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The Courts
Is there a certain period of time that an appeal must be filed after a B.C. Supreme Court Decision has been given? If one of the parties involved in a Decision did not like the outcome several months later, can some of the issues be reviewed through the courts again? (by J of Abbotsford, BC) Section 14 of the Court of Appeal Act says that an appeal must be brought by filing a Notice of Appeal within 30 days from the day after the order that you're appealing from was pronounced. If you're unhappy with the decision, and it's a couple of months later, you're out of time and you can't appeal the decision. That being said, orders, even final orders, dealing certain issues in family law (anything involving children and spousal support) can normally be varied by making an application to the Supreme Court. Of course you can't just go an apply to vary the order simply because you don't like it, there must have been a significant change in circumstances since the final order was made for the court to change the order. If the part of the order that you want to appeal deals with property or divorce, you're out of luck. You cannot "vary" an order dealing with how assets were divided or reverse a divorce order. Click here to go to the top of the page. When costs have been awarded in court, what exactly does that cover? The matter was heard in Supreme court, regarding spousal support and "costs" were awarded. (by B of Campbell River, BC) "Costs" have two components: an allotment for work performed by the lawyer on the file; and, compensation for that lawyer's disbursements made in the course of the action. As far as the first part goes, your lawyer will fill out a complex schedule which allocates "units" of work for certain tasks within a fixed range. The value of the "unit" is usually $80.00. The schedule is at Appendix B of the Rules of Court. This usually works out to about 30 to 40% of your lawyer's bill to you. The second part is a list of all of the lawyer's out-of-pocket expenses incurred during the conduct of the action, and includes things like agents' fees and photocopying costs. Normally you will recover 80 to 95% of these expenses. Normally, your lawyer will complete the schedule and send it to the other side. An appointment is then taken out with the registrar who assesses the schedule and decides whether what the lawyer has claimed is reasonable. The registrar will fix the amount owing as "costs" and that is what the other side must pay. Click here to go to the top of the page. Is there any way to request a particular judge to take on our case? The Judge we want made our last order, he is familiar with our case and is deffinately fair! It is so hard to go from judge to judge and none knowing anything about the case. I have heard that we can petition the court and apply to see a specific Judge is this true? (by M of Surrey, BC) In general, the answer to your question is no. However, there are one or two things you can try. First, you can write a letter to the court registry to see whether the judge you saw last is available to hear whatever application it is that you're making. The courts are usually fairly sensitive to the wasting of court time, and if you can convince the registry that it will be more efficient to have the matter dealt with by the same judge, they might be able to put your application before him or her. Remember, that most judges are on a rotation, which means that they might be assigned to only hear certain types of cases or might be sitting at a different registry. Second, the next time you're before a judge, you might try asking that judge to "seize" him- or herself of the matter. A judge who is "seized" of a case, hears all of the applications and motions brought in that case. In particularly complex cases, judges will sometimes decide to seize a case on their own. I'm afraid that these are your only options. Click here to go to the top of the page. Can a vengeful spouse deliberately drag out the divorce process in order to prevent the former spouse from remarrying and to inflate their legal costs? Is there any recourse in the courts for this type of bad faith? My fiance's estranged spouse is a very bitter and vindictive woman. She has refused to settle the divorce for several years, refused a separation agreement and three offers to settle. She has sent her lawyer on wild goose chases with regard to income she thinks my fiance has — which he hasent — and is seeking the majority of his income and every benfit you can imagine, from yearly exotic vacations to his frequent flyer miles! Now she agreed to divorce by consent, and then refused to sign the order a few days later. It is all about revenge. Surely this is not unique. Do the BC courts provide any protection from this sort of vengeful behavior? (by S of Vancouver, BC) The simple answer to your question is that yes, a bitter and vindictive spouse can drag things out, whether it's fair or not. One of the most difficult challenges in family law is dealing with an uncooperative litigant. While there are some things that can be done, such as bringing an application that she be found in contempt of court, or an application that she be forced to do something, those are all actions which your partner must take, all of which cost money. If her behaviour is truly awful, your lawyer can seek an order that she pay "solicitor-client" costs of such applications, ie. that she pay the actual cost of your partner's lawyer's bill. Having to make that sort of payment may be quite discouraging, in terms of her