Introduction

  The purpose of these rules is to promote the safety and well-being of children by allowing court decisions to be obtained fairly and efficiently, in matters arising under the Child, Family and Community Service Act.

Definitions

  In these rules:

(a) "Act" means the Child, Family and Community Service Act;

(b) "clerk" means a member of the registry staff;

(c) "court" means the Provincial Court except where the Act or these rules provide otherwise;

(d) "party" includes, for the purposes of these rules and section 23 of the Act, anyone the court decides is a party and any of the following who has an address for service:

(i)  the director responsible for the child;

(ii)  each parent of the child;

(iii)  a designated representative of an Indian band or of an aboriginal community entitled to notice under section 38 (1) (c) or (d) of the Act;

(iv)  a designated representative of the Nisga'a Lisims Government entitled to notice under section 38 (1) (c.1) of the Act;

(e) "registry" means a registry of the court;

(f) other words and expressions have the meaning given to them in the Act, unless the context indicates otherwise.

[am. B.C. Regs. 332/2002, s. 1; 351/2005, s. 1.]

Initiating a presentation hearing

(1)  To initiate a presentation hearing, a director must complete and file with the court a Presentation Form (Form 1).

Repealed

(1.1)  Repealed. [B.C. Reg. 351/2005, s. 2 (a).]

Applications for other orders

(2)  To apply for an order, other than an order made at a presentation hearing, a person must complete and file with the court an Application for an Order (Form 2), unless a judge permits otherwise.

[am. B.C. Regs. 173/98, s. 1; 75/2000, s. 2; 351/2005, s. 2 (b).]

Applications to change or cancel an order

(3)  To apply for an order changing or cancelling another order, a person must complete and file with the court an Application to Change or Cancel an Order (Form 3), unless a judge permits otherwise.

Application may be made orally

(4)  At a hearing or a case conference, a judge may permit an application to be made orally in court, without the filing of a form.

Where a presentation hearing must be initiated

(5)  A Presentation Form must be filed

(a) in the registry closest to the child's habitual residence, or

(b) in the registry closest to where the child was removed or taken into care

unless a judge permits otherwise.

Where an application must be filed

(6)  An application in Form 2 or Form 3 must be filed

(a) in the registry where the file is located, unless Rule 8 (12) or (13) applies, or

(b) if there is no file, then as required by subrule (5), as if the application were a Presentation Form.

[am. B.C. Regs. 75/2000, s. 3; 351/2005, s. 2 (c).]

Hearings by telephone

(7)  A judge may conduct a hearing or part of a hearing by telephone in appropriate circumstances.

Some applications may be granted without a hearing

(8)  A judge may make the following orders without a hearing:

(a) an order under Rule 6 (10), permitting the use of another service method;

(b) an order under Rule 8 (2), shortening or extending a time period;

(c) a consent order or an order dispensing with consent, under section 60 of the Act;

(d) an order under section 69 of the Act, shortening or extending the time for serving notice or dispensing with notice.

How to apply for an order without a hearing

(9)  To apply for an order to be made under subrule (8), a person must file

(a) an affidavit setting out the facts on which the application is based, and

(b) the application form. (See Rule 1 (2) and (3))

[am. B.C. Regs. 75/2000, s. 4; 351/2005, s. 2 (d).]

Case conference must be directed

(1)  If at the commencement of a protection hearing under section 40 of the Act

(a) a consent order is not made, and

(b) the judge determines that the matter cannot be heard that day,

the judge must direct the parties and their lawyers to attend a case conference.

Case conference may be directed

(2)  A judge may at any other time direct the parties and their lawyers to attend a case conference

(a) if a party requests it, or

(b) if the judge considers that it may promote a fair and efficient resolution of the issues.

Disclosure must be reviewed

(3)  When a judge directs a case conference under subrule (1), the judge must review the extent of disclosure made and requested under section 64 of the Act and may make any order for disclosure consistent with the Act.

Case conference notice

(4)  When a case conference is directed, the director must notify the other parties of the date, time and place of the conference, unless the conference was directed when the parties or their lawyers were present.

