may
(a) grant judgment in favour of any party, either on an issue or generally, unless
(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or
(ii) the court is of the opinion that it would be unjust to decide the issues on the application,
(b) impose terms respecting enforcement of the judgment, including a stay of execution, and
(c) award costs.
(60) The respondent made a preliminary motion to dismiss this application because it was not suitable for a summary trial. She referred me to the cases of Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 1989 CanLII 2728 (BC CA), 36 B.C.L.R. (2d) 202 (C.A.); MacDonald v. MacDonald, 2001 BCSC 305 (CanLII); Wong v. Wong (27 June 1995), Vancouver D087491 (B.C.S.C.); and Braich v. Braich (1995), 1 C.P.C. (4th) 375 (B.C.S.C.).
[61] In Inspiration Management, Chief Justice McEachern relied on Mr. Justice Taggart’s decision in Placer Development v. Skyline Explorations Ltd.(1985), 1985 CanLII 147 (BC CA), 67 B.C.L.R. 366 (C.A.). In that decision, Mr. Justice Taggart said that the opening words of Rule 18A gave a judge broad discretion to refuse to proceed with an application where he (or she) cannot find the facts necessary to decide the issue of fact or law or if it would be unjust to decide the issues raised on the application. Our current Family Law Rules provide the same discretion.
[62] Mr. Justice Taggart went on to explain that a judge is not precluded from finding facts where he has before him affidavits which conflict because a judge may be able to make a finding of fact on conflicting evidence.
[63] In MacDonald, Mr. Justice Macaulay determined whether a summary trial is appropriate when the parties are seeking final custody orders. He re‑emphasized that when the court is charged with the responsibility of inquiring into the best interests of a child it will very frequently be unable to do so in a summary way.
[64] I denied the motion to dismiss the application that it was not suitable for summary trial because there is very little conflict in the evidence in this case and where there is conflict it is not on material points. There is very little conflict on the parenting issues. The parents merely prefer different schedules. I reserved the right to come to a different conclusion after hearing all of the evidence and now that I have done so I am still of the view that this application is suited for summary trial.
Our top rated separation and divorce lawyers are here to help you secure your and your family’s future. Disputes over separation and divorce often drain family assets. MacLean Law is here to help ensure you and your family are treated fairly.
If you have a BC family law summary trials dispute, call us toll free across BC at 1-877-602-9900 across BC to meet with our highly experienced lawyers in Vancouver, Kelowna, Surrey and Fort St John, BC, led by one of the Province’s most successful and storied family lawyers, Lorne MacLean, QC (Queen’s Counsel).
