Supreme Court Decision Summarizes Law on Costs

In the recent case of Schuller v. Roback, the court has been called upon the explain the thorny, vexing and generally irksome area of the law known as "costs." Costs has a special legal meaning; it's not the bill of the client's lawyer and it's not the client's out-of-pocket expenses for photocopying, court fees and so forth. Costs are a way of compensating someone for the overall expense and hassle they've been put to as a result of having to go to court, and costs are only available in the Supreme Court.

Costs are usually awarded to the person who is mostly successful in a law suit or an application, and in a way they function like an idiot tax. It the person making the application wins, the respondent shouldn't have fought the application and has to pay the applicant's costs; if the person making the application loses, the application shouldn't have been brought in the first place and the applicant has to pay the respondent's costs.

The rule on costs is Rule 16-1 and says that the court can award costs as ordinary costs or "special costs." Ordinary costs are calculated under Appendix B to the rules; special costs are awarded only in those rare cases where someone's conduct has been utterly unreasonable or frustratingly obstructive and amount to the whole of the lawyer's total bill plus disbursements. Under Appendix B, ordinary costs are calculated according to a schedule of fixed rates for particular activities, like drafting pleadings, arguing an application or writing letters, that are common to all law suits and the rates vary depending on whether the case was less difficult than usual, usual, or more difficult than usual. Ordinary costs assessed at the scale for usual difficulty might amount to 40 to 50% of a lawyer's bill.

Anyhow, the reason why I'm writing about Schuller v. Roback is because the law on costs in family law is all over the place. In the past there seemed to be two kinds of cases on costs in family law, one which said that family law is special and awards of costs can upset the delicate balance the trial judge has achieved making orders for support and division of assets, and other which said that family law is like any other kind of civil law and the party who is mostly successful should get his or her costs. Although the costs-are-costs cases seem to have won the battle, you still see an awful lot of cases where no costs order is made or the judge orders each party to bear their own costs... even when the result looks an awful lot like one party was more successful than the other.

In Schuller, after judgment had been given, the applicant sought an order that each party bear their own costs while the respondent asked for an order that he have "double costs" of the application, assessed at the rate for cases of more than usual difficulty.

First, the court discussed the basic idea about which party should have his or her costs, beginning with the leading case under the old rules.

"[15] Under the former Rule 57(9), costs normally followed the event, and went to the party who enjoyed 'substantial success.' This Court's discretion to depart from awarding costs to the successful party must be exercised judicially: Gold v. Gold."

The rule about costs under the new rules of court is Rule 16-1(7) and says that "costs of a family law case must be awarded to the successful party unless the court otherwise orders."

"[16] The new Rule does not incorporate the same reference to 'substantial success' but the Court retains the discretion to refuse an award for costs despite the success of the party making application for costs: Gain v. Gain.

"[17] In Gold the Court described the considerations that should instruct the Court in evaluating a claim for costs:

The question, then, is: when should the Court order otherwise? ... when the court should order otherwise is a matter of discretion, to be exercised judicially by the trial judge, as directed by the Rules of Court. To lay down any strict guidelines or even to attempt to give exhaustive examples is not, I think, helpful because the facts and issues in each family law case vary so greatly. Factors such as hardship, earning capacity, the purpose of the particular award, the conduct of the parties in the litigation, and the importance of not upsetting the balance achieved by the award itself are all matters which a trial judge, quite properly, may be asked to take into account. Assessing the importance of such factors within the context of a particular case, however, is a matter best left for determination by the trial judge."

Costs, then, continue to be discretionary under the new rules as they were under the old, but the starting point is set out in Rule 16-1(7): costs go to the successful party. But who is responsible for proving that costs should be awarded in any other manner?

"[18] The onus of persuading the court that it should depart from the usual rule that the successful party is entitled to costs rests on the unsuccessful litigant: Rattenbury v. Rattenbury."

And what happens when there is divided success, when each party is partially successful?

"[24] In cases where one party has achieved substantial success, the court may nonetheless award only a portion of the substantially successful party’s costs: Cohen v. Cohen, Newstone v. Newstone and Rolls v. Rolls."

Next, the court discussed the rules about when someone should have "double costs" under Rule 11-1(5). This rule says that when someone makes an offer to settle — a written proposal of terms on which an application or a law suit could be resolved — the court can deprive someone of costs even if they've won or give an offeror double costs whether they've won or lost, taking into account the factors set out a subrule (6):

In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

Essentially, said the court, an award of double costs is intended to punish a party who rejects a reasonable offer:

"[31] The issue of awarding double costs was recently reviewed in Hartshorne v. Hartshorne. The rationale for the Rules ... emphasizes that an award of double costs is a 'punitive measure against a litigant for that party's failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted'."

The court then looked at the circumstances of the parties, the application and the offer to settle, considering the 11-1(6) factors and the decision in Hartshorne:

"[35] In my view [the respondent's] offer was delivered in a timely way. However it was a lengthy proposal and not easily evaluated. The offer included a readjustment of the division of family assets which was a claim not properly before the Court at this time. ...

"[36] In my view this offer was overbroad and while it was open for acceptance it would not have been reasonable for [the applicant] to accept the terms. I also note that some terms were simply 'nuisance' terms that [the applicant] could not accept.

"[37] Subrule (6)(b) also refers to the relationship between the offer and the final judgment of the court. Again, the offer addressed many issues on which [the respondent] did not succeed ... [the respondent] failed to achieve a result equal to or better than his offer on [a number of points] ...

"[39] ... In view of the results of the ... applications, [the applicant's] failure to accept the offer from [the respondent] was not unreasonable and she should not suffer the punishment contemplated in Hartshorne.

[40] Subrule (6)(c) invites the court to consider the relative financial circumstances of the parties. Although I have considered that [the applicant's] financial circumstances do not rise to the level of hardship for the purposes of refusing [the respondent's] claim for costs, I am mindful that her obligations and means are limited. In my view, the state of [the applicant's] financial circumstances also militates against an order for double costs.

[41] In view of [the applicant's] circumstances, the fact that the offer to settle was not one that could reasonably have been accepted and that [the respondent's] measure of success was divided leads me to conclude that this is not a case warranting an award to [the respondent] of double costs.

Summarizing these factors, in rejecting the respondent's claim for double costs as a result of his offer to settle under Rule 11-1(5), the court took into account:

• whether the offer was delivered in a timely manner relative to the application;
• the complexity of the offer;
• whether the offer dealt with issues not before the court on the application;
• the presence of terms unacceptable on their face;
• the number of issues on which the result was as good as or better than the offer; and,
• the applicant's financial circumstances.

