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RULE 60

Matrimonial Actions

Commencement

(1) A matrimonial action shall be commenced by a writ of summons, to which shall be attached the statement of claim. (MR 894a, 894e.)

Contents of Statement of Claim

(2) The statement of claim shall include the following particulars:

(a) the place and date of the marriage or alleged marriage,

(b) the addresses and occupations of the parties to the marriage at the date of the issue of the statement of claim,

(c) whether any party to the marriage is an infant or under any other disability and, if so, the age of the party or the nature of the disability,

(d) the name and status of the wife before the marriage,

(e) the status of the husband before the marriage,

(f) the place and date of birth of the parties to the marriage,

(g) the domicile of the parties to the marriage at the date of the marriage and at the date of the issue of the statement of claim,

(h) the ordinary residence of the parties to the marriage for the year immediately preceding the issue of the writ and whether either party has actually resided within British Columbia for at least 10 months of that period,

(i) the matrimonial offences alleged or other grounds on which relief is sought,

(j) subject to subrule (5), the name of every person with whom a matrimonial offence is alleged to have been committed or an allegation that the plaintiff has made all reasonable efforts to ascertain the name and has been unable to do so,

(k) the names and dates of birth of all living children of the marriage,

(1) where a claim is made for custody of any child, particulars of his past, present, and proposed homes, maintenance, and education and the facts on which the claim is founded,

(m) where a claim is made for alimony or maintenance, a statement of the income and property of the respective parties to the marriage so far as they are known to the plaintiff and whether a separation agreement or financial arrangement exists between them, and

(n) a statement of all previous proceedings instituted with reference to the marriage or to any child of the marriage and the results of those proceedings. (MR 894bb, 894ee.)

Amendment of Statement of Claim

(3) The statement of claim may be amended to add an allegation of a matrimonial offence, whether it is alleged to have occurred before or after the commencement of the action. (MR 894j.)

Allegation of Criminal Offence

(4) If the action is based on a matrimonial offence which is a criminal offence for which a defendant has been convicted, the other person who was involved in the offence shall not be named in the statement of claim. (MR 894dd.)

Service

(5) The writ of summons and statement of claim shall be served on each defendant and any person with whom it is alleged that a matrimonial offence has been committed. (MR 894h.)

Service on Infant

(6) Notwithstanding Rule 11 (2), service of a writ of summons and statement of claim in a matrimonial action on an infant who has attained the age of 16 years shall be effected by service on the infant himself. (MR 894t.)

Service on Infant Child of Marriage

(7) Subject to subrule (6) and unless the Court otherwise orders, it is not necessary to serve the writ of summons and statement of claim on any child of the marriage. (New.)

Appearance by Person Named

(8) By entering an appearance and filing and delivering a statement of defence, a person named in a statement of claim may take part in the action as if he were a defendant. (MR 894b.)

Infant Acting Without Guardian ad Litem

(9) An infant who has attained the age of 16 years and who is a party to or named in a matrimonial action may act without a guardian ad litem, but if the Court deems it in the interest of the infant or any of his children, it may appoint a guardian ad litem. (MR 894t.)

Interim Alimony or Maintenance

(10) A plaintiff or defendant may apply at any time for interim alimony or maintenance. (MR 894w.)

Permanent Alimony or Maintenance

(11) Permanent alimony or maintenance shall, unless otherwise ordered, commence from the date of judgment. (MR 894x.)

Security for Costs

(12) The Court may at any time make an order for the payment of or security for the costs of a plaintiff or defendant. (MR 894vv.)

No Judgment Except at Trial

(13) In an action for nullity of marriage or for judicial separation, no judgment shall be entered on the consent of the parties, or in default of appearance or of pleading, or otherwise than after a trial. (MR 894l.)

Trial by Jury When Damages Claimed

(14) A matrimonial action shall be heard by the Court without a jury; but in a matrimonial action where damages are claimed a party may require a jury trial under Rule 39 (19). (MR 894ll (2).)

Variance of Orders

(15) A plaintiff or defendant may apply at any time to vary or rescind an order concerning alimony, maintenance, or custody. (MR894xx.)

