B.C. Reg. 169/2009
O.C. 303/2009
Deposited July 7, 2009
effective July 1, 2010

Court Rules Act

Supreme Court Family Rules

Note: Check the Cumulative Regulation Bulletin 2014
for any non-consolidated amendments to this regulation that may be in effect.

[includes amendments up to B.C. Reg. 92/2013, July 1, 2013]

Point in Time

Part 10 — Obtaining Orders Other Than at Trial

Division 1 — Procedure and Affidavits

Rule 10-1 — Choosing the Appropriate Procedure

Application procedure

(1)Subject to subrules (2) and (3), to obtain an order under this Part, a party must apply in accordance with Rule 10-5.

[en. B.C. Reg. 133/2012, Sch. s. 12.]

Applications for final orders in undefended family law cases

(2)To obtain a final order in an undefended family law case, a party must apply in accordance with Rule 10-10.

Applications for final orders in defended family law cases

(3)To obtain a final order in a defended family law case, a party must apply in accordance with Rule 10-11.

Rule 10-2 — Place Application Is Heard

Place of hearing of application

(1)An application may be heard at

(a) the place ordered by a registrar under subrule (4),

(b) if an order is not made under subrule (4), the place on which all parties have agreed, or

(c) if paragraphs (a) and (b) do not apply, a place at which the court normally sits in the judicial district in which the family law case is being conducted.

If more than one place

(2)If there is more than one place within the judicial district referred to in subrule (1)(c) at which the court normally sits, the applicant may name, as the place for hearing, any of those places.

If place of hearing is a place other than that at which the family law case is being conducted

(3)If, under subrule (2), the applicant names as the place for hearing a place that is different than the place at which the family law case is being conducted, the court may, if the court considers that it was unreasonable to have that named place as the place of hearing, make a special order as to costs and may

(a) order that the application be heard at some other place,

(b) dismiss the application, or

(c) hear the application.

Place of hearing of application with leave of registrar

(4)If a registrar is satisfied that, due to urgency or the convenience of the parties, an application should be heard at a place outside the judicial district in which the family law case is being conducted, the registrar may, without notice, grant leave for the applicant to do either or both of the following:

(a) file the notice of application in some other judicial district;

(b) name as the place of hearing a place in that other judicial district.

Notice of application must be endorsed to reflect grant of leave

(5)If a registrar grants leave under subrule (4), he or she must endorse the notice of application accordingly.

If place of hearing is a place chosen with leave of registrar

(6)If, in respect of an application for which leave was granted under subrule (4), the court at the hearing of the application considers that the application should not be heard at that place, the court may make a special order as to costs and may

(a) order that the application be heard at some other place,

(b) dismiss the application, or

(c) hear the application.

Repealed

(7)-(8)Repealed. [B.C. Reg. 119/2010, Sch. B, s. 7.]

Rule 10-3 — Chambers Proceedings

Definition

(1)In this rule, "chambers proceeding" includes the following:

(a) a petition proceeding;

(b) an application, including, without limitation, the following:

(i)   an application to change or set aside a judgment;

(ii)   a matter that is ordered to be disposed of other than at trial;

(c) an appeal from, or an application to confirm, change or set aside, an order, a report, a certificate or a recommendation of a master, registrar, special referee or other officer of the court;

(d) a family law case that has, or issues in a family law case that have, been ordered to be proceeded with by affidavit or on documents before the court;

(e) an application for judgment under Rule 9-6 (6) or 11-3.

Failure of party to attend

(2)If a party to a chambers proceeding fails to attend at the hearing of the chambers proceeding, the court may proceed if, considering the nature of the chambers proceeding, it considers it will further the object of these Supreme Court Family Rules to do so, and may require evidence of service it considers appropriate.

Reconsideration of order

(3)If the court makes an order in circumstances referred to in subrule (2), the order must not be reconsidered unless the court is satisfied that the person failing to attend was not guilty of wilful delay or default.

Evidence on an application

(4)On a chambers proceeding, evidence must be given by affidavit, but the court may

(a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,

(b) order the examination of a party or witness, either before the court or before another person as the court directs,

(c) give directions required for the discovery, inspection or production of a document or copy of that document,

(d) order an inquiry, assessment or accounting under Rule 18-1, and

(e) receive other forms of evidence.

[Subrule (4) (a) applies to all affidavits, including Form F8 financial statements.]

[If an order is sought to appoint a person as the guardian of one or more children, the affidavit referred to in Rule 15-2.1 must be provided to the court with the other application materials.]

[am. B.C. Reg. 41/2013, Sch. s. 1.]

Hearing of application in public

(5)Except in cases of urgency, a chambers proceeding must be heard in a place open to the public, unless the court, in the case of a particular chambers proceeding, directs that for special reasons the chambers proceeding ought to be dealt with in private.

Adjournment of application if applications not heard on date set

(6)If a chambers proceeding has been set for hearing on a day on which the court does not hear chambers proceedings, the chambers proceeding stands adjourned without order to the next day on which the court hears chambers proceedings.

Power of the court

(7)Without limiting subrule (4), on the hearing of a chambers proceeding, the court may

(a) grant or refuse the relief claimed in whole or in part, or dispose of any question arising on the chambers proceeding,

(b) adjourn the chambers proceeding from time to time, either to a particular date or generally, and when the chambers proceeding is adjourned generally a party may set it down on 3 days' notice for further hearing,

(c) obtain the assistance of one or more experts, in which case Rule 13-5 applies, and

(d) order a trial of the chambers proceeding, either generally or on an issue, and order a pleading to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.

Powers of court if notice not given

(8)If it appears to the court that notice of a chambers proceeding ought to have been but was not served on a person, the court may

(a) dismiss the chambers proceeding or dismiss it only against that person,

(b) adjourn the chambers proceeding and direct that service be effected on that person or that notice be given in some alternate manner to that person, or

(c) direct that any order made, together with any other documents the court may order, be served on that person.

Urgent chambers proceeding

(9)Rules 10-8 and 10-9 apply to chambers proceedings.

Adjournment

(10)The hearing of a chambers proceeding may be adjourned from time to time by a registrar.

Notes of applications

(11)A registrar must

(a) attend at and keep notes of the hearings of all chambers proceedings, and

(b) include, in the notes kept under paragraph (a) in relation to the hearing of a chambers proceeding, a short statement of the questions or points decided or orders made at the hearing.

Rule 10-4 — Affidavits

Affidavit to be filed

(1)An affidavit used in a family law case must be filed.

Form and content of affidavit

(2)An affidavit

(a) must be expressed in the first person and show the name, address and occupation of the person swearing or affirming the affidavit,

(b) if the person swearing or affirming the affidavit is a party or the lawyer, agent, director, officer or employee of a party, must state that fact,

(c) must be divided into paragraphs numbered consecutively, and

(d) subject to Rule 15-2.1, may be in Form F30.

[If an order is sought to appoint a person as the guardian of one or more children, the affidavit referred to in Rule 15-2.1 must be provided to the court.]

[am. B.C. Reg. 41/2013, Sch. s. 2.]

Identifying affidavits

(3)An affidavit, other than an affidavit of service, must set out, in the top right hand corner of the first page,

(a) the name of the person swearing or affirming the affidavit,

(b) the sequential number of the affidavit made by that person in the same family law case, and

(c) the date on which the affidavit was made.

Making affidavit

(4)An affidavit is made when

(a) the affidavit is sworn or affirmed by the person swearing or affirming the affidavit,

(b) the person swearing or affirming the affidavit

(i)   signs the affidavit, or

(ii)   if the person swearing or affirming the affidavit is unable to sign the affidavit, places his or her mark on it, and

(c) the person before whom the affidavit is sworn or affirmed completes and signs a statement in accordance with subrule (5) and identifies each exhibit, if any, to the affidavit in accordance with subrule (8).

Statement to be signed

(5)The person before whom an affidavit is sworn or affirmed must confirm that the affidavit was sworn or affirmed in the person's presence by completing and signing a statement on the affidavit in the following form:

Sworn (or affirmed) before me at ........................, British Columbia on ......... [dd/mmm/yyyy]...........

Statement if person swearing or affirming the affidavit unable to read

(6)If it appears to the person before whom an affidavit is sworn or affirmed that the person swearing or affirming the affidavit is unable to read it, the person before whom it is sworn or affirmed must certify in the statement signed under subrule (5) that the affidavit was read in his or her presence to the person swearing or affirming the affidavit who seemed to understand it.

Interpretation to person swearing or affirming the affidavit who does not understand English

(7)If it appears to the person before whom an affidavit is to be sworn or affirmed that the person swearing or affirming the affidavit does not understand the English language, the affidavit must be interpreted to the person swearing or affirming the affidavit by a competent interpreter who must certify on the affidavit, by endorsement in Form F30, that he or she has interpreted the affidavit to the person swearing or affirming the affidavit.

Exhibit to be marked

(8)The person before whom an affidavit is sworn or affirmed must identify each exhibit referred to in the affidavit by signing a certificate placed on the exhibit in the following form:

This is Exhibit .......... referred to in the affidavit of .............................. sworn (or affirmed) before me on ........[dd/mmm/yyyy].........

Copies of documentary exhibits

(9)An exhibit referred to in an affidavit need not be filed, but must be made available for the use of the court and for the prior inspection of a party and, in the case of a documentary exhibit not exceeding 10 pages, a true reproduction must be attached to the affidavit and to all copies of the affidavit that are served.

Numbering exhibit pages

(10)Each page of the documentary exhibits referred to in an affidavit, other than an affidavit of service, must be numbered sequentially, beginning with the first page of the first exhibit and ending with the last page of the last exhibit,

(a) on the original exhibits and on all copies that are served, and

(b) even though one or more of those exhibits is not attached to the affidavit.

Alterations to be initialled

(11)The person before whom an affidavit is sworn or affirmed must initial all alterations in the affidavit and, unless so initialled, the affidavit must not be used in a family law case without leave of the court.

Limitation on contents of affidavit

(12)Subject to subrule (13), an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at a trial.

Exception

(13)An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if

(a) the source of the information and belief is given, and

(b) the affidavit is made

(i)   in respect of an application that does not seek a final order or a change in, or a suspension or termination of, a final order, or

(ii)   by leave of the court under Rule 10-3 (4) (e) or 14-7 (71) (a).

[am. B.C. Reg. 133/2012, Sch. s. 13.]

Use of defective affidavit

(14)With leave of the court, an affidavit may be used in evidence despite an irregularity in its form.

Affidavit made before proceeding started

(15)An affidavit may be used in a family law case even though it was made before the family law case was started.

Affidavit of patient under the Patients Property Act

(16)If an affidavit is required for use in a family law case and the person who is proposed to swear or affirm the affidavit is a patient as defined in the Patients Property Act, the affidavit may be sworn, on information and belief, by the litigation guardian of the patient.

