Vancouver Best* Summary Family Trial Lawyers apply and defend against applications designed to shorten family matters in appropriate circumstances. Sometimes Vancouver family law cases need not to proceed to an expensive multi-day trial but other times you need to prevent a rush to judgment. Hiring a top family law lawyer in Vancouver can help get matters settled promptly and before trial in many cases but in other cases a judge needs to see and hear witnesses to do justice.
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In today’s blog, senior MacLean Law senior family lawyer, Tal Wolf gives you the straight goods on how summary trials work in family law cases. Today’s Tal Wolf blog focuses on blocking inappropriate attempts to stampede to a rush judgment without having the whole truth told. MacLean law celebrates its 35th year in helping separated clients win. Contact us at our 6 offices across BC and in Calgary.
Have you been served with an Application for a “Summary Trial?” Let’s help you to understand what that is:
A summary trial is a hearing on a written application by a party to the lawsuit, where the party tries to have a particular issue “finally” decided, or permanently disposed of subject only to the rules of appeal. Yes, this means that a major issue in your case, such as ownership of a piece of land, or your right to a spouse’s pre-separation inheritance can be decided in an application setting where for the most part the evidence is limited to sworn statements submitted by the parties! This, in contrast with a “regular” trial where the judge gets to hear live testimony, and where the nuanced questions/answers of the witnesses by each side (and by the judge herself), including the witnesses reactions, demeanor and tone lead to a much more textured and useful presentation on which the court can find truth.
Vancouver Summary Family Trial Lawyers When Isn’t A summary Trial Appropriate?
There are important exceptions, however, that the VANCOUVER SUMMARY TRIAL FAMILY LAWYERS at MacLean Law will help to make sure are applied if you find yourself on the wrong end of such an application.
The Rules exempt from summary trial decisions circumstances where:
(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.
In deciding whether a case qualifies, courts will look at the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters relevant to this important question.
Vancouver Summary Family Trial Lawyers Factors Used To Decide
To this list has been added other factors, including the cost of the litigation and the time of the summary trial, whether credibility is a critical factor in the determination of the dispute, whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and whether the application would result in litigating in slices: see Gichuru v. Pallai, 2013 BCCA 60 at paragraph 31.
The court must also consider the objectives of the family court rules (see Rule 1-3) to “secure the just, speedy and inexpensive determination of every family law case on its merits.” Rule 1-3(2) provides that securing that object includes conducting the family law case in ways that are proportionate to: (a) the interests of any child affected, (b) the importance of the issues in dispute, and (c) the complexity of the family law case.
New Case Explained By Vancouver Summary Family Trial Lawyers
Last weeks judgment in Villeneuve v. Agnew, 2018 BCSC 546 is illustrative: The Claimant (wife) asserted an interest in a house and property located in Gibsons, B.C. Her former mother-in-law was the sole owner. The wife filed a lien against the property, which the mother-in-law sought to cancel.
The home was built in 2014, and the parties reside there for 2 years with their children. The husband, of course, supported his mother’s effort to have the lien (and the wife’s claim against the property) extinguished, ceding that even he had no family interest in the property. Ultimately, the Court simply refused to deal with the issue in summary fashion:
42 It is apparent that the claims Ms. Villeneuve makes about the property are very fact-based, and that there are many factual issues in dispute. Credibility is central.
43 I am unable to determine the facts necessary to decide the case, and in any event in my view it would be unjust to decide the issues in this case on the basis of the evidence before me.
44 Understandably Ms. Villeneuve’s evidence focuses on her knowledge and understanding at the time, which she acknowledges was limited. Her difficulties in making her claim are compounded by the fact that there is no document setting out the terms of any agreement between the parties concerning the property. Very few documents have been adduced in evidence on this application that shed any light on the issues.
45 Ms. Guss and Mr. Agnew would argue, no doubt, that no document evidencing an agreement was needed, since there was no agreement beyond what they acknowledge.
49 …. I am unable to properly determine the state of finances as between Ms. Guss and Mr. Agnew on this application. Reliable evidence in the form of contemporaneous documents have not been adduced. I am not surprised that they both agree about the debts. However, their assertions, standing alone, are not persuasive.
50 In my view, the necessary credibility assessments and the resolution of factual issues should be dealt with at trial, in the circumstances of this case. At trial, the court would be able to assess the evidence of the three parties fully and in full context. In the circumstances of this case that is the only way to fairly determine the validity of Ms. Villeneuve’s claim. Putting the matter the other way, in my opinion attempting to determine the issues on the limited and one-sided evidence available on this application is not fair to Ms. Villeneuve’s claims. I am mindful of the caution of Willcock J.A., in Ghavim, quoted above, that, “Care must be taken, when summarily determining claims pursuant to the Rule, to recognize the preeminent objective of determining cases fairly on their merits.”
Vancouver Summary Family Trial Lawyer 604-602-9000
The Vancouver Summary Family Trial Lawyers at MacLean Law understand that as dangerous as a summary application can be — because it can lead to the final determination of your rights, your foremost and often most effective defense when you’ve been hit with this type of procedure is to cut the legs off the beast before it even gets out of the gate. We will ensure that the Court sees every possible reason why it may be unfair and a denial of justice to allow you to have your matter heard through live testimony and witnesses at a real trial. Context matters. Real lives, and the real stories behind them often should not be reduced to competing written statements.