RULE 61

Administration of Estates (Non-contentious)

Interpretation and Application

(1)  (a) Except where a contrary intention appears, the interpretation section of the Administration Act applies to this rule.

(b) This rule applies to "non-contentious business" defined as the obtaining of a grant of probate or administration where there is no contention as to the right thereto and includes

(i) the obtaining of grants of probate or administration in contentious cases where the contest is concluded,

(ii) the filing of caveats against the granting of probate or administration,

(iii) the fixing of remuneration and passing of accounts, and

(iv) all non-contentious matters relating to testacy and intestacy, not being proceedings in an action. (New.)

Application for Probate or Letters of Administration

(2) Application for probate or letters of administration may be made in any Registry. (P.R. 1.)

Idem

(3) Subject to subrule (12), the applicant shall deposit with the Registrar the original will (if any) and file a praecipe and an affidavit of executor or administrator, in Form 66, 67, or 68, and such further affidavits as may be required by these rules. (P.R. 3.)

Proof of Death

(4) Where the applicant specifies in his affidavit the day on which the testator or the intestate died, no further proof of death shall be required by the Registrar. If the fact of the death is certain, but the exact date is unknown, the affidavit shall state the date on which the deceased was last seen alive and the date on which his body was found. (P.R. 4.)

Approval by Registrar

(5) The Registrar may approve the application and mark the documents as approved by him, but if the Registrar refuses to approve the application he shall note on the documents his reasons for refusing approval. (P.R. 5.)

Hearing of Application

(6) The applicant may set down his application for hearing by the Court at any time after the Registrar has approved or refused to approve it. (P.R. 6.)

Proof of Execution Where No Attestation Clause

(7) Where there is no attestation clause to a will or codicil, or if the attestation clause is insufficient, the Registrar shall require an affidavit from at least one of the subscribing witnesses, if they or either of them are living, to prove that the requirements of the Wills Act as to execution were in fact complied with. (P.R. 7.)

Affidavit of Witness

(8) Where, on perusing the affidavit of a subscribing witness, it appears that the requirements of the Wills Act were not or may not have been complied with, the Registrar shall refuse to approve the application. (P.R. 8.)

Proof Where No Affidavit of Witness

(9) Where no affidavit can be obtained from either subscribing witness, an affidavit shall be provided from any other person present at the execution of the will or codicil; but if no affidavit of any person can be obtained, evidence shall be provided on affidavit of that fact and of the handwriting of the deceased and the subscribing witnesses, and also of any circumstances which may raise a presumption in favour of proper execution. (P.R. 10.)

Proof of Date of Execution

(10) Where there is doubt as to the date on which a will was executed, the Registrar may require such evidence as he thinks necessary to establish the date, and shall endorse a note of the date on the will. (P.R.10A.)

Proof in Solemn Form

(11) Where the circumstances appear to justify the direction, the Court may require that proof of the will be made in solemn form. (Ont. S.C.R. 20.)

Idem

(12) An application for proof of a will in solemn form shall be by Petition in Form 3, and Rule 10 shall apply. (New.)

Idem

(13) On application for proof of a will in solemn form, copies of the petition shall be served on all persons having an interest in upholding or contesting the validity of the will, and the petition shall contain a warning to those persons that they will be bound by the result of the proceedings. (Ont. S.C.R. 52.)

Interlineations and Alterations

(14) When an interlineation or alteration appears in the will (unless properly executed, or recited in, or otherwise identified by the attestation clause), an affidavit in proof of its existence in the will before execution must be filed, except when the alteration is of small importance and is evidenced by the initials of the attesting witnesses. (P.R. 12.)

Erasures and Obliterations

(15) An erasure or obliteration shall not prevail unless proved to have existed in the will at the time of its execution, or unless properly executed and attested, or unless rendered valid by the re-execution of the will, or by the subsequent execution of a codicil. If no satisfactory evidence can be adduced as to the time when the erasure or obliteration was made, and the words erased or obliterated are not entirely effaced, but can be ascertained on inspection, the words must form part of the probate. (P.R. 13.)