Division 2 — Usual Application Procedure

Rule 10-5 — Application Procedure

How applications are to be brought

(1)To apply for an order referred to in subrule (2), a party must do the following, and to apply for an order to enforce an agreement filed under Rule 2-1 (2), to enforce an order or to enforce compliance with a determination of a parenting coordinator, a party may do the following:

(a) in the case of an application not referred to in paragraph (b), (c), (d) or (e) of this subrule, apply in accordance with Rule 10-6;

(b) in the case of an application for an order by consent, apply in accordance with Rule 10-6 or 10-7;

(c) in the case of an application of which notice need not be given, apply in accordance with Rule 10-6 or 10-8;

(d) in the case of an urgent application, apply in accordance with Rule 10-9;

(e) in the case of an application for which a procedure is provided for by these Supreme Court Family Rules, apply in accordance with that procedure.

[en. B.C. Reg. 133/2012, Sch. s. 15.]

Applications brought under this Part

(2)Subrule (1) applies to applications for the following orders:

(a) an interim order;

(b) to change, suspend or terminate a final order;

(c) to set aside or replace the whole or any part of an agreement filed under Rule 2-1;

(d) to change or set aside a determination of a parenting coordinator filed under Rule 2-1.1.

[en. B.C. Reg. 133/2012, Sch. s. 15.]

Rule 10-6 — Usual Application Procedure

Definitions

(1)In this rule:

"application respondent" means a person who files an application response under subrule (8);

"business day" means a day on which the court registries are open for business.

[en. B.C. Reg. 241/2010, Sch. B, s. 1 (a).]

Notice of application

(2)A party wishing to apply under this rule must file

(a) a notice of application, and

(b) subject to Rule 15-2.1, the original of every affidavit, and of every other document, that

(i)   is to be referred to by the applicant at the hearing, and

(ii)   has not already been filed in the family law case.

[If an order is sought to appoint a person as the guardian of one or more children, the affidavit referred to in Rule 15-2.1 must be provided to the court with the other application materials.]

[am. B.C. Reg. 41/2013, Sch. s. 3.]

Contents of notice of application

(3)A notice of application must be in Form F31 and must

and the notice of application, other than any draft order attached to it under paragraph (a), must not exceed 10 pages in length.

(a) set out the orders sought or attach a draft of the order sought,

(b) briefly summarize the factual basis for the application,

(c) set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the orders sought should be granted,

(d) list the affidavits and other documents on which the applicant intends to rely at the hearing of the application,

(e) set out the applicant's estimate of the time the application will take for hearing,

(f) subject to subrules (4) and (5), set out the date and time of the hearing of the application,

(g) set out the place for the hearing of the application in accordance with Rule 10-2, and

(h) provide the data collection information required in the appendix to the form,

and the notice of application, other than any draft order attached to it under paragraph (a), must not exceed 10 pages in length.

[en. B.C. Reg. 241/2010, Sch. B, s. 1 (b).]

Date and time of hearing

(4)Subject to subrule (5), the hearing of an application must be set for 9:45 a.m. on a date on which the court hears applications or at such other time or date as has been fixed by the court or a registrar.

Date and time if hearing time more than 2 hours

(5)If the applicant's estimate referred to in subrule (3) (e) is more than 2 hours, the date and time of hearing must be fixed by a registrar.

[am. B.C. Reg. 119/2010, Sch. B, s. 8 (a).]

Service of application materials

(6)The applicant must serve the following, in accordance with subrule (7), on each of the parties and on every other person who may be affected by the orders sought:

(a) a copy of the filed notice of application;

(b) a copy of the filed version of each of the affidavits and documents, referred to in the notice of application under subrule (3) (d), that has not already been served on that person;

(c) in addition to the documents referred to in paragraphs (a) and (b), if the application is brought under Rule 11-3, any notice that the applicant is required to give under Rule 11-3 (9);

(d) in addition to the documents referred to in paragraphs (a) to (c), if the application is in relation to an agreement filed in, or to start, a family law case, a copy of the filed agreement;

(e) in addition to the documents referred to in paragraphs (a) to (d), if the application is in relation to a determination of a parenting coordinator filed under Rule 2-1.1 (1),

(i)   a copy of the filed determination, and

(ii)   if the parenting coordinator was engaged under an agreement filed under Rule 2-1 (2), a copy of the filed agreement.

[am. B.C. Regs. 119/2010, Sch. B, s. 8 (b); 133/2012, Sch. s. 16 (a) and (b).]

Service requirements

(7)The documents referred to in subrule (6) of this rule must be served as follows:

(a) subject to paragraphs (b) and (c) of this subrule, the documents must be served at least 8 business days before the date set for the hearing of the application;

(b) in the case of an application under Rule 11-3, the documents must be served at least 12 business days before the date set for the hearing of the application;

(c) in the case of an application to change, suspend or terminate a final order or to set aside or replace the whole or any part of an agreement filed under Rule 2-1 (2),

(i)   the documents must be served by personal service in accordance with Rule 6-3 (2), and

(ii)   service under subparagraph (i) of this paragraph must occur at least 21 business days before the date set for the hearing of the application;

(d) in the case of an application to change or set aside a determination of a parenting coordinator filed under Rule 2-1.1 (1), the documents must be served by personal service in accordance with Rule 6-3 (2) and paragraph (a) of this subrule.

[am. B.C. Regs. 241/2010, Sch. B, s. 1 (c) to (e); 133/2012, Sch. s. 16 (c) and (d).]

Application response

(8)A person who is served with documents referred to in subrule (6) of this rule and who wishes to respond to the notice of application (in this subrule called the "responding person") must do the following within the applicable period referred to in subrule (8.1):

(a) file an application response that complies with subrule (9) and, if applicable, subrule (10);

(b) file the original of every affidavit, and of every other document, that

(i)   is to be referred to by the responding person at the hearing, and

(ii)   has not already been filed in the family law case;

(c) serve on the applicant 2 copies of the following, and on every other party one copy of the following:

(i)   a copy of the filed application response;

(ii)   a copy of each of the filed affidavits and documents, referred to in the application response under subrule (9) (b) (ii), that has not already been served on that person;

(iii)   if the application is brought under Rule 11-3, any notice that the application respondent is required to give under Rule 11-3 (9).

[en. B.C. Reg. 241/2010, Sch. B, s. 1 (f).]

Time for filing and service

(8.1)The responding person must file the documents referred to in subrule (8) (a) and (b) and serve the documents referred to in subrule (8) (c) within whichever of the following periods applies to the application:

(a) subject to paragraphs (b) and (c) of this subrule, within 5 business days after service of the documents referred to in subrule (6);

(b) in the case of an application under Rule 11-3, within 8 business days after service of the documents referred to in subrule (6) of this rule;

(c) in the case of an application to change, suspend or terminate a final order or to set aside or replace the whole or any part of an agreement filed under Rule 2-1 (2), within 14 business days after service of the documents referred to in subrule (6).

[en. B.C. Reg. 241/2010, Sch. B, s. 1 (f); am. B.C. Reg. 133/2012, Sch. s. 16 (e).]

Contents of application response

(9)An application response must be in Form F32, must not exceed 10 pages in length and must

(a) indicate, for each order sought on the application, whether the application respondent consents to, opposes or takes no position on the order, and

(b) if the application respondent wishes to oppose any of the relief sought in the application,

(i)   briefly summarize the factual and legal bases on which the orders sought should not be granted,

(ii)   list the affidavits and other documents to which the application respondent intends to refer at the hearing of the application, and

(iii)   set out the application respondent's estimate of the time the application will take for hearing.

[am. B.C. Reg. 241/2010, Sch. B, s. 1 (g).]

Address for service

(10)An application respondent who has not yet provided an address for service in the family law case must include an address for service in any application response filed under subrule (8), and Rule 6-1 applies.

Repealed

(11)Repealed. [B.C. Reg. 241/2010, Sch. B, s. 1 (h).]

Applicant may respond

(12)An applicant who wishes to respond to any document served under subrule (8) of this rule must file and serve on each application respondent any responding affidavits no later than 4 p.m. on the business day that is one full business day before the date set for the hearing.

[am. B.C. Regs. 119/2010, Sch. B, s. 8 (d); 241/2010, Sch. B, s. 1 (i) and (j).]

No additional affidavits

(13)Unless all parties consent or the court otherwise orders, a party must not serve any affidavits additional to those served under subrules (6), (8) and (12).

[am. B.C. Reg. 241/2010, Sch. B, s. 1 (i).]

Application record

(14)Subject to subrule (16), the applicant must provide to the registry where the hearing is to take place, no later than 4 p.m. on the business day that is one full business day before the date set for the hearing, an application record as follows:

(a) the application record must be in a ring binder or in some other form of secure binding;

(b) the application record must contain, in consecutively numbered pages, or separated by tabs, the following documents in the following order:

(i)   a title page bearing the style of proceeding and the names of the lawyers, if any, for the applicant and the application respondents;

(ii)   an index;

(iii)   a copy of the filed notice of application;

(iv)   a copy of each filed application response;

(v)   a copy of every filed affidavit and pleading, and of every other document other than a written argument, that is to be relied on at the hearing;

(vi)   if the application is brought under Rule 11-3, a copy of each filed pleading;

(c) the application record may contain

(i)   a draft of the proposed order,

(ii)   a written argument,

(iii)   a list of authorities and

(iv)   a draft bill of costs;

(d) the application record must not contain

(i)   affidavits of service,

(ii)   copies of authorities, including case law, legislation, legal articles or excerpts from textbooks, or

(iii)   any other documents unless they are included with the consent of all the parties.

[am. B.C. Regs. 119/2010, Sch. B, s. 8 (e) and (f); 241/2010, Sch. B, s. 1 (j).]

Service of application record index

(15)The applicant must serve a copy of the application record index on each application respondent no later than 4 p.m. on the business day that is one full business day before the date set for the hearing.

[am. B.C. Reg. 241/2010, Sch. B, s. 1 (k).]

If application respondent's application is to be heard at the hearing

(16)If an application respondent intends to set an application for hearing at the same time as the applicant's application, those parties must, so far as is possible, prepare and provide to the registry where the hearing is to take place a joint application record and agree to a date for the hearing of both applications.

[am. B.C. Reg. 119/2010, Sch. B, s. 8 (g).]

Application record to be returned

(17)Unless the court otherwise orders, the applicant must retrieve the application record

(a) at the conclusion of the hearing, or

(b) if the hearing of the application is adjourned to a date later than the following business day, after the hearing is adjourned.

[am. B.C. Regs. 119/2010, Sch. B, s. 8 (h); 241/2010, Sch. B, s. 1 (l).]

Application record to be returned to the registry

(18)If the application record has been retrieved by the applicant under subrule (17) (b), the applicant must return the application record to the registry between 9:00 a.m. and 4 p.m. on the business day that is one full business day before the new date set for the hearing of the application.

[am. B.C. Regs. 119/2010, Sch. B, s. 9; 241/2010, Sch. B, s. 1 (m).]

