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The Provincial Court Process
My ex-husband and I have a court date set for mid July to decide on maintenance for my daughter. My ex-husband will be leaving the country with work for two months beginning July 1st. Can you tell me of any way I may ask the date to be pushed forward so my case can be heard before he leaves? If not, what will happen if he is not here for the date? He has legal counsel, I do not. The original Application was filed Feb 14 and we went for our first hearing Apr 10. I am afraid that the court date will be put off until September, when he is due back, and that will have been 7 months that I have gone without any maitenance. Thank you in advance for your reply. (by P of Victoria, BC) The answer to your question depends on whether or not the hearing date you've got is for the hearing of a motion or is a trial hearing date. If it's a trial, you'll have to speak to the trial co-ordinator and your husband's lawyer and negotiate a new date. If it's for an ordinary hearing, for a motion, things are a bit different. I'm going to assume it's for the hearing of a motion. Firstly, your husband's attendance is NOT required at the hearing of your application for support. Evidence at these sorts of hearings is given by affidavits, including your own evidence. Lawyers argue motions based on the information set out in the affidavits and the pertinent case law. There is no oral evidence heard, except in truly unusual situations. It doesn't matter, therefore whether he's there or not. Secondly, your husband's lawyer is really a kind of delegate for your husband. It will be the lawyer's job to ensure his or her client is aware of the order and begins to comply with it. Thirdly, if you really do want to have it heard before your husband leaves, try negotiating an earlier date with his lawyer. If the lawyer doesn't agree and you still want to have it heard earier, you can try making another motion asking for the first motion to be heard earlier. (This does happen from time to time.) Of course you'll have to pay another filing fee and prepare another notice of motion and supporting affidavit. Finally, if everything continues as it is, and you get to court in the middle of July and the lawyer asks for an adjournment, be prepared to address the issue! Just because he or she asks for an adjournment doesn't mean it's automatically granted. You can say, for example, that this application has been pending since April 10th and was first filed in February. You can say you've been without maintenance for seven months already. You can say you've had to prepare for the hearing once before and the lawyer is well aware of this new date and it would be unfair not to go ahead. Basically, you can tell the judge all the things you told me in your question! Click here to go to the top of the page I was in court last week regarding my application to change the current access order and the judge ordered a case conference to be held. I was just wondering if you can tell me exactly what's involved in this. What kind of things I need to have ready and bring with me? (by A of New Westminster, BC) Thankfully, there's not a lot involved in a case conference. The rules change depending on whether your case is in the supreme court or the provincial court. If you're in the supreme court, it's called a Judicial Case Conference; in the provincial court it's a Family Case Conference. The only big difference between the two is that the judge has a lot more latitude in a FCC than the judge at a JCC. At a JCC, the judge can only make orders that everyone agrees to. At a FCC, the judge (while generally limited to orders by consent) can make any order he or she sees fit. However, unless you think the father will agree to the change you seek, don't expect to have your application resolved at the conference. Most often, the judge will give directions as to the future conduct of the case, such as he exchange of financial information and setting hearing dates. The format of the conference is essentially the same for JCCs and FCCs. The hearing is held in private, and the discussion during the conference is without prejudice, meaning that what someone says at a the conference can't be used outside that hearing at a later hearing. The clerk takes no notes except as to what orders were made. The conference itself is fairly casual. The judge will not be wearing robes, and the meeting takes place with everyone sitting at a table together. Both parties and their lawyers, if they have them, are required to attend. The judge will open the conference and tell you what it's all about. The judge will then ask you, the applicant, to tell your story and state what your application is all about. The judge will then ask the respondent, the father, what his story is and what position he's taking on your application. The judge will attempt to resolve things without the necessity of a hearing. That's about it! You don't really have much to prepare and you won't have to prepare any paperwork. You should bring with you all the legal documents behind your application... the application itself, the old order and so on. Click here to go to the top of the page Which form would I use to file an application for contempt to enforce an Order that is not being followed? (by R of Vancouver, BC) The answer to your question