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B.C. Reg. 187/2024, deposited July 8, 2024, under the COURT RULES ACT [section 1]. Order in Council 429/2024, approved and ordered July 8, 2024.
On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that, effective August 1, 2024, the attached Provincial Court (Snuw’uy’ulhtst tu Quw’utsun Mustimuhw u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws of the Cowichan People for Families and Children]) Rules are made.
— N. SHARMA, Attorney General; A. KANG, Presiding Member of the Executive Council.
PROVINCIAL COURT (Snuw’uy’ulhtst tu Quw’utsun
Mustimuhw u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [LAWS OF
THE COWICHAN PEOPLE FOR FAMILIES AND
CHILDREN]) RULES
(1) The purpose of these Rules is to promote the safety and well-being of Cowichan Tribes Smun’eem [children] by enabling court decisions to be obtained in matters arising under Snuw’uy’ulhtst tu Quw’utsun Mustimuhw u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws of the Cowichan People for Families and Children] in a way that recognizes and incorporates the Snuw’uy’ulh [laws and legal process] as reflected in those laws.
(1) In these Rules:
"business day" means a Monday, Tuesday, Wednesday, Thursday or Friday that is not a holiday;
"clerk" means a member of the registry staff;
"Indigenous governing body" has the same meaning as in An Act respecting First Nations, Inuit and Métis children, youth and families (Canada), as amended from time to time;
"lawyer of record", in relation to a party, means a lawyer who has provided notification or advised the court in accordance with Rule 10 (20);
"method of attendance", in relation to a case conference and hearing, includes
(a) attending in person, and
(b) attending by telephone, video conference or other means of electronic communication;
"party" means a person who, under the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], is a party to a proceeding under that Law;
"registry" means a registry of the court;
"Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem" [Laws for Families and Children] means Snuw’uy’ulhtst tu Quw’utsun Mustimuhw u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws of the Cowichan People for Families and Children] as amended or replaced from time to time.
(2) The following apply respecting these Rules:
(a) words and expressions not defined in these Rules have the meaning given to them in the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], unless the context indicates otherwise;
(b) sections 1.4 to 1.8 in Part 1 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children] apply to the interpretation of these Rules;
(c) words in English in square brackets in these Rules are intended for convenience of reference only;
(d) the words and expressions referred to in paragraph (a) may be capitalized in these Rules when capitalized in the defined terms in the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children];
(e) these Rules are to be interpreted and administered in accordance with the Purpose and Guiding Principles in Part 2, and the Minimum Standards in Part 3, of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], including the provisions in Part 3 that relate to the best interests of the Smun’eem [child];
(f) proceedings are to be conducted in accordance with the Purpose and Guiding Principles in Part 2, and the Minimum Standards in Part 3, of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], including the provisions in Part 3 that relate to the best interests of the Smun’eem [child];
(g) orders and directions are to be made in accordance with the Purpose and Guiding Principles in Part 2, and the Minimum Standards in Part 3, of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], including the provisions in Part 3 that relate to the best interests of the Smun’eem [child].
Initiating a presentation hearing
(1) To initiate a presentation hearing, a CEO must complete and file with the court an Application For a Presentation Hearing (Form 1).
(2) To apply for an order, other than an order made at a presentation hearing, a person must complete and file with the court an Application Respecting Orders (Form 2) or an Application to Change Method of Attendance (Form 3), as applicable, unless a judge permits otherwise.
Applications to change or cancel orders
(3) To apply for an order changing or cancelling another order under sections 8.37 to 8.39 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], a person must complete and file with the court an Application Respecting Orders (Form 2), unless a judge permits otherwise.
Application may be made orally
(4) At a hearing or a case conference, a judge may permit an application to be made orally in court without the filing of a form.
Where a presentation hearing must be initiated
(5) An Application For a Presentation Hearing (Form 1) must be filed in the Duncan registry unless a judge permits otherwise.
Where an application must be filed
(6) An application in Form 2 or Form 3 must be filed
(a) in the registry where the file is located, unless Rule 10 (12) or (13) applies, or
(b) if there is no file, in the Duncan registry unless a judge permits otherwise.
(7) A judge may conduct a hearing or part of a hearing with one or more persons attending by telephone, video conference or other means of electronic communication.
