If You Can’t Agree — Going to Court

If you and your spouse can’t agree, either of you can ask the court to decide how to resolve some or all of your family law issues in a court order.

But you might be able to settle some or all of your issues without a court hearing. The following options will help you settle as much of your case as possible without a court hearing.

Going to Provincial Court

The Provincial (Family) Court has rules about which registry you can use.

Provincial (Family) Court registries offer extra, free services to help people resolve their family law issues without going to court. Depending on your registry, you have to use the services it offers before you can file an application with the court.

For more information, see Provincial Court Registries (go to family.legalaid.bc.ca and search “Provincial Court Registries”).

Exchange information

The law says you and your spouse must provide each other with “full and true information” so you can resolve your family law dispute. This rule applies whether or not you go to court.

The court rules also set out exactly what information you must provide before you go to court. If you refuse to provide this information, the court can make various orders, including:

requiring you to provide the missing information and documents, and
ordering you to pay a fine or to pay the other person’s legal costs.

Meet with a child support officer

Child support officers can help you understand the child support guidelines and calculate how much child support you should pay or get. Child support officers are available at Family Justice Centres in Kelowna, Nanaimo, Surrey, Vancouver, and Victoria.

If your spouse agrees, a child support officer can work with both of you to negotiate the child support amount. Child support officers can also refer you to other services for help. You can choose — or the court might send you — to see a child support officer.

See Legal information to find Family Justice Centres.

Meet with a family justice counsellor

Family justice counsellors provide a variety of free services for families experiencing separation and divorce. They can:

help you explore ways to settle your parenting and support issues, including free mediation, and
give you legal information about how to get or change family agreements or court orders.

See Legal information to find family justice counsellors.

Go to a Parenting After Separation course

In Provincial (Family) Court, you have to complete a Parenting After Separation course before you can appear in court. This is a free online workshop to help guardians deal with separation and make sure they think about the best interests of the child when they make decisions.

Even if you don’t have to complete this course (for example, if your case is in Supreme Court), it’s a good idea to take it anyway. For more information and to register, go to the Justice Education Society website.

See Legal information to find Family Justice Centres.

Meet with a judge or master

In Supreme Court, you must meet with a judge or master for a Judicial Case Conference (JCC) before you can ask the court to make an interim order. A JCC is a confidential meeting where you, your spouse, your lawyers (if you have them), and the judge or master can:

identify the issues to be decided,
review different ways to solve these issues,
mediate between you on any issues you can’t agree on,
consider what other family justice services might help you, and
plan how your case will happen; for example, when the court hearings will happen and when you must exchange information.

Either of you can request a JCC at any time, even if a JCC has already been held.

In Provincial Court, judges can order a similar meeting, called a Family Management Conference (FMC), before you can have a court hearing. Please see Going to Provincial Court above. You and the judge explore options to settle your case at an FMC. At the meeting, the judge can also make:

referrals to mediation or other dispute resolution services,
a consent order you both agree to, or
an order that helps prepare your case for a court hearing; for example, to exchange information.

Apply for an interim order

If you can’t agree on your family law issues, you can get a final order from the court but only after a trial. A trial can take a long time and a lot of work. While you prepare for a trial, you might need an interim order. An interim order provides a temporary solution for parenting arrangements, contact with a child, child and spousal support, and some property issues, such as who will live in the family home. If your case is in Supreme Court, you have to attend a Judicial Case Conference before you can apply for most interim orders.

It’s possible you and your spouse might decide the interim order works and should stay in place. If so, you don’t have to go back to court to make it permanent in a final order, unless the order is set for a limited time. You can keep using that interim order for as long as it works for you. Or you can ask the court for a consent order. You usually don’t have to go to court to get a consent order. You can just file your documents at the court registry.

If you can’t agree about keeping the interim order, you can apply to the court to change the interim order or ask for a final order at a trial.

Final order

The court can make a final order in only three situations:

if both parties agree (a consent order),
if you apply for an uncontested divorce, where you and your spouse have already agreed on how to deal with your parenting, support, and property and debt issues, or
after a trial.