Finally, the court considered the respondent's claim for costs assessed at more than usual difficulty.

[45] ... Bouck J. described the test of what is necessary to succeed in a claim for costs at the higher scale in Bradshaw Construction Ltd v. Bank of Nova Scotia:

To get an assessment out of the category of 'ordinary' difficulty under Scale 3, into the categories of 'more than ordinary difficulty'; Scale 4, or to 'matters of unusual difficulty'; Scale 5, it is necessary to show a higher degree of difficulty. Scale 5 uses the word 'unusual'. Its dictionary meaning is 'not often occurring or observed, different from what is usual; out of the common, remarkable, exceptional.' Therefore, the question is whether the collection and proof of the difficult facts were uncommon, remarkable or exceptional events? I do not believe they were.

"[46] The evidence did not rise to the level of more than ordinary difficulty. The affidavits recounted each parties' understanding of the facts and there was little conflict or difficulty in explaining the facts ... this application did not engage uncommon, remarkable or exceptional events or circumstances ... nothing in the applications engaged a difficult issue of law or fact. [The respondent's] efforts were not uncommon, remarkable or exceptional."

At the end of the day, the respondent failed to receive double costs or have his costs assessed at more than the usual level of difficulty. Because success was divided, the ordinary costs awarded to the respondent were offset by the ordinary costs awarded to the applicant. And as for the costs of the application on costs?

"[58] The parties will each bear their own costs of this application."

This case is perhaps unremarkable in its result, however it deserves to be noted for its extremely helpful digest of the case law on costs and its application of the cases determined under the old rules to the new rules.

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Supreme Court Releases Decision on Agents Appearing in Court

The British Columbia Supreme Court has just released a decision, in the case of Ambrosi v. Duckworth, on the right of parties to have people other than lawyers appear in court on their behalf.

The problem arises from s. 15(1) of the Legal Profession Act which says that "no person, other than a practising lawyer, is permitted to engage in the practice of law;" s. 85 of the act makes it an offence, punishable under the Offence Act, to contravene s. 15. The Legal Profession Act offers a few exceptions to this general prohibition:

• a party to an action may represent him- or herself;
• any person who is entitled to vote in British Columbia may represent someone if the narrow criteria of the Court Agent Act apply (if there are fewer than two practising lawyers in town or if there are fewer than two lawyers with offices within 8km of the courthouse);
• a non-lawyer employed by the Legal Services Society may represent someone within the limits of s. 12 of the Legal Services Society Act; and,
• an articled student may represent someone to the extent permitted by the Law Society.

However, regardless of the Legal Profession Act, the court has the inherent right to control its own process and may, on a case by case basis, allow a non-lawyer to represent someone. That was the issue in Ambrosi when the applicant asked the court for leave for someone to speak on his behalf and present his application.

The judge began his analysis by looking at a 2002 case from the Court of Appeal, R. v. Dick (I've put the important bits in bold):

"[6] The Crown raised a preliminary objection ... and brought to our attention several reasons why [the proposed agent] should not be accorded the privilege of audience. We use the word 'privilege' advisedly, there being clear authority for the proposition that, subject to statutory provisions otherwise, it lies within a court's discretion to permit or not to permit a person who is not a lawyer, to represent a litigant in court. In particular we note the judgment of Lord Denning in Engineers' and Managers' Association v. Advisory, Conciliation and Arbitration Service et al. ... where it was said that the discretionary power to grant a privilege of audience to other persons should be exercised 'rarely and with caution' ...

"[7] There are strong public policy reasons for this general rule. Each court has the responsibility to ensure that persons appearing before it are properly represented and (in the case of criminal law) defended, and to maintain the rule of law and the integrity of the court generally. As was said by the Ontario Court of Appeal in R. v. Romanowicz ... :

'The power to refuse audience to an agent must be invoked whenever it is necessary to do so to protect the proper administration of justice. The proper administration of justice requires that the accused's constitutional rights, particularly the right to a fair trial, be protected. It also requires the fair treatment of other participants in the process (eg. witnesses) and that the proceedings be conducted in a manner that will command the respect of the community.

'It is impossible to catalogue all of the circumstances in which representation by a particular agent would imperil the administration of justice and properly call for an order disqualifying that agent. Obviously, representation by agents lacking the ability to competently represent an accused endangers all aspects of the proper administration of justice, particularly the accused's right to a fair trial. Other examples where the administration of justice would suffer irreparable harm if an agent were allowed to appear are found in the material filed on this appeal. ... [There may be] situations in which the agent's criminal record or other discreditable acts are such as to permit the conclusion that the agent cannot be relied on to conduct a trial ethically and honourably.'"

To summarize this somewhat:

1. The court has the discretion to allow an agent to represent a litigant.
2. This discretion should be exercised with restraint, and should be exercised in bearing in mind the need to ensure that the litigant is well-represented, the rule of law is maintained and the integrity of the court is preserved.
3. The court should refuse to allow an agent to act when necessary to protect the proper administration of justice. This might be the case where an agent is incompetent or is unlikely to conduct him- or herself in an ethical manner.

Although the applicant presented a number of good reasons why the agent should be allowed to represent him, including the prejudice to his right to a fair hearing, his constitutional right to freedom of expression, his entitlement to appear by an agent of his own choice, and his right to have access to justice, the respondent presented a lengthy body of court decisions reflecting poorly on the proposed agent's past conduct in court. Ultimately, the judge held that:

"[55] I have not been convinced that I should exercise my discretion to allow [the proposed agent] to appear as agent for Mr. Ambrosi. I am satisfied that it would not be in the interest of justice to allow [the proposed agent] to appear as agent. ... I am satisfied that Mr. Ambrosi can afford a lawyer if he wishes, or may even be able to find someone more appropriate to appear as his agent. ..."

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Supreme Court Releases Decision on Vexatious Litigants

The Supreme Court has helpfully summarized the law on vexatious litigants in a new case, Vancouver City Savings Credit Union v. Randhawa.

In a nutshell, this issue has to do with the court's authority to control its own process and the parties before it. It can happen, but doesn't with great frequency, that a person will use the court system to initiate frivolous actions and applications seeking impossible orders without a real foundation in law. Sometimes these are the people whose make claims that the RCMP is attempting to control their thoughts through their toaster, and in the course of their claim against the RCMP also sue the Attorney General, Premier, Prime Minister and Queen for good measure. At other times, these are the people who have a legitimate grievance but lack the judgment to distinguish between the trivial and the substantive. Both sorts of litigant tend to appeal the judgments they don't like and appeal lost appeals, and their litigation gets stuck in an endless cycle of losing applications and losing appeals; these litigants lack the ability to understand that when the court says "enough," the court really means enough.

