| Copyright (c) Queen's Printer, Victoria, British Columbia, Canada | Licence Disclaimer |
|
B.C. Reg. 417/98 |
Deposited November 25, 1998 |
| This archived regulation consolidation is current to December 3, 2004 and includes changes enacted and in force by that date. For the most current information, click here. |
Court Rules Act
[includes amendments up to B.C. Reg. 159/2003]
Rule 1 — Purpose and Interpretation
(1) The purpose of these rules is to allow people to obtain just, speedy, inexpensive and simple resolution of matters arising under the Family Relations Act and certain matters under the Family Maintenance Enforcement Act.
(2) In these rules:
"clerk" means a member of the registry staff;
"court" means the Provincial Court;
"family justice counsellor" means a family court counsellor under section 3 of the Family Relations Act;
"family justice registry" means the Kelowna, Surrey or Vancouver (Robson Square) registry;
"filed copy", in relation to a document that is filed with a registry, means a copy of the document that is date stamped with the registry stamp;
"party" means
(a) an applicant,
(b) a respondent who has filed a reply [see rule 3 about replying to applications],
(c) a person added as a party under rule 20 (5), and
(d) the Director of Maintenance Enforcement if an application relates to an order that is filed with the director;
"regional manager", in relation to a registry, means the regional manager of Family Justice Services Division (Corrections Branch), Ministry of Attorney General, who is responsible for the region in which the registry is located;
"registry" means a registry of the court where family matters are dealt with.
[am. B.C. Reg. 102/2001, s. 1; 159/2003, s.1.]
(3) Italicized words in square brackets are not part of these rules, are included editorially for convenience of reference only and are not to be used in interpreting the rules or any provision to which the words refer.
Rule 2 — Making and Filing an Application
(for Specified Family Relations Act Orders)
(1) To apply to the court for any of the following orders under the Family Relations Act, a person must complete an application in Form 1 and file it, together with 3 copies of it, in a registry:
(a) child custody, access or guardianship;
(b) child, spousal or parental maintenance;
(c) a restraining order under section 37 of the Act or an order prohibiting interference with a child under section 38 of that Act.
(2) To apply to the court for any of the following orders, a person must complete an application in Form 2 and file it, together with 3 copies of it, in the registry where the order or agreement is filed unless a judge permits otherwise under rule 19 (1) or rule 19 (5) or (6) applies:
(a) to change or cancel an order that was made or registered under the Family Relations Act;
(b) to cancel or reduce arrears under a maintenance order that was made or registered under the Family Relations Act;
(c) to change or cancel an agreement that was filed under the Family Relations Act.
[To file the application in another registry, see rule 19 concerning transfer of court files. Rule 19 (5) and (6) specifically concern transfer of files by the registry when the parties consent to the transfer or when only one of the parties resides in British Columbia and that party requests the transfer.]
(3) Unless a judge grants permission to use a different method of service under rule 9 (7), an applicant under subrule (1) or (2) must have a filed copy of the application served personally on the respondent by a person, other than the applicant, who is at least 19 years of age.
(4) The following documents must be served with the filed copy of the application when it is served on the respondent:
(a) a blank reply form (Form 3);
(b) a blank financial statement form (Form 4), if the applicant seeks an order for child, spousal or parental maintenance or for variation of child, spousal or parental maintenance;
(c) a filed copy of the applicant's financial statement and applicable documentation under rule 4 (2), if applicable.
(5) If the respondent does not file a reply to the application in accordance with rule 3, the applicant must file with the registry an affidavit of personal service in Form 5.
[To apply for enforcement of a custody order or for recognition of a custody order or an access order, see rule 16. To apply for enforcement of a maintenance order under the Family Maintenance Enforcement Act, see rule 17. To make any other type of application, see rule 12.]
Rule 3 — Replying to the Application
(1) A person named as a respondent in an application referred to in rule 2 must, within 30 days after being served with a copy of the application,
(a) complete a reply in Form 3, following the instructions on the form, and
(b) file that reply, together with 3 copies of it, in the registry where the application was filed, and
(c) if applicable, file with that reply the original and 3 copies of the respondent's financial statement and applicable documentation referred to in rule 4 (2) (b).
(2) The respondent may do one or more of the following in the reply:
(a) consent to one or more of the orders requested in the application;
(b) disagree with anything claimed in the application, stating the reasons for the disagreement;
(c) apply to the court for any of the following orders under the Family Relations Act:
(i) child custody, access or guardianship;
(ii) child or spousal maintenance;
(iii) a restraining order under section 37 of the Act or an order prohibiting interference with a child under section 38 of that Act;
(d) apply to the court for an order
(i) to change or cancel an order that was made or registered under the Family Relations Act,
(ii) to cancel or reduce arrears under a maintenance order that was made or registered under that Act, or
(iii) to change or cancel an agreement that was filed under that Act.
[To apply for enforcement of a custody order or for recognition of a custody order or an access order, see rule 16. To apply for enforcement of a maintenance order under the Family Maintenance Enforcement Act, see rule 17. To make any other type of application, see rule 12.]
(3) A respondent who has not filed a reply is not entitled to receive notice of any part of the proceedings under these rules, including, without limitation, any court appearance, hearing, conference or trial.
[See rule 6 (4) about what a judge may do if a respondent fails to file a reply.]
(4) Within 21 days after a reply is filed in a registry, the clerk must serve on the applicant a filed copy of the reply and any documents filed by the respondent under subrule (1) (c).
(5) If the reply includes a counterclaim under subrule (2) (c) or (d), the applicant must, within 30 days after being served with a copy of the reply,
(a) complete a reply in Form 3, following the instructions on the form,
(b) file that reply, together with 3 copies of it, in the registry where the application under rule 2 was filed, and
(c) serve on the respondent a filed copy of that reply and, if applicable and only if the applicant has not already done so, serve with that reply a filed copy of the applicant's financial statement and applicable documentation referred to in rule 4 (2) (b).