Some applications may be granted without a hearing
(8) A judge may make the following orders without a hearing:
(a) an order under Rule 8 (12), permitting the use of another service method;
(b) an order under Rule 10 (3), shortening or extending a time period;
(c) an order under Rule 11 (5), changing the method of attendance unless the order is in relation to a hearing at which sworn oral evidence is given;
(d) an order under section 8.8 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], shortening or extending the time for serving notice or dispensing with notice;
(e) a consent order, or an order dispensing with consent, under section 8.13 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children].
How to apply for an order without a hearing
(9) To apply for an order under subrule (8) (a), (b), (d) or (e) of this Rule, a person must file
(a) an affidavit setting out the facts on which the application is based, and
(b) the Application Respecting Orders (Form 2). (See Rule 3 (2))
How to apply for an order for changing method of attendance without a hearing
(10) To apply for an order under subrule (8) (c) of this Rule, a person must file the Application to Change Method of Attendance (Form 3). (See Rule 11 (5))
When case conference may be directed
(1) At any time,
(a) a party may request a case conference, or
(b) a judge may direct the parties and their lawyers and the Sul-hween Harmony Restoring Advisory established under section 8.9 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children] to attend a case conference.
When case conference must be directed
(2) At the conclusion of a presentation hearing under the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], if no consent order is made, the judge must direct the parties and their lawyers and the Sul-hween Harmony Restoring Advisory to attend a case conference.
Judge may adjourn case conference
(3) If a member of the Sul-hween Harmony Restoring Advisory cannot attend a case conference on the date set for the case conference, a judge must adjourn the case conference to a date when a member of the Sul-hween Harmony Restoring Advisory can attend unless by or at the commencement of the case conference the parties have consented to the order that is being sought at the case conference.
(4) When a case conference is directed, the judge must review the extent of disclosure made and requested under the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children] and may make any order for disclosure consistent with the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children].
(5) When a case conference is directed, the CEO must notify the other parties of the date, time and place of the conference, unless the conference was directed when the parties or their lawyers of record were present.
What happens at a case conference
(6) At a case conference, a judge
(a) must utilize the Sul-hween Harmony Restoring Advisory to resolve any issue involving a Smun’eem [child] who has been removed from their Parent or Care Provider in accordance with the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], and
(b) may do one or more of the following:
(i) facilitate the resolution of any issue in dispute;
(ii) mediate any issue in dispute, other than the issue of whether the Smun’eem [child] needs protection;
(iii) with the consent of the parties, refer any issue, other than the issue of whether the Smun’eem [child] needs protection, to mediation or another alternative dispute resolution mechanism;
(iv) decide any issue that does not require evidence or that can be decided on the basis of facts agreed to by the parties;
(v) subject to section 8.13 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], make any order in the terms the parties agree to;
(vi) review the adequacy of disclosure by the parties;
(vii) order that a party provide to another party, within a set time, a summary of the intended evidence of a potential witness;
(viii) order a party to allow another party to inspect and copy specific documents or records to the extent permitted by the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children];
(ix) order that those applications that cannot be made at the case conference be made within a set time;
(x) order that a statement of agreed facts be filed within a set time;
(xi) give directions about any evidence that will be required, how it will be received and the procedure that will be followed, if a hearing is necessary;
(xii) order a party to produce anything as evidence at a hearing;
(xiii) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing;
(xiv) set a date for a hearing;
(xv) direct that any further case conference be held before the same judge;
(xvi) make an order about the method of attendance of a person at a further case conference;
(xvii) make any other order or give any other direction to further the achievement of the purpose of these Rules.
(7) The following persons may attend a case conference:
(a) the parties and their lawyers;
(b) the Smun’eem [child],
(i) if the Smun’eem [child] is 12 years of age or over, unless the judge orders otherwise, or
(ii) if the Smun’eem [child] is under 12 years of age, if the judge allows the Smun’eem [child] to attend;
(c) any other person the judge allows.
Direction where case conference to be conducted
(8) The chief judge may direct that a case conference set at one place be conducted at another place.
(1) To require a witness to attend court, a party must
(a) complete a Subpoena (Form 4), and
(b) serve a copy of the subpoena on the witness personally at least 7 days before the date the witness is required to appear. (See Rule 8)
(2) At the time a subpoena is served, the party subpoenaing the witness must offer the witness
(a) for a subpoena to appear in person, reasonable estimated travelling expenses, or
(b) for a subpoena to appear by another method of attendance, the reasonable estimated cost of the telephone call, video conference or other method of attendance.