What happens at a case conference

(5)  At a case conference, a judge may do one or more of the following:

(a) facilitate the resolution of any issues in dispute;

(b) mediate any issues in dispute, other than the issue of whether the child needs protection;

(c) with the consent of the parties, refer any issue, other than the issue of whether a child needs protection, to mediation or other alternative dispute resolution mechanism under section 22 of the Act;

(d) decide any issues that do not require evidence or that can be decided on the basis of facts agreed to by the parties;

(e) make any order in the terms the parties agree to, subject to section 60 of the Act;

(f) review the adequacy of disclosure by the parties, including responses to requests for disclosure under section 64 of the Act;

(g) order that a party provide to another party, within a set time, a summary of the intended evidence of a potential witness;

(h) order a party to allow another party to inspect and copy specific documents or records to the extent permitted by the Act;

(i) order that those applications that cannot be made at the case conference be brought within a set time;

(j) order that a statement of agreed facts be filed within a set time;

(k) give directions about any evidence that will be required, how it will be received and the procedure that will be followed, if a hearing is necessary or a mini-hearing is directed;

(l) order a party to produce anything as evidence at a hearing;

(m) direct that any further case conference be held before the same judge;

(n) with the consent of the parties, direct the parties to attend a mini-hearing if

(i)  the matter can be resolved on the basis of limited evidence and submissions, and

(ii)  a mini-hearing can be held earlier than the matter could be set for a full hearing;

(o) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing;

(p) set a date for a hearing or mini-hearing;

(q) make any other order or give any direction for the fair and efficient resolution of the issues.

[am. B.C. Reg. 75/2000, s. 5.]

Mini-hearing notice

(6)  If a judge directs the parties to attend a mini-hearing, a clerk must notify them of the date, time and place, unless the date was set when the parties or their lawyers were present.

What happens at a mini-hearing

(7)  At a mini-hearing, the parties will attend before a judge who may

(a) hear submissions and evidence as directed at the case conference, and

(b) make any order that could be made after a full hearing.

Privacy at case conferences

(8)  The following persons may attend case conferences:

(a) the parties and their lawyers;

(b) any other person the judge allows.

Conducting case conferences

(9)  The chief judge may direct

(a) that case conferences be conducted in identified court registries by telephone, and

(b) that case conferences set at one place be conducted at another place.

How to subpoena a witness

(1)  To require a witness to attend court, a party must

(a) complete a subpoena (Form 4), and

(b) serve a copy of the subpoena on the witness personally at least 2 days before the date the witness is required to appear. (See Rule 8 (2))

Travelling expenses

(2)  At the time the subpoena is served, the party subpoenaing the witness must offer the witness reasonable estimated travelling expenses.

What a witness served with a subpoena must do

(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.

Subpoena may be cancelled

(4)  A person who is served with a subpoena may apply under Rule 1 (2) to a judge, who may cancel the subpoena if

(a) the person is not needed as a witness,

(b) it would be a hardship for the person to appear in court as required by the subpoena, or

(c) in the case of a child witness, the judge considers that it would not be in the child's best interests to require the child to testify.

If a witness does not obey a subpoena

(5)  A judge may issue a warrant (Form 5) for the arrest of a witness who does not appear in court as required by a subpoena if the judge is satisfied that

(a) the subpoena was served on the witness,

(b) reasonable travelling expenses were offered to the witness, and

(c) justice requires the presence of the witness.

How long a warrant for arrest of witness is in force

(6)  A warrant remains in force until

(a) the witness named in the warrant appears in court either voluntarily or under the warrant, or

(b) a judge cancels the warrant.

After a witness is arrested

(7)  A witness who is arrested under a warrant must be brought before a judge or justice of the peace as soon as practicable.

What the judge may do when the witness appears

(8)  If the witness's evidence is still required, the judge may

(a) release the witness on giving the witness a release (Form 6) requiring the witness to appear in court on the date and at the time and place stated in the release, or

(b) order a sheriff or peace officer to detain the witness in custody until his or her presence is no longer required.