Rule 4 — Provision of Financial Information
(1) Subrule (2) applies to the following persons:
(a) a person who applies, in Form 1 or 3, for a spousal or parental maintenance order or who is responding to such an application;
(b) a person who applies, in Form 2 or 3, for variation of a spousal or parental maintenance order or who is responding to such an application;
(c) a person who applies, in Form 1 or 3, for a child maintenance order and who is required under the Child Support Guidelines Regulation to provide income information;
(d) a person who is responding to an application for a child maintenance order;
(e) a person who applies, in Form 2 or 3, for variation of a child maintenance order and who is required under the Child Support Guidelines Regulation to provide income information;
(f) a person who is responding to an application for variation of a child maintenance order and who is required under the Child Support Guidelines Regulation to provide income information;
(g) a person who applies, in Form 2 or 3, for cancellation or reduction of arrears under a maintenance order.
(2) A person referred to in subrule (1) must
(a) complete a financial statement in Form 4, following the instructions on the financial statement, and
(b) when filing the application or the reply, as the case may be, file with the registry the original and 3 copies of that financial statement and any applicable documentation described in Form 4 or required under the Child Support Guidelines Regulation.
(3) Parties to an application for child maintenance or for variation of child maintenance are deemed to have complied with the documentation requirements of the Child Support Guidelines Regulation and the requirement to complete and file financial statements under subrule (2) in respect of that application if
(a) the parties have agreed on the amount of child maintenance to be paid and on the annual income of each party who would otherwise be required to provide income information under that regulation,
(b) the parties have signed a consent in Form 19 respecting that agreement, and
(c) the consent, together with a copy of the most recent income tax return of each party who would otherwise be required to provide income information under that regulation and a copy of that person's most recent income tax notice of assessment or reassessment, have been filed in the registry.
[If the parties wish to file an application for an order that the parties consent to, see rule 14.]
Rule 5 — Procedures in Family Justice Registries
(1) Subject to the exceptions set out in subrule (2), this rule applies to proceedings begun by an application under rule 2 (1) or (2)* if
(a) the application is filed in a family justice registry, or
(b) the court file for the proceedings is transferred under rule 19 to a family justice registry.
* [Rule 2 is about applications for custody, access, guardianship, maintenance, restraining orders, orders prohibiting interference with a child and applications to change or cancel existing orders or agreements filed under the Family Relations Act.]
(2) This rule
(a) does not apply to the proceedings referred to in subrule (1) if the only applications in the matter concern maintenance and there has been an assignment of maintenance rights under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, and
(b) ceases to apply to the proceedings referred to in subrule (1) if the court file for the proceedings is transferred under rule 19 to a registry that is not a family justice registry.
[am. B.C. Reg. 159/2003, s. 2.]
(3) Before setting a date for the parties' first appearance before a judge, a clerk must refer the applicant and each respondent who has filed a reply to a family justice counsellor.
[For exemption from this subrule in urgent and special circumstances, see subrule (8).]
(4) To assist the parties in resolving any part of their dispute, each party must meet with the family justice counsellor and may seek referral from the family justice counsellor to one or more of the following persons, programs or services:
(a) a person designated by the Attorney General to provide specialized maintenance assistance;
(b) a program, approved by the Attorney General, designed to help parties identify and consider post-separation issues involving children;
(c) mediation with a family justice counsellor;
(d) mediation with a private mediator;
(e) any other service or agency that may assist the parties.
(5) At any time after meeting with the family justice counsellor, a party may do any of the following:
(a) ask to appear before a judge on one or more issues in the case by filing in the registry a referral request in Form 6;
(b) seek a consent order under rule 14.
(6) On receiving a referral request in Form 6, the clerk must serve the parties with notice of the time and place at which they must attend before a judge.
(7) When the parties attend before the judge under subrule (6), the judge may
(a) do any of the things described in rule 6 (3), and
(b) require the parties to attend, or continue their attendance with, one or more of the persons or programs referred to in subrule (4) (a) to (c) of this rule.
(8) If, at any time in the course of the proceedings,
(a) a party applies to a judge for an order under section 37 or 38 of the Family Relations Act*, or
(b) a judge is satisfied on application by a party that urgent and exceptional circumstances exist requiring a judge to hear the matter at the earliest opportunity,
the judge may do one or more of the following:
(c) dispense with or defer compliance with all or any part of this rule if the judge considers it necessary;
(d) order that subrule (3) does not apply and that the matter be referred to a judge for hearing at the earliest opportunity;
(e) make any order or give any directions that the judge considers appropriate.
* [Section 37 of the Family Relations Act concerns orders restraining one person from harassing another person or a child of the other person. Section 38 of the Family Relations Act concerns orders prohibiting a person from interfering with a child.]
(9) Rule 6 (4) and (10) applies to proceedings begun by an application filed in or transferred to a family justice registry.
[Rule 6 (4) and (10) sets out the options available to a judge if the respondent fails to file a reply or fails to appear in court and includes the option of making a final order.]
(10) All other rules apply to proceedings in a family justice registry but, if anything in another rule is considered to be in conflict with this rule, this rule prevails.
(11) A person representing the government, a ministry or public officer, if they are parties in the matter, need not but may meet with and attend with a family justice counsellor or persons or programs under subrules (3), (4) and (7) (b).
(12) This rule applies only to proceedings described in subrule (1) in which the application is filed after November 30, 1998.
Rule 5.1 – Procedures in Fax Filing Pilot Project Registries
(1) In this rule, "fax filing pilot project registry" means the Chilliwack, Cranbrook, Dawson Creek, Kamloops, Kelowna, Nelson, Penticton, Prince George, Rossland, Salmon Arm, Smithers, Terrace, Vernon or Williams Lake registry.
[en. B.C. Reg. 9/2003, s. 1.]