Provision of amended application record

(19)If any additional affidavits are filed and served under subrule (12) and are not included in the application record, the applicant must provide to the registry an amended application record containing those affidavits.

Resetting adjourned applications

(19.1)To reset an application that has been adjourned without a date being set for it to be heard ("adjourned generally"), the applicant must

(a) file a requisition in Form F17 setting out the date and time of the hearing, and

(b) serve a copy of the filed requisition on the application respondents at least 2 business days before the date set for the hearing.

[en. B.C. Reg. 119/2010, Sch. B, s. 8 (i); am. B.C. Reg. 241/2010, Sch. B, s. 1 (n).]

Application respondent may apply for directions

(20)If, after an application has been adjourned generally, the applicant does not reset the application for hearing within a reasonable time after an application respondent has requested the applicant to do so, an application respondent may apply, by requisition in Form F17 on 2 business days' notice, for directions.

[am. B.C. Regs. 119/2010, Sch. B, s. 8 (j); 241/2010, Sch. B, s. 1 (o).]

Rule 10-7 — Consent Applications

How consent applications are to be brought

(1)To apply for an order referred to in subrule (1.1), a party must file the following, and to apply for a consent order to enforce an agreement filed under Rule 2-1 (2), to enforce an order or to enforce compliance with a determination of a parenting coordinator, a party may file the following:

(a) a requisition in Form F29;

(b) a draft of the proposed order in Form F33;

(c) evidence, in accordance with Rule 15-1 (11), that the application is consented to;

(c.1) if guardianship of one or more children is being sought, an affidavit in Form F101;

(d) any consent or comments of the Public Guardian and Trustee required under section 40 of the Infants Act.

[If an order is sought to appoint a person as the guardian of one or more children, the Form F101 affidavit referred to in Rule 15-2.1 must be provided to the court with the other application materials.]

[en. B.C. Reg. 133/2012, Sch. s. 17; am. B.C. Reg. 41/2013, Sch. s. 4.]

Consent applications under this Part

(1.1)Subrule (1) applies to the following consent applications:

(a) for an interim order;

(b) to change, suspend or terminate a final order;

(c) to set aside or replace the whole or any part of an agreement filed under Rule 2-1;

(d) to change or set aside a determination of a parenting coordinator filed under Rule 2-1.1.

[en. B.C. Reg. 133/2012, Sch. s. 17.]

Consent order

(2)On being satisfied that an application referred to in subrule (1) of this rule is consented to and that the materials appropriate for the application have been filed in accordance with subrule (1), a registrar may

(a) refer the application to a judge or, if the order sought is within the jurisdiction of a master, to a judge or master, or

(b) if the registrar is satisfied that

(i)   none of the parties applying for or consenting to the order is under a legal disability, or

(ii)   if a party is under a legal disability, section 40 (7) of the Infants Act applies,

enter the order or proceed under paragraph (a) of this subrule.

Disposition of referred applications

(3)If an application is referred by a registrar to a judge or master under subrule (2), the judge or master may

(a) make the order, or

(b) give directions respecting the application.

Rule 10-8 — Applications of Which Notice Is Not Required

Application of which notice is not required

(1)An application of which notice is not required may be made by filing

(a) a requisition in Form F29,

(b) a draft of the proposed order in Form F34, and

(c) subject to Rule 15-2.1, affidavit or other evidence in support of the application.

[If an order is sought to appoint a person as the guardian of one or more children, the affidavit referred to in Rule 15-2.1 must be provided to the court with the other application materials.]

[am. B.C. Regs. 119/2010, Sch. B, s. 11 (a); 41/2013, Sch. s. 5.]

Repealed

(2)-(3)Repealed. [B.C. Reg. 119/2010, Sch. B, s. 11 (b).]

Rule 10-9 — Urgent Applications

When Applications May Be Heard on Short Notice

Short notice

(1)Without limiting subrule (6), in case of urgency, a person wishing to bring an application (in this subrule and in subrules (2) to (5) called the "main application") on less notice than would normally be required may make an application (in this subrule and in subrules (2) to (4) called the "short notice application") for an order that the main application may be brought on short notice.

How to make a short notice application

(2)A short notice application may be made by requisition in Form F17, without notice, and in a summary way.

Normal time and notice rules don't apply

(3)The time limits and notice requirements provided in these Supreme Court Family Rules do not apply to a short notice application.

Powers of court on short notice application

(4)On a short notice application, the court or a registrar may

(a) order that the main application be heard on short notice,

(b) fix the date and time for the main application to be heard,

(c) fix the date and time before which service of documents applicable to the main application must be made, and

(d) give any other directions that the court or registrar considers will further the object of these Supreme Court Family Rules.

Effect of short notice order

(5)If an order is made under subrule (4) that the main application be heard on short notice, the time limits and notice requirements provided in these Supreme Court Family Rules do not apply to the main application.

When Applications May Be Heard Without Any Notice

Orders without notice

(6)The court may make an order without notice in the case of urgency.

Service of orders required

(7)Promptly after an order is made without notice by reason of urgency, the party who obtained the order must serve a copy of the entered order and the documents filed in support on each person who is affected by the order.

Setting aside orders made without notice

(8)On the application of a person affected by an order made without notice under subrule (6), the court may change or set aside the order.

Division 3 — Procedure for Applications for Final Orders

Rule 10-10 — Final Orders in Undefended Family Law Cases

How to bring applications for judgment in undefended family law case

(1)To apply for judgment in an undefended family law case, a party must apply

(a) by requisition in accordance with subrule (2), or

(b) at trial.

How to bring applications by requisition

(2)A party wishing to apply for judgment under subrule (1) (a) must file the following:

(a) a requisition in Form F35;

(b) a draft of the proposed order;

(c) proof that the case is an undefended family law case;

(d) a certificate of the registrar in Form F36 certifying that the pleadings and proceedings in the family law case are in order;

(e) unless subrule (3) applies, proof of service of the notice of family claim or counterclaim under which judgment is sought;

(f) if appropriate, a Child Support Affidavit in Form F37;

(f.1) if guardianship of one or more children is being sought, an affidavit in Form F101;

(g) if a divorce is sought, an affidavit in Form F38.

[For the purposes of paragraph (f), it is "appropriate" to file a child support affidavit if

( a ) the family law case includes a claim for divorce and the notice of family claim, response to family claim, counterclaim or response to counterclaim identifies a child of the marriage within the meaning of the Divorce Act, or

( b ) the family law case includes a claim for child support.]

[If an order is sought to appoint a person as the guardian of one or more children, the Form F101 affidavit referred to in Rule 15-2.1 must be provided to the court with the other application materials.]

[am. B.C. Reg. 41/2013, Sch. s. 6.]

When proof of service is not required

(3)A party wishing to apply for judgment under subrule (1) (a) need not file proof of service of the notice of family claim or counterclaim under which judgment is sought if the party against whom judgment is sought had filed a response to family claim or response to counterclaim, as the case may be, even though that response to family claim or response to counterclaim has been withdrawn.

Evidence in undefended family law case if divorce sought

(4)In an undefended family law case in which a divorce is sought, the evidence, and any information required to enable the court to comply with sections 10 and 11 of the Divorce Act, may be presented by affidavit, unless the court otherwise orders.

Powers of court on application

(5)On being satisfied that an application under subrule (1) (a) is appropriate, the court may give any directions it considers will further the object of these Supreme Court Family Rules and may, without limitation,

(a) make an order or grant judgment without the attendance of lawyers or the applicant,

(b) direct the attendance of lawyers or the applicant, or

(c) direct that further evidence be presented.

Rule 10-11 — Final Orders in Defended Family Law Cases

Final orders in defended family law cases

(1)To obtain a final order, other than at trial, in a defended family law case begun by the filing of a notice of family claim, a party must apply by way of summary trial in accordance with Rule 11-3.

Part 11 — Pre-Trial Resolution Procedures

Rule 11-1 — Offers to Settle

Definition

(1)In this rule, "offer to settle" means

(a) an offer to settle made and delivered before July 2, 2008 under Rule 37 of the former Supreme Court Rules, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule,

(b) an offer of settlement made and delivered before July 2, 2008 under Rule 37A of the former Supreme Court Rules, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or

(c) an offer to settle made after July 1, 2008 under Rule 37B of the former Supreme Court Rules, as that rule read on the date of the offer to settle, or made under this rule, that

(i)   is made in writing by a party to a family law case,

(ii)   has been served on all parties, and

(iii)   contains the following sentence: "The ..............[party(ies)].............., ..............[name(s) of party(ies)].............., reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding."

Offer not to be disclosed

(2)The fact that an offer to settle has been made must not be disclosed to the court or jury, or set out in any document used in the family law case, until all issues in the family law case, other than costs, have been determined.

Offer not an admission

(3)An offer to settle is not an admission.

Offer may be considered in relation to costs

(4)The court may consider an offer to settle when exercising the court's discretion in relation to costs.

Cost options

(5)In a family law case in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle;

(b) award double costs of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle;

(c) award to a party, in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d) if the offer was made by a respondent and the judgment awarded to the claimant was no greater than the amount of the offer to settle, award to the respondent the respondent's costs in respect of all or some of the steps taken in the family law case after the date of delivery or service of the offer to settle.

[am. B.C. Reg. 119/2010, Sch. B, s. 12.]

Considerations of court

(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.

Counter offer

(7)An offer to settle does not expire by reason that a counter offer is made.

Rule 11-2 — Striking Documents

Scandalous, frivolous or vexatious matters

(1)At any stage of a family law case, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing of the family law case, or

(d) it is otherwise an abuse of the process of the court,

and the court may pronounce judgment or order the family law case to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[am. B.C. Reg. 119/2010, Sch. B, s. 13.]

Admissibility of evidence

(2)No evidence is admissible on an application under subrule (1) (a).

Powers of registrar

(3)If, on the filing of a document, a registrar considers that the whole or any part of the document could be the subject of an order under subrule (1),

(a) the registrar may, despite any other provision of these Supreme Court Family Rules,

(i)   retain the document and all filed copies of it, and

(ii)   refer the document to the court, and

(b) the court may, after a summary hearing, make an order under subrule (1).

Reconsideration of order

(4)If the court makes an order referred to in subrule (3) (b),

(a) the registrar must give notification of the order, in the manner directed by the court, to the person who filed the document,

(b) the person who filed the document may, within 7 days after being notified, apply to the court, and

(c) the court may confirm, vary or rescind the order.

Rule 11-3 — Summary Trial

Definition

(1)In this rule, "summary trial application" means an application referred to in subrule (2).

Application

(2)A party may apply to the court for judgment under this rule, either on an issue or generally, in any of the following:

(a) a family law case in which a response to family claim has been filed;

(b) a family law case that has been transferred to the trial list under Rule 10-3 (7) (d);

(c) a family law case by way of counterclaim in which a response to counterclaim has been filed.