How to change a witness’s method of attendance
(3) A witness may apply to a judge under Rule 11 (5) to change a witness’s method of attendance.
Judge may change a witness’s method of attendance
(4) The judge may order a witness to attend court by any method of attendance that the judge considers appropriate in the circumstances.
If a judge changes a witness’s method of attendance
(5) If a judge changes a witness’s method of attendance, the judge
(a) must direct the witness
(i) how, and by what date, to submit and serve any records and other things, if the witness will not be attending in person, and
(ii) where or how to attend, including by providing a telephone number or video conferencing information, if applicable, and
(b) may order
(i) the return of any money that was provided under subrule (2) of this Rule, or
(ii) that the party subpoenaing the witness pay for the witness’s travelling expenses, telephone call, video conference or other reasonable estimated cost of the method of attendance.
What a witness served with a subpoena must do
(6) A witness who is served with a subpoena must
(a) appear in court on the date and at the time and place stated on the subpoena, and
(b) if the witness attends court in person, bring to court any records and other things required by the subpoena.
Subpoena may be cancelled or varied
(7) A person who is served with a subpoena may apply under Rule 3 (2) or 11 (5) to a judge, who may
(a) cancel the subpoena if
(i) the person is not needed as a witness,
(ii) it would be a hardship for the person to appear in court as required by the subpoena, or
(iii) in the case of a child witness, the judge considers that it would not be in the child’s best interests to require the child to testify, or
(b) vary the subpoena to allow the witness to attend court by another method of attendance.
If a witness does not obey a subpoena
(8) A judge may issue a Warrant (Form 5) for the arrest of a witness who does not appear in court as required by a subpoena if the judge is satisfied that
(a) the subpoena was served on the witness,
(b) reasonable travelling expenses were offered to the witness, and
(c) justice requires the presence of the witness.
How long a warrant for arrest of witness is in force
(9) A warrant remains in force until
(a) the witness named in the warrant appears in court either voluntarily or under the warrant, or
(b) a judge cancels the warrant.
(10) A witness who is arrested under a warrant must be brought before a judge or justice of the peace.
What the judge may do when the witness appears
(11) If the witness’s evidence is still required, the judge may
(a) release the witness on giving the witness a Release (Form 6) requiring the witness to appear in court on the date and at the time and place stated in the release, or
(b) order a sheriff or peace officer to detain the witness in custody until the presence of the witness is no longer required.
(12) A judge may make the release of a witness under subrule (11) (a) of this Rule subject to any conditions respecting reporting or residency or entering into a recognizance that the judge considers necessary to make sure the witness attends.
(1) At a hearing, evidence may be given orally on oath or affirmation or, if the judge allows,
(a) by affidavit, subject to Rule 7,
(b) by statements of facts agreed to by the parties, or
(c) as permitted under section 8.6 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children].
(2) If a person who is served with an application does not appear in court on the date and at the time and place set for the hearing, the judge may hear the application and make the order applied for if the judge thinks it is fair to do so in the absence of that person.
Advance notice of experts’ evidence required
(3) A party may call an expert to give evidence of the expert’s opinion only if
(a) the party provides a written summary of the expert’s evidence to all other parties at least 30 days before the expert is called to give evidence, or
(b) a judge grants permission.
Experts’ reports must be given in advance
(4) Instead of calling an expert to give evidence, a party may introduce a report stating opinions of an expert, if
(a) the party provides a copy of the report to all other parties at least 30 days before the report is introduced, or
(b) a judge grants permission.
(5) For the purposes of notice under subrule (3) or (4) of this Rule, a CEO, or a delegate of a CEO, is not an expert.
(6) A statement of qualifications in an expert’s report is proof that the expert has those qualifications unless there is evidence to the contrary.
Proof of signature not required
(7) A report stating the opinions of an expert may be introduced without proof of the expert’s signature.
Experts may be called for cross-examination
(8) A party receiving another party’s expert report may serve on the other party, at least 14 days before the hearing date, a notice requiring the expert to attend the hearing for cross-examination. (See Rule 8)
Cost of calling other party’s expert
(9) If a judge determines that calling another party’s expert was unnecessary, the judge may order the party who required the expert to attend to pay the expert’s expenses.
(1) An affidavit permitted under these Rules must be in Form 7.