Conditions of release

(9)  A judge may make the release of a witness under subrule (8) (a) subject to any conditions respecting reporting or residency or entering into a recognizance that the judge considers necessary to make sure the witness attends.

How evidence is given

(1)  At a hearing, evidence may be given orally on oath or affirmation or, if the judge allows,

(a) by affidavit, subject to Rule 5,

(b) by statements of facts agreed to by the parties, or

(c) as permitted under section 68 (2) (b) of the Act.

If someone does not appear

(2)  If a person who is served with an application does not appear in court on the date and at the time and place set for the hearing, the judge may hear the application and make the order applied for if the judge thinks it is fair to do so in the absence of that person.

Aboriginal representatives

(3)  Subrule (2) applies also if a designated representative of an Indian band, an aboriginal community or the Nisga'a Lisims Government is served with an application and a representative of that band, that community or the Nisga'a Lisims Government does not appear in court on the date and at the time and place set for the hearing.

[en. B.C. Reg. 332/2002, s. 2.]

Advance notice of experts' evidence required

(4)  A party may call an expert to give evidence of the expert's opinion only if

(a) the party provides a written summary of the expert's evidence to all other parties at least 30 days before the expert is called to give evidence, or

(b) a judge grants permission.

Experts' reports must be given in advance

(5)  Instead of calling an expert to give evidence, a party may introduce a report stating opinions of an expert, if

(a) the party provides a copy of the report to all other parties at least 30 days before the report is introduced, or

(b) a judge grants permission.

Director not an expert

(6)  A director, or a delegate of a director, is not an expert for the purposes of notice under subrule (4) or (5).

Experts' qualifications

(7)  A statement of qualifications in an expert's report is proof that the expert has those qualifications unless there is evidence to the contrary.

Proof of signature not required

(8)  A report stating the opinions of an expert may be introduced without proof of the expert's signature.

Experts may be called for cross-examination

(9)  A party receiving another party's expert report may serve on the other party, at least 14 days before the hearing date, a notice requiring the expert to attend the hearing for cross-examination. (See Rule 8 (2))

Cost of calling other party's expert

(10)  If a judge determines that calling another party's expert was unnecessary, the judge may order the party who required the expert to attend to pay the expert's expenses.

What form to use

(1)  Where an affidavit is permitted under these rules, it must be in Form 7.

Exhibits

(2)  Any exhibits referred to in an affidavit must be identified and attached to the affidavit.

Permission to use defective affidavit

(3)  With the permission of the judge, an affidavit may be used in evidence even though it does not comply in form with this Rule.

Affidavit must be filed and served

(4)  Evidence may be given by affidavit at a hearing only if, at least 2 days before the date of the hearing,

(a) copies of the affidavit are filed in the registry, and

(b) a copy of the affidavit is served on everyone who is entitled to notice of the hearing. (See Rule 8 (2))

Service requirements

(1)  Unless the Act or these rules provide otherwise, an application must be served at least 2 days before the date set for the hearing

(a) on the other parties, and

(b) if an order is sought against some other person, on that person. (See Rule 8 (2))

Unfiled copy may be served

(2)  A copy of an application or other document served need not be a filed copy.

When service is not required

(3)  Service of an application is not required if

(a) the application is for permission to use another service method,

(b) the application is for access to a child under section 17 (1) of the Act,

(b.1) the application is for a warrant issued under section 28 (3.3) or 98 (4.3) of the Act,

(b.2) the application is for a consent order under section 60 of the Act and each of the required consents has been obtained or dispensed with, or

(c) a judge so orders.

[am. B.C. Regs. 75/2000, s. 6; 351/2005, s. 3 (a).]

How documents may be served

(4)  Documents required by the Act or these rules to be served may be served as follows:

(a) on an individual

(i)  by leaving a copy with him or her,

(ii)  if the individual is a party, by registered mail or facsimile transmission to the last address for service given under subrule (5), (6) or (7), or

(iii)  if the individual is a party who has a lawyer of record, by leaving a copy at, or by facsimile transmission to, that lawyer's office;

(b) on a designated representative of an Indian band, an aboriginal community or the Nisga'a Lisims Government by facsimile transmission to the facsimile number for service provided by the Indian band, aboriginal community or the Nisga'a Lisims Government, or by leaving a copy with that representative.