willingness to make further application in the future. If worst comes to worse, if she is constantly bombarding your partner with trivial applications, there is a rule of the supreme court which allows the court to make an order that she be restrained from bringing further applications except with the court's permission. Of course, this sort of order, which has the effect of grossly restricting her civil liberties, is generally reserved for only the most truly "frivolous and vexatious" of litigants. Unfortunately, everything your partner can do to stop her annoying behaviour or compel her compliance will cost money and require that he spend considerable time and effort at it. I'm sorry, but there really is no sure-fire answer to your problem. Click here to go to the top of the page. My ex-common law spouse lives in Alberta with our child. I live in BC. I want to apply for joint custody and access. In what province should I apply? (by G of Vernon, BC) Well, unfortunately the laws of Alberta are likely the ones you'll have to use and Alberta is likely the place to make your claim. The answer to your question really depends on who lived where and for how long. If your family lived mostly in BC and your child was born in BC and spent most of his or her life here, you could make your claim here. This would really depend on the mother's move being fairly recent. If you were the one that left to come to Alberta, Alberta will have jurisdiction. If you were married and had lived in BC for at least a year, you could commence a proceeding under the Divorce Act here and ask for custody and access here. As things stand, if your family made it's home in Alberta and your child has lived most of his or her life in Alberta, Alberta's where you'll have to make your application. Click here to go to the top of the page. I have a supreme court order to do with a family issue. I know I can appeal or vary this order. If I vary it soon after it was writen it is very unlikely that it will be changed unless special or exstreme cicumstances exsist. My question is what are these circumstances? Do you need more info on what the order said in order to give extreme circumstances? What defines an extreme circumstance? (by D of Richmond, BC) Varying an order doesn't depend on whether there are "extreme circumstances." The question is whether there has been a meaningful change of circumstances since the order was made. In the case of spousal support, a material change in circumstances might be an unintentional loss of a job, for example. In terms of the care and control of the children, the material change would be one that affects the best interests of the children, such as a parent developing an addiction to crack cocaine. The important thing to remember is that the change must be new, and must have arisen after the order was made. The change should be one that would have made the judge make a different order had the change been known at the time. If there's been no change, then you can only appeal. The major sections of my website have chapters called "Making Changes." Read the one that applies to your situation. Click here to go to the top of the page. Are there cases where a judge will not order a person to pay costs if the other party is successful at a motion, especially if that person has VERY little money, can't afford a lawyer and is getting no child support from the other party, but has the children 90% of the time? In other words can financial hardship stop a judge from awarding costs to the other party? Are the children's best interests looked at in regards to costs? (by J of Trenton, ON) While I have no knowledge at all of the court rules of Ontario, I can tell you that costs for specific motions are awarded fairly rarely in BC. Costs are often awarded where one party's conduct has been absolutely horrible, and costs can be made payable in a fixed sum to be paid immediately. Most often, the courts of BC give one of three kinds of orders as to costs:
It is true that in BC the financial circumstances of a party can influence the court when awarding costs. The best interests of the children test generally doesn't come into play. For a proper answer, you must speak to a lawyer in Ontario. Click here to go to the top of the page. What is an appropriate expectation of legal costs for taking a legal stand when a seperation agreement has been breached? (by M of Orillia, ON) Bearing in mind that I have no knowledge at all of the court rules of Ontario, I'll tell you how it works in BC. In BC, costs are awarded to the party who is mostly successful. In a sense, it doesn't matter why the action started, only success in the outcome. Costs, I should mention generally work out to something like a quarter to a third of the lawyer's bill; it is rarely a 100% recovery, that only happens when the other party's conduct during the litigation is especially poor and worthy of reproach. For a proper answer, you must speak to a lawyer in Ontario. Click here to go to the top of the page. Is a divorce settlement document public record? Can anyone see it online or make a request to view it other than those involved? (by R of Vancouver, BC) If you mean either a court order or a filed separation agreement, only the parties to the litigation or lawyers can look at it. Lawyers usually have to show their Law Society ID, and the parties have to show a driver's licence. No court documents (except for some court decisions) are published online. Click here to go to the top of the page. Site Navigation Go back to the Q&A Index. Section Menu
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