(2) Any exhibits referred to in an affidavit must be identified and attached to the affidavit.
Permission to use defective affidavit
(3) With the permission of the judge, an affidavit may be used in evidence even though it does not comply in form with this Rule.
Affidavit must be filed and served
(4) Evidence may be given by affidavit at a hearing only if, at least 2 days before the date of the hearing,
(a) copies of the affidavit are filed in the registry, and
(b) a copy of the affidavit is served on every person who is entitled to notice of the hearing. (See Rule 8)
Rule 8 – Service and Proving Service
(1) In this Rule, "Provincial director" means a director as defined in section 1 (1) of the Child, Family and Community Service Act.
(2) An address for service may be any of the following:
(a) a mailing address;
(b) an email address;
(c) a facsimile number.
(3) Unless the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children] or these Rules provide otherwise, an application must be served at least 10 days before the date set for the hearing
(a) on the other parties, and
(b) if an order is sought against some other person, on that person.
(4) Service of an application is not required if
(a) the application is for permission to use another service method,
(b) the application is for access to a Smun’eem [child] under section 6.12 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children],
(c) the application is for a consent order and each of the required consents has been obtained, or is for an order dispensing with consent, under section 8.13 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children],
(d) the application is for a protective intervention order or restraining order under section 8.14 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], or
(e) a judge so orders.
(5) A copy of an application or other document served need not be a filed copy.
(6) Documents required by the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children] or these Rules to be served may be served as follows:
(a) on an individual,
(i) by leaving a copy with the individual,
(ii) by registered mail, email or facsimile transmission to the last address, email address or facsimile number given as an address for service under subrule (2) or (7) of this Rule, or
(iii) if the individual is a party with a lawyer of record, by leaving a copy at that lawyer’s office or by email or facsimile transmission to that lawyer’s office;
(b) on a Speaker, by leaving a copy with the Speaker;
(c) on a designated representative of a First Nation, of a Treaty First Nation or of the Nisga’a Lisims Government or on an Indigenous governing body,
(i) by email to the email address, or by sending a facsimile transmission to the facsimile number, if provided as an address for service, or
(ii) by leaving a copy with the designated representative or the Indigenous governing body at the main office of the designated representative or the Indigenous governing body, as applicable;
(d) on a society within the meaning of the Societies Act,
(i) by registered mail to the mailing address of the society’s registered office on file with the Registrar of Companies,
(ii) by leaving a copy at the delivery address of the society’s registered office on file with the Registrar of Companies or with a director or officer of the society, or
(iii) if the society has provided an email address as an address for service, by email to the email address of the society;
(e) on a company within the meaning of the Business Corporations Act,
(i) by registered mail to the mailing address of the company’s registered office on file with the Registrar of Companies,
(ii) by leaving a copy of it at the delivery address of the company’s registered office on file with the Registrar of Companies or with a director or officer of the company, or with a receptionist or a person at the company’s place of business who appears to manage the company’s business there, or
(iii) if the company provided an email address as an address for service, by email to the email address of the company;
(f) on an unincorporated association,
(i) by registered mail to the registered office of the association,
(ii) by leaving a copy with an officer of the association, or
(iii) if the association provided an email address as an address for service, by email to the email address of the association;
(g) on a Provincial director,
(i) by leaving a copy with, or by sending a facsimile transmission to, the Provincial director’s lawyer of record,
(ii) by email to the Provincial director’s lawyer of record, or
(iii) by leaving a copy at, or by sending a facsimile transmission to, the district office with conduct of the case;
(h) on the CEO,
(i) by leaving a copy with, or by sending a facsimile transmission to, the CEO or the CEO’s lawyer of record,
(ii) by email to the CEO or to the CEO’s lawyer of record, or
(iii) by leaving a copy at, or by sending a facsimile transmission to, the main office of the Stsi’elh stuhw’ew’t-hw tun Smun’eem [Cowichan Tribes’ Child and Family Services Authority].
(7) A party must give an address for service either
(a) on the face of a document filed by the party, or
(b) by filing a Notice of Address for Service (Form 8).
(8) A person entitled to notice under section 8.27 (b), (c), (d) or (e) of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children] may file a Notice of Address for Service (Form 8).
Party must notify of change of address
(9) If a party’s address for service changes, the party must notify the other parties of the new address either
(a) on the face of a document filed by the party, or
(b) by filing a new Notice of Address for Service (Form 8).