(c) on a society incorporated under the Society Act

(i)  by registered mail to the address for service on file with the Registrar of Companies, or

(ii)  by leaving a copy at that address or with a director or officer of the society;

(d) on a company incorporated under the Company Act

(i)  by registered mail to the registered office of the company, or

(ii)  by leaving a copy of it at the address or with a director or officer of the company, or with a receptionist or a person at the company's place of business who appears to manage the company's business there;

(e) on an unincorporated association

(i)  by registered mail to the registered office of the association, or

(ii)  by leaving a copy with an officer of the association;

(f) on a director

(i)  by leaving a copy with or facsimile transmission to the director's lawyer of record, or

(ii)  by leaving a copy at, or by facsimile transmission to, the district office with conduct of the case.

[am. B.C. Regs. 332/2002, s. 3; 351/2005, s. 3 (b).]

Party must give address

(5)  A party must give an address for service either

(a) on the face of a document filed by the party, or

(b) by filing a notice of address for service (Form 8).

Person may give address

(6)  A person entitled to notice under section 38 (1) (b) to (e) of the Act may file a notice of address for service (Form 8).

[en. B.C. Reg. 351/2005, s. 3 (c).]

Party must notify of change of address

(7)  If a party's address for service changes, the party must promptly notify the other parties of the new address either

(a) on the face of a document filed by the party, or

(b) by filing a new notice of address for service (Form 8).

Service on children

(8)  Any document may be served on a child who is 12 years of age or older by leaving a copy of it with him or her, unless a judge orders otherwise.

Service on children under 12

(9)  A document may be served on a child who is under 12 years of age, but only if a judge so orders.

Permission to use other service methods

(10)  If a document cannot be served as provided in these rules or if the person to be served is temporarily outside the Province, a party may apply to a judge who may

(a) permit another method of service to be used, and

(b) direct how service is to be proved.

Proving service

(11)  Service of a document may be proved by filing the following at the registry:

(a) for personal service of a document, a certificate of service (Form 9);

(b) for service by registered mail, a certificate of service (Form 9), with the original acknowledgment of receipt card;

(c) for personal service on a lawyer, a copy of the document signed by the lawyer or an articled student or by a partner or employee of the firm;

(d) for service by facsimile transmission, a Certificate of Service (Form 9) with a transmission report generated by the sending machine.

[am. B.C. Reg. 173/98, s. 2 (a), (b).]

Judge may require copy of served document

(11.1)  A judge may require that a copy of the served document be attached to the Certificate of Service (Form 9).

[en. B.C. Reg. 173/98, s. 2 (c).]

Oral proof of service

(12)  Instead of requiring proof of service under subrule (11), a judge or registrar may allow a person to prove by sworn oral evidence that the person has personally served a document.

Effective date of order

(1)  An order takes effect on the day it was made by a judge unless the judge orders otherwise.

Who prepares the order

(2)  The director's lawyer prepares the order as soon as practicable, unless the judge orders otherwise.

Form of the order

(3)  Orders must be prepared in Form 10.

Approving the order

(4)  An order must be signed as approved by the lawyer for each party who was represented, unless the judge orders otherwise.

Settling the order

(5)  A party may apply to a judge to settle the terms of an order when there is a dispute about the terms. (See Rule 1 (2))

Delivering the order to the registry

(6)  After an order is signed as approved in accordance with subrule (4), it must be delivered to the registry to be signed by a judge, filed with the court and date stamped with the registry stamp.

Notice of order

(7)  After an order is signed by the judge and filed with the court, a clerk must provide a copy

(a) to the lawyer for each party who was represented, and

(b) to every other party on request

unless the judge orders otherwise.

Correcting an order

(8)  Any judge may correct, at any time, a clerical mistake in an order or a mistake arising from an accidental slip or omission.

Judge may adjourn hearing

(1)  Whether or not the parties consent, a judge may adjourn a hearing to a specific date.