Section 18 of the Supreme Court Act provides an instructive gloss on the court's inherent jurisdiction to control its own processes and says the following, under the heading Vexatious Proceedings:

"If, on an application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court."

In other words, the court can require that a litigant not start an action, or bring an application in an action, without getting permission first.

For people stuck in endless meretricious litigation this can be a boon! Normally, you see, a litigant has the right to sue whomever he or she wishes, and, once the action is commenced, the right to apply for whatever orders strike his or her fancy whenever the moon is in the right phase. Normally, however, people exercise good judgment and are somewhat restrained by cost to bring only those actions and applications which are in fact meritorious.

In the Vancouver City Savings case, the credit union applied for a s. 18 order that the respondents:

"... be prohibited from initiating any legal proceedings, including but not limited to interlocutory applications, against VanCity, or any of its officers, agents or employees without leave of the court."

The judge began his analysis quoting from the 2010 Supreme Court decision in Holland v. Marshall (I've put the key elements in bold):

"[7] To succeed on an application pursuant to s. 18, the applicant must demonstrate:

1. that the proceedings are vexatious in the sense of having been taken in the absence of objectively reasonable ground; and

2. that proceedings have been brought habitually or persistently, such that the litigant has continued obstinately in the course of conduct, despite protests or criticism. (British Columbia) Public Guardian and Trustee v. Brown, 2002 BCSC 1152.

"[8] In Lang Michener v. Fabian ... the Ontario High Court described the characteristics of a typical vexatious proceeding:

(a) bringing one or more actions to decide an issue which has already been determined by a court of competent jurisdiction;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

(c) actions brought for an improper purpose, including the harassment or oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings;

(f) persistently taking unsuccessful appeals from judicial decisions; and

(g) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action."

After a relatively succinct review of the lengthy history of proceedings, the judge said this:

"It is as apparent to me ... that the respondents have persisted in bringing 'a raft of doomed applications'. They have done so in the face of clear judicial pronouncements, directions or advice explaining the lack of jurisdiction of this court to set aside final orders or to revisit issues that have already been decided. ...

"It is apparent to me that in the face of the judicial criticism, advice and direction the respondents will simply continue to bring applications in this proceeding which have no objective or reasonable basis. They are acting habitually and persistently in the face of judicial direction and criticism."

As you might expect from concluding comments like these, the credit union obtained the order sought.

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Changes to Vancouver Chambers Practice in Effect Monday

Chambers practice in the Supreme Court's Vancouver registry has been extraordinarily difficult for some time now. "Chambers" is where applications for orders before trial and applications for final orders on affidavit evidence are heard, and on any given day in Vancouver there might be forty or more applications set to be heard by a master and a twenty or more applications, usually lengthy ones, to be heard by a judge. However, each day only one judge and one master are assigned specifically to chambers and there's only four and a half hours in the court day!

Long wait times are nothing new but it has been increasingly difficult to get dates for lengthy chambers applications in reasonable time, and the overflow list of applications set for a specific date that could not be put before a judge or master is itself overflowing. (The court's list of available dates is publicly available on the court's website.) Opinion among the bar is mixed as to the cause, but three theories have risen to the top of the pond:

1. there aren't enough judges or masters;
2. court services is underfunded and there aren't enough registry staff; or,
3. the new Supreme Court Rules are somehow to blame.

Personally, I'm more inclined to number two; I know there are times in New Westminster and Vancouver where the court registry is drained of staff to serve as clerks in court and there still aren't enough staff!

Regardless of the ultimate cause, Chief Justice Bauman has announced (PDF) changes coming into effect in Vancouver on Monday 3 October 2011 intended to address these problems.

1. Registry staff will automatically bounce all applications where an application record is not received before the deadline prescribed in the court rules — 4:00pm on the business day that is one full business day before the date set for the hearing — rather than have them bounced by the court clerk.
2. Masters' chambers will be split into two lists, general civil and family law, and an extra master will be assigned to chambers when the list is full.
3. All applications set for judges' chambers under two hours will be sent off to Courtroom 31 to be referred to other courtrooms as judges become available, rather than having everyone mill around in the court registry.
4. Unscheduled applications, usually applications for short leave and for urgent orders, will go up to judges' or masters' chambers as before, but will be heard at the discretion of the presiding judge or master rather than automatically heard after short matters are heard.

I'm not sure what the practical results of 1, 3 and 4 will be, but I am excited about 2. This is the way things used to be until family and civil chambers were merged a number of years ago, and the assignment of an extra master will really help to clear the chambers lists.

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Court of Appeal Issues New Practice Directives

The Court of Appeal has announced (PDF) a new set of Practice Directives and Practice Notices which will come into effect and replace the old set on 19 September 2011. Practice Directives and Practice Notes are special rules issued by the Chief Justice to govern aspects of court procedure not covered by the formal Rules of Court.



Each level of court has it's own set of special rules like these. In the Supreme Court, "Practice Directions" are issued by that court's Chief Justice. The Practice Directions of the Provincial Court are issued by the Chief Judge.

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Provincial Court Reviewing Rules: Lawyers' Feedback Sought

The Provincial Court has issued a Notice of Consultation (PDF) announcing that a committee has been struck to review the Provincial Court (Family) Rules to ensure the rules will work with any new provincial family law legislation which may be passed, such as that proposed by last summer's white paper (PDF).



In light of the opportunity offered by this review, the notice invites lawyers to provide their comments on how the current Provincial Court (Family) Rules could be improved generally. Comments are to be provided by email to Ms Erin Shaw at erinshaw@shaw.ca and must be received by 9 October 2011.

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Jurisdictional Disputes in the Supreme Court

I was reminded yesterday of the interesting provisions the new Supreme Court Family Rules make for challenging the court's jurisdiction over a claim or a person, or the adequacy of service. Here's a summary.

Under Rule 18-2(1), if you've been served with a Notice of Family Claim or Counterclaim and believe that the British Columbia courts don't have jurisdiction or if you believe you were served improperly, you can file and serve a Jurisdictional Response in Form F78.

A Jurisdictional Response lets everyone know that you have a fundamental problem with the claim that has been brought against you, and allows you take certain steps in the proceeding without being considered to have attorned to the jurisdiction of the court. (To "attorn" means to submit to the court's authority, and once someone is found to have "attorned to the court" they can sometimes be prevented from subsequently disputing the court's jurisdiction. People commonly attorn to the court's jurisdiction by filing a response or claim in a proceeding.) Under Rule 18-2(1) and (3), once you have filed your Jurisdictional Response you can:

1. apply to have the claim struck or stayed on the basis that the facts alleged in the claim, even if true, would not give the court jurisdiction in the case;
2. apply to have the claim struck or stayed on the basis that the court doesn't have jurisdiction over you; or,
3. allege in your response that the court doesn't have jurisdiction.

