A Guide to the Supreme Court BC Divorce and Family Law Process

People often ask me how many substantial BC divorce cases I handle, I tell them “every divorce case I handle is substantial, because all the person has is at stake”.

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

Commencement of Action by Plaintiff

In British Columbia, the BC divorce or if you are unmarried the proceedings are started by a Writ of Summons and a Statement of Claim which act as a table of contents for the Court, so the Court knows the position of the Plaintiff. It is very common for initial pleadings to claim broad relief.

The Defendant’s Response

The Defendant is then served with these pleadings and given up to 21 days to provide a Statement of Defence where the Defendant indicates what he or she agrees to in the Plaintiff’s pleadings and what he or she does not agree to in the Plaintiff’s proceedings. The Defendant is also entitled to file a Counterclaim where the Defendant sets out a table of contents of the relief that he or she will be seeking in the action. Again, it is common for the Defendant to throw a broad net when claiming relief.

A Trial Date Takes Time

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

Interim Relief

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

Judicial Case Conference Process

Generally, the Supreme Court is moving towards an attempt to try to settle family matters at an early stage. As a result of this goal of the Courts, a Judicial case conference is set up within 3 to 4 weeks from when a Statement of Defence and Counterclaim is filed. The purpose of the Judicial Case Confernce is to try to narrow the issues between the parties and reach consensus if possible and in some cases reach an overall settlement of the case. Generally speaking, Chambers applications for interim relief are not allowed to proceed until the parties have been in front of a judge to speak on a “without prejudice” basis about an overall settlement of the matter or about at the very least narrowing the issues between the parties. No orders can be made without consent but procedural directions concerning document disclosure and the schedule for hearings discoveries and a trial date can be dealt with at this first hearing.

Discovery of Documents and the Plaintiff and Defendant

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

Discovery may be a simple speedy process or one consuming a great deal of time, energy and money. Generally, the latter detailed discovery will occur where one spouse believes the other spouse has not been forthright about their financial position or on other issues. You can discuss with us Interrogatories, demands for Lists of Documents, how a discovery works, and what use is made of the transcripts (which are typed up when each of the parties is examined under oath at the offices of a Court Reporter).

Negotiated Settlement

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

Trial

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

Critical Rules for a Party to a Divorce to Follow

1. Try to deal with the stress of the case and with your spouse and children in a reasonable mature fashion.
2. Never enter into an agreement with your spouse without the benefit of your counsel’s legal advice.
3. Remember if you criticize your spouse in front of the children you diminish your own child as well.
4. Remember, anything you say to your spouse can and will likely show up in a written document or be presented to the judge. Thus, do not say anything that you would not feel comfortable having repeated in front of the judge hearing your case.
5. Do not hide evidence, or mislead the court in the proceeding. Even one misstatement is too many and will cause your credibility on other issues to be sadly lacking. It may be that a judge disbelieves all of your truthful statements, because of one careless misstatement made during the proceedings. Do not attempt to hide evidence for assets or to destroy or get rid of financial documents.
6. Your divorce will be stressful, but it will not be the end of the world.
7. It is not uncommon for spouses to be angry at the start of the BC divorce, but to gain perspective and become more rational as the proceedings go on.
8. Remember that your spouse may not have been the greatest husband or wife during the marriage, but that you will be parents forever of your children.

Variation and Enforcement

In some cases after a trial has been completed, circumstances of the parties change such that a variation of support whether spousal or child or a variation of custody may need to occur. Basically, the parties will need to show there has been a substantial change of circumstances since the Order was made and that such a change, if known to the judge at the time of the Order would have led to a different court order being made.

Enforcement
If you are seeking to enforce a child or spousal support order after enforcement, you should be aware of the Family Maintenance Enforcement Program. Click here for more information.