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A GUIDE TO THE BC SUPREME COURT DIVORCE AND FAMILY LAW PROCESS

— Guide to BC Supreme Court Divorce and Family Law Process

BC Supreme Court Divorce and Family Lawyer, Lorne MacLean, QC

Once a BC divorce is commenced, the goal of the BC Supreme Court is to end the marriage and decide on such issues as child custody and access, child and/or spousal support, property and debt division, and dealing with responsibility for legal costs. Roughly 90% of divorces end up proceeding on an uncontested basis. This means that all but 10% of family cases are settled between the parties, whether by separation agreement or by embodying the agreement in a divorce order with ‘consented to corollary relief.’

Our family law cases in the BC Supreme Court are governed by the BC Supreme Court Family Rules.

Commencement of Action by Claimant

In BC, a divorce–or if you are unmarried, the proceedings–are initiated by a Notice of Family Claim completed through Form F3, which serves as a ‘table of contents’ for the Court, so that the Court knows the position of the Claimant (initiator of the divorce or proceedings). It is very common for initial pleadings to claim ‘broad relief.’

See a complete list of downloadable BC Supreme Court forms.

The Respondent’s Response and Counterclaim

The Respondent is then served with the Notice of Family Claim and given up to 30 days to provide a Response to Notice of Family Claim through Form F4, where the Respondent indicates what he or she agrees to in the Claimant’s pleadings and what he or she does not agree to in the Claimant’s Notice of Family Claim. The Respondent is also entitled to file a Counterclaim through Form F5, where the Respondent sets out a table of contents of the relief that he or she will be seeking in the action. Again, it is common for the Respondent to cast a broad net of desired orders when claiming relief.

A Trial Date Takes Time

BC divorce family cases are given priority in terms of being set down for trial. It is not uncommon in family cases, however, for there to be a six- to twelve-month delay from the date of filing of pleadings until a Court date occurs.

Interim Relief

Because there is often a significant wait-time until the parties in a divorce case can take the stand and give oral evidence concerning their family matter, the court is often asked to provide interim relief orders. These interim relief orders deal with management of family law issues until trial. For example, they determine who will live in the family home, whether the family home be listed for sale, who will have custody of the children, how much child support should be paid, whether spousal support should be paid and if so in what amount, whether a spouse should be restrained from contacting the other spouse or disposing of assets pending trial, how a business should be run pending trial and/or whether there should be interim advances of monies to parties pending trial. Interim order applications can be made shortly after the divorce pleadings are filed and on an immediate basis if urgency can be shown by one of the claiming parties.

Judicial Case Conference Process

Generally, the BC Supreme Court is moving towards an attempt to try to settle family matters at an early stage. As a result of this goal of the courts, a Judicial Case Conference is set up within three to four weeks from the date that a Statement of Defence and Counterclaim is filed. The purpose of the Judicial Case Conference is to try to narrow the issues between the parties and reach consensus if possible and in some cases, reach an overall settlement of the case. Generally speaking, Chambers applications for interim relief are not allowed to proceed until the parties have been in front of a judge to speak on a “without prejudice” basis about an overall settlement of the matter or about, at the very least, narrowing the issues between the parties. No interim orders can be made without consent, but procedural directions concerning document disclosure and the schedule for hearings, discoveries, and a trial date can be dealt with at this first hearing.

Discovery of Documents and the Plaintiff and Defendant

Each spouse is entitled to information from the other about their divorce case. The legal procedure for obtaining the information is called a ‘discovery.’ Discovery may be made, for example, of documents, such as: income and asset documents; expense and debt documents; documents relating to the parents ability to parent; documents relating to businesses; and documents which show a spouse has disposed of money. These are all subject to being ‘discovered’ by the opposing spouse.

Discovery may be a simple, speedy process or consume a great deal of time, energy, and money. Generally, the latter, detailed discovery will occur where one spouse believes the other spouse has not been forthright about their financial position or another issue. The new BC Supreme Court family riles mandate limits on the length of discovery, which can be increased by court order. You can discuss such discovery-related matters as interrogatories, demands for lists of documents, how a discovery works, and what use is made of the transcripts (which are typed up when each of the parties is examined under oath at the offices of a Court Reporter) with your MacLean Law family lawyer.

Negotiated Settlement

Most lawyers, judges, and clients agree that it is better to resolve a divorce case by agreement rather than risk putting a stranger in charge of the dissolution of your marriage. It is important, however, that the parties involved understand that settlement just for the sake of settlement makes no sense. At the MacLean Law, we feel that the purpose for which we are hired is to obtain more than you could after the payment of our legal fees than if you obtained a settlement on your own. It is critical that you do not enter into any settlement discussion of a final nature without consulting with your lawyer.

Important warning: It is not uncommon for uninformed parties to be held to an unfair settlement.

Trial

If you and your spouse cannot settle your divorce case by agreement, then the matter will proceed to trial. Each party is entitled to take the stand and produce documents which they believe will help their case. Further, you are entitled to call on third-party witnesses if they have evidence of relevance. It is not uncommon in more complex cases for psychiatrists, psychologists, business valuators and accountants to be called to testify regarding custody and financial issues. These people are referred to as experts. Please review the use of experts with your MacLean Law family lawyer and learn more about how some judges and legal counsel have become somewhat skeptical of the use of experts, who now are often giving argument under the guise of ‘expert opinion evidence.’ It is important to remember that the trial judge is the person to decide the case and that he should not abdicate his decision-making responsibility to an expert.

Costs

Both parties in a divorce case are liable to pay their lawyers for their legal fees incurred. In certain cases, however, a successful party may receive part—or in rare cases, all—of their legal fees back from the unsuccessful party. Costs can range from a partial indemnity all the way up to a full indemnity, and the power to award costs is discretionary.

alterPeople often ask me how many substantial BC divorce cases I handle. I invariably tell them “every divorce case I handle is substantial, because everything that the person has is at stake.alter