When application must be heard

(3)A summary trial application must be heard at least 42 days before the scheduled trial date.

Setting application for hearing

(4)Unless the court otherwise orders, a summary trial application must be set for hearing in accordance with Part 10.

Evidence on application

(5)Unless the court otherwise orders, on a summary trial application, the applicant and each other party may, subject to Rule 15-2.1, introduce evidence by any or all of the following:

(a) an affidavit;

(b) an answer, or part of an answer, to interrogatories;

(c) any part of the evidence taken on an examination for discovery;

(d) an admission under Rule 9-6;

(e) a report setting out the opinion of an expert, if

(i)   the report conforms with Rule 13-6 (1), or

(ii)   the court orders that the report is admissible even though it does not conform with Rule 13-6 (1).

[If an order is sought on a summary trial application to appoint a person as the guardian of one or more children, the affidavit referred to in Rule 15-2.1 must be provided to the court with the other application materials.]

[am. B.C. Reg. 41/2013, Sch. s. 7.]

Application of Rule 14-7

(6)Rule 14-7 (46), (49), (50), (51) and (56) to (58) applies to subrule (5) of this rule.

Application of Rules 13-6 and 13-7

(7)Rule 13-6 (2) applies to a summary trial application.

[am. B.C. Reg. 119/2010, Sch. B, s. 14.]

Filings with application

(8)A party who applies for judgment under subrule (2)

(a) must serve, with the notice of application and the other documents referred to in Rule 10-6(6), every expert report, not already filed, on which the party will rely in support of the application, and

(b) must not serve any further affidavits, expert reports or notices except

(i)   to introduce evidence that would, at a trial, be admitted as rebuttal evidence,

(ii)   to respond to a notice of application filed and served by another party, or

(iii)   with leave of the court.

Notice of evidence to be used on application

(9)If a party intends, on a summary trial application, to rely on

(a) evidence taken on an examination for discovery,

(b) answers to interrogatories, or

(c) admissions,

the party must give notice of that fact in accordance with subrule (10).

Giving notice

(10)Notice under subrule (9) must be served

(a) by an applicant, in accordance with Rule 10-6 (6) and (7), and

(b) by a party who is not an applicant, in accordance with Rule 10-6 (8).

[am. B.C. Reg. 241/2010, Sch. B, s. 2.]

Adjournment or dismissal

(11)On an application heard before or at the same time as the hearing of a summary trial application, the court may

(a) adjourn the summary trial application, or

(b) dismiss the summary trial application on the ground that

(i)   the issues raised by the summary trial application are not suitable for disposition under this rule, or

(ii)   the summary trial application will not assist the efficient resolution of the family law case.

Preliminary orders

(12)On or before the hearing of a summary trial application, the court may order that

(a) a party file and serve, within a fixed time, any of the following on which the party intends to rely in support of the application:

(i)   an affidavit;

(ii)   a notice referred to in subrule (9),

(b) the person who swore or affirmed an affidavit, or an expert whose report is relied on, attend for cross-examination, either before the court or before another person as the court directs,

(c) cross-examinations on affidavits be completed within a fixed time,

(d) no further evidence be introduced on the application after a fixed time, or

(e) a party file and serve a brief, with such contents as the court may order, within a fixed time.

Ancillary or preliminary orders may be made at or before application

(13)An order under subrule (11) or (12) may be made by a judge or by a master, and may be made before or at the same time as a summary trial application.

Judge not seized of application

(14)A judge who makes an order under subrule (11) or (12) in relation to a summary trial application is not seized of the summary trial application unless the judge otherwise orders.

Judgment

(15)On the hearing of a summary trial application, the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i)   the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii)   the court is of the opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting enforcement of the judgment, including a stay of execution, and

(c) award costs.

No further application without leave

(16)If the court does not grant judgment under subrule (15), the applicant may not apply again under subrule (2) without leave of the court.

Orders

(17)If the court is unable to grant judgment under subrule (15) and considers that the family law case ought to be expedited, the court may order the trial of a family law case generally or on an issue and may

(a) order that the parties attend a judicial case conference,

(b) make any order that may be made under Rule 7-1 (15), or

(c) make any other order the court considers will further the object of these Supreme Court Family Rules.

Right to vary or set aside order

(18)A court may, before or at trial, vary or set aside an order made under subrule (12) or (17) of this rule.

Rule 11-4 — Discontinuance and Withdrawal

Discontinuance before family law case set for trial

(1)At any time before a notice of trial is filed in a family law case, a claimant may discontinue it in whole or in part against a respondent by filing a notice of discontinuance in Form F39 and serving a filed copy of the notice of discontinuance on all parties.

Discontinuance after family law case set for trial

(2)After a notice of trial is filed in a family law case, a claimant may discontinue the family law case in whole or in part against a respondent with the consent of all parties or by leave of the court.

Withdrawal by respondent

(3)A respondent may withdraw his or her response to family claim or any part of it with respect to any claimant at any time by filing a notice of withdrawal in Form F40 and serving a filed copy of the notice of withdrawal on all parties.

Costs and default procedure on discontinuance or withdrawal

(4)Subject to subrule (2), a person wholly discontinuing a family law case against a party or wholly withdrawing his or her response to family claim filed in response to a notice of family claim of a party must pay the costs of that party to the date of service of the notice of discontinuance or the notice of withdrawal, as the case may be, and if a claimant who is liable for costs under this subrule subsequently brings a proceeding for the same or substantially the same claim before paying those costs, the court may order the proceeding to be stayed until the costs are paid.

Some costs remain recoverable

(5)A claimant's right to recover costs from a respondent under subrule (4) does not preclude the claimant recovering other costs properly incurred.

Proceeding after response is withdrawn

(6)If a respondent wholly withdraws his or her response under this rule, the claimant may proceed as if the respondent had served no response and Rule 4-3 (2) applies.

Discontinuance not a defence

(7)Unless the court otherwise orders, the discontinuance of a family law case in whole or in part is not a defence to a subsequent family law case for the same or substantially the same claim or claims.

Application to counterclaim and petition

(8)This rule applies to a counterclaim and a petition.

Part 12 — Property and Injunctions

Rule 12-1 — Detention, Preservation and Recovery of Property

Property that is the subject matter of a family law case

(1)The court may make an order for the detention, custody or preservation of any property that is the subject matter of a family law case or as to which a question may arise and, for the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter on any land or building.

Fund that is the subject matter of a family law case

(2)If the right of a party to a specific fund is in dispute in a family law case, the court may order the fund to be paid into court or otherwise secured.

Allowance of income from property

(3)If property is the subject matter of a family law case and the court is satisfied that the property will be more than sufficient to answer all claims on it, the court at any time

(a) may allow the whole or part of the income of the property to be paid, during such period as the court may direct, to a party who has an interest in it, or

(b) in the case of personal property, may order that part of the personal property be delivered or transferred to a party.

Recovery of specific property

(4)If a party claims the recovery of specific property other than land, the court may order that the property claimed be given up to the party, pending the outcome of the family law case, either unconditionally or on terms and conditions, if any, relating to giving security, time, mode of trial or otherwise.

Compensation for wrongful recovery

(5)Unless the court otherwise orders, if an order is made under subrule (4) in favour of a party, the order must contain the party's undertaking to abide by any order that the court may make as to damages arising out of delivery of the property to the party or compliance with any other order.

Rule 12-2 — Receivers

Appointment of receiver

(1)The court may appoint a receiver in any proceeding either unconditionally or on terms, whether or not the appointment of a receiver was included in the relief claimed by the applicant.

Form of security

(2)Unless the court otherwise orders, a receiver must give security as the court may direct in either Form F41 or Form F42 and, until that security is given, the order appointing the receiver must not be presented for entry.

Remuneration of receiver

(3)The court must fix any remuneration to be paid to a receiver.

Accounts of receiver

(4)Unless the court otherwise orders, a receiver must file and deliver his or her accounts annually.

Rule 12-3 — Interpleader

Entitlement to relief by way of interpleader

(1)If

(a) a person (in this rule called the "applicant")

(i)   is sued or expects to be sued in respect of property in the person's possession or under the person's control or in respect of the proceeds from a disposition of the property, or

(ii)   receives a claim in respect of

(A)  the property, or

(B)  the proceeds

by or from 2 or more persons (in this rule called the "property claimants") making adverse claims, and

(b) the applicant claims no beneficial interest in the property,

the applicant may apply to the court for interpleader relief.

Claim to real or personal property taken by sheriff

(2)A person who makes a claim to or in respect of property taken or intended to be taken by a sheriff in the execution of any writ of execution, or to the proceeds from a disposition of the property, must deliver to the sheriff written notice of the person's claim and the person's address.

Sheriff to deliver notice

(3)On receipt of a notice of claim under subrule (2), a sheriff must promptly deliver a copy of the notice to the person who caused the writ of execution to issue, and that person must, within 7 days after receiving the copy, deliver to the sheriff a written notice stating whether that person admits or disputes the claim.

If claim admitted

(4)Promptly after receiving under subrule (3) a notice admitting a claim,

(a) a sheriff must release any property the claim to which is admitted, and

(b) the court may restrain the bringing of a proceeding against the sheriff for or in respect of having taken possession of the property, and

unless the court otherwise orders, the person who admitted the claim is only liable to the sheriff for any costs, fees and expenses incurred by the sheriff before receipt of the notice admitting the claim.

Sheriff may apply for interpleader relief

(5)A sheriff who receives a notice of claim under subrule (2) may apply for interpleader relief if

(a) the sheriff receives a notice under subrule (3) disputing the claim, or

(b) the person who caused the writ of execution to issue fails to give the sheriff the notice required under subrule (3) within the time required by that subrule.

Mode of application

(6)An application for interpleader relief must be made by petition, unless it is made in a proceeding that has already been started, in which case it may be made by notice of application.

Affidavit

(7)An application for interpleader relief must be supported by an affidavit stating the names and addresses of the property claimants of whom the applicant has knowledge and that the applicant

(a) claims no beneficial interest in the property in dispute, other than for costs, fees or expenses,

(b) does not collude with any property claimant, and

(c) is willing to deliver the property to the court or to dispose of it as the court may direct.

Application for interpleader relief

(8)An application for interpleader relief may be made without notice, and the court may deal with the application summarily or may give directions for service.

Powers of court on hearing application

(9)On the hearing of an application for interpleader relief, the court may

(a) order a property claimant to be named as a party to a proceeding that has already been started in substitution for or in addition to the applicant,

(b) order an issue between the property claimants to be stated and tried in an action and direct which property claimant is to be the plaintiff in the action and which property claimant is to be the defendant,

(c) on the request of the applicant or a property claimant, determine the rights of the property claimants summarily,

(d) if a property claimant fails to attend, or attends and fails or refuses to comply with an order made in the proceeding, make an order declaring that the property claimant and all persons claiming under the property claimant be forever barred from prosecuting the claim against the applicant, without affecting the rights of the property claimants as between themselves,

(e) stay any further step in a proceeding,

(f) if there are interpleader applications pending in several proceedings, make an order that is binding on all the parties to the various proceedings,

(g) order the costs of the applicant to be paid out of the property or proceeds,

(h) declare that the liability of the applicant with respect to the property or the proceeds is extinguished, and

(i) make any other order the court considers will further the object of these Supreme Court Family Rules.