(2) Despite rules 2 (1) and (2), 3 (1) and (5), 4 (2), 13 (4), 16 (3) and 17 (4) and subject to this rule, if a registry is a fax filing pilot project registry, a registrar or clerk may accept any document in a filing that has been transmitted to the registry by fax, except the following:
(a) an application for an order under rule 2 (1) or (2) if the application is filed in a family justice registry or the court file for the proceedings is transferred under rule 19 to a family justice registry;
(b) a statement of finances under section 13 of the Family Maintenance Enforcement Act.
[en. B.C. Reg. 9/2003, s. 1.]
(3) A registrar or clerk may refuse to accept a filing that is transmitted to a fax filing pilot project registry by fax for any one or more of the following reasons:
(a) the filing is not accompanied by a fax cover sheet in Form 32;
(b) the filing relates to more than one court file;
(c) the filing and the fax cover sheet exceed 20 pages in length and the registrar has not given leave;
(d) in the opinion of the registrar or clerk, the filing is illegible and cannot be used by the court;
(e) the filing is incomplete;
(f) the filing should have been transmitted to another fax filing pilot project registry;
(g) the filing does not otherwise conform to practice and procedure under these rules and any applicable enactment.
[en. B.C. Reg. 9/2003, s. 1.]
(4) A filing that is transmitted to a fax pilot project filing registry by fax and received by the registry fax machine will be filed as soon as is practicable, provided that it has not been refused under subrule (3).
[en. B.C. Reg. 9/2003, s. 1.]
(5) A filing that is transmitted to a fax filing pilot project registry by fax is considered to be filed on the date stamped on it by a clerk.
[en. B.C. Reg. 9/2003, s. 1.]
(6) A judge may require that the original of a document transmitted to a fax filing pilot project registry by fax in accordance with this rule be produced.
[en. B.C. Reg. 9/2003, s. 1.]
Rule 6 — First and Subsequent Appearances in Court
(1) Subject to rule 21 (8), if the respondent
(a) files a reply, or
(b) has not filed a reply within the time limit set in these rules and the applicant has filed an affidavit of service and requested an appearance,
a clerk must
(c) serve the parties with notice of the time and place they are to attend court for a first appearance in the matter, and
(d) if the reply has been filed, serve the applicant with a filed copy of
(i) the reply, and
(ii) the financial statement and all applicable documentation filed by the respondent under rule 4 (2), if applicable.
[am. B.C. Reg. 102/2001, s. 2.]
(2) Subrule (1) does not apply to proceedings to which rule 5 applies.
(3) The judge at the first appearance or any subsequent appearance may do one or more of the following:
(a) make an order that all parties consent to in respect of all or any part of what is claimed in the application or reply;
(b) make an interim order under section 9 of the Family Relations Act;
(c) if a party has failed to provide financial information in accordance with rule 4,
(i) make an order requiring the party to file that financial information with the registry within a set time,
(ii) draw an adverse inference from that failure and impute an amount of income to that party that the judge considers appropriate,
(iii) make an interim order under section 9 of the Family Relations Act, and
(iv) if the judge considers that the circumstances justify it, make a final order;
(d) adjourn the case for a specified period of time that the judge considers appropriate;
(e) order a party to allow another party to inspect and copy records, specified in the order, that are or have been in that other party's possession or control or, if not in that other party's possession or control, are within that other party's power;
(f) set a date for a family case conference under rule 7;
(g) set a date for a trial preparation conference under rule 8;
(h) if the judge does not set a date for a family case conference or for a trial preparation conference, set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;
(i) with consent of the parties, refer the matter to private mediation;
(j) hear evidence and make an interim or final order for spousal or parental maintenance or for child custody, access, guardianship or maintenance;
(k) make any other order or give any direction that the judge considers appropriate.
(4) If the respondent fails to file a reply under rule 3, the judge at the first appearance or any subsequent appearance may do one or more of the following:
(a) draw an inference that the respondent consents to the orders sought by the applicant;
(b) impute an amount of income to that respondent that the judge considers appropriate;
(c) make an interim order under section 9 of the Family Relations Act;
(d) if the judge considers that the circumstances justify it and it is fair to do so in the respondent's absence, make a final order;
(e) issue a summons in Form 7 to be served on the respondent.
(5) Without limiting subrule (3) (d), the judge may adjourn the case for a specified period of time that the judge considers appropriate to enable the parties to consult with or attend one or more of the following:
(a) a family justice counsellor;
(b) a person designated by the Attorney General to provide specialized maintenance assistance;
(c) a program, approved by the Attorney General, designed to help parties identify and consider post-separation issues involving children;
(d) mediation with a private mediator;
(e) any other service or agency that may assist the parties.
(6) A judge may adjourn a case to enable the parties to consult with or attend a person or program under subrule (5) (a), (b) or (c) only if the regional manager has advised the court in writing that the person or program is readily available to the parties.
(7) A party who consults with or attends a service, person, program or agency referred to in subrule (5) may, at any time, do any of the following:
(a) ask to appear before a judge on one or more issues in the case by filing in the registry a referral request in Form 6;
(b) seek a consent order under rule 14.
(8) On receiving a referral request in Form 6, the clerk must serve the parties with notice of the time and place at which they must attend before a judge.
(9) When the parties attend before a judge under subrule (8), the judge may do any of the things described in subrule (3).
(10) If a respondent fails to appear in court as directed by a judge or in response to a summons issued by a judge or to a notice sent under these rules, a judge may do one or more of the following:
(a) draw any inference from that failure that the judge considers appropriate, including, without limitation, an inference that the respondent consents to the orders sought by the applicant;
(b) impute an amount of income to the respondent that the judge considers appropriate;
(c) for the purpose of making an order for child, spousal or parental maintenance, hear submissions on the respondent's probable income;
(d) make an interim order under section 9 of the Family Relations Act;
(e) if the judge considers that the circumstances justify it and that it is fair to do so in the respondent's absence, make a final order;
(f) issue a summons in Form 7 to be served on the respondent;
(g) if the respondent was served with a summons for the court appearance or was present in court when the date for the court appearance was set, issue a warrant in Form 8 for the arrest of the respondent.