Service on Smun’eem [child] 12 and over
(10) A document may be served on a Smun’eem [child] who is 12 years of age or older by,
(a) if the Smun’eem [child] has a Speaker, leaving a copy of it with the Speaker, or
(b) if the Smun’eem [child] does not have a Speaker, leaving a copy with the Smun’eem [child] unless a judge orders otherwise.
Service on Smun’eem [child] under 12
(11) A document may be served on a Smun’eem [child] who is under 12 years of age by,
(a) if the Smun’eem [child] has a Speaker, leaving a copy of it with the Speaker, or
(b) if the Smun’eem [child] does not have a Speaker and if a judge so orders, leaving a copy with the Smun’eem [child].
Permission to use other service methods
(12) If a document cannot be served as provided in these Rules or if the person to be served is temporarily outside the Province, a person may apply to a judge who may
(a) permit another method of service to be used, and
(b) direct how service is to be proved.
(13) Service of a document may be proved by filing the following at the registry:
(a) for personal service of a document, a Certificate of Service (Form 9);
(b) for service by registered mail, a Certificate of Service (Form 9) that includes one of the following:
(i) a copy of the signature obtained by Canada Post at the time the document was delivered;
(ii) a printout of the delivery confirmation made available on the internet by Canada Post;
(c) for personal service on the lawyer of record, a copy of the document signed by the lawyer of record, an articled student or a partner or employee of the firm;
(d) for service by facsimile transmission, a Certificate of Service (Form 9) with a transmission report generated by the sending machine;
(e) for service by email, a Certificate of Service (Form 9) with the following attached to the certificate:
(i) a printout of the first page of the email message that includes the sender’s name, the recipient’s email address, the date the email was sent and the time the email was sent;
(ii) if the printout of the first page of the email message does not list the name of the document as an attachment to the email, a copy of the document.
When service by email is deemed to be completed
(14) A document transmitted for service by email under this Rule is deemed to be served as follows:
(a) if the document is transmitted before 4 p.m. on a business day, the document is deemed to be served on the day of transmission;
(b) if the document is transmitted on a day that is not a business day, or after 4 p.m. on a business day, the document is deemed to be served on the next business day.
If document does not reach person
(15) A judge may make orders or give directions to serve a document in a specified manner or give any other order or direction that the judge considers appropriate if the document was served in accordance with this Rule, and a person shows on application that the document
(a) did not come to the person’s notice,
(b) came to the person’s notice later than when it was served or effectively served, or
(c) was incomplete or illegible.
Judge may require copy of served document
(16) A judge may require that a copy of the served document be attached to the Certificate of Service (Form 9).
(17) Instead of requiring proof of service under subrule (13) of this Rule, a judge may allow a person to prove by sworn oral evidence that the person has personally served a document.
(1) Unless the judge orders otherwise, an order takes effect on the day it was made.
(2) Unless the judge orders otherwise, the CEO’s lawyer of record will prepare the order.
(3) Orders must be prepared in Form 10, or, in the case of a protective intervention order or a restraining order under section 8.15 or 8.17 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children], in Form 11.
(4) An order must be signed as approved by the lawyer of record for each party who was represented, unless
(a) the judge orders otherwise, or
(b) the order, including a protective intervention order or restraining order, is made under section 8.15 or 8.17 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children].
Settling the terms of an order
(5) A party may apply to a judge to settle the terms of an order when there is a dispute about the terms. (See Rule 3 (2))
Delivering the order to the registry
(6) After an order is signed as approved in accordance with subrule (4) of this Rule, it must be
(a) delivered to the registry to be signed by a judge,
(b) filed with the court, and
(c) date-stamped with the registry stamp.
(7) Unless the judge orders otherwise, after an order is signed by the judge and filed with the court, a clerk must provide a copy
(a) to the lawyer of record for each party who was represented, and
(b) to every other party, on request.
(8) Any judge may correct, at any time, a clerical mistake or omission in an order.
(1) Proceedings may be as informal as the judge permits.
(2) Whether or not the parties consent, a judge may adjourn a hearing to a specific date.
Judge may shorten or extend time limits
(3) A judge may shorten a period of time for doing anything required under these Rules or may extend the period even though it has expired.
