Editorial Introduction

The landscape of family law relief, as can be obtained in family court, is as disparate as the patchwork colours on a Scottish kilt. As there is no one size fits all, the Canadian jurisdiction of British Columbia has been selected to serve to sample, circa 2012, the process and paperwork of obtaining family law relief from a Court of law.

This article dissects the process in one court, and shows the steps that have to be taken, one by one, from filing to judgment day - steps which are mostly similar from Vancouver Island to Bonavista, Newfoundland.

British Columbia is the perfect Canadian example in many ways because lie elsewhere, it suffers from two parallel family justice systems, the Provincial Court of British Columbia (which is often referred to by the official legal citation BCPC) and the Supreme Court of British Columbia (which is often referred to using the official legal citation, BCSC). The former has so expedited process and easier-to-obtain relief but not so at all. Although this may vary from registry to registry, obtaining a hearing date in Provincial Court takes as long if not longer than in Supreme. While the rules of the Provincial Court are simpler, they are more subject to tweaking by the judges so at the end of the day, longer rules would have allowed more procedural predictability. The forms are completely different as are the deadlines. Document discovery is, to put it mildly, hodgepodge in Provincial Court but at least neither party is exposed to costs. Of all shortcoming of the Provincial Court, the worse are that the court cannot grant a divorce nor can they make any decisions regarding matrimonial property so you may blow thousands of dollars to get to a hearing only to find out you have to go to BCSC anyway.

But we need a dead frog from some pond to do this dissection and so the Supreme Court of British Columbia is chosen.

This, though, is an odd dead frog.

family law litigation flowchartIn 2010, the Court was elbowed by the Government into simplifying the rules - rules which had not been overhauled in decades, a rainmaker for lawyers but a financial nightmare for litigants.

One of the most harmful effects of the inability of the Courts to present plain-language, user-friendly rules is the quasi-invisibility of special procedures to provide protection where there is family violence, or to preserve assets, as one starts a family law claim. Another tough area for unrepresented litigants is the relief for unjust enrichment. This short, legal information article cannot cover those areas so if there are any asset preservation issues, see elsewhere in Duhaime's Family Law or consult a lawyer.

In the result of the revision, new rules were put into force in July of 2010 but with virtually no economy of rules. The rule book may have been reduced to 2 inches thick, from 2.5 inches, but the content, just a new nightmare of similar proportions. The heavily-hyphenated numbering system is bizarre, almost European in style (any reference to the "Rules" in this article in a reference to the Supreme Court Family Rules) and the amount of cross-references astonishing - you'll need strong thumbs to figure out what the full rule is on any given subject.

If you have the heart for it, and assuming the government does not change the URL as they are wont to do far too often, check out the Supreme Court Family Rules for yourselves (another link is at CanLII).

And then there is the new division of the rules into civil rules and family rules but there still is no one-stop shopping for family rules in BC Supreme Court ("BCSC"), since many of the family rules defer to the civil rules.

But this dog's breakfast of rules of court is systematic of the Canadian judiciary inability (and not just British Columbia) to get its act together on rules, compounded by the Canadian and Provincial Governments failures to set take responsibility for Court rules from the judges and establish a real national unified court and rule-book for family law disputes (soon, inevitably, the Government may simply re-invent the wheel and start to transfer jurisdictions from the courts to experimental tribunals).

Until that day, then, what we set out in regards to the process of a family claim in the Supreme Court of British Columbia, circa 2011-2012, is typical of the process in all Canadian jurisdictions with changes on points of detail.

Please attach your seatbelt and leave the tray in the upright position as we will experience some turbulence.

The Notice of Family Claim & Beyond!

No longer Plaintiff or Defendant, the litigants to a family law proceeding in the BCSC are called Claimant and Respondent, usually but not always separating husband and wife.

The ticket is Form 3 (there are over 100 forms), the Notice of Family Claim, which must be completed carefully as changes can be hard-come-by and the claim will frame the litigation right to and through trial. If a divorce is being sought, you will need to include your marriage certificate.

Once filed, the Claim needs to be hand-delivered to the other side, the respondent. This is usually done by process server.