Rule 12-4 — Injunctions

Applications for pre-trial injunctions

(1)An application for a pre-trial injunction may be made by a party whether or not a claim for an injunction is included in the relief claimed.

Applications for pre-trial injunctions before family law case started

(2)An application for a pre-trial injunction may be made before the start of a family law case and the injunction may be granted on terms providing for the start of the family law case.

Applications for interim injunctions without notice

(3)If an application for a pre-trial injunction is made without notice, the court may grant an interim injunction.

Injunction by court order

(4)An injunction must be imposed by order of the court.

Undertaking as to damages

(5)Unless the court otherwise orders, an order for a pre-trial or interim injunction must contain the applicant's undertaking to abide by any order that the court may make as to damages.

Application for injunction after judgment

(6)In a family law case in which an injunction has been or might have been claimed, a party may apply by petition after judgment to restrain another party from the repetition or continuance of the wrongful act or breach of contract established by the judgment or from the commission of any act or breach of a like kind.

Part 13 — Court Ordered Reports and Expert Witnesses

Rule 13-1 — Court Ordered Reports under Section 211 of the Family Law Act

Report must include address for service

(1)If, under section 211 of the Family Law Act, the court appoints a person to conduct an assessment, that person must

(a) include in the report required under section 211 (4) of that Act an address for service at which a notice under subrule (2) may be served, and

(b) unless the court otherwise orders, file a copy of the report and serve a filed copy of the report on all parties at least 42 days before the scheduled trial date.

[en. B.C. Reg. 133/2012, Sch. s. 19.]

Permission required to call person who prepares court-ordered report

(2)A party who wishes to cross-examine at trial the person who prepared a report referred to in subrule (1) must, at least 28 days before the scheduled trial date, serve on the person and all parties, by ordinary service, a notice in Form F43.

[en. B.C. Reg. 133/2012, Sch. s. 19.]

Rule 13-2 — Duty of Expert Witnesses

Duty of expert witness

(1)In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification

(2)If an expert is appointed under this Part by one or more parties or by the court, the expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),

(b) has made the report in conformity with that duty, and

(c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty.

Rule 13-3 — Appointing Joint Expert Witnesses

Definition

(1)In this rule, "financial issue" means

(a) an issue arising out of a claim under Part 5 or 6 of the Family Law Act,

(b) a claim for an interest in property based on unjust enrichment or other trust claims, or

(c) a claim for compensation based on unjust enrichment.

[am. B.C. Reg. 133/2012, Sch. s.5.]

Joint appointment on financial issues

(2)If any party wishes to present to the court expert opinion evidence on a financial issue,

(a) that evidence must be presented to the court by means of a jointly appointed expert unless the court otherwise orders or the parties otherwise agree, and

(b) Rule 13-4 applies.

Other appointments on non-financial issues

(3)If a party wishes to present to the court expert opinion evidence on an issue other than a financial issue,

(a) the parties may present that evidence by means of a jointly appointed expert under Rule 13-4, or

(b) any one or more of the parties may appoint his or her own expert.

Rule 13-4 — Jointly Appointed Experts

Matters to be settled prior to appointment

(1)When an expert is to be jointly appointed by 2 or more parties under Rule 13-3 (2) or (3) (a), the following must be settled before the expert is appointed:

(a) the identity of the expert;

(b) the issue in the family law case the expert opinion evidence may help to resolve;

(c) any facts or assumptions of fact agreed to by the parties;

(d) for each party, any assumptions of fact not included under paragraph (c) of this subrule that the party wishes the expert to consider;

(e) the questions to be considered by the expert;

(f) when the report must be prepared by the expert and given to the parties;

(g) responsibility for fees and expenses payable to the expert.

Appointment agreement

(2)If the parties agree on the matters referred to in subrule (1), they must enter into a written agreement that reflects those agreed upon matters and

(a) the agreement must be signed by each party to the agreement or their lawyers,

(b) the agreement must be signed by the expert to signify that he or she

(i)   has been made aware of the content of this Part, and

(ii)   consents to the appointment reflected in the agreement, and

(c) a copy of the agreement must be served, promptly after signing, on every party to the family law case who is not a party to the agreement.

Application to court

(3)If the parties do not agree that a joint expert is required or do not agree on any matter relating to the appointment of a joint expert, any party may apply to the court in accordance with Rule 10-5 for an order

(a) appointing a joint expert, and

(b) settling any matter relating to the appointment of the joint expert.

Order

(4)If the court makes an order on an application under subrule (3), the applicant for the order must promptly serve the expert with a copy of the entered order.

Role of expert appointed under this rule

(5)Unless the court otherwise orders on an application referred to in subrule (6), a joint expert appointed in relation to an issue, by agreement under subrule (2) or by a court order made on an application under subrule (3), is the only expert who may give expert opinion evidence in the family law case on the issue.

Notice of application

(6)A party wishing to apply under subrule (5) for leave to introduce the evidence of an additional expert at trial must, within 21 days after receipt of the joint expert's report, serve on all parties the documents that under Rule 10-6 (6) are required for the application.

Additional experts

(7)The court may, on an application referred to in subrule (6) of this rule, grant leave for the evidence of an additional expert to be introduced at trial if the court is satisfied that the evidence of that additional expert is necessary to ensure a fair trial.

Considerations

(8)In assessing whether to grant leave for the evidence of an additional expert to be introduced at trial, the court may consider

(a) whether the parties have fully cooperated with the joint expert and have made full and timely disclosure of all relevant information and documents to the joint expert,

(b) whether the dispute about the opinions of the joint expert may be resolved by requesting clarification or further opinions from that expert, and

(c) any other factor the court considers relevant.

Cooperation required

(9)All parties must cooperate fully with a joint expert and make full and timely disclosure of all relevant information and documents to the joint expert.

Cross-examination

(10)Each party has the right to cross-examine a joint expert at trial.

Rule 13-5 — Appointment of Court's Own Expert

Appointment of experts by court

(1)Subject to this rule, the court may, on its own initiative at any stage of a family law case, appoint an expert if it considers that expert opinion evidence may help the court in resolving an issue in the family law case.

Materials required by court

(2)In deciding whether to appoint an expert under this rule in relation to an issue in a family law case, the court may

(a) ask each party to name one or more persons who

(i)   are qualified to give expert opinion evidence on the issue, and

(ii)   have been made aware of the content of this Part and consent to being appointed,

(b) require each party to state any connection between an expert named under paragraph (a) and a party to the family law case, and

(c) receive other material and make other inquiries to help decide which expert to appoint.

Court may name different expert

(3)The court may appoint an expert under this rule whether or not that expert was named by a party under subrule (2).

Expert must consent

(4)The court may appoint an expert under this rule if the expert consents to the appointment after he or she has been made aware of the content of this Part.

What court may consider

(5)In deciding whether to appoint an expert under this rule in relation to an issue in a family law case, the court may consider

(a) the complexity of the issue,

(b) the expense of appointing the expert,

(c) whether the appointment will expedite or delay the trial of the family law case,

(d) the interests of justice, and

(e) any other consideration the court considers relevant.

Previous report not a bar

(6)The court may appoint an expert under this rule in relation to an issue even if that expert has already given a report to a party on the issue or on another issue in the family law case.

Consequences of court appointment

(7)Unless the court otherwise orders, if an expert is appointed under this rule to give expert opinion evidence on an issue, each party has the right to cross-examine the expert.

Directions to expert

(8)The court, after consultation with the parties, must

(a) settle the questions to be submitted to any expert appointed by the court under this rule,

(b) give the expert any directions the court considers appropriate, and

(c) give the parties any directions the court considers appropriate to facilitate the expert's ability to provide the required opinion.

Contents of order appointing expert

(9)The order appointing an expert under this rule must contain the directions referred to in subrule (8) and the court may make additional orders to enable the expert to carry out the directions applicable to him or her, including, on application by a party, an order under Rule 9-5 for

(a) an examination with respect to the physical or mental condition of a party, or

(b) inspection of property.

Remuneration of expert

(10)The remuneration of an expert appointed under this rule

(a) must be fixed by the court and consented to by the expert, and

(b) may include

(i)   a fee for the report, and any supplementary reports, required under Rule 13-6, and

(ii)   an appropriate sum for each day that the expert's attendance in court is required.

Security for remuneration

(11)The court may make one or both of the following orders, without prejudice to any party's right to costs:

(a) an order directing that the expert's remuneration be paid by the persons and at the time ordered by the court;

(b) an order for security for the expert's remuneration.

Report

(12)An expert appointed under this rule must

(a) prepare a report that complies with Rule 13-6 and send it to the registry, with a copy to each party, within such time as the court directs, and

(b) if the expert's opinion changes in a material way after an expert's report is sent to the registry under paragraph (a), prepare a supplementary report that complies with Rule 13-6 and send it to the registry, with a copy to each party, within such time as the court directs.

Report must be introduced as evidence

(13)Each report and supplementary report of an expert appointed by the court under this rule must be introduced as evidence at the trial of the family law case, unless the trial judge otherwise orders.

Rule 13-6 — Expert Reports

Requirements for report

(1)An expert's report that is to be introduced as evidence at the trial must be signed by the expert, must include the certification required under Rule 13-2 (2) and must set out the following:

(a) the expert's name, address and area of expertise;

(b) the expert's qualifications and employment and educational experience in his or her area of expertise;

(c) the instructions provided to the expert in relation to the family law case;

(d) the nature of the opinion being sought and the issues in the family law case to which the opinion relates;

(e) the expert's opinion respecting those issues;

(f) the expert's reasons for his or her opinion, including

(i)   a description of the factual assumptions on which the opinion is based,

(ii)   a description of any research conducted by the expert that led him or her to form the opinion, and

(iii)   a list of every document, if any, relied on by the expert in forming the opinion.

[am. B.C. Reg. 119/2010, Sch. B, s. 15.]

Proof of qualifications

(2)The assertion of qualifications of an expert is evidence of them.

Service of report

(3)Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert's report, other than the report of an expert appointed by the court under Rule 13-5, must be served on every party, along with written notice that the report is being served under this rule,

(a) by the party who intends, with leave of the court under Rule 13-4 (7) or otherwise, to introduce the expert's report at trial, or

(b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert's report at trial.

Service of responding report

(4)Unless the court otherwise orders, if a party intends to introduce an expert's report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party, at least 42 days before the scheduled trial date,

(a) the responding report, and

(b) written notice that the responding report is being served under this rule.