(4) A hearing may be adjourned only
(a) with the permission of a judge, or
(b) in the case of a hearing at which sworn oral evidence will not be given, if the CEO’s lawyer of record files with the court a Consent Adjournment (Form 12) after having obtained consent of all of the parties or their lawyer of record, as applicable.
(5) A judge may change or cancel an order made in the absence of a party who received notice of a hearing if
(a) that party applies for the change or cancellation within a reasonable time,
(b) the party had a good reason for failing to attend when the order was made,
(c) there is a good reason for changing or cancelling the order, and
(d) the change or cancellation would be in the best interests of the Smun’eem [child] in accordance with the Minimum Standards in Part 3 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children].
(6) At any time during a hearing, a judge may order that a person, whether or not a party, be given notice of the hearing.
Powers that any judge may exercise
(7) Any judge may do any of the following without being seized of a matter:
(a) receive the reports and information presented to the court at a presentation hearing;
(b) adjourn a hearing before evidence is heard;
(c) make orders or give directions on procedural matters;
(d) hold a case conference under Rule 4;
(e) make orders about a person’s method of attendance at a case conference or hearing.
Judge who starts a hearing must continue
(8) Subject to subrule (9) of this Rule, a judge who has heard any evidence at a hearing must finish the hearing.
If judge cannot finish the hearing
(9) If a judge who has begun to hear evidence dies or is otherwise unable to act, another judge will hear the case and that judge may
(a) start the hearing again and rehear all the evidence, or
(b) with the consent of the parties, continue with the hearing where it left off, giving directions for hearing evidence as the judge considers necessary.
(10) A judge may give
(a) a direction on any procedural matter that is not provided for in the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children] or these Rules, and
(b) any other direction the judge considers appropriate in relation to evidence received from a Smun’eem [child].
Judge may exclude Smun’eem [child]
(11) A judge may exclude a Smun’eem [child] from the courtroom.
Judge may order transfer of file
(12) A judge may order a file transferred to another registry in the Service Delivery Area, for the purposes of one application or for all purposes, after considering
(a) the balance of convenience,
(b) any special circumstances that exist, and
(c) the best interests of the Smun’eem [child] in accordance with the Minimum Standards in Part 3 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children].
(13) If the parties agree, a clerk may transfer a file to another registry in the Service Delivery Area, for the purposes of one application or for all purposes, if the parties
(a) complete a written and signed consent to the transfer, and
(b) file the consent in the registry where the file is located.
Copy permissible in some circumstances
(14) With the judge’s permission, a copy of a document may be used in court instead of the original.
Documents filed by facsimile transmission
(15) Any document may be filed in a registry by facsimile transmission to that registry, but a judge may require that the original of a document be filed later.
(16) Unless a judge orders otherwise, only the following persons may search a registry file respecting a matter under the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children]:
(a) a party;
(b) a party’s lawyer of record;
(c) a person authorized in writing by a party;
(d) a person authorized in writing by a party’s lawyer of record.
If a party does not comply with these Rules
(17) If a party does not comply with these Rules, the judge may, after considering sections 2.4, 2.5 and 3.2 of the Snuw’uy’ulhtst u’ tu Shhw’a’luqwa’a’ i’ Smun’eem [Laws for Families and Children],
(a) cancel a step taken or an order made or disregard a document filed in the course of the application, or
(b) make any order or give any direction that the judge thinks is fair, including an order dismissing the application.
(18) The forms in Appendix A are prescribed for the purposes of these Rules.
(19) Forms generated by the user must
(a) be in substantial compliance with the prescribed forms, and
(b) show the applicable words of the prescribed form in regular type and the words supplied by the user in boldface type.
(20) For the purposes of these Rules,
(a) a lawyer must provide notification to the other parties that the lawyer is the lawyer of record for a party by
(i) completing and filing with the court a Notice of Lawyer of Record for Party (Form 13), and
(ii) serving on each party the form referred to in subparagraph (i), or
(b) a lawyer must advise the court, when appearing in court, that the lawyer is the lawyer of record for a party.
Ceasing to be lawyer of record
(21) For the purposes of these Rules,
(a) a lawyer must provide notification to the other parties that the lawyer is no longer the lawyer of record for a party by
(i) completing and filing with the court a Notice of Removal of Lawyer of Record for Party (Form 14), and
(ii) serving on each party the form referred to in subparagraph (i), or
(b) a lawyer must advise the court, when appearing in court, that the lawyer is no longer the lawyer of record for a party.