Affidavit Explaining

(16) Where words which might have been of importance have been erased or obliterated, the Registrar may require an affidavit explaining the circumstances. (P.R. 14.)

Document Referred to in a Will

(17) Where a will contains a reference to a document which is of such nature as to raise a question whether the document ought to form part of the will, the Registrar shall require the production of the document to ascertain whether it is entitled to probate; and, if not produced, its non-production must be accounted for. (P.R. 15.)

Idem

(18) No document can form part of a will unless it was in existence at the time the will was executed. (P.R. 16.)

Appearance of the Paper

(19) Where there is an indication on the testamentary papers, leading to the inference that a document has been attached to them, the indication must be satisfactorily explained, or the Registrar shall require the document to be produced; and, if not produced, its non-production must be accounted for. (P.R. 17.)

Notice to Next of Kin

(20) Where a person applies for letters of administration pursuant to section 8 of the Administration Act, the names and kinship of those having a prior right or equal right to a grant shall be shown and it shall be shown that each of them has consented or renounced, otherwise the Registrar may direct notice to be given in Form 69 to any of them by mail. (Ont. S.C.R. 23, P.R. 20.)

Limited Administrations

(21) Unless the Court otherwise orders, a limited administration shall not be granted unless every person entitled to a general grant has consented or renounced, or has been cited and has failed to appear. (P.R. 21.)

Idem

(22) Unless the Court otherwise orders, no person entitled to a general grant of administration of the personal estate and effects of a deceased will be permitted to take a limited grant. (P.R. 22.)

Grants to an Attorney

(23) Where a person entitled to administration resides outside British Columbia, administration, or administration with the will annexed, may be granted to him or his attorney acting under a power of attorney. (P.R. 24.)

Grants of Administration to Guardians

(24) With the consent of the Public Trustee, a grant of administration may be made to the guardians of an infant for his use and benefit. (P.R. 25, 29.)

Administration Bonds

(25) Unless the Court otherwise orders, the bond to be given upon any grant of administration shall be in Form 70 or Form 71. (P.R. 31.)

Affidavit of Surety

(26) The sureties in an administration bond are required to prove by affidavit that they together have assets equal to the amount of the bond. No Registrar shall become surety to any administration bond. (P.R. 32.)

Idem

(27) In all cases other than those to which subsection (1) of section 25 of the Administration Act applies, unless the Court otherwise orders, not less than two sureties shall be required to the administration bond, and the bond shall be in such amount as the Court may order, and the Court may also order that more than one bond shall be given so as to limit the liability of a surety. (P.R. 33.)

Time of Issuing Grant

(28) Unless the Court otherwise orders, no grant of probate or administration shall issue until after 7 days from the death of the deceased. (P.R. 34, 35.)

Delay in Application

(29) Where probate or administration is applied for more than 3 years after the death of the deceased, the reason for the delay shall be set out in an affidavit, and the Registrar may require such further proof of the alleged cause of delay as he sees fit. (P.R. 36.)

Identity of Parties

(30) The Registrar may require proof, in addition to the affidavit of the executor or administrator, of the identity of the deceased, or of the party applying for a grant. (P.R. 37.)

Proof of Search for Will

(31) On every application for administration it must be shown that a search for a will or testamentary paper has been made in all places where the deceased usually kept his documents, and the applicant must file a letter from the Director of Vital Statistics showing the results of a search at his office for a notice of a will filed by or on behalf of the deceased pursuant to the Wills Act. (P.R. 38.)

Idem

(32) An executor who swears that he is presenting the last will of the deceased, and files a letter from the Director of Vital Statistics showing the results of a search at his office for a notice of a will filed by or on behalf of the deceased, shall not be required by the Registrar to prove by affidavit that he made a search for a later will. (P.R. 39.)

Renunciations

(33) No person, other than an Official Administrator, who renounces as executor of the will or who renounces the right to apply for administration of the estate of a deceased person in one capacity shall be appointed the personal representative of the deceased in another capacity. (P.R. 41.)

Caveats

(34) A person intending to oppose the issue of a grant of probate or administration shall file a caveat in Form 72. The caveat may be filed in any Registry. (P.R. 42.)