Supplementary report of joint or court-appointed expert

(5)If, after an expert's report is served under subrule (3) (b), the expert's opinion changes in a material way,

(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party who served the report under subrule(3), and

(b) the party to whom the supplementary report is provided under paragraph (a) of this subrule must promptly serve that supplementary report on every other party.

Supplementary report of own expert

(6)If, after an expert's report is served under subrule (3) (a) or (4), the expert's opinion changes in a material way and the party who served the report intends to introduce that expert's report at trial despite the change,

(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party, and

(b) the party must promptly serve that supplementary report on every other party.

Requirements for supplementary report

(7)A supplementary report under Rule 13-5 (12) or under subrule (5) (a) or (6) (a) of this rule must

(a) be identified as a supplementary report,

(b) be signed by the expert,

(c) include the certification required under Rule 13-2 (2), and

(d) set out the change in the expert's opinion and the reason for it.

Production of documents

(8)Unless the court otherwise orders, if a report of a party's own expert appointed under Rule 13-3(3)(b) or 13-4 (7) is served under this rule, the party who served the report must,

(a) promptly after being asked to do so by a party, serve on the requesting party whichever one or more of the following has been requested:

(i)   any written statement or statements of facts on which the expert's opinion is based;

(ii)   a record of any independent observations made by the expert in relation to the report;

(iii)   any data compiled by the expert in relation to the report;

(iv)   the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and

(b) if asked to do so by a party, make available to the requesting party for review and copying the contents of the expert's file relating to the preparation of the opinion set out in the expert's report,

(i)   if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or

(ii)   in any other case, at least 14 days before the scheduled trial date.

Notice of trial date to expert

(9)The person who is required to serve the report or supplementary report of an expert under this rule must, promptly after the appointment of the expert or promptly after a trial date has been obtained, whichever is later, inform the expert of the scheduled trial date and that the expert may be required to attend at trial for cross-examination.

Notice of objection to expert opinion evidence

(10)A party who receives an expert report or supplementary report under this rule must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party a notice of any objection to the admissibility of the expert's evidence that the party receiving the report or supplementary report intends to raise at trial.

When objection not permitted

(11)Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given.

Rule 13-7 — Expert Opinion Evidence at Trial

Admissibility

(1)Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 13-5, must not be introduced at trial unless

(a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 13-6, and

(b) any supplementary reports required under Rule 13-5 (12) or 13-6 (5) or (6) have been prepared and served in accordance with Rule 13-6 (5) to (7).

When report stands as evidence

(2)Unless the court otherwise orders, the following apply to a report or supplementary report of an expert:

(a) if, within 21 days after service of the report or within such other period as the court may order, a demand is made under subrule (3) of this rule that the expert who made the report attend at trial for cross-examination, the report must not be introduced or accepted as evidence at the trial unless the appointing party calls the expert at trial to be cross-examined in compliance with the demand;

(b) if no such demand is made under subrule (3) within the demand period referred to in paragraph (a) of this subrule,

(i)   the expert whose report has been served under this Part need not attend at trial to give oral testimony, and

(ii)   the report, if admissible, may be introduced and accepted as evidence at the trial.

Cross-examination of expert

(3)A party may demand that an expert whose report has been served on the parties under Rule 13-6 attend at the trial for cross-examination as follows:

(a) if the expert was jointly appointed under Rule 13-3 (2) or (3) (a) or was appointed by the court under Rule 13-5, any party may, within the demand period referred to in subrule (2) (a) of this rule, demand the attendance of the expert for cross-examination by that party or by any of the other parties;

(b) if the expert was appointed by a party under Rule 13-3 (3) (b) or 13-4 (7), any party who is adverse in interest to the party who appointed that expert may, within the demand period referred to in subrule (2) (a) of this rule, demand the attendance of the expert for cross-examination.

Costs of cross-examination

(4)If an expert has been required to attend at trial for cross-examination by a demand under subrule(3) and the court is of the opinion that the cross-examination was not of assistance, the court may order the party who demanded the attendance of the expert to pay to the other party or to the expert costs in an amount the court considers appropriate.

Restrictions on calling expert as witness at trial

(5)Unless the court otherwise orders, if a party appoints his or her own expert under Rule 13-3 (3) (b) or 13-4 (7)

(a) the party must not call the expert to give oral evidence at trial unless

(i)   the expert's attendance has been demanded under subrule (3) of this rule, or

(ii)   the expert's report has been served in accordance with Rule 13-6, the party believes direct examination of the expert is necessary to clarify terminology in the report or to otherwise make the report more understandable and any direct examination of that expert is limited to those matters, and

(b) the party must not cross-examine the expert at trial.

When court may dispense with requirement of this Part

(6)At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if

(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,

(b) the non-compliance is unlikely to cause prejudice

(i)   by reason of an inability to prepare for cross-examination, or

(ii)   by depriving the party against whom the evidence is introduced of a reasonable opportunity to introduce evidence in response, or

(c) the interests of justice require it.

Part 14 — Trial Rules

Division 1 — Application

Rule 14-1 — Application

Application

(1)This Part applies to

(a) a family law case started by a notice of family claim, and

(b) a family law case that is transferred to the trial list under Rule 10-3 (7) (d).

Division 2 — Setting a Family Law Case for Trial

Rule 14-2 — How to Set Trial for Hearing

Notice of trial

(1)To set a family law case for trial, a party must file a notice of trial in Form F44.

Content of notice of trial

(2)A notice of trial filed under subrule (1) must include the date reserved at a judicial case conference for the trial or, if no trial date was reserved at a judicial case conference, the trial date obtained from the registry.

[en. B.C. Reg. 119/2010, Sch. B, s. 16.]

Registry

(3)The notice of trial must be filed in

(a) the registry where the document that started the family law case was filed unless paragraph (b) applies, or

(b) the registry to which the family law case has been transferred if the family law case has been transferred for all purposes to another registry.

Place of trial

(4)The place of trial must be the place named in the notice of family claim, if any, but the court may order that the place of trial be changed or that the trial be heard partly in one place and partly in another.

When notice of trial must be served

(5)Promptly after a notice of trial has been filed, the claimant, or such other party as may be ordered by the court, must serve a copy of the filed notice of trial on all parties.

If trial date unacceptable

(6)If a party on whom a notice of trial is served under subrule (5) objects to the trial date set out in that notice of trial, the party must, within 21 days after service of the notice of trial, apply to the court to have the trial rescheduled.

Time of trial

(7)The trial is to be heard on the day appointed by the notice of trial or so soon after that day as may be convenient to the court.

Court may make orders respecting trial dates

(8)The court may

(a) order the adjournment of a trial,

(b) fix the date of trial of a family law case,

(c) fix the date of trial of an issue in a family law case, or

(d) order that a trial take precedence over another trial.

Duty to inform registry

(9)Each party to a family law case that has been set for trial must advise the registry without delay

(a) if the family law case settles, and

(b) of any circumstances affecting the estimated length of the trial.

Rule 14-3 — Trial Management Conference

Date for trial management conference

(1)Unless the court otherwise orders, a trial management conference must take place at least 28 days before the scheduled trial date, at a time and place to be fixed by a registrar.

Trial management conference must be conducted by judge

(2)A trial management conference must be conducted by a judge or master and, if reasonably practicable, is to be conducted by the judge who will preside at the trial.

[am. B.C. Reg. 58/2012, Sch. B, s. 1 (a).]

Trial brief required

(3)Unless the court otherwise orders, each party attending a trial management conference must, at least 7 days before the date set for the trial management conference,

(a) file a trial brief in Form F45, and

(b) serve a copy of the filed trial brief on all parties.

Who must attend the trial management conference

(4)Unless the court otherwise orders, the following persons must attend a trial management conference in person:

(a) each lawyer representing a party or a child;

(b) subject to the exception set out in subrule (6), the parties.

Non-attendance at trial management conference

(5)If a person who, under subrule (4), is required to attend a trial management conference fails to appear at that trial management conference, the trial management conference judge or master may do one or more of the following:

(a) proceed in the absence of the person who failed to appear;

(b) adjourn the trial management conference;

(c) order that the person, or the party on whose behalf the person was to attend, pay costs to one or more other parties.

[am. B.C. Reg. 58/2012, Sch. B, s. 1 (b).]

Absent parties must be available and accessible by telephone or other means

(6)A party need not attend the trial management conference in person if the party is represented by a lawyer and one of the following is readily available for consultation during the trial management conference, either in person or by telephone:

(a) the party;

(b) an individual who

(i)   has full authority to make decisions for that party concerning the family law case, or

(ii)   has ready access to a person who has, or to a group of persons who collectively have, full authority to make decisions for that party concerning the family law case.

Application must be made by requisition

(7)An application under subrule (4) for an order respecting the manner in which a person is to attend a trial management conference or exempting a person from attending a trial management conference

(a) must be made by requisition in Form F17,

(b) must be supported by a letter signed by the person or the person's lawyer setting out the reasons why the order is sought, and

(c) unless the court otherwise orders, may be made without notice.

Proceedings must be recorded

(8)Proceedings at a trial management conference must be recorded, but no part of that recording may be made available to or used by any person without court order.

Orders at a trial management conference

(9)The judge or master presiding at a trial management conference may consider the following and, without limiting the ability of the trial judge or master to make other orders at trial, may, whether or not on the application of a party, make orders respecting one or more of the following:

(a) directing the parties to attend a settlement conference;

(b) amendment of a pleading within a fixed time;

(c) a plan for how the trial should be conducted;

(d) admissions of fact at trial;

(e) admission of documents at trial, including

(i)   agreements as to the purposes for which documents may be admitted, and

(ii)   the preparation of common books of documents and document agreements;

(f) imposing time limits for the direct examination or cross-examination of witnesses, opening statements and final submissions;

(g) directing that a party provide a summary of the evidence that the party expects one or more of the party's witnesses will give at trial;

(h) directing that evidence of witnesses be presented at trial by way of affidavit;

(i) respecting experts, including, without limitation, orders that the parties' experts must, before the service of their respective reports, confer to determine and report on those matters on which they agree and those matters on which they do not agree;

(j) directing that the parties present opening statements and final submissions in writing;

(k) adjournment of the trial;

(l) directing that the number of days reserved for the trial be changed;

(m) adjourning the trial management conference;

(n) directing the parties to attend a further trial management conference at a specified date and time;

(o) any other matter that may assist in making the trial more efficient;

(p) any other matter that may aid in the resolution of the family law case;

(q) any orders the judge or master considers will further the object of these Supreme Court Family Rules.

[am. B.C. Reg. 58/2012, Sch. B, s. 1 (b).]

When approval in writing by lawyer not required

(10)Without limiting Rule 15-1 (4), if an order under subrule (9) of this rule is signed or initialled by the trial management conference judge or master, that order need not be approved in writing by a lawyer or by a party.

[am. B.C. Reg. 58/2012, Sch. B, s. 1 (b).]