If you are the respondent, you must still file and serve your Response to Family Claim under Rule 4-3(1) even though you've filed a Jurisdictional Response. Under Rule 18-2(5), as long as you bring an application to strike or stay the claim within 30 days of filing your Jurisdictional Response, you can participate in the proceedings by filing a response (and even by making or defending an interim application) without being considered to have attorned to the court's jurisdiction.

This is a complicated subject and I admit that my explanation is a bit technical. Please feel free to post any questions as comments to this post, bearing in mind that I can't give legal advice about your specific circumstances.

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Child Abduction Cases and the Courts

I've spent much of the past week at a legal conference in Calgary (not the one featuring the Chief Justice, that was in Toronto). One of the sessions dealt with interprovincial and international child abduction and offered a lot of information I think might be of interest to a broader audience.

International Abduction

The website of the Hague Conference on Private International Law can be found at www.hcch.net. This is where you'll find a complete listing of the international Hague agreements on domestic relations, covering legal issues ranging from adoption to support obligations, as well as the Convention on the Civil Aspects of International Child Abduction. The Conference's child abduction case law database can be found at www.incadat.com.

Certain signatories to the convention on child abduction have offered up a member of their judiciaries to the International Hague Network of Judges, formed to support the convention by easing communication between the courts of signatory countries. The list of participating judges as of December 2010 can be found here (PDF); the Canadian judges are:

• Civil Law: L'hon. Juge Chamberland, la Cour d'appel du Québec
• Common Law: Hon. Madam Justice Diamond, Manitoba Court of Queen's Bench

The Central Authority for the convention in British Columbia is Ms. Penelope Lipsack of the Attorney General's office.

Interprovincial Abduction

The primary federal legislation on custody and access rights is the Divorce Act, RSC 1985, c. 3 (2nd Supp.). Although the Divorce Act contains no enforcement provisions, s. 20 provides that Divorce Act orders have effect throughout Canada and may be registered in the court of any province and be enforced as an order of that court. Another federal law, the Family Orders and Agreements Enforcement Act, RSC 1985, c. 4 (2nd Supp.) provides for the release of government information about a person for the purposes of enforcing orders about custody and access.

The current provincial and territorial legislation on the enforcement of custody and access rights is:

• Alberta: Extra-Provincial Enforcement of Custody Orders Act, RSA 1980, c. E-17, and Family Law Act, RSA 2003, c. F-4.5
• British Columbia: Family Relations Act, RSBC 1996, c. 128
• Manitoba: Child Custody Enforcement Act, CCSM c. C360
• New Brunswick: Family Services Act, SNB 1980, c. F-2.2
• Newfoundland & Labrador: Children's Law Act, RSNL c. C-13
• Northwest Territories: Children's Law Act, RSNWT 1997, c. 14 (PDF)
• Nova Scotia: Family Orders Information Release Act, RSNS 1989, c. 161, and Reciprocal Enforcement of Custody Orders Act, RSNS 1989, c. 387
• Nunavut: Children's Law Act, RSN 1990, c. C-13 (PDF)
• Ontario: Children's Law Reform Act, RSO 1990, c. C.12
• PEI: Custody Jurisdiction and Enforcement Act, RSPEI 1988, c. C-33 (PDF)
• Quebec: Code civil du Québec, SQ 1991, c. 64
• Saskatchewan: Children's Law Act, SS c. C-8.2
• Yukon: Children's Law Act, RSY 2002, c. 31 (PDF)

(Interestingly, the Nova Scotia enforcement legislation only applies in respect of those provinces which have reciprocal agreements with Nova Scotia, and not all do.)

The Judicial Response

The Canadian Judicial Council has established a network of superior court contact judges to address interprovincial and international abduction cases and facilitate communication between the courts of different provinces and between Canadian courts and foreign courts. The current members of the Canadian Network of Contact Judges for Interjurisdictional Cases of Child Protection are:

• Chair: Hon. Madam Justice Diamond, Manitoba Court of Queen's Bench
• Alberta: Hon. Madam Justice Moen, Court of Queen's Bench
• British Columbia: Hon. Mr. Justice Butler, Supreme Court
• Manitoba: Hon. Madam Justice MacPhail, Court of Queen's Bench
• New Brunswick: L'hon. Juge Robichaud, la Cour du Banc de la Reine
• Newfoundland & Labrador: Hon. Mr. Justice Cook, Supreme Court Trial Division
• Northwest Territories: Hon. Madam Justice Schuler, Supreme Court
• Nova Scotia: Hon. Mr. Justice Dellapinna, Supreme Court Family Division
• Nunavut: Hon. Mr. Justice Johnson, Court of Justice
• Ontario: Hon. Mr. Justice Harper, Superior Court of Justice
• PEI: Chief Justice Matheson, Supreme Court
• Quebec: L'hon. Juge Gaudreau, la Cour supérieure
• Saskatchewan: Hon. Madam Justice Ryan-Froslie, Court of Queen's Bench
• Yukon: Hon. Mr. Justice Gower, Supreme Court

A similar network has been established between the provincial courts. The current contact judges are:

• Alberta: Hon. Judge O'Gorman, Provincial Court
• British Columbia: Hon. Judge Wingham, Provincial Court
• Manitoba: Associate Chief Judge Thompson, Provincial Court
• Newfoundland & Labrador: Hon. Judge Howe, Provincial Family Court
• Northwest Territories: Hon. Judge Gorin, Territorial Court
• Nova Scotia: Chief Judge Comeau, Provincial Family Court
• Ontario, Toronto: Hon. Justices Weagant and Scully, Ontario Court of Justice
• Ontario, Central West: Hon. Justice Maresca, Ontario Court of Justice (Brampton)
• Ontario, West: Hon. Justice Glenn, Ontario Court of Justice (Chatham)
• Ontario, East: Hon. Justice Malcolm, Ontario Court of Justice (Belleville)
• Ontario, Northwest: Hon. Justice McKay, Ontario Court of Justice (Fort Frances)
• Ontario, Northeast: Hon. Justice Kukurin, Ontario Court of Justice (Sault Ste. Marie)
• Quebec: Juge en chef adjointe Gaumond, la Cour du Québec

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Practical Tips for Dealing with the Application Prone Litigant

A disproportionately small number of litigants are responsible for a surprisingly large amount of litigation. These high-conflict couples, usually estimated at five to ten percent of the divorcing population, will find themselves in court on dozen or more chambers applications before trial, and back in court on a half-dozen or more chambers applications after trial.