Idem

(35) The Registrar in whose Registry a caveat has been filed shall forthwith notify the Registrar at Victoria who shall forthwith notify all other Registrars in the Province. (P.R. 43.)

Contents of Caveat

(36) The caveator must declare in the caveat the nature of his interest in the property of the deceased, and state generally the grounds upon which he enters the caveat. The caveat shall be signed by the caveator, or by his solicitor, and shall state his address for delivery to which Rule 8 (6) and (7) applies mutatis mutandis. (P.R. 44.)

Time Caveat in Force

(37) Subject to subrule (42), a caveat remains in force for 6 months after being filed, unless sooner withdrawn by notice filed by the caveator, and then expires and is of no effect, but by order of the Court may be renewed from time to time. (P.R. 45.)

No Grant While Caveat in Force

(38) No grant of administration or probate shall be made while a caveat is in force. (P.R. 46.)

Notice to Caveator

(39) A person intending to apply for probate or administration or claiming an interest in an estate with respect to which a caveat has been filed may file a notice to caveator in Form 73 in the Registry in which the caveat was filed and shall deliver a copy to the address for delivery set out in the caveat. (P.R. 47, 48.)

Contents of Notice

(40) The notice to caveator shall state the name and interest of the person on whose behalf it is issued, and if that person claims under a will or codicil, shall also state the date of the will or codicil, and shall state his address for delivery to which Rule 8 (6) and (7) applies mutafis mutandis. (P.R. 49.)

Appearance to Notice

(41) An appearance to a notice to caveator shall be in Form 7. (New.)

Effect of Failure to Appear to Notice

(42) Where a notice to caveator has been filed and a copy delivered to the caveator and no appearance has been filed within the time stated in the notice, the Registrar shall cancel the caveat and notify the Registrar at Victoria. (P.R. 51.)

Citation to Accept Executorship

(43) (a) Where an executor fails to apply for the probate of a will, any person interested may cite the executor to accept or refuse probate of the will, or to show cause why administration should not be granted to him or to some other person having a prior right who is willing to accept the grant.

(b) No citation shall issue until 14 days after the testator's death. (Ont. S.C.R. 53.)

Form of Citation and Answer

(44) The citation shall be in Form 74 and an answer in Form 75. (New.)

Citation to Propound and Alleged Will

(45) (a) Where there is or may be a document which may be alleged to be a will of a deceased person, a citation to propound the document as a will may be issued by any person interested.

(b) The citation shall be in Form 76 and shall be supported by affidavit and shall be directed to the executor and any other person named in the document.

(c) An answer shall be in Form 77. (E.R. 47.)

Citation to Bring in a Will

(46) (a) Where a testamentary document may be in the possession or control of a person, a citation may be issued to him calling on him to deposit with the Registrar any testamentary document in his possession or control, or to state under oath that no testamentary document is in his possession or control.

(b) The citation shall be in Form 78 and shall be supported by affidavit.

(c) Where it is shown by affidavit to the satisfaction of the Registrar that a person has knowledge of a will or other document or any asset relating to or belonging to an estate, the Registrar may issue a subpoena in Form 79 for service on that person. (Ont. S.C.R. 54, 55.)

Filing and Service of Citations and Answers

(47) A citation shall be served personally and Rules 11, 12, and 13 apply mutatis mutandis. An answer shall be filed and delivered. (P.R. 53, 54.)

Foreign Grants

(48) Where probate or administration has been granted by a Court of competent jurisdiction outside British Columbia and the grant cannot be resealed under the provisions of the Probates Recognition Act,

(a) a grant of administration, limited to the estate of the deceased in British Columbia, may be made to the attorney of the personal representative appointed by the foreign Court, or

(b) an ancillary grant of probate or administration may be made to the personal representative appointed by the foreign Court. (P.R. 65.)

Foreign Wills

(49) A copy of a foreign will to be annexed to a grant of administration shall be certified by the Court out of which probate or administration has been granted. (P.R. 66.)

Application to Reseal Grant

(50) An application to reseal a grant of probate or letters of administration under the Probates Recognition Act may be made in any Registry by the personal representative or his attorney. (P.R. 67.)