(11) A warrant under subrule (10) (g) remains in force until
(a) the respondent named in the warrant appears in court either voluntarily or under the warrant, or
(b) a justice cancels the warrant.
(12) A respondent who is arrested under a warrant must be brought before a justice as soon as practicable.
(13) The justice must release the respondent on giving the respondent a release in Form 9 requiring the respondent to appear in court on the date and at the time and place stated in the release.
(14) A clerk must notify the applicant regarding the date, time and place of the appearance stated in the release.
(15) If the respondent does not appear in court on the date and at the time stated on the release, the judge may
(a) issue a warrant in Form 8 for the arrest of the respondent and order that the respondent be brought to a judge promptly on that arrest, or
(b) do anything described in subrule (10) (a) to (f).
Rule 7 — Family Case Conference
(1) If child custody, access or guardianship are contested, a judge may order the parties to attend a family case conference.
(2) The following persons must attend the family case conference:
(a) the parties;
(b) each lawyer representing a party or a child.
(3) With permission of a judge, a child or person who is not a party may attend the family case conference.
(4) The judge at the family case conference may do one or more of the following:
(a) mediate any of the issues in dispute;
(b) decide any issues that do not require evidence;
(c) with consent of the parties, refer any issues to mediation with a private mediator;
(d) if the regional manager has advised the court in writing that the person or program is readily available to the parties, refer the parties to a family justice counsellor or to a person designated by the Attorney General to provide specialized maintenance assistance;
(e) adjourn the case for purposes of mediation under paragraph (c) or a referral under paragraph (d);
(f) make an order to which all of the parties consent;
(g) direct that any or all applications must be made within a set time;
(h) direct the parties to attend a further family case conference, setting a date for that conference;
(i) set a date for a trial preparation conference under rule 8;
(j) make any order that may be made at a trial preparation conference under rule 8 (4);
(k) if the judge does not set a date for a further family case conference or for a trial preparation conference, set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;
(l) make an interim or final order requested in an application, reply or notice of motion;
(m) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;
(n) make any other order or give any direction that the judge considers appropriate.
(5) If the judge presiding at the family case conference considers that the circumstances justify it and that it is fair to do so in the person's absence, the judge may make an order referred to in subrule (4) (l) even though one or more of the persons required to attend the family case conference under subrule (2) fails to attend.
Rule 8 — Trial Preparation Conference
(1) If a judge determines that a trial is necessary, the judge may first set a date for a trial preparation conference.
(2) The following persons must attend the trial preparation conference:
(a) each lawyer representing a party or a child;
(b) subject to the exception set out in subrule (3), the parties.
(3) A party who is represented by a lawyer need not attend the trial preparation conference in person if the party is readily available and immediately accessible for consultation during the trial preparation conference, either in person or by telephone.
(4) The judge at the trial preparation conference may do one or more of the following:
(a) order a party to allow inspection and copying of records, specified in the order, that are or have been in the party's possession or control or, if not in that party's possession or control, are within that party's power;
(b) order a party to deliver to the other parties a written summary of the proposed evidence of a witness within a set time;
(c) if the judge determines that there are any pending applications relating to the case that have not yet been heard, order that those applications be heard at the trial preparation conference or be brought and heard within a set time;
(d) order the parties to file with the registry a statement of agreed facts, within a set time;
(e) discuss evidence that will be required and the procedure that will be followed at that trial;
(f) order a party to bring to trial a record, specified in the order, that is or has been in the party's possession or control or, if not in the party's possession or control, is within that party's power;
(g) grant permission to a party to submit evidence by affidavit at the trial, in accordance with rule 13 [concerning affidavits] and with any directions given by the judge presiding at the trial preparation conference;
(h) estimate the time required for a trial;
(i) set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;
(j) make any order or give any direction that the judge considers appropriate.
Rule 9 — Other Rules about Service and Proving Service
(1) Subject to the exceptions set out in subrule (2), documents may be served by delivering the documents as follows:
(a) on a party, other than the Director of Maintenance Enforcement,
(i) by leaving the documents with the party's lawyer or having a person who is at least 19 years of age, other than the serving party, leave the documents with the party to be served,
(ii) by mailing the documents to the last address for service provided by that party under subrule (4) or (5), or
(iii) if the address for service provided by that party includes a fax number, by transmitting the documents to that fax number together with a fax cover-page in Form 10;
(b) on the Director of Maintenance Enforcement, by mailing the documents to the post office box number provided by the director;
(c) on any other person, by leaving the documents with the person or by mailing the documents by double registered mail to that person's postal address.
(2) Subrule (1) does not apply in the case of a summons, a subpoena, an application in Form 1, 2, 21 or 22 or a request in Form 23.
[Forms 1 and 2 concern applications for custody, access, guardianship, maintenance, restraining orders, orders prohibiting interference with a child and applications to change or cancel existing orders or agreements filed under the Family Relations Act. These forms must be served personally on the respondent (see rule 2 (3) to (5)).]
[Form 21 concerns applications to authorize peace officer enforcement of existing custody orders under section 36 of the Family Relations Act. These applications are brought without notice to other persons.]
[Form 22 concerns applications to recognize custody and access orders made by courts outside of British Columbia and these application forms must be served personally on the respondents (see rule 16 (4)).]
[Form 23 is related to enforcing existing maintenance orders and is a request to the court for issuance of a summons, warrant or garnishing order. These applications are generally made without notice to the person against whom the summons or warrant will be issued or against whom the order will be made.]