The problem for people stuck on the receiving end of a plague of applications is that they must reply to each and every application or risk a judgment being made in default and, if they have lawyers, the cost can be crippling. Unfortunately there's no rule of court that screens out hopeless applications or puts a limit on the number of applications that can be made. Here are some options.

Costs, costs and more costs

"Costs" are a financial penalty usually awarded against the party whose position was the most unrealistic or most unreasonable in a court action. (Costs aren't a lawyer's bill, it's an amount calculated using the formula set out in Appendix B of the Supreme Court Family Rules.) Costs can also be awarded for applications made in the course of a court action.

Most of the time, the costs of applications are determined when costs of the court action are being decided. However, under Rule 16-1 the court can make an order about costs when an application has been heard and make an order that they be payable right away. Rule 16-1(13) also allows a party's conduct to be taken in account when determining costs:

If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a) that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

It's fairly rare for costs to awarded right away for family law applications. If the court believes that the applicant is acting in good faith and has reasonably brought his or her application, the court will usually say nothing about costs, leave it to the trial judge to make a decision about costs, or say that the person who is ultimately most successful when the court action is determined will have his or her costs of the application (called "costs in the cause"). Where the applicant has obviously been unreasonable or brought his or her application in bad faith, however, the court may order that:

1. the application respondent have his or her costs of the application no matter what happens with the trial (called "costs in any event of the cause");
2. the application respondent have his or her costs of the application payable right away; or,
3. the applicant pay a fixed amount as costs to the application respondent right away (called "lump-sum costs").

Lump-sum costs are the most punitive because they require the money to be paid right away, not when the trial has come to an end. At the other end of the spectrum are awards of costs in the cause, which are hardly punitive at all.

When it comes to dealing with someone who's application prone and unreasonable, you need to start keeping a list of the dates you've been in court and orders the other side was asking for.

• Assuming you're successful, you need to start asking for your costs of each application in any event of the cause.
• When it's your second or third application on more or less the same subject, you need to start complaining about how often the other side has dragged you into court and ask for your costs of each application payable right away.
• When you can prove that the other side is acting in bad faith or intentionally wasting your time, you need to ask for your costs of the application in a fixed lump-sum payable right away.

If the court has made a lump-sum costs award that the other side hasn't paid, you can raise the outstanding costs order as an initial objection to any further applications.

Ask the judge to seize him- or herself of the case

When a judge "seizes" him- or herself of a case, it means that the judge will be the only judge to hear all future applications until the case goes to trial or the judge has finally had enough. (Judges who seize themselves of applications like this usually won't hear the trial of the action.) This can be very handy because it means that the judge will learn all about the other side's issues in fairly short order, and hopefully get a bit jaded about the urgency of every new application. Otherwise, particularly in larger centres like Vancouver, Victoria and New Westminster, there's a good chance that each application will be heard by a new judge, giving the other side a change to make his or her pitch afresh.

Many judges are understandably reluctant to seize themselves of applications like this. It can be very difficult and very time consuming, and often require the judge to make him- or herself available to hear an application on short notice or while engaged in something else like a trial. When a judge will seize him- or herself of a file, however, it's an absolutely wonderful thing.

When it comes to dealing with someone who's application prone and it's clear that there's no end in sight to the number of applications you're going to have to deal with, you need to start asking the judges who are hearing the other side's applications if they will consider seizing themselves of further applications brought in the action. Although you should expect to be turned down, if you don't ask it'll never happen.

Ask for an order that permission be obtained for further applications

Finally, s. 18 of the Supreme Court Act says this:

If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

In other word, if you can show that the other side has persistently brought unreasonable applications against you, you may be able to ask the court for an order that he or she not bring any further applications without first getting permission from a judge. Similar orders may be made by case management judges or the judge hearing a Judicial Case Conference.

This really is a heavy hammer, and the court won't make an order like this unless it is clear that someone really is behaving unreasonably and capriciously. Don't expect the court to make this sort of order lightly, and don't ask for it without getting advise from a lawyer first. The last thing you want is to come across as over-the-top as the other party!

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Changes to Supreme Court Chambers Practice

Changes continue to be made to the rules governing chambers practice in the Supreme Court. The most recent are set out in a civil Practice Direction (PDF), PD 28, and an Administrative Notice (PDF), AN 7. Both apply to family law matters.

PD 28 says this:

• Supply an extra copy of the Notice of Application (or Petition) with the Application Record, marked to show which orders will be spoken to at the hearing.
• Application Records will be accepted for filing between 9:00am three business days before the hearing and 4:00pm on the day that is one business day before the hearing. Application Records that are filed after 4:00pm will not be placed on the hearing list.
• Applications can be adjourned by filing a Requisition (Form F17) at any time before 9:00am on the day of the hearing. If you can't file the Requisition by the deadline, you'll have to show up in court and ask the judge or master for the adjournment.
• Applications that have been adjourned can be set for hearing again by filing a Requisition two business days before the new hearing date. The Requisition must: state the new date, time and place of hearing; briefly describe the nature of the application; give a time estimate; and, state whether the application is within the jurisdiction of a master.

The other civil practice directions which apply to family law matters are set out on the Supreme Court's website with the table of family law practice directions.

AN 7 says this:

• All briefs, records and submissions that are filed in a bound format must have a cover page.
• The cover page must: give the style of cause, including the court file number and registry; describe the nature of the material (ie: "Rule 11-3 Summary Trial Application" or "Claimant's Argument"); give the contact address and telephone number for the parties or their lawyers; state the time, date and place of the appearance for which the materials are filed; state the name of the party or lawyer filing the materials; and, where the materials relate to a hearing, give a time estimate for the hearing.

In case that was confusing, AN 7 has a helpful example of an approved cover page. I have posted a template of the form in the Resources & Links > The Courts chapter of my website (scroll down to the "Downloads" segment).

For more information on the new Supreme Court Family Rules, click on the "court rules" label below.

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The Present Effect of the Proposed Family Law Act

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

A lot of people have been asking about how the proposed Family Law Act, described in the recently-released White Paper (PDF), impacts on their present legal problems. This is an important question because the proposed new law differs from the current Family Relations Act quite significantly. The answer, however, is simple: the Family Law Act doesn't have any effect at all right now, and won't for some time.