Idem

(51) The applicant for resealing shall file the grant of probate or letters of administration, or a copy certified by the issuing Court, together with an affidavit of value and relationship pursuant to the Probate Fees Act. (P.R. 68.)

Affidavit on Resealing

(52) An application for resealing shall be accompanied by an affidavit of the executor, administrator, or attorney, in Form 80. (P.R. 69.)

Domicile of Deceased on Resealing

(53) (a) Where the domicile of the deceased at the time of death as sworn to in the affidavit differs from that suggested by the description in a foreign grant, the Registrar may require further evidence as to domicile.

(b) Where the Registrar is satisfied that the deceased was not at the time of death domiciled within the jurisdiction of the Court from which the foreign grant issued, he shall mark the application accordingly. (P.R. 70, 71.)

Application of Other Rules on Resealing

(54) Subrules (5) and (6) apply to an application for resealing. (P.R. 72.)

Grant to Be Resealed

(55) No grant of probate or administration or certified copy shall be resealed unless it includes a copy of any testamentary paper admitted to probate. (P.R. 73.)

Notice of Resealing

(56) Notice of a resealing of a grant shall be sent to the Court from which the grant issued. (P.R. 75.)

Idem

(57) Where the Registrar has notice of the resealing of a British Columbia grant, he shall give notice of the revocation of or any alteration in the grant to the Court which resealed it. (P.R. 76.)

Remuneration and Passing of Accounts

(58) An application to the Court for passing of accounts and remuneration shall be made ex parte by notice of motion supported by an affidavit in Form 81. The Court shall give all necessary directions and may refer the matter to the Registrar pursuant to Rule 32. (P.R. 77.)

RULE 62

Administration of Estates (Contentious)

Interpretation

(1) In this rule "probate action" means an action for the grant of probate of the will of, or letters of administration of the estate of, a deceased person, or for the revocation of a grant or for an order pronouncing for or against the validity of an alleged testamentary paper, but does not include a proceeding governed by Rule 61. (ER 76/1.)

Dispute as to the Validity of a Testamentary Paper

(2) In an action where the validity of a testamentary paper is questioned, all persons having an interest in upholding or disputing its validity shall be joined as defendants. (Ont. S.C.R. 52.)

Commencement of Action

(3)  (a) A probate action shall be commenced by writ of summons.

(b) The endorsement on the writ, or the statement of claim if it is set out in the writ, shall contain a statement of the interest of the plaintiff and of each defendant in the estate of the deceased. (MR 15; ER 76/2.)

Parties

(4)  (a) Each person who is entitled or claims to be entitled to administer the estate of a deceased person under or by virtue of an unrevoked grant of probate or letters of administration shall be made a party to any action for revocation of the grant.

(b) By leave of the Court, a person interested in the estate, but not named as a defendant, may enter an appearance and defend the action as though he were a defendant. (MR 93; ER 76/3.)

Action for Revocation of Grant

(5) In an action for the revocation of a grant of probate or administration,

(a) if the action is commenced by a person to whom the grant was made, he shall lodge the grant with the Registrar within 7 days after the issue of the writ, or

(b) if a defendant to the action has the grant in his possession or under his control, he shall lodge it with the Registrar within 7 days after the service of the writ upon him,

and the person to whom the grant was issued shall not act under it without leave of the Registrar. (ER 76/4.)

Failure to Lodge Grant on Action for Revocation

(6) Where a person fails to comply with subrule (5), the Registrar may issue a citation in Form 82 calling on him to bring the grant into the Registrar's office, and a person against whom the citation is issued shall not take any step in the action without leave of the Court until he has complied with the citation. (ER 76/4.)

Failure to Enter Appearance

(7) (a) Rule 17 does not apply to a probate action.

(b) Where a defendant fails to enter an appearance within the time allowed, the plaintiff may proceed with the action on serving a Statement of Claim. (ER 76/6.)

Counterclaim

(8)  (a) A defendant to a probate action who alleges that he has a claim or is entitled to relief or a remedy in respect of a matter relating to the grant of probate or letters of administration shall deliver a counterclaim in respect of that claim, relief, or remedy.