(3) Unless a judge grants permission to use a different method of service under subrule (7), a summons (Form 7) issued under rule 6 (4) (e) or (10) (f) must be served on the respondent at least 3 days before the date of the hearing referred to in the summons as follows:
(a) a clerk may have it served on the respondent by mail or fax or personally by a peace officer or any adult other than the applicant;
(b) the applicant may have it served on the respondent personally by any adult other than the applicant.
(4) Each time a party files a document with the registry, the party must provide in the document the party's current address for service.
(5) If a party's address for service changes, the party must promptly file with the registry a notice of change of address in Form 11 and serve a copy of the notice on the other parties.
(6) A document served by mail in accordance with this rule is presumed to have been served 14 days after it was mailed.
(7) If a person is required under these rules to have a document served personally on another person, a judge may, on application brought by notice of motion under rule 12,
(a) order that the document be served by a peace officer, if the judge is satisfied that such an order is appropriate in the circumstances, or
(b) make an order granting permission to use a different method of service, specified in the order, if the judge is satisfied that the person to be served
(i) cannot be found after a diligent search,
(ii) is evading service of the documents, or
(iii) is temporarily outside of British Columbia.
(8) If a different method of service of a document is permitted by a judge under subrule (7) (b), a filed copy of the judge's order must be served with the document, unless the judge
(a) orders otherwise, or
(b) orders notice to be given by advertisement.
(9) If a judge orders notice to be given by advertisement,
(a) the advertisement must be in Form 12, and
(b) the party who obtained permission must pay for the advertisement.
(10) If an affidavit or certificate referred to in the following paragraphs is completed in accordance with the instructions on the applicable form and is filed in the registry, the affidavit or certificate is proof of service of the document to which the affidavit or certificate relates:
(a) in relation to a document served by mail or fax, an affidavit of service in Form 13;
(b) in relation to a document served personally by an individual other than a peace officer, an affidavit of personal service in Form 5;
(c) in relation to a document served personally by a peace officer, a certificate of service in Form 14.
(11) Nothing in subrule (10) restricts the admissibility of any other evidence of service that the court may consider appropriate in the circumstances.
(1) To require the attendance of a witness, a party must
(a) complete a subpoena in Form 15, 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.
(2) At the time the subpoena is served, the party who subpoenas the witness must offer the witness reasonable estimated travelling expenses.
(3) A person 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) bring to court any records and other things required by the subpoena.
(4) A person who is served with a subpoena may, on 2 days notice, apply by notice of motion under rule 12 to a judge who may cancel the subpoena if
(a) the person is not required as a witness, or
(b) it would be a hardship for the person to appear in court as required by the subpoena.
(5) A judge who cancels a subpoena may make any order or give any directions that the judge considers necessary and advisable in the circumstances, including an order adjourning the trial or any other hearing.
(6) A judge may issue a warrant in Form 8 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.
(7) A warrant issued under subrule (6) remains in force until
(a) the witness named in the warrant appears in court, whether voluntarily or under the warrant, or
(b) a judge cancels the warrant.
(8) A witness who is arrested under a warrant issued under subrule (6) must be brought before a judge as soon as practicable.
(9) If the judge determines that the witness' evidence is still required, the judge may
(a) release the witness on giving the witness a release in Form 9 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 witness' presence is no longer required.
Rule 11 — Trial Date and Evidence
(1) A trial may be adjourned only as follows:
(a) if the adjournment is sought more than 45 days before the scheduled trial date,
(i) by filing with the registry a consent to the adjournment signed by all parties, or
(ii) if the parties cannot agree to the adjournment, on application brought by notice of motion to a judge under rule 12 to explain why the adjournment is necessary;
(b) if the adjournment is sought within 45 days of the scheduled trial date, on application brought by notice of motion to a judge under rule 12 to explain why the adjournment is necessary.
(2) If a party wishes to call as a witness at trial the person who prepared a report ordered by a judge under section 15 of the Family Relations Act,
(a) the party who wishes to call the witness must
(i) serve a copy of the report on each other party under section 15 (3) of that Act, and
(ii) apply by notice of motion to a judge under rule 12 at least 14 days before the trial date for permission to do so, and
(b) the judge hearing the application may make any order or give any direction that the judge considers appropriate in the circumstances.
(3) A party may not call an expert to give opinion evidence unless
(a) the party serves a written summary of the expert's evidence on each other party at least 30 days before the expert is called to give evidence, or
(b) a judge grants permission.
(4) Instead of calling an expert to give evidence, a party may introduce a report stating opinions of an expert, only if
(a) the party serves a copy of the report on each other party at least 30 days before the report is introduced, or
(b) a judge grants permission.
(5) A statement of qualifications in an expert's report is proof that the expert has those qualifications.
(6) A report stating opinions of an expert may be introduced in court without proof of the expert's signature.
(7) A party receiving another party's expert report, other than a report referred to in subrule (2), may serve on the other party, at least 14 days before the trial date, a notice requiring the expert to attend the trial for cross-examination.
(8) If a judge determines that it was unnecessary to call another party's expert or to call the person who prepares the report referred to in subrule (2), the judge may order the party who required the expert or person to attend to pay to the other party the reasonable costs associated with that expert's or person's attendance.
(9) If the regional manager has advised the court in writing that specialized maintenance assistance is readily available to the court, a judge may at any time during a trial refer calculation of child maintenance to a person designated by the Attorney General to provide such assistance and require that the calculation be referred back to the judge.
Rule 12 — Applying by Notice of Motion for Orders or Directions
(1) If a person seeks an order or direction from a judge, the person must
(a) file with the registry the original and 3 copies of
(i) a notice of motion in Form 16, and
(ii) any documents in support of the motion, and
(b) at least 7 days before the date set for the hearing of the motion, serve a filed copy of the documents described in paragraph (a)
(i) on each party, and
(ii) if the order sought relates to the production of a record in the possession or control of a person who is not a party, on that person.