Prohibited orders

(11)A trial management conference judge or master must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[am. B.C. Reg. 58/2012, Sch. B, s. 1 (b).]

Rule 14-4 — Trial Record

Trial record for the court

(1)The party who files a notice of trial must file a trial record for the court, which trial record must contain

(a) the notice of family claim and each response to family claim, counterclaim and response to counterclaim,

(b) particulars served under a demand, together with the demand made,

(c) the most current Form F8 financial statement, if any, filed by each party,

(d) any order relating to the conduct of the trial, and

(e) any document required by a registrar under subrule (2).

[am. B.C. Reg. 119/2010, Sch. B, s. 17.]

Powers of registrar respecting trial records

(2)A registrar may direct inclusion in the trial record of any document the registrar thinks necessary or may reject a trial record that, in the registrar's opinion,

(a) does not contain all the documents required under subrule (1),

(b) contains a document that is not a document required under subrule (1), or

(c) is illegible.

Filing and service of trial record

(3)The party referred to in subrule (1) must

(a) file the trial record at least 14 days before but not more than 28 days before the scheduled trial date, and

(b) promptly after filing, serve a copy of the filed trial record on all parties.

Amended trial record

(4)If the whole or any part of, including any Schedule to, a pleading is amended after service of the trial record, the party who filed the notice of trial must

(a) amend the trial record by substituting the amended pleading for the version of the pleading that had previously been included, and

(b) at least one day before the trial,

(i)   file the amended trial record, and

(ii)   serve a copy on all parties.

When certificate required

(5)A party to a family law case in which a claim for divorce, nullity or judicial separation is made must not file

(a) a trial record,

(b) a notice of application under Rule 11-3, or

(c) a requisition in an application for judgment under Rule 10-10 (1) (a)

unless a party has filed a certificate in Form F36, signed by the registrar, certifying that the pleadings and proceedings in the family law case are in order.

Direction as to trial record

(6)If the court directs that a family law case be set down for trial, it may also direct one of the parties to prepare, file and serve a trial record.

Rule 14-5 — Trial Certificate

Trial certificate

(1)Each party must file a trial certificate in Form F46 in the registry where the trial is to be held.

When trial certificate must be filed

(2)A trial certificate must be filed at least 14 days before but not more than 28 days before the scheduled trial date.

What trial certificate must contain

(3)A trial certificate must contain the following:

(a) a statement that the party filing the trial certificate will be ready to proceed on the scheduled trial date;

(b) a statement certifying that the party filing the trial certificate has completed all examinations for discovery that the party intends to conduct;

(c) the party's current estimate of the length of the trial.

(d) a statement that a trial management conference has been conducted in the family law case.

[am. B.C. Reg. 119/2010, Sch. B, s. 18.]

Service

(4)Promptly after filing a trial certificate, the filing party must serve a copy of the filed trial certificate on all parties.

Failure to file

(5)Unless the court otherwise orders, if no party files a trial certificate, the trial must be removed from the trial list.

[am. B.C. Reg. 95/2011, Sch. B, s. 2.]

Applications prohibited

(6)A party who fails to file a trial certificate under subrule (1) is not, without leave of the court, entitled to make further applications.

Division 3 — Conduct of Trial

Rule 14-6 — Mode of Trial

Trial without jury

(1)A trial must be heard by the court without a jury.

Trial of one question before others

(2)The court may order that one or more questions of fact or law be tried and determined before the others.

Rule 14-7 — Evidence and Procedure at Trial

Application

(1)This rule does not apply to summary trials under Rule 11-3, except as provided in that rule.

Proof of Facts and Documents

Court may vary order

(2)An order made under this rule concerning the mode of proving a fact or document or of introducing evidence may be revoked or varied by a subsequent order made at or before the trial.

Failure to prove a material fact

(3)If a party omits or fails to prove some fact material to the party's case, the court may proceed with the trial, subject to that fact being afterwards proved as the court directs, and, unless the court otherwise orders, judgment must be entered according to whether or not that fact is or is not afterwards proved as directed.

No Evidence and Insufficient Evidence Applications

No evidence application

(4)At the close of the claimant's case, the respondent may apply to have the family law case dismissed on the ground that there is no evidence to support the claimant's case.

Respondent need not elect whether to call evidence

(5)A respondent is entitled to apply under subrule(4) without being called on to elect whether or not to call evidence.

Insufficient evidence application

(6)At the close of the claimant's case, the respondent may apply to have the family law case dismissed on the ground that the evidence is insufficient to make out the claimant's case.

Respondent must elect not to call evidence

(7)Unless the court otherwise orders, an application under subrule (6) may be made only after the respondent has elected not to call evidence.

Documentary and Other Exhibits

Notice to produce

(8)By serving a notice in Form F47 at least 2 days before a trial, a party may require any other party to bring to the trial

(a) any document listed by the other party in a list of documents prepared under Rule 9-1, and

(b) any physical object in the other party's possession or control that the party serving the notice contemplates introducing at the trial as an exhibit, but the notice must identify the object.

Numbering exhibit pages

(9)If a copy of a document is introduced as an exhibit,

(a) each page of the exhibit must be numbered sequentially, beginning with the first page of the exhibit and ending with the last page of the exhibit, or

(b) if the exhibit is divided by tabs,

(i)   each page of the exhibit that is not behind a tab must be numbered sequentially, beginning with the first of those pages and ending with the last of those pages, and

(ii)   each page of the exhibit that is behind a tab must be numbered sequentially, beginning with the first page behind the tab and ending with the last page behind the tab.

Opportunity to inspect exhibit

(10)Unless the court otherwise orders or the parties otherwise agree, no plan, photograph or object may be received in evidence at the trial of a family law case unless, at least 7 days before the start of the trial, the parties have been given an opportunity to inspect it.

Registrar to take charge of exhibits

(11)A registrar must

(a) take charge of each document or object put in as an exhibit,

(b) mark or label each exhibit with a number, and

(c) make a list of the exhibits, giving a short description of each and stating by whom it was introduced.

Return of exhibits

(12)Subject to subrule (13), after the time for appeal from judgment has expired or after the disposition of an appeal, new trial or further appeal, whichever is latest, a registrar may return an exhibit to the party who introduced it.

Other returns

(13)The parties may agree or the court may order that an exhibit be returned at an earlier time or to a person other than the party who introduced it.

Disposal of exhibits after final disposition

(14)A registrar may, with the approval of the Deputy Attorney General, destroy or otherwise dispose of an exhibit introduced in evidence in a family law case if the return of the exhibit has not been applied for within one year after the later of

(a) the date of the judgment at trial in, or any other final disposition of, the family law case, and

(b) the date of the judgment on, or any other final disposition of, any appeal, new trial or further appeal.

Notice respecting disposal of exhibits before final disposition

(15)If an exhibit is introduced in evidence in a family law case and nothing is filed in that family law case for a period of 2 years, a registrar may notify the parties that the registrar intends to destroy or otherwise dispose of the exhibit unless, within 30 days after the date of the notice,

(a) an application is made for the return of the exhibit, or

(b) a notice of intention to proceed in Form F48 is served on all parties and a copy of the notice and proof of its service is filed in the family law case.

Disposal of exhibits before final disposition

(16)After giving notice of the intended destruction or disposition of an exhibit under subrule (15) a registrar may,

(a) if, within 30 days after the date of the notice, a person applies to the registrar for a return of the exhibit, return the exhibit to the party who introduced it or to such other person as the parties may agree or the court may order, or

(b) if no such application is made and if none of the parties comply with subrule(15) (b) within 30 days after the date of the notice, destroy or otherwise dispose of the exhibit with the approval of the Deputy Attorney General.

If exhibit disposed of

(17)If an exhibit is disposed of under subrule (14) or (16) (b),

(a) any money received as a result of the disposition must be paid to the Minister of Finance, and

(b) the exhibit list must be endorsed to indicate the date and method of disposition and the amount of any money recovered.

If exhibit destroyed

(18)If an exhibit is destroyed under subrule (14) or (16) (b), the exhibit list must be endorsed to indicate the date and method of destruction.

Adverse Witnesses

"Adverse party" defined

(19)For the purpose of subrules (19) to (22), "adverse party" means a party who is adverse in interest.

Adverse witness

(20)Subrules (21) to (24) apply if a party wishes to call as a witness at the trial

(a) an adverse party, or

(b) a person who, at the time the notice referred to in subrule (21) is served, is a director, officer, partner, employee or agent of an adverse party.

Notice to call adverse witness

(21)If a party wishes to call as a witness a person referred to in subrule (20) (a) or (b), the party must serve on the adverse party a notice in Form F49 together with proper witness fees at least 7 days before the date on which the attendance of the intended witness is required.

Exceptions

(22)Despite subrule (21), a party may

(a) call as a witness, without payment of witness fees or previous notice, a person referred to in subrule (20) (a) or (b) if the person called is in attendance at the trial, or

(b) subpoena a person referred to in subrule (20) (a) or (b).

Application to set notice aside

(23)The court may set aside a notice served under subrule (21) on the grounds that

(a) the adverse party is unable to procure the attendance of the person named in the notice,

(b) the evidence of the person is unnecessary,

(c) it would work a hardship on the person or the adverse party to require the person to attend the trial, or

(d) the person named in the notice is not a person referred to in subrule (20) (a) or (b).

Court may make order

(24)On an application under subrule (23), the court may make any order it considers will further the object of these Supreme Court Family Rules, including, without limitation, an order adjourning the trial.

Refusal to comply with notice

(25)If a person called as a witness in accordance with subrule (21) or (22) refuses or neglects to attend at the trial, to be sworn or to affirm, to answer a proper question put to the person or to produce a document that the person is required to produce, the court may do one or more of the following:

(a) grant judgment in favour of the party who called the witness;

(b) adjourn the trial;

(c) make an order as to costs;

(d) make any other order it considers will further the object of these Supreme Court Family Rules.

Adverse party as witness may be cross-examined

(26)If, in accordance with subrule (21) or (22), a party calls as a witness a person referred to in subrule (20) (a) or (b), the following apply:

(a) the party calling the witness is entitled to cross-examine the witness generally on one or more issues;

(b) the adverse party must not cross-examine the witness except to obtain an explanation of matters brought out in the examination-in-chief;

(c) other parties may cross-examine the witness generally on one or more issues, as the court may direct;

(d) the party calling the witness must not re-examine the witness except in relation to new matters brought out in cross-examination.

Rules Applicable to All Witnesses

Witness to testify orally

(27)Subject to any enactment and these Supreme Court Family Rules,

(a) a witness at a trial of a family law case must testify in open court, and

(b) unless the parties otherwise agree, the witness must testify orally.

Witness must be listed in witness list

(28)Unless the court otherwise orders, a party must not, at trial, lead evidence from a witness unless that witness is listed in the witness list set out in the trial brief.

