BC Supreme Court Announcement: Assize List Coming to Vancouver Supreme Court

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

One of the more frustrating aspects of family litigation is waiting for an available date to be able to bring on a court application in Chambers.  The BC Supreme Court recently made an announcement that may simplify the process of getting a hearing date when a party to litigation needs to apply to court for an order.  The Court has announced the introduction of the use of an “assize week” system of scheduling long chambers applications  in the Vancouver Registry.

Applications in Chambers, which generally deal with temporary orders as opposed to final orders, are common in family law because there are often issues that must be dealt with immediately and can’t wait for a trial 12 months away.  Some examples of matters that can be heard by way of an application include: interim child support applications, applications for exclusive use of the family home, orders for sale of property, and interim applications for parenting time.

Often several applications on the same file are heard at once (for example, child support and spousal support, along with parenting orders), which is usually a more efficient way of dealing with disagreements between parties than having multiple court appearances, but having multiple issues heard at once makes it more likely that they become what is known as a “Lengthy Chambers” application, meaning one that is expected to take two or more hours of court time.  The difficulty arising from trying to schedule a lengthy Chambers application is that it can be difficult to get a hearing date within a reasonable period of time.  The process for setting your hearing date for lengthy Chambers applications is that you must schedule your hearing directly with the Supreme Court Registry.  To do that, you must wait until the Court Registry releases available lengthy Chambers dates, which fill up very quickly, and once they are full you have to wait for the next release, usually several weeks away.  At the time of publishing this article, there are currently no available Lengthy Chambers dates for family court files.

The recent announcement by the BC Supreme Court, that parties will have the option to sign up for an Assize week, will help to relieve some of that difficulty.  Signing up for the Assize List means that both parties agree that they will make themselves available for a hearing on short notice during a one-week period.  This will allow parties to have lengthy Chambers applications heard without having to wait for the release of Chambers dates, and will allow them to have time sensitive lengthy Chambers applications heard more swiftly.  In the writer’s view, this is a positive step for family litigants in Vancouver who require court intervention.  The result is an improvement to access to justice for Vancouver family law litigants, and an increase in the efficiency of the court system.

To read the Court’s announcement, go here: http://www.courts.gov.bc.ca/supreme_court/documents/Chambers%20Assize%20List%20Vancouver.pdf

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Top Tips for Form 8 Financial Statements

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

A Form 8 Financial Statement is a Supreme Court form used by family law litigants to exchange financial information.  It has 6 parts: 1) Income, 2) Expenses, 3) Property, 4) Special or Extraordinary Expenses, 5) Undue Hardship and 6) Income of Other Persons in Household.

The Form 8 Financial Statement is a crucial document in litigation because it provides asigning-document condensed summary of the financial circumstances of the litigant.  Because of the form’s usefulness, BC family lawyers often will exchange Form 8 Financial Statements with opposing counsel during settlement negotiations.  Whether in litigation or negotiations, the importance of a well-drafted Form 8 Financial Statement to a family law case cannot be understated.

Whether you are preparing your own Form 8 Financial Statement or you are working with your BC family lawyer, here are a few tips to keep in mind:

  1. Be accurate.

The Form 8 Financial Statement is a statement sworn under oath, meaning that the party swearing the document to be true should be prepared to be cross-examined on the facts alleged in the form at an Examination for Discovery or at trial.  Above all else, the most important part of completing a Form 8 Financial Statement is ensuring that it is true.  If there are errors in your Form 8 Financial Statements, it can undermine your credibility before the court.  If you are uncertain about the information you are providing, either take steps to increase your certainty or indicate that the amount is approximate or subject to verification.  For example, you may wish to indicate that the value of your employee pension is “unknown” if you have not yet had a pension valuation.

  1. Be detailed.

The Form 8 Financial Statement can be used by the parties and their lawyers as a guide to the parties’ incomes, assets and debts, and will be referred to again and again throughout a family law case.   Making sure that the Form 8 Financial Statement is detailed and clear will make it a more useful document to the parties and to the court.  For example, when you list your bank accounts, specify the institution, the type of account, and the account number.  Indicate whether your assets are held solely by you or jointly with another person (even if it’s just your spouse).  Make sure to indicate when you acquired your assets and debts, at least to the extent that it is clear whether the asset or debt was acquired before, during, or after the cohabitation.  Indicate the basis upon which you have fixed a value to the property, such as an appraisal, a BC Property Tax Assessment, or an estimate.

  1. Make sure that you have your relevant attachments.

Family Law litigants are required by Rule 5-1 of the BC Supreme Court Family Rules to produce a number of income documents, and all of the documents that apply to you must be attached to your Form 8 Financial Statement.  These almost always include your last 3 years of tax returns, notices of assessment, notices of reassessment, and your most recent property tax assessment.  For a full list please review Rule 5-1 on the www.bclaws.ca website.

  1. Include additional documents where necessary.

Although documents like bank statements and credit card statements are not legally required to be attached to the Form 8 Financial Statement, in many cases it can be very helpful to attach your most recent account statements so that the reader of the Form 8 Financial Statement can see where you obtained your values for the items under Part 3 – Property.  Balances on accounts can fluctuate from day to day, and by providing an account statement you provide a basis upon which to fix a value.

