family law court forums BC

A family law proceeding may be commenced in either the Supreme Court or Provincial Court, the latter often being referred to as “family court”.

Which of these “forums” you choose for your family law matter depends on several criteria, including:

  • What type of remedy you are seeking?
  • What type of procedural mechanisms or interim orders you may need to obtain this remedy or make it more likely?
  • Where and how you hope to enforce the court order you obtain?; and
  • The complexity of your case, whether you intend to represent yourself or if you’re willing to pay for a lawyer to do so?

We have previously commented on the importance of knowing particular limitation dates when commencing a family law action here. Likewise, knowing in which forum to commence your claim can ensure that you obtain the proper remedy as efficiently and cost-effectively as possible.

The Provincial Court

The Provincial Court can hear claims and make orders relating to the following issues under the Family Law Act and the Interjurisdictional Support Orders Act:

  • guardianship
  • parental responsibilities and parenting time
  • contact with a child
  • child support
  • spousal support
  • changing and cancelling Provincial Court orders
  • enforcing Provincial Court orders
  • enforcing Supreme Court orders about guardianship, parental responsibilities, parenting time, and contact, and
  • relocation.

The Provincial Court does not have the jurisdiction to make orders for:

  • the division of family property or family debt
  • the management of children’s property
  • financial restraining orders
  • declarations about the parentage of a child (except if necessary, to deal with another claim about children, like a claim for child support or guardianship), and
  • obtaining a divorce order.

At times, the Provincial Court Act permits Provincial Court judges at certain court locations to make interim orders for custody, access or support under the Divorce Act.

In terms of enforcement, the Provincial Court is the usual forum for applications to enforce support orders under the Family Maintenance Enforcement Program (FMEP), unless this is sought through the sale of family property or other property.

The Provincial Court is generally most accessible court for people unrepresented by a lawyer. The Provincial Court Family Rules which govern the Provincial Court’s process are more user friendly, and the court doesn’t charge any filing fees. There are no costs awards, so a successful party will not recover costs. Additionally, family duty counsel and family justice counsellors, who do not charge for their time, are often available in Provincial Court to assist with your family law matter.

The Supreme Court

Unlike the Provincial court, the Supreme Court has the authority to deal with all family law issues, including:

  • the division of family property or family debt
  • order for exclusive occupation of the family residence
  • the management of children’s property
  • financial restraining orders
  • making orders affecting extra provincial property
  • making orders to serve a party outside of BC
  • declarations about the parentage of a child (except if necessary, to deal with another claim about children, like a claim for child support or guardianship), and
  • obtaining a divorce order.

The Supreme Court can also divide assets between people who aren’t spouses under the common law, issue restraining orders freezing financial assets even of third parties, and to join different claims in one cause of action (provided the claims are related to or connected with the family law proceeding). The Supreme Court also hears appeals from decisions of the Provincial Court.

In terms of obtaining interim orders, it may be faster to obtain an interim order on a chambers application brought in Supreme Court on an urgent basis. Many Provincial Court registries deal with family matters on certain designated days of the week, thereby limiting the availability of hearing dates. That said, a party to a family law proceeding in Supreme Court is required to attend a judicial case conference before serving an application for an interim order unless there is some particular urgency to the application.

Some procedural mechanisms for disclosure, which may be essential for determining particular issues, such as your spouse’s income for the purpose of support payments or the value of real property for a fair division of assets, are also only available in the Supreme Court. This includes examination for discovery of a party before trial, the examination of persons out of province, and the pre-trial examination of witnesses. Accordingly, if your case hinges on documents or other evidence in the hands of your spouse or a third party, the Supreme Court is likely the better forum to use for your family law matter.

In terms of enforcement, only the Supreme Court has the power to order that another party pay your legal fees and expenses if you are successful in the proceedings; and the threat of a “costs order” may provide an unreasonable or obstructive party with sufficient incentive to be more co-operative or reasonable in adhering to a separation agreement or prior court order.

The Supreme Court is much more formal than the Provincial Court. While it is possible to represent yourself in the Supreme Court, the Supreme Court Family Rules which govern the Supreme Court’s processes are complicated and are applied strictly. There are also fees for filing a claim in Supreme Court.

For these reasons, the assistance of a lawyer is highly recommended when proceeding in the Supreme court especially.

Consulting a Divorce Act & Family Law Professional

There are a number of factors to consider before filing a family law claim, especially when it comes to family disputes that require a division of assets or child and spousal support claims. To avoid confusion, delays, and frustrations – it is recommended to speak with professional legal counsel to answer any questions one may have.

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