Judge may shorten or extend time limits

(2)  A judge may shorten a period of time for doing anything required under these rules or may extend the period even though it has expired.

Rule Repealed

(3)  Repealed. [subrule (5).]

Judges' permission necessary for adjournment

(4)  Effective June 3, 1996, a hearing may be adjourned only with the permission of a judge.

Rule Spent

(5)  Spent.

Changing or cancelling orders

(6)  A judge may change or cancel an order made in the absence of a party who received notice of a hearing if

(a) that party applies within a reasonable time,

(b) the party had a good reason for failing to attend when the order was made,

(c) there is a good reason for changing or cancelling the order, and

(d) the change or cancellation would be in the best interests of the child.

Notice to others

(7)  At any time during a hearing, a judge may order that a person, whether or not a party, be given notice of the hearing.

Powers that any judge may exercise

(8)  Any judge may do any of the following without being seized of a matter:

(a) receive the reports and information presented to the court at a presentation hearing;

(b) adjourn a hearing before evidence is heard;

(c) make orders or give directions on procedural matters;

(d) hold a case conference or mini-hearing under Rule 2.

[am. B.C. Reg. 173/98, s. 3.]

Judge who starts a hearing must continue

(9)  Subject to subrule (8), a judge who has heard any evidence at a hearing must finish the hearing unless the judge dies or is otherwise unable to act.

If judge cannot finish the hearing

(10)  If a judge who has begun to hear evidence dies or is otherwise unable to act, another judge will hear the case and that judge may

(a) start the hearing again and re-hear all the evidence, or

(b) with the consent of the parties, continue with the hearing where it left off, giving directions for hearing evidence as the judge considers necessary.

Judge may give directions

(11)  A judge may give a direction on any procedural matter that is not provided for in the Act or these rules.

Judge may order transfer of file

(12)  A judge may order a file transferred to another registry, for the purposes of one application or for all purposes, after considering

(a) the balance of convenience,

(b) any special circumstances that exist, and

(c) the best interests of the child.

Transfer of file by consent

(13)  If the parties agree, a clerk may transfer a file to another registry, for the purposes of one application or for all purposes, if the parties

(a) complete a written and signed consent to the transfer, and

(b) file the consent in the registry where the file is located.

Copy permissible in some circumstances

(14)  With the judge's permission, a copy of a document may be used in court instead of the original.

Who may search files

(15)  Only the following are entitled to search a registry file respecting a matter under the Act:

(a) a party;

(b) a party's lawyer;

(c) a person authorized by a party, by a party's lawyer or by a judge.

If a party does not comply with the rules

(16)  If a party does not comply with these rules, the judge may after considering the principles at section 2 of the Act

(a) cancel a step taken or an order made or disregard a document filed in the course of the application, or

(b) make any order or give any direction that the judge thinks is fair, including an order dismissing the application.

Faxed documents

(17)  Any document may be filed in a registry by facsimile transmission to that registry, but a judge may require that the original of a document be filed later.

Appendix A forms

(18)  The forms in Appendix A are prescribed for the purposes of these rules.

User-generated forms

(19)  Forms generated by the user must

(a) be in substantial compliance with the prescribed forms, and

(b) show the applicable words of the prescribed form in regular type and the words supplied by the user in boldface type.

[en. B.C. Reg. 351/2005, s. 4.]

[en. B.C. Reg. 351/2005, s. 4.]

[am. B.C. Regs. 75/2000, s. 8; 351/2005, s. 5.]

[am. B.C. Reg. 351/2005, s. 5.]

[en. B.C. Reg. 75/2000, s. 10; am. B.C. Reg. 351/2005, ss. 5 and 6.]

[am. B.C. Reg. 351/2005, s. 5.]

[am. B.C. Reg. 351/2005, s. 5.]

[am. B.C. Reg. 351/2005, s. 5.]

[am. B.C. Regs. 173/98, s. 6; 351/2005, s. 5.]

[am. B.C. Reg. 351/2005, s. 5.]

[en. B.C. Reg. 351/2005, s. 4.]