(2) Subrule (1) (b) does not apply if
(a) the motion is for permission to use a different method of service or notice under rule 9 (7), or
(b) a judge orders otherwise.
(3) Evidence may be given in support of a motion
(a) orally on oath or affirmation, or
(b) by affidavit [see rule 13].
(4) If a party or person served with a notice of motion under subrule (1) (b) fails to appear in court on the date and at the time and place set for hearing the motion, the judge may
(a) hear the motion in the party's or person's absence, and
(b) make any order requested in the notice of motion if the judge thinks it is fair to do so in that party's or person's absence.
(1) Unless a rule provides otherwise or a judge orders otherwise, an affidavit must be in Form 17.
(2) Any exhibits referred to in an affidavit must be identified and attached to the affidavit.
(3) Subject to the requirements of subrule (4), evidence may be given by affidavit at a trial or hearing only if permission is granted by a judge, either on application brought by notice of motion under rule 12 or under rule 8 (4) (g).
(4) Evidence may not be given by affidavit at a trial or hearing unless
(a) the affidavit and 3 copies of it are filed with the registry, and
(b) a filed copy of the affidavit is delivered to each party at least 7 days before the date of the trial or hearing or such other period as the court may order under rule 20 (2).
[Under rule 20 (2), judges may shorten or extend time periods under these rules.]
(5) With permission of the judge presiding at the trial or hearing, an affidavit may be used in evidence even though it does not comply in form with this rule.
(1) If at any time in the course of proceedings the parties wish to apply for an order that the parties consent to, the parties must file with the registry
(a) a request in Form 18,
(b) a consent in Form 19,
(c) a draft consent order in Form 20 containing the particulars of the order sought, and
(d) any affidavits in support of the order.
(2) A clerk must place the request, draft consent order and supporting documents before a judge who may
(a) approve and sign the consent order without the parties having to attend, if the judge is satisfied that consent is given and it is appropriate that the order be made, or
(b) direct that the parties, and any other person specified by the judge, attend before the judge to explain why the order should be made.
(3) If the judge gives a direction under subrule (2) (b), a clerk must notify the parties and any other persons specified by the judge of the date, time and place for the court appearance.
(1) In this rule, "paternity tests" include human leukocyte antigen tissue tests and tests of the deoxyribonucleic acid (DNA) in tissue or blood to identify the inheritable characteristics of the tissue or blood.
(2) If the parentage of a child is denied in a proceeding for a maintenance order for the child, a judge may order putative parents and the child to have tissue or blood samples, or both, taken by a medical practitioner or other qualified person so that paternity tests can be done on the samples.
(3) An order under subrule (2) may include any terms or conditions the judge thinks proper and may require a putative parent to pay all or part of the cost of the paternity tests.
(4) The results of paternity tests done under subrule (2) may be introduced as evidence.
(5) If a putative parent named in an order under subrule (2) fails to comply with the order, the judge may draw any inference from that failure that the judge considers appropriate.
(6) An application for an order under subrule (2) must be brought by notice of motion under rule 12.
Rule 16 — Applying for Enforcement of Custody Orders
or for Recognition of Custody and Access Orders
(1) To apply to the court under section 36 of the Family Relations Act for an order authorizing a peace officer to apprehend a child for the purposes of enforcing a custody order, a person must complete an application in Form 21 and file it in a registry, together with a certified copy of the custody order as proof of the order.
(2) A clerk will notify the applicant under subrule (1) of the date, time and place for the court appearance.
(3) To apply to the court under section 48 of the Family Relations Act for an order recognizing a custody or access order made by an extraprovincial tribunal, a person must complete an application in Form 22 and file it in a registry, together with 3 copies of it and a certified copy of the custody or access order as proof of the order.
(4) Unless a judge grants permission to use a different method of service under rule 9 (7), the applicant under subrule (3) must have a filed copy of the application served personally on the respondent by a person, other than the applicant, who is at least 19 years of age.
(5) The following rules apply to proceedings begun by an application under subrule (1) or (3):
(a) rule 9 [other rules about service and proving service];
(b) rule 10 [witnesses];
(c) rule 11 [trial date and evidence];
(d) rule 12 [applying by notice of motion for orders or directions];
(e) rule 13 [affidavits];
(f) rule 14 [consent orders];
(g) rule 15 [paternity tests];
(h) rule 18 [orders];
(i) rule 19 [transfer of files];
(j) rule 20 [general].
Rule 17 — Applying for Enforcement of Maintenance Orders under
the Family Maintenance Enforcement Act
(1) In this rule, "applicant" includes
(a) a creditor or debtor as defined in the Family Maintenance Enforcement Act,
(b) the Director of Maintenance Enforcement, if the application relates to an order that is filed with the director, and
(c) anyone else who is entitled to bring or defend an application under that Act.
(2) To apply to the court for issuance of any of the following under the Family Maintenance Enforcement Act, an applicant must complete a request in Form 23:
(a) a summons in Form 7 or a warrant under section 14 (2) of the Act;
(b) a garnishing order under section 18 of the Act;
(c) a summons in Form 7A to a default hearing under section 19 of the Act;
(d) a summons in Form 7 or warrant of arrest for failing to report in accordance with an order under section 22 (1) (a) or (b) of the Act;
(e) a summons in Form 7B to a committal hearing under section 23 (1) of the Act;
(f) a warrant of execution under section 27 of the Act;
(g) a warrant for the arrest of a debtor under section 31 (a) of the Act.
[am. B.C. Reg. 103/2001, s. 1.]