(b) Where the plaintiff fails to serve a statement of claim, a defendant may, with the leave of the Court, deliver a counterclaim, and the action shall then proceed as if he were the plaintiff. (ER 76/8.)

Defence Limited to Proof in SoIemn Form

(9) In a probate action a statement of defence may state that the defendant merely requires that the will be proved in solemn form, and that the defendant only intends to cross-examine the witnesses produced in support of the will, and in that event the defendant is not liable for costs, unless the Court determines that there was no reasonable ground for requiring proof in solemn form. (MR 251.)

Certain Rules Not to Apply

(10) Rules 25 (1), (2), (3), (11), (12), and 36 do not apply to a probate action. (MR 299.)

Order for Discontinuance or Dismissal

(11) At any stage of a probate action the Court may order the action to be discontinued or dismissed and may order that a grant of probate or administration be made to the person entitled. (ER 76/11.)

Compromise

(12) No probate action shall be compromised without leave of the Court. (ER 76/12.)

RULE 63

Crown Practice Rules in Civil Matters

Originating Application

(1) Applications for relief in the nature of mandamus, prohibition, certiorari, or habeas corpus shall be governed by these rules and shall be commenced by petition pursuant to Rule 10. (New.)

Writs Abolished

(2) No writ of mandamus, prohibition, certiorari, or habeas corpus shall be issued, but all necessary directions shall be made by order. (New.)

Person Affected May Take Part in Proceeding

(3) The Court may order that a person who may be affected by a proceeding for an order in the nature of mandamus may take part in the proceeding to the same extent as if served with the petition. (MR 883.)

RULE 64

Miscellaneous

Copy of Document Filed in Registry

(1) Unless otherwise provided by law, any person, on payment of the proper fees, may obtain from the Registry a copy of a document on file in a proceeding. (O. 61, r. 2.)

When Registry Open

(2) Except on Saturdays, holidays, and such days as are prescribed by the Lieutenant-Governor in Council as holidays for the Public Service of the Province, the Registry shall be kept open to the public for the transaction of business from 9 a.m. until 4 p.m. The hours of attendance by the Registrar and the Registry staff shall be from 8.30 a.m. until 4.30 p.m. (MR 951.)

Business Not to Be Done out of Office Hours

(3) No writ or process shall be issued from and no proceedings shall be taken in the Registry out of office hours, but in case of urgency the Court may order that a Registry be opened for the purpose of commencing a proceeding or otherwise. (MR 952.)

Disposition of Præcipes, Etc.

(4) A Registry may destroy any præcipe or notice of hearing submitted under Rule 10 (11) or (12). (New.)

Incapacity of Judge Before Judgment Given

(5) Where an application ought to be made to, or any jurisdiction exercised by, the Judge by whom a proceeding has been tried or partly tried, or heard or partly heard, then if that Judge dies or ceases to be a Judge of the Court during or after the trial or hearing, or if for any other reason it is impossible or inconvenient for that Judge to act in the proceeding, the Chief Justice or next Senior Judge of the Court may either by a special or by a general order nominate some other Judge to whom the application may be made or by whom the jurisdiction may be exercised. Without restricting the generality of the foregoing, he may order that the proceeding be restored to the proper Registry for retrial or rehearing, and, in case the original trial or hearing was upon evidence given viva voce, may direct that the retrial or rehearing shall be upon an official transcript of that evidence, or upon such transcript and evidence given viva voce and evidence given by affidavit, or upon new evidence, or otherwise, as in his opinion the circumstances of the case require, and may dispose of the costs of the original trial or hearing and of the costs of furnishing any copies of the transcript of the evidence, or may refer the question of costs to the Judge presiding at the retrial or rehearing. No directions for a retrial or rehearing which include a direction for the use of the transcript of the evidence shall limit or restrict the power of the Judge presiding at the retrial or rehearing to permit in his discretion the recalling of any witness called at the original trial or hearing, or to receive other or additional evidence. (MR 1041a.)

| Rules 1-16 | Rules 17-37 | Rules 38-42  | Rules 43-59 | Rules 60-64 | Appendices |


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