  1. Don’t be afraid to use footnotes.

Clients often have questions about how to complete the Form 8 Financial Statement, given that we are asking them to provide a financial “snap shot” during a period of profound changes to their finances. For example, in Part 2 – Expenses, a person may currently have minimal expenses when they swear the Form 8 Financial Statement because the parties are still under the same roof, but they want to be able to indicate what the housing expense will be when they move out in a month.  A footnote can provide that explanation.  Similarly, a footnote can be included to explain an expense where that expense has been estimated, such as estimating that “vacation” expenses are $375 per month, because you take two vacations per year that each cost $2,250.  These explanations can be incredibly useful when you are under cross-examination, as the Form 8 Financial Statement does not leave the reader guessing as to how the numbers were determined.

  1. Fill out all the parts of the document.

Read the entire document and ensure that every part applicable to you is completed.  Carefully consider: have you disposed of property in the last two years (Part 3), does your child have expenses that meet the test for special and extraordinary expenses (Part 4); do you meet the test for undue hardship (Part 5), are there other income-earning adults in your household (Part 6)?  A full and careful consideration of these questions is essential to the proper completion of a Form 8 Financial Statement.

  1. Ask yourself: does it make sense?

When your Form 8 Financial Statement has been filled in, but prior to swearing it to be true, you should review the document again and carefully consider whether the information in the Form is internally consistent.  For example, if your actual expenses greatly exceed your stated income, then we would expect to see a corresponding debt or some other explanation for the discrepancy.  If there is no explanation for the discrepancy, then it’s time to look back at either your income or your expenses to see if you have missed some piece of information.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

BC Supreme Court Family Rules Amendments

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On February 18, 2016, the British Columbia Supreme Court announced a January 28, 2016
Order in Counsel making amendments to the Supreme Court Family Rules effective July 1, 2016.  Notable among the amendments is to Form 20 and Form 21, which are the List of Documents and Appointment to Examine for Discovery, respectively.  typing-vintage-technology-keyboard

The List of Documents is a form that tells the other party which relevant documents are in the possession and control of the listing party.  The Appointment to Examine for Discovery is the form that sets the time and place for the other party to be examined under oath in advance of the trial.  Lists of Documents and Examinations for Discovery facilitate and require broad and comprehensive disclosure, and typical family litigation will result in the parties exchanging very sensitive information and documents.  The recent amendments call for including in the forms the implied undertaking of confidentiality over documents exchanged in family litigation:

Implied undertaking to the court

Documents produced are not to be used by the other party(ies) except for the purposes of this litigation unless and until the scope of the undertaking is varied by a court order or other judicial order, consent or statutory override or a situation of immediate and serious danger emerges. This implied undertaking continues despite settlement or completion of the litigation.”

This implied undertaking is not at all a new concept.  You may not use documents or information obtained in litigation for any other purpose except the litigation, unless you fall within a few narrow exceptions.  Family law litigants have been bound by this rule for years.  However lay litigants are increasingly common, and most non-lawyers would not have reason to be aware of the implied undertaking until now.   The amendments make it clear on the face of the documents: disclosure obtained in family cases is for use in the litigation only.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Ex Tapes: Recording Marital Discord

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

One of the most difficult challenges survivors of abuse in custody and guardianship cases face is proving to the judge that they have been abused.  Abuse survivors are often faced with the risk of being found to be exaggerating or fabricating their allegations in order to gain an upper hand in the litigation.  Sadly, survivors are put in a position of having to decide whether their evidence is “good enough” such that they will be believed.  Some survivors choose not to lead evidence regarding abuse because they are concerned that it will have a negative impact on how the court will view their credibility.

In the recent BC Supreme Court decision of N.D.T. v. T.F.T., 2016 BCSC 134, the Claimant was successful in proving her allegations of abuse.  She was able to show that the Respondent had been verbally abusive, that the abuse had taken place in the presence of the parties’ children, and that the Respondent’s conduct reflected his capacity to parent the children.  The BC Family Law Act explicitly requires BC Courts to consider the impact of family violence on children, whether or not it has been directed at the children.  The Claimant, referred to in Mr. Justice Saunders’ judgment as “Ms. T”, consequently won her claims for custody, guardianship and parenting time.  Her method of proof: video recordings.

Ms. T had video recorded the parties’ arguments for a period of approximately two years leading up to the date of separation.  Videos of 19 separate incidents were admitted into evidence.  That takes riphone_notes.jpgeal forethought!

What makes Ms. T’s success even more remarkable is that she won despite an expert report that made recommendations that Ms. T should get counselling to shift her focus away from drawing the children into the conflict and “placing blame” on her husband.

In the past, BC courts have been disapproving of surreptitious recordings in family cases.  Recording a former spouse without permission has been viewed as contributing to mistrust and conflict between parties; and yet time and time again videos and audio recordings are admitted into evidence.  In this case, one has to wonder if Ms. T would have been so resolutely successful on the parenting issues had she not been so proactive in collecting evidence during the marriage.

It feels unsettling to think that unhappy spouses will start recording each other’s worst moments for years on end with the aim to build a case for a family law trial.  However, with recording devices literally at everyone’s finger tips, we can expect more of this evidence to come.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Limited Sittings in BC Supreme Court this Month

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Every once in a while the justices of the Supreme Court of British Columbia have a reading break or a judges’ conference.  This week the New Westminster and Victoria locations will be limiting their court time, and next week there will be no judges or masters in Vancouver, Victoria or New Westminster on May 21, 22, or 23, except for emergency applications.