(3) To apply to the court for any of the following under the Family Maintenance Enforcement Act, an applicant must complete a notice of motion in Form 24:
(a) an order for access to information under section 9 of the Act;
(b) an order extending the time for filing a statement of finances under section 13 (4) of the Act;
(c) an order requiring the debtor to file a statement of finances or prescribed documents or both under section 14 (1) (a) of the Act;
(d) an order requiring the debtor to pay an amount on failing to file a statement of finances or prescribed documents under section 14 (1) (b) of the Act;
(e) an order for payment by an attachee under section 16 (3) or 24 (6) of the Act;
(f) an order determining liability under a notice of attachment or determining a related issue under section 16 (5) of the Act;
(g) an order changing an order made under section 21 (1) or (2) of the Act;
(h) an order changing the amount exempt from attachment under an attachment order or notice of attachment;
(i) an order setting aside an attachment order made under section 24 of the Act;
(j) an order under section 26 (10) of the Act discharging or postponing the registration of a maintenance order registered against land;
(k) an order requiring an individual or authorized representative of a corporation, partnership or proprietorship to attend a default hearing or committal hearing and to file financial information under section 39 (1) of the Act;
(l) a restraining order under section 46 of the Act;
(m) an order that a corporation is jointly and separately liable with the debtor for payments required under the maintenance order under section 14.2 (2) of the Act;
(n) an order that the Director of Maintenance Enforcement direct the Insurance Corporation of British Columbia to disregard a notice not to issue or renew the driver's licence of a debtor under section 29.2 (2) of the Act.
(4) An applicant under subrule (2) or (3) must file, in the registry where the order to be enforced is filed, the original and 3 copies of
(a) the completed form, and
(b) any documents listed in the form.
(5) Unless a judge grants permission to use a different method of service under rule 9 (7), a summons (Form 7, 7A or 7B) issued in response to a request under subrule (2) and a filed copy of the request and each accompanying document must be served on the respondent at least 3 days before the date of the hearing referred to in the summons as follows:
(a) a clerk may have them served on the respondent by mail or fax or personally by a peace officer or any adult other than the applicant;
(b) the applicant may have them served on the respondent by mail or fax or personally by any adult other than the applicant.
[am. B.C. Reg. 103/2001, s. 2.]
(6) If a respondent who is served with a summons issued under subrule (2) does not appear in court as required by the summons, the judge may issue a warrant in Form 8 for the arrest of the respondent.
(7) Rule 6 (11) to (15) (a) applies to a warrant issued under subrule (2) (g) or (6) of this rule.
(8) Unless a judge grants permission to use a different method of service under rule 9 (7), an applicant under subrule (3) must have a filed copy of the notice of motion and any accompanying documents served on the respondent by mail or fax or personally by any adult other than the applicant.
(9) The following rules apply to an application under subrule (3) and to proceedings that follow the issuance of a summons to a request under subrule (2):
(a) rule 8 [trial preparation conference];
(b) rule 9 [other rules about service and proving service];
(c) rule 12 (1) (b) and (2) to (4) [applying by notice of motion for orders or directions];
(d) rule 13 [affidavits];
(e) rule 18 [orders];
(f) rule 19 [transfer of files];
(g) rule 20 [general].
(1) An order takes effect on the day it is made by a judge unless the judge orders otherwise.
(2) Unless the judge orders otherwise, if the party in whose favour an order is made is represented by a lawyer, the party's lawyer must, as soon as practicable, prepare the order
(a) in Form 25, if the order is a restraining order made under section 37 of the Family Relations Act or section 46 of the Family Maintenance Enforcement Act, or
(b) in Form 26, in any other case.
(3) Unless the judge orders otherwise, if the party in whose favour an order is made is not represented by a lawyer, a clerk must, as soon as practicable, prepare the order in the applicable form.
(4) Unless a judge orders otherwise, an order that is prepared by a party's lawyer and is not made by consent under section 10 of the Family Relations Act must be signed as approved
(a) by the party's lawyer, and
(b) if any other party is represented by a lawyer, by the other party's lawyer.
(5) A party may apply by notice of motion to a judge under rule 12 to settle the terms of an order if there is a dispute about the terms.
(6) After an order is signed as approved in accordance with subrule (4),
(a) it must be delivered to the registry to be signed by a judge, filed with the court and date stamped with the registry stamp, and
(b) any document required by a judge to be filed with the order must be delivered for filing at the same time, or the order ceases to have effect.
(7) Unless the judge orders otherwise, after an order is signed by the judge and filed with the court, a clerk must provide a filed copy of the order to the parties or their lawyers.
(8) Any judge may correct, at any time, a clerical mistake or omission in an order.
(1) On application by notice of motion to a judge under rule 12, the judge may order that a file be transferred to another registry.
(2) The transfer application must be made in the registry where the file is located or, if the application relates to an order or agreement referred to in rule 2 (2), the applicant must apply to a judge at the registry where the order or agreement is filed.
(3) The application to transfer may be made for the purposes of all or any part of the proceedings.
(4) Before granting permission to transfer a file to another registry or to file an application at another registry, the judge must consider
(a) the balance of convenience, and
(b) any special circumstances that exist.
(5) A clerk may transfer a file to another registry for the purposes of all or any part of the proceedings, if the parties
(a) complete a consent to the transfer in Form 27, and
(b) file the consent in the registry where the file is located.
(6) A clerk may transfer a file to another registry, for the purposes of one application or for all purposes, if
(a) only one of the parties, other than the Director of Maintenance Enforcement, resides in British Columbia, and
(b) the party residing in British Columbia files with the registry a written request for the transfer.
(1) Whether or not the parties consent, a judge may adjourn a trial or hearing to a specific date or without setting a date.
(2) A judge may, at any time,
(a) waive or modify a time limit set by these rules or by an order of the court, even after the time limit has expired,
(b) waive or modify any service, delivery or notice requirement under these rules, and
(c) permit any other means of proof instead of that required by these rules.
(3) If a matter is urgent or special circumstances exist, a judge may make an order without a person having been served with a copy of an application, summons or notice of motion.