Examination of witnesses

(29)The court may permit a party

(a) to examine a witness, either generally or with respect to one or more issues,

(i)   by the use of leading questions,

(ii)   by referring the witness to a prior statement made by the witness, whether or not made under oath,

(iii)   respecting the interest of the witness, if any, in the outcome of the family law case, or

(iv)   respecting any relationship or connection between the witness and a party, or

(b) to cross-examine a witness, either generally or with respect to one or more issues.

Any party may contradict testimony

(30)A party may contradict or impeach the testimony of any witness.

Party may prepare and serve subpoena

(31)A party may prepare a subpoena and serve it on any person.

Form of subpoena

(32)A subpoena must be in Form F23 and may contain any number of names.

Subpoena not to be filed or sealed

(33)A subpoena need not be filed in or bear the seal of the court.

Service of subpoena

(34)A subpoena must be served and, if an affidavit is filed for the purpose of proving the service, the affidavit must state when, where, how and by whom service was effected.

Fees to accompany subpoena

(35)A person served with a subpoena is entitled to tender of the proper fees at the time of service.

Production of documents and physical objects

(36)A party, by subpoena in Form F23, may require any person other than a party or a representative of a party to bring to the trial

(a) any document in the person's possession or control relating to the matters in question in the family law case, without the necessity of identifying the document, and

(b) any physical object in the person's possession or control that the party contemplates introducing at the trial as an exhibit, but the subpoena must identify the object to be brought.

Order for attendance of witness in custody

(37)The court may order the attendance of a witness who is in the lawful custody of another person, including the custodian of a penal institution.

Failure of witness to attend or remain in attendance

(38)On proof

(a) of the service of a subpoena on a witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena,

(b) that proper witness fees have been paid or tendered to that witness, and

(c) that the presence of that witness is material to the ends of justice,

the court, by its warrant in Form F50 directed to a sheriff or other officer of the court or to a peace officer, may cause that witness to be apprehended and promptly brought before the court and to be detained in custody or released on terms the court may order, and the court may order that witness to pay the costs arising from his or her failure to attend or to remain in attendance.

Order setting aside subpoena

(39)A person who has been served with a subpoena may apply to the court for an order setting aside the subpoena on the grounds that compliance with it is unnecessary or that it would work a hardship on the person, and the court may make any order, as to postponement of the trial or otherwise, it considers will further the object of these Supreme Court Family Rules.

Deposition Evidence

Use of deposition evidence

(40)A transcript or video recording of a deposition under Rule 9-7 may be given in evidence at the trial by any party and, even though the deposition of a witness has or may be given in evidence, the witness may be called to testify orally at the trial.

Use of videotape or film

(41)If a video recording of a deposition is given in evidence under subrule (40) of this rule, a transcript of the deposition may also be given.

Certified transcript

(42)If a transcript of a deposition is certified as an accurate transcription by the person taking the deposition, the transcript may be introduced in evidence without proof of the signature of that person.

Video recording of deposition evidence

(43)A video recording of a deposition may be introduced in evidence without proof of its accuracy or completeness, but the court may order an investigation to verify the accuracy or completeness of the video recording.

Video recording of evidence becomes exhibit

(44)A video recording of a deposition introduced in evidence becomes an exhibit at the trial.

Deposition to be given in full

(45)If a transcript or video recording of a deposition is given in evidence,

(a) subrule (56) applies, and

(b) the deposition must be presented in full, unless otherwise agreed by the parties or ordered by the court.

Evidence from Examinations for Discovery

Persons against whom discovery evidence is admissible

(46)If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 9-2 (5) to (9) may be introduced in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:

(a) the adverse party who was examined;

(b) the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 9-2 (5) to (9).

Notice required of evidence

(47)If a person examined for discovery was, at the time of the examination, a former director, officer, employee, agent or external auditor of a party, any part of his or her evidence may be introduced at trial if notice has been served on all parties at least 14 days before trial specifying the part of the evidence intended to be given at trial.

Attendance at trial may be required

(48)Any party may require the attendance at trial of a person whose evidence taken on examination for discovery is intended to be introduced under subrule (47), and, if the evidence is introduced, all parties may cross-examine that person.

Court may consider whole examination

(49)If part of an examination for discovery is introduced in evidence, the court may review the whole of that examination and if, following the review, the court considers that another part of the examination is closely connected with the part introduced in evidence, it may direct that the other part be introduced as evidence.

Discovery evidence of person under disability

(50)If, at the time of an examination for discovery, the person examined was an infant or a mentally incompetent person, the examination must not be introduced in evidence unless the trial judge, at the time the evidence is introduced, determines that the person, at the time of the examination, was competent to give evidence.

Transcripts of discovery evidence

(51)If a transcript of an examination for discovery is certified as an accurate transcription by the official reporter, the transcript may be introduced in evidence without proof of the reporter's signature.

Pre-trial Examinations

Use of pre-trial examination of a witness

(52)A party may introduce in evidence at the trial all or part of the examination of a person taken under Rule 9-4

(a) to contradict or impeach the testimony of the person at trial, or

(b) if it is necessary in the interests of justice and

(i)   the person is dead,

(ii)   the person is unable to attend and testify because of age, infirmity, sickness or imprisonment,

(iii)   the person is out of the jurisdiction, or

(iv)   the person's attendance cannot be secured by subpoena.

Court may consider whole pre-trial examination

(53)If part of an examination of a person taken under Rule 9-4 is introduced in evidence, the court may review the whole of that examination and if, following the review, the court considers that another part of the examination is so closely connected with the part introduced in evidence that the last mentioned part ought not to be used without the other part, it may direct that the other part be introduced as evidence.

Transcripts and Interrogatories

Use of transcript of other proceedings

(54)If a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties, to be put in as evidence, but reasonable notice must be given of the intention to give that evidence.

Transcript for the court

(55)In a family law case in which evidence or argument is taken down by an official reporter or is recorded digitally or on audio tape, it is the duty of the claimant, if required by the court, to furnish the court with a certified transcript of the evidence or argument or any portion of it, the costs of which form part of the costs of the family law case, but if payment of the costs of providing a transcript would be a hardship on a party, the court may order that the transcript be prepared at the expense of the government.

Objection to transcript evidence at trial

(56)At a trial, a party may object to the admissibility of any question and answer in a transcript or video recording introduced in evidence, although no objection was taken at the examination.

Custody of transcripts

(57)If a transcript is made of a deposition examination, examination for discovery or pre-trial examination of a witness, the party at whose instance the examination was held must keep the original transcript unmarked and must have it available at the trial.

Use of interrogatories at trial

(58)At the trial of a family law case, a party may give in evidence an answer, or part of an answer, to interrogatories, but the court may look at the whole of the answers and, if it is of the opinion that any other answer or part of an answer is so connected with an answer or part of it given in evidence that the one ought not to be used without the other, it may direct that the other answer or part of it be put in as evidence.

Evidence Given by Affidavit

Affidavit evidence

(59)On the application of a party at or before trial, a judge or master may order that the evidence in chief of a witness may be given by affidavit.

Copy of affidavit must be furnished

(60)A party seeking to introduce evidence by affidavit must serve a copy of the affidavit on all parties at least 28 days, or such lesser period as may be ordered by the court, before the application referred to in subrule (59).

Cross-examination

(61)If a copy of an affidavit of a witness is served under subrule (60), any party may, unless the court otherwise orders, require the witness to be called for cross-examination at trial, provided that that party gives to the party seeking to introduce the evidence by affidavit notice of the requirement within 14 days after receiving the affidavit.

Court may extend or abridge time to require witness attendance

(62)If a copy of an affidavit is served under subrule (60) less than 28 days before the application referred to in subrule (59), the court may extend or abridge the time referred to in subrule (61) within which parties may require the attendance of the witness at trial for cross-examination.

Contents

(63)The person swearing or affirming an affidavit referred to in subrule (59) may state only what he or she would be permitted to state were the evidence to be given orally.

Cross-examination not limited

(64)Cross-examination under subrule (61) or (62) is not confined to matters contained in the affidavit.

Costs where attendance unnecessary

(65)If a witness has been required to give evidence under subrule(61) or (62), and the court is of the opinion that the evidence obtained does not materially add to the information in the affidavit furnished under subrule(60), the court may order the party that required the attendance of the witness to pay, as costs, an amount the court considers appropriate.

Trial Procedures

Trial with assessor

(66)The court may at any time order a trial to be heard wholly or partially by the court sitting with an assessor, and the court may fix the remuneration for the assessor and the remuneration forms part of the costs of the family law case.

Trial of one question before others

(67)The court may order that one or more questions of fact or law arising in a family law case be tried and determined before the others.

Trial by different modes of trial

(68)The court may order that different questions of fact arising in a family law case be tried by different modes of trial.

Calculation of amount by officer of the court

(69)In a family law case in which it appears that the amount to be recovered is substantially a matter of calculation, the court may direct an inquiry, assessment or accounting under Rule 18-1.

Use of recording device

(70)If authorized by the court to do so, a party may use a recording device to record evidence.

Evidence of particular facts

(71)At or before a trial, the court may order that evidence of a fact or document may be presented at the trial in any manner, including

(a) by statement on oath of information and belief,

(b) by documents or entries in books,

(c) by copies of documents or entries in books, or

(d) by a specified publication that contains a statement of that fact.

Order of speeches

(72)Addresses to the court must be as follows:

(a) the party on whom the onus of proof lies may open his or her case before giving evidence;

(b) at the close of the case of the party who began, the opposite party, if that party announces his or her intention to give evidence, may open his or her case;

(c) at the close of all of the evidence, the party who began may address the court, and the opposite party may then address the court and the party who began may then reply and the court may allow the opposite party to be heard in response to a point raised in the reply;

(d) if a respondent claims relief against another respondent, that respondent may address the court after that other respondent;

(e) if a party is represented by a lawyer, the rights conferred by this rule must be exercised by the party's lawyer.

Court may make order respecting submissions

(73)At or before a trial, the court may make one or both of the following orders in respect of a party's submissions to the court at the trial:

(a) an order that all or any part of the submissions be in writing;

(b) an order that all or any part of the submissions be of limited length.

Clerk to note time of trial

(74)On each day of a trial, the clerk must record the following:

(a) the time the trial begins and ends;

(b) the name of each witness;

(c) the time the witness' evidence begins and ends.

Failure to Attend

Failure of all parties to appear at trial

(75)Without limiting any other power of the court under these Supreme Court Family Rules, if no party is in attendance when the trial of a family law case is called, the family law case must be struck off the trial list unless the court otherwise orders.

Failure of one party to appear at trial

(76)If a party is not in attendance when the trial of a family law case is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party.

Court may set aside judgment

(77)The court may set aside a verdict or judgment obtained if a party does not attend the trial.

Contents  |  Parts 1 to 9  |  Parts 10 to 14  |  Parts 15 to 23  |  Appendix A  |  Appendix B  |  Appendix C