The White Paper discusses a bunch of policy options about different issues in family law, and provides a sketch of what the legislation flowing from those options might look like. The Family Law Act isn't finished yet and some policy decisions still need to be made by the Attorney General's office, and as a result it's a long way from becoming law.

Although I expect that the draft Family Law Act which eventually makes its way to the legislature will look an awful lot like the act described in the White Paper, it would be unwise in the extreme to start making plans and drafting agreements on the assumption that what we presently see is what we'll eventually get.

From Draft Legislation to Law

When the new Family Law Act is ready to go, which won't be until some time in 2011, the provincial government will table the draft act as bill in the legislature, where the bill will be subject to debate by all parties and possibly be amended as a result. Since the present government has a healthy majority, the passage of the bill is almost a sure thing.

Once the bill passes its third and final reading, the Family Law Act will become law when it receives royal assent. "Royal assent" is essentially a constitutional tip of the hat to Queen and is given by the Lieutenant Governor on the advice of (and at the timing of) the government.

Taking Effect

Under s. 3 of the Interpretation Act, the commencement date of a new act is the date on which it receives royal assent, unless the act itself says otherwise. Because it's important that people be able to plan their lives in accordance with the law in force at the time, new laws rarely take effect earlier than the date of royal asset.

Under s. 4 of the act, a new act comes into force at the beginning of the day of its commencement, and any legislation it repeals ceases to have effect at the same time. "Coming into force" means becoming the official, binding law of the land. Legislation which is "repealed" has been cancelled or voided.

What all this means is that if the new act receives royal assent on 1 October 2011, for example, the new Family Law Act will be law, and the old Family Relations Act will cease to have effect, from October 1st forward. A new Family Law Act will not have a retroactive effect unless it says it has a retroactive effect, and that's unlikely.

Existing Family Relations Act Proceedings

Section 36 of the Interpretation Act says that "every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment."

Note that last bit. There are likely going to be a lot of proceedings under the old act which can't be "done consistently" with the new act (for example, claims for parental support or claims for child custody) and in cases like this the proceeding will have to continue under the old act. This is very important because s. 37 says that:

(1) The repeal of all or part of an enactment, or the repeal of an enactment and the substitution for it of another enactment, or the amendment of an enactment must not be construed to be or to involve either a declaration that the enactment was or was considered by the Legislature or other body or person who enacted it to have been previously in force, or a declaration about the previous state of the law.

(2) The amendment of an enactment must not be construed to be or to involve a declaration that the law under the enactment prior to the amendment was or was considered by the Legislature or other body or person who enacted it to have been different from the law under the enactment as amended.

In other words, you don't get to argue that you should win a point because the new law is different than the old law. The court won't be allowed to draw any conclusions about proceedings under the old law just because the new law says something different than the old law.

Summary

The Family Law Act described by the White Paper doesn't exist except as a policy proposal. It may become one of the laws of British Columbia in the future, but that will require a complete draft Family Law Act passing through the legislature and receiving royal assent. Don't make any plans on the assumption that the law which eventually comes into force will look like the White Paper's proposal.

If the Family Law Act becomes law, it will have legal effect beginning on the day it receives royal assent unless the act itself says otherwise. At present, the Family Law Act described by the White Paper has no legal effect.

Family Relations Act proceedings existing at the time the Family Law Act comes into force will continue under the new act to the extent possible. Proceedings based on any provisions of the Family Relations Act not carried on in the new act will continue under the old act.

For more information about the White Paper, click on the "White Paper" label below.

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Rules on Chambers Applications Amended

By now most people involved in the family law justice system are aware that the new Supreme Court Family Rules which came into effect on 1 July 2010 have one particularly important flaw: the timelines for chambers application procedures in Rule 10-6 don't work. On 29 July 2010 an Order in Council was passed which ought to correct the timelines. Here are the key changes.

Calculation of Time: Time is now calculated as "business days," meaning days when the court is open for business. Weekends and statutory holidays are no longer counted.

Notice of Application: The length of this form is now capped at 10 pages. Changes are made to the text of the form to reflect the new timelines.

Time for Serving Notice of Application: Filed copies of the Notice of Application and new supporting affidavits must be served on the application respondent:

1. for interim applications, at least 8 business days before the date picked for the hearing;
2. for summary trials, at least 12 business days before the hearing date; and,
3. for applications to vary a final order, at least 21 business days before the hearing date.

Responding to an Application: The application respondent must now serve two copies of his or her Application Response and new affidavits on the applicant. A new subrule, (8.1), says that these materials must be filed in court and served on the applicant:

1. for interim applications, at least 5 business days after service of the Notice of Application;
2. for summary trials, at least 8 business days after service; and,
3. for applications to vary a final order, at least 14 business days after service.

This replaces the rule which allowed an application respondent to delay delivering his or her responding materials until two days before the hearing regardless of when they were available.

Responding to a Response: The applicant is required to file and serve copies of any new affidavits prepared in reply to the application respondent's materials by 4:00pm on the day that is one business day before the hearing date.

Application Records and Application Record Indices: The applicant is required to both file an Application Record in court and serve a copy of the index on the application respondent by 4:00pm on the day that is one business day before the hearing date.

These changes, including the change to the Notice of Application, have now been incorporated on my website into the chapters New Rules 101 and The Legal System > Interim Applications.

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New Practice Directions Released

Practice directions are instructions issued by the Chief Justice of a court for the guidance of lawyers and litigants appearing before the court. Practice directions are normally intended to address small matters not dealt with by the court's rules or to clarify the proper interpretation of the rules.

The Supreme Court has released a new set of practice directions for the new Supreme Court Civil Rules and Supreme Court Family Rules, available at www.courts.gov.bc.ca/supreme_court/practice_and_procedure/. The new practice directions replace all of the current directions and will take effect with the new rules, on 1 July 2010.

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BC Courts Release Policy on Use of Electronic Devices

The courts of British Columbia have today released a rare joint policy statement (PDF) on the use of electronic devices in courtrooms which will take effect on 17 September 2012. Here's a summary.

Prohibited Uses of Electronic Devices

1. The use of electronic devices — defined as anything capable of recording or transmitting audio or data — to "transmit or receive text" is prohibited except as permitted by the policy statement.
2. The use of electronic devices to record images or video is prohibited.
3. The use of electronic devices to transcribe proceedings in court is prohibited.
4. The use of electronic devices in a manner that interferes with courtroom electronics or courtroom decorum is prohibited.