You can get a consent order or an uncontested divorce without going to court.

You need to get a divorce only if you were married. See Divorce - Ending the Marriage for how to apply for an uncontested divorce.

Family law protection order

You can ask the court for a family law protection order to protect yourself, your children, or any family member whose safety and security is at risk because of a family member’s violence. Family members include:

your spouse (married or unmarried) or former spouse,
someone you live or lived with in a marriage-like relationship for any length of time,
your child’s parent or legal guardian,
a relative of any of the above who lives with them,
a relative of yours who lives with you, and
your own child.

Family violence includes physical, sexual, psychological, and emotional abuse, including:

intimidation,
harassment, and
unreasonable restrictions on your independence.

When a judge makes a protection order, the order is automatically registered with the Protection Order Registry. All police forces in BC have access to registered protection orders. Any breach of this order is a criminal offence.

If there’s a history of violence in your family or you or your children are at risk, you might be able to get a legal aid lawyer to represent you. If you plan to go to court on your own to get a court order, you can get some help from family duty counsel.

See Help from a lawyer for information about family duty counsel and legal aid.

For more about other kinds of protection orders, see For Your Protection: Peace Bonds and Family Law Protection Orders.

Which court to go to

Only Supreme Court

Supreme Court or Provincial Court

apply for a divorce under the Divorce Act
get an order for decison-making responsibility and parenting time under the Divorce Act
get contact orders under the Divorce Act
divide property or debts
get an order for protection
deal with your property, including exclusive occupancy of the family residence (where only one of you stays in the home, maybe with your children)
set aside (cancel) or enforce (put into action) an agreement dealing with property or debt

get an order for child support or spousal support
get an order for guardianship under the Family Law Act
get an order about parenting arrangements (allocation of parental responsibilities and parenting time) under the Family Law Act
get an order for contact with a child under the Family Law Act
get an order about moving (called relocating)
get a safety-related family law protection order for only you, or you and your children (including an order so the other spouse can’t come into the home)
set aside or enforce an agreement about guardianship, parenting arrangements, contact with a child, or child support or spousal support

When a court sets aside or replaces an agreement

Agreement type	When a court will set aside or replace it
Parenting arrangements (Family Law Act (FLA) Section 44)	If the agreement isn’t in the best interests of the child. If the child’s needs and circumstances changed since the order was made. This could include a change in the circumstances of another person involved.
Contact with a child (FLA Section 58)	If the agreement isn’t in the best interests of the child.
(FLA Section 60)	If the child’s needs and circumstances changed since the order was made. This could include a change in the circumstances of another person involved.
Child support (FLA Section 148)	If the court would make a different order based on the child support guidelines or under the Family Law Act (FLA).
(FLA Section 152)	If circumstances changed according to the child support guidelines, usually because the payor’s income has gone up or down and a different amount of child support should be paid. If you have important evidence that wasn’t available before. If financial information was missing and not discovered until after the order was made.
Spousal support (FLA Section 164)	If the conditions, finances, needs, or other circumstances of either spouse changed. If you have important evidence that wasn’t available before. If financial information was missing and not discovered until after the order was made. If the court is satisfied the original agreement is unfair; for example: one spouse didn’t disclose (reveal) some or all of their income, or one spouse took unfair advantage of the other spouse’s vulnerability, or a spouse didn’t understand what they were signing, or the agreement itself is significantly unfair when the court considers certain criteria (conditions; see FLA Section 164(5) for a list).
Property (FLA Section 93)	If the court is satisfied the original agreement is unfair; for example: one spouse didn’t disclose (reveal) some or all of their income, or one spouse took unfair advantage of the other spouse’s vulnerability, or a spouse didn’t understand what they were signing, or the agreement itself is significantly unfair when the court considers certain criteria (conditions; see FLA Section 93(5) for a list).

Read the Family Law Act on the BC Laws website. (under Frequently Viewed Legislation, click Family Law Act).

superadmin Mon, 02/12/2024 - 16:20