Service on the respondent starts the clock against him (or her) as that person has 30 days to file a Response (Form F4) and deliver (serve) a copy onto the claimant. Sometimes, the respondent wants his or her own relief from the Court and then they also file a Counter-claim (Form F5). Such a counter-claim then gives the claimant a chance to respond, also in 30 days (this time using Form F6).

Once the dye is cast by the pleadings, discovery begins with financial statements (see Financial Statement: The Meat and Potatoes of Family Law). There are deadlines for these and what has to be given to the other side depends on what is being asked: child support, alimony or matrimonial property division? For the Claimant, she or he has to deliver his or her financial statement and numerous attachments within 30 days (see Rule 5-1(11).

Each side must provide the other with a list of documents (Rule 9-1, Form F20). It used to be that this only happenned if a demand was received; now the requirement is automatic and within 35 days of receiving the other side's pleadings.

The list does not have to be as extensive as before but is limited to:

"... all documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and all other documents to which the party intends to refer at trial...."

The next step is a mandatory "meet the judge", case planning meeting called a Judicial Case Conference (aka JCC, Rule 7-1 - see Government agency's video embedded herein).

There, the judge, sometimes represented by a minor judge called a master, but often also a full-fledged justice of the Court, meets with the parties and does two things.

Some judges or masters are excellent at what the JCC is designed to achieve - engaging, helpful and prodding; others are awful: disinterested, arrogant or uninformed on family law. What you get out of a JCC will not depend on your goodwill: it may come down to which master or judge you draw.

First, he or she will explore whether mediation can occur right then and there and if so, jump into it and be effective at it. Mediation is an art, not a science, and involves surgically teasing a workable consensus out of the parties. It is not always an easy process for a judicial officer used to ruling over his or her courtroom, and in the presence of lawyers who may might unconsciously (or overtly!) resist a quick resolution to a process that, if it goes to trial, would result in a much demand for their services.

If mediation is a no-go at the JCC, then the judge will remind the parties of their procedural obligations and set these down in a form.

Once the JCC has set any procedural orders, the discovery phase completes with an optional step called examination for discovery (see Lloyd Duhaime, Taming the Beast - Examinations for Discovery).

Examinations for discovery can be a nightmare for litigants especially with lawyers who swear by the benefits of maximum aggression at these fact-finding events. As a small and, frankly, inconsequential accommodation of this abuse, the Supreme Court Family Rules limit examinations for discovery to 5 hours (Rule 5-2).

One of the most valuable tools of all, interrogatories (a series of written questions provided to the other party to be answered in writing), have been removed as of right and can only be resorted to with the permission of the Court (Rule 9-3).

Long before trial, litigants need to be aware of Rule 13 to ensure that the relevant expert reports are before the Court. The process is now more complex and in addition to the traditional expert's report (Rule 13-6), the Family Rules now include the joint expert process (Rule 13-4).

Most importantly, an essential principle developed in the family law jurisprudence is now enshrined in the Court Rules and binds all experts in family law litigation (Rule 13-2):

"In giving an opinion to the court, an expert appointed ... by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party."

The court may order that only one expert provide an opinion, rather than both parties retaining their own experts who may provide conflicting opinions on an important issue.

(For more on experts in family law cases, see Custody and Access Assessment: The Hired Hand).

Conclusions

The path from that first day at the Court wicket to file the claim for a family law order can be a long and arduous one of legalese and Latin phrases (e.g. in loco parentis). But that path usually follows the same beaten trail to one destination; and all designed to set the stage for the main act - the trial.

Getting the process and paperwork right ensures that the props are ready and the actors rehearsed when the curtain rises on day one of the trial.

REFERENCES:

Editor's Comment: Opinions and views expressed in this article are those of Lloyd Duhaime. They are not those of the Supreme Court of British Columbia. In fact, the court is quite proud of the 2010 rule changes and believes, wrongfully in my opinion, that the rules and the process of court administration belongs to the judges; and not to the people through the Government. Until the Government gets a firm handle on this issue and yanks that responsibility from the judges, changes to the court rules will be slow and when they occur as in 2010, they will be awkward; judge-friendly but not necessarily litigant-friendly. For the time being, it is essential that the unrepresented litigant understand the process as it now exists. Lloyd Duhaime, November 14, 2011.