Judge may waive or modify process in respect
of notification of lawyer of record
(22) A judge may, at any time, waive or modify the processes in subrules (20) and (21) of this Rule.
Rule 11 – Method of Attendance
(1) Case conferences and hearings must be attended in person.
Direction by chief judge for exception to default
(2) Despite subrule (1) of this Rule, the chief judge may direct that a class of case conferences or hearings may or must be attended by telephone, video conference or other means of electronic communication.
Classes of case conferences and hearings
(3) A direction under subrule (2) of this Rule may be different for different court locations, court registries, classes of case conferences or hearings or classes of persons or circumstances.
(4) If one or more of the following applies:
(a) the chief judge gives a direction under subrule (2) of this Rule that a case conference or hearing may or must be attended by telephone, video conference or other means of electronic communication;
(b) an application is granted under subrule (5) of this Rule that a person may attend a case conference or hearing by telephone, video conference or other means of electronic communication;
(c) a person attends a hearing that is required under subrule (6) (a) or (b) of this Rule by telephone, video conference or other means of electronic communication;
(d) a designated representative attends a case conference or hearing by telephone, video conference or other means of electronic communication,
the court must direct the persons attending
(e) how, and by what date, to submit and serve any records and other things if the person will not be attending in person, and
(f) where or how to attend, including by providing a telephone number or video conferencing information, if applicable.
Application to change method of attendance
(5) Despite subrules (1) and (2) of this Rule, a person may apply to change the person’s own or another person’s method of attendance at a case conference or hearing to the court under Rule 3 (2) by completing and filing with the court an Application to Change Method of Attendance (Form 3).
Requirement for notice of hearing
(6) An application under subrule (5) of this Rule does not require service of notice, or a hearing, unless
(a) the judge requires notice and a hearing, in which case the judge may require service in accordance with Rule 8 or in any other manner the judge considers appropriate, or
(b) the application is in respect of a court proceeding at which sworn oral evidence will be given, in which case the judge may require service in accordance with Rule 8.
Hearing on application to change method of attendance
(7) Unless a judge orders otherwise, a person may attend a hearing that is required under subrule (6) (a) or (b) of this Rule by telephone, video conference or other means of electronic communication.
Attendance by designated representatives
(8) A designated representative of a First Nation, of a Treaty First Nation, of the Nisga’a Lisims Government or of an Indigenous community
(a) may, despite subrules (1) and (2) of this Rule, attend a case conference or hearing by telephone, video conference or other means of electronic communication if the designated representative does not intend to give sworn oral evidence or to call another person to give sworn oral evidence, and
(b) must attend a case conference or hearing in person if the designated representative intends to give sworn oral evidence or to call another person to give sworn oral evidence unless
(i) a direction under subrule (2) of this Rule applies to the designated representative, or
(ii) the designated representative makes a successful application under subrule (5) of this Rule.
Requirement to appear in person
(9) Despite subrules (1) and (2) of this Rule, a judge conducting a case conference or hearing at which persons are appearing by telephone, video conference or other means of electronic communication may
(a) adjourn the conference or hearing at any time, and
(b) require persons to attend the case conference or hearing, or any further case conferences or hearings, in person or by another method of attendance that the judge considers appropriate in the circumstances.
Physical presence not required
(10) For the purposes of these Rules, other than subrules (1) and (8) (b) of this Rule, a reference to attending, appearing, conducting, giving, being present, being in court or being at a place or location is not to be interpreted as requiring in-person attendance.
Case conference or hearing has an
associated physical location
(11) If a case conference or hearing does not take place at a physical location because all persons attend the case conference or hearing by telephone, video conference or other means of electronic communication, the case conference or hearing is considered to take place at the court served by the registry where the court file is.
Appendix A
Form 1 Application For a Presentation Hearing
Form 2 Application Respecting Orders
Form 3 Application to Change Method of Attendance
Form 4 Subpoena
Form 5 Warrant
Form 6 Release
Form 7 Affidavit
Form 8 Notice of Address For Service
Form 9 Certificate of Service
Form 10 Order
Form 11 Protective Intervention Order
Form 12 Consent Adjournment
Form 13 Notice of Lawyer of Record For Party
Form 14 Notice of Removal of Lawyer of Record
Form 15 Written Consent
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