Permitted Uses for the General Public

1. Any person may unobtrusively transmit or receive text in a courtroom of the Court of Appeal.

Permitted Uses for Lawyers and Accredited Media

1. Lawyers and accredited members of the media may unobtrusively transmit or receive text in a courtroom of the Supreme Court and Court of Appeal.
2. Accredited members of the media may record proceedings in any courtroom for the sole purpose of verifying their notes.

Nothing in this policy statement restricts the autonomy of individual judges to manage their courtrooms and the proceedings before them. Nothing in the policy statement alters the effect of any publication bans or sealing orders that may be in effect in respect of a proceeding.

Update: 2 August 2012

Ian Mulgrew has published an article on the Vancouver Sun website on the courts' new electronic device policy which begins as follows:

"The decision by B.C.’s two trial courts to allow in-court tweeting only by accredited journalists and lawyers smells of judicial snobbery. 

"There’s no good reason anyone with a legal degree, along with me and my ilk, should be allowed to fire off email and 140-character notes from a courtroom while an ordinary joe gets the bum’s rush from the sheriff."

Actually, there is a good reason. 

The concern about allowing someone to tweet from inside a courtroom, or email or text for that matter, is that the person could be sending information about the evidence being presented in court to influence the evidence of a subsequent witness, intimidate the witness into recanting or altering his or her evidence, or otherwise frustrate the trial process and the frankness of the testimony presented. It was likely for this reason that no prohibitions on tweeting or texting were imposed for Court of Appeal proceedings since the Court of Appeal does not hear oral evidence; the only courts subject to the prohibition are the two trial courts.

In other words, the likely purpose of the policy was to balance modernization of the court's approach to new technology against the risk to the integrity of the trial process. Like I said, it had nothing to do with "judicial snobbery."

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Remarrying After a Void Marriage

Not every marriage needs to end in death or divorce. Some marriages are voidable and others are void from the get go. How do you remarry if you're in a marriage which is void or might be voidable?

A marriage may be voidable if:

1. the marriage was a sham;
2. a male spouse was under the age of fourteen or a female spouse was under the age of twelve at the time of the marriage;
3. one or both spouses didn't consent to the marriage, or agreed to the marriage as a result of fraud or misrepresentation;
   
4. a male spouse was impotent or a female spouse was sterile at the time of the marriage; or,
   
5. the marriage cannot be consummated as a result of a spouse's medical or mental condition.
   

If a party to a voidable marriage wants to remarry, a judge must either declare the marriage to be void, annulling the marriage, or make a divorce order. With the court order in hand, go to your local branch of the Vital Statistics Agency and get your marriage licence!

A marriage may be void if:

1. one or both spouses were under the age of seven at the time of the marriage;
2. the spouses are within the prohibited degrees of consanguinity set out in the federal Marriage (Prohibited Degrees) Act;
3. one or both spouses didn't have the mental capacity to marry at the time of the marriage; or,
4. one or both spouses were married at the time of the marriage.
   

Marriages which are void are void ab initio, from the very beginning, as if they were never celebrated. As a result, you don't need either an annulment or a divorce; your marriage never existed in the first place! You can proudly declare yourself to be unmarried when applying for your marriage licence.

If you run into a situation where you need proof that your marriage was void, the only solution I can think of would be to commence a Supreme Court petition proceeding asking for a judicial declaration that your marriage is void.

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Proving Agreements Made at JCCs

Judicial Case Conferences in the Supreme Court are held on a confidential, in camera and off-the-record basis so that the parties can more effectively explore settlement options, without worrying that they'll be held to a settlement proposal later on. This system usually works quite well, but what happens if people disagree on the terms of an agreement reached at a JCC? How do you prove the terms of an agreement reached at an off-the-record conference?

Normally, the court clerk records the terms of any agreements reached or orders made at a JCC. These are printed out and signed by the parties (or their lawyers) and the judge or master who heard the JCC. The first step to avoiding confusion later on is to make sure that the clerk's record is clear and accurate. If you see an error or an ambiguity, ask to have the record clarified before you leave the JCC. No one will complain, as long as you're being reasonable and not trying to re-argue a point.

If you discover an error or an ambiguity later, and the other side doesn't agree with your recollection of the JCC, you'll have to listen to the tape of the proceedings at the JCC. However, because JCCs are confidential, you don't have the automatic right to listen to the tape of the JCC the way you'd be able to listen to the tape of other court hearings, like proceedings in chambers, and you'll have to make an application for permission to listen to the tape and have a transcript made.

If the transcript backs up your recollection, the other side really ought to agree and that should be the end of it. If not, you'll have to make a second application for an order on the terms of the agreement reached at the JCC, using the transcript of the JCC to support your application.

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Provincial Court Announces Scheduling Reform Project

The Provincial Court has announced a project to overhaul how court time is scheduled. The aptly named Provincial Court Scheduling Project has just release the first issue of a newsletter (PDF) intended to keep court users and other stakeholders up to date on the status of the project and address common questions and concerns. According to the newsletter,

"The Provincial Court Scheduling Project will restructure court scheduling. The new model will provide more timely access to justice by reducing waiting times to trial and returning case management responsibilities to counsel. The latter will promote discussion between parties and foster earlier case resolution.  

"Currently, the PCS Project Team is developing the details of the new scheduling model and designing new software, the Provincial Court Scheduling System (PCSS), to support the new model. ..."

Implementation is set to begin in later 2013 with the province-wide roll out continuing through 2014. Questions and comments can be directed to the PCSP Project Team at pcss@provincialcourt.bc.ca.

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Family Law Act Comes into Force in One Week

It's almost here, the date the new Family Law Act comes into force. I thought I would take the opportunity to review the complicated transitional provisions that will guide us gently from the Family Relations Act regime that has governed family law matters in British Columbia for more than thirty years into this brave new world.

This is a comprehensive summary of the transitional provisions applicable to proceedings in the Provincial Family Court:




This is a comprehensive summary of the transitional provisions applicable to proceedings in the Supreme Court:

• the parts of a court proceeding started under the Family Relations Act concerning the division of property continue under that act; and,
• the parts of a court proceeding respecting an agreement about the division of property made before the Family Law Act comes into force must be continued or started under the Family Relations Act.

These provisions only apply to married spouses, as only married spouses were able to start a claim under the Family Relations Act for the division of property or about agreements concerning the division of property.

No transitional provisions are made for any other issue, including with respect to the presumptions of guardianship, the care of children, the enforcement of parenting time or contact that has been wrongfully withheld, the relocation of children and guardians, child support and the new rules applicable to stepparents, spousal support and reviews of spousal support, protection orders and conduct orders. This was intentional. According to the Ministry of Justice in its online document The Family Law Act Explained:

"Generally, the transition provisions support the immediate use of the Family Law Act for family law disputes, even where they have been started under the Family Relations Act or where there are existing agreements or orders made under the Family Relations Act. This promotes a speedy transition to the new regime and ensures the tools and benefits of the new law can be realized immediately by all families."