depends on which level of court you're in. If it’s a provincial court order, you'll have to prepare an "information" under the Offence Act. This is NOT straightforward, and you'll have to argue to get before a judge to "lay" the information. I've included a sketch of this process in the "enforcing orders and agreements" section of my website. If it's a supreme court order, you simply follow the normal application process. You'll file a Notice of Motion seeking a finding that she be found in contempt of court, your Affidavit in support of your application, and, eventually, your Notice of Hearing setting your application to be heard by a judge (not a master). The difference between the two is that in the case of a provincial court order, you're seeking a hearing under the Offence Act for her contempt of the court order, and even then the court order must concern only a breach of an order for custody or access made under the Family Relations Act. In the case of the supreme court order, it's a normal application based on that court's inherent ability to punish for contempt of it's orders. Click here to go to the top of the page My partner is in a dispute with her ex husband over child support payments. He may go to court to get the amount increased. He recently moved to Victoria from Chilliwack, and if he files papers in Victoria it is my understanding that the case will be heard in Victoria, even tho the original case was heard and ruled on in Chilliwack. Will the case by default be held in Victoria? (by B of Maple Ridge, BC) Well, the first problem is that you have a provincial court dispute. The provincial court sometimes deals rather loosely with its rules. Theoretically, you ought to be able to object to having the matter dealt with anywhere other than Chilliwack. Rule 2(2), about applying to change an order, says that the application must be filed in the same registry that the original order was made in. Rule 19 talks about how a part may apply to transfer the file from one registry to another, and that application must be made in the original registry. The second problem is that the rules don't say a thing about what happens when someone starts a second action in another registry, which is what your partner's ex wants to do. What all this boils down to is this: there is a fundamental principle that where two people are involved in a dispute about an issue, you can't start a second proceeding with the same people about the same issue somewhere else. You won't find this principle expressly written in the Rules of Court. If your partner's ex files the application in Victoria, your parter will be able to object on the ground that a proceeding already exists in the matter in Chilliwack, and ask for an order that the Victoria action be summarily dismissed. Of course, this will involve an application to court, but this is the sort of thing that can be handled succinctly on the court's general remand day. Your partner should wait 'til the application is filed, then apply for the order dismissing the action by Notice of Motion. Click here to go to the top of the page My ex served me with an Application to Obtain an Order for custody of children, and I filed a Reply. We were able to reach an agreement for custody, access and support on our own. How do we legalize this agreement and stop the court proceedings? (by J of Prince George, BC) Essentially, what you want the court to do is pronounce a "consent order," which is an order that you both agree the court should make. The provincial court registry has a specific form for that purpose. You should put your agreement on those issues into the court form, and then ask the trial co-ordinator to set a date where you and your ex can appear in front of a judge to have the judge make the order you want. That will stand as the "final" order in your action, and will, for the time being, terminate legal proceedings. Click here to go to the top of the page What happens if you go to court and ask for custody papers that you have to serve, but you can't serve them, and it has gone past the 30 days? (by J of Chilliwack, BC) Nothing happens, assuming that you are talking about the document that starts an action in the provincial court, an "application to obtain an order." I'm not really sure what 30 period you're talking about. Normally, the 30 day period in provincial court refers to the period that a respondent has to reply to an application to obtain an order. Those 30 days don't start running until the respondent has been served. If a respondent doesn't file the reply within that time, the applicant is entitled to ask the court for a default judgment. If you're starting the action, remember that the 30 day period for the respondent's reply doesn't begin until he or she has been served. You can start an action and sit on it for months if you like, however you won't be able to set a hearing or apply for an interim order until you have properly served the respondent and the 30 day period has expired. If you're the respondent, you have 30 days to deliver your reply to the applicant. If you don't deliver your reply within that period, the applicant can ask for a judgment in default of your reply. I can't be more specific as I'm not sure what you mean by "custody papers." 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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