(4) A judge may change or cancel an order made in the absence of a person, or made when the person failed to file a reply, if
(a) there is a good reason for changing or cancelling the order, and
(b) that person applies by notice of motion to a judge under rule 12 within a reasonable time and attaches to the application an affidavit containing
(i) the reason the person did not file a reply or attend before the court when required,
(ii) the reason for any delay if there has been delay in filing the application, and
(iii) the facts that support the application.
(5) A judge may, at any time, do one or more of the following:
(a) order that a person be given notice of a trial or hearing;
(b) order that a person be added as a party for purposes of a hearing or the proceedings generally;
(c) dispense with a requirement that notice of a trial or hearing be given to a person who is not a party.
(6) On application by notice of motion to a judge under rule 12, the judge may order a person who possesses or controls a record that is relevant to the proceedings and on whom notice has been served in accordance with rule 12 (1) (b) to produce the record for inspection and copying on the date, at the time and place and in the manner the judge thinks is fair.
(7) With a judge's permission, a copy of a document may be used in court instead of the original.
(8) A judge may give directions on any procedural matter that is not provided for in these rules or an enactment.
(9) A person must not disclose any information contained in a record filed under rule 4 [financial information] except to the extent necessary for the purposes of an application under the Family Relations Act.
(10) No one is entitled to search a registry file respecting an application under the Family Relations Act, an agreement filed under section 121 of that Act or an application under the Family Maintenance Enforcement Act except
(a) a party,
(b) a party's lawyer,
(c) a person who is named in the application as a respondent or who is named as a party to the agreement, as the case may be,
(d) a family justice counsellor, or
(e) a person authorized by a judge.
(11) If an applicant or respondent does not comply with these rules, a judge may
(a) cancel a step taken or an order made or disregard a document filed in the course of the proceedings,
(b) order the trial or a hearing to continue as if the applicant or respondent were not present, or
(c) make any order or give any directions that the judge considers necessary and advisable in the circumstances, including an order dismissing or granting an application or counterclaim made.
(12) A copy of a written agreement referred to in section 121 (2) of the Family Relations Act may be filed in a registry and, if the agreement was made before July 1, 1995, a consent of the parties, in Form 28, must be filed with the agreement.
(13) The chief judge of the court may issue practice directions consistent with these rules and their purpose.
(14) For the purpose of proceedings commenced before December 1, 1998, the Provincial Court (Family) Rules, as they read before that date, apply.
Rule 21 — Parenting after Separation Program
(1) In this rule:
"Certificate of Attendance" means a certificate issued on behalf of the Ministry of Attorney General attesting that the person named has attended at a Parenting after Separation Program;
"designated registry" means the following registries: Abbotsford, Kamloops, Kelowna, Nanaimo, New Westminster, Port Coquitlam, Prince George, Surrey, Vancouver (Robson Square) and Victoria;
"party" includes a respondent who has not yet filed a reply within the time allowed under rule 3;
"program" means the Parenting after Separation Program operated by the Family Justice Services Division of the Ministry of Attorney General;
"program administrator" means a person employed by the minister to review exemption requests made under subrule (6).
[en. B.C. Reg. 102/2001, s. 3; am. B.C. Reg. 159/2003, s. 3.]
(2) The purpose of this rule is to promote the best interests of children by providing a program of information, the Parenting after Separation Program, to persons in dispute over issues respecting children.
[en. B.C. Reg. 102/2001, s. 3.]
(3) Subject to the exceptions set out in subrule (4), this rule applies to the following applications if the application is filed in a designated registry or the court file for the proceeding is transferred under rule 19 to a designated registry:
(a) for child custody, access or guardianship;
(b) for child maintenance;
(c) to change or cancel an order for anything listed in paragraph (a) or (b);
(d) to change or cancel an agreement for child custody, access or guardianship or child maintenance that was filed under the Family Relations Act.
[en. B.C. Reg. 102/2001, s. 3.]
(4) None of the parties need attend the program if one of the parties files a request for the purpose of exemption in Form 31 and
(a) a consent order is filed that resolves all issues involving children,
(b) a director under the Child, Family and Community Services Act is a party,
(c) the application is for child support only and a party has assigned child maintenance rights to the government under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act, or
(d) the application is made under Part 8 of the Family Relations Act.
[Part 8 of the Family Relations Act concerns maintenance orders if one party lives outside BC]
[en. B.C. Reg. 102/2001, s. 3; am. B.C. Reg. 159/2003, s. 3.]
(5) A party need not attend the program if that party files a request for the purpose of exemption in Form 31 correctly stating that the party has attended and completed the program in the 24 months immediately preceding the date of filing the declaration.
[en. B.C. Reg. 102/2001, s. 3.]
(6) A party is exempt from this rule if the party provides to the program administrator a request for the purpose of exemption in Form 31 that correctly states one of the following reasons:
(a) the party is not fluent in a language in which the program is offered;
(b) the party resides in a community where the program is not offered;
(c) the party is incapable of attending due to a serious medical condition.
[en. B.C. Reg. 102/2001, s. 3.]
(7) On application a judge may dispense with or defer the application of this rule to one or more parties if
(a) a party has applied for an order under section 37 or 38 of the Family Relations Act, or
(b) the judge is satisfied that urgent and exceptional circumstances exist requiring a judge to hear the matter at the earliest opportunity.
[en. B.C. Reg. 102/2001, s. 3.]
(8) Subject to subrules (4), (5), (6) and (7), a date for a first court appearance will not be set until either the applicant or respondent files in the registry a Certificate of Attendance.
[en. B.C. Reg. 102/2001, s. 3.]
(9) If this rule applies, but subject to subrules (4), (5), (6) and (7), both the applicant and respondent must attend the program and must file in the registry a Certificate of Attendance on or before the date of the first court appearance.
[en. B.C. Reg. 102/2001, s. 3.]
Copyright © 2005: Queen's Printer, Victoria, British Columbia, Canada