"Speedy" is almost an understatement. When British Columbia wakes up on the morning of Monday 18 March 2013, the Family Law Act will be the law of the land. It will apply to:

• all proceedings before the Provincial Court that started before March 18th;
• all proceedings before the Supreme Court that started before March 18th, except for those claims about property that will continue under the old act;
• all applications set for hearing that day;
• all trials set to start that day; and,
• all trials that started before March 18th that will be continuing on or after March 18th.

Buckle up.

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Supreme Court Announces Assize Project in Vancouver

Chief Justice Bauman has announced (PDF) the implementation of a pilot project to test an assize scheduling system for long civil chambers applications in the Supreme Court's Vancouver registry. The pilot project began on 7 January 2013. The pilot project is only available for cases that do not involve criminal law, family law or judicial reviews.

Chambers Applications

Every court day, masters and justices hear applications in chambers. Applications are requests for orders, usually temporary or short-term orders, that are made using affidavit evidence and are expected to take a relatively short time to hear, anywhere from five minutes to two days. Chambers is the courtroom where applications are heard.

Normally, someone who wants to make an application will just pick the court day that the application will be heard. Although some days are predictably busier than others, things usually work out pretty well; most of the time, there's enough time to at least get the shorter chambers applications heard. However, when an application is going to take a half an hour or more to be heard, things can get pretty hairy.

There are only four and a half hours in the normal court day. (Court starts at 10:00 and runs to the lunch break at 12:30, with a fifteen minute recess partway through. Court resumes at 2:00 and runs until 4:00, with another fifteen minute recess.) This is not a lot of time. Applications of less than an hour routinely chew through all of the morning, leaving a handful of applications left that might take half an hour, a whole hour or two hours to be heard. As a result, these longer applications often get bumped to another day. I never count on a two-hour application being heard in Vancouver on the day it's scheduled, and it's only an even chance than a one-hour application will go ahead. The situation is worse in New Westminster.

This is not the problem the new pilot project is meant to address.

When an application will take two hours or longer, the rules of court require that the application be scheduled with the court's trial coordinator. In theory this means that each application is assigned to a judge who will be free that day and has the time to hear it. In reality, some applications are assigned to a judge and others wind up being listed on the dreaded overflow list.

Being on the overflow list is not good. A judge may become available to hear your application that day or a judge may not; either way, you wind up cooling your heels in the registry for at least an hour or two on the off-chance that you'll be lucky enough to land a judge before giving up and going back to the office.

This is the problem the new pilot project is meant to address.

The Assize Project

An assize system is a way of scheduling hearings which works in blocks of one or two weeks. If someone wants an application to be heard, all they get to pick is the assize period in which it might be heard. At the beginning of the period, a judge or the trial coordinator will triage all the applications set for that period and sort them from most important to least important, with the most important applications getting priority and going first. Applications that can't be scheduled wait to see what happens with the other applications being heard in that period; if an application gets done faster than expected or is adjourned, the unscheduled application next in priority gets heard.

In theory, this is a more flexible way of using judicial time which accommodates applications that unexpectedly collapse, allows every hour a judge is available to be occupied with an application, and therefore gets more applications heard in the same amount of time.

However, as the announcement from the Chief Justice clearly indicates: "placing an application on the assize list does not guarantee that the application will be heard." The other major downside is that the people making the applications have to be available during the entire assize period because you never know when your application will be heard, if it gets heard at all.

Getting on the Assize List 

An application may be put on the assize list if all of these factors are met:

1. The application will take between two hours and two days to be heard.
2. All of the lawyers and anyone who is representing him- or herself agrees to the application being put on the assize list.
3. Everyone is available for at least three of the five days in the assize period.
4. The case does not involve family law or judicial reviews.

The assize periods available for booking are listed on the scheduling page of the Supreme Court's website.

I'm looking forward to seeing how the pilot project pans out. If it works, I expect the project will expand to family law cases, and although I will have a great deal of difficulty working my schedule to be available during an entire assize period, if the new system gets long applications heard more frequently than they are at present, I'm all for it.

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Regulations to Family Law Act Published

The orders in council implementing the regulations required by the new Family Law Act were made on 23 November 2012 and published on 26 November 2012.

The regulations will, as of 18 March 2013, the day the Family Law Act comes into force, repeal the regulations under the old Family Relations Act and replace them with the Family Law Act Regulation (PDF) and the Family Law Act Pension Regulation (PDF). A host of regulations to other statutes, from the Contaminated Sites Regulation to the International Business Activity Regulation, are amended to accommodate the Family Law Act by orders in council 798 to 846 (PDF).

The Family Law Act Regulation deals with:

1. the provincial employees able to work as family justice counsellors and the information and documents required for their work;
2. the minimum training standards required for professionals working as mediators, arbitrators and parenting coordinators under the Family Law Act;
3. the adoption and adaptation of the federal Child Support Guidelines for use in British Columbia under the Family Law Act;
4. the continuing work of the Child Support Recalculation Service out of the Kelowna registry of the British Columbia Provincial Court;
5. the forms required for the appointment of standby and testamentary guardians under ss. 55 and 53 of the act; and,
6. fixing $10,000 as the limit of the value of children's property which can be managed by a guardian without court order under s. 178 of the act;

According to the press release from the Ministry of Justice, the training standards required for professionals working as mediators, arbitrators and parenting coordinators consist of:

"At least 14 hours of in-depth training on how to identify and screen for family violence or power imbalances to determine whether, or what type of, dispute resolution process is appropriate. 

"A minimum level of family-related experience and training in their area of practice. 

"A minimum of 10 hours a year, per year, of ongoing training to ensure their skill set remains relevant. 

"Extensive training on the new Family Law Act."

These training standards must be met by 1 January 2014, giving everyone just over a year to get up to speed. Lawyers working as mediators, parenting coordinators and arbitrators will also additionally be governed by the training standards (PDF) required by the Law Society as they may be amended from time to time.

It is not entirely clear what fate will befall non-lawyers who have not taken the training required by the deadline. At a minimum, it seems to me that such people will not be "mediators," "parenting coordinators" and "arbitrators" to whom the court can refer people under the Family Law Act and, in particular, that the awards of people working as arbitrators and the determinations of people working as parenting coordinators will not be "awards" or "determinations" capable of enforcement under the act.

The Ministry of Justice has published a new page on its website explaining the new regulations.

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