BarTalk February 2001
Volume 13, Number 1

The following questions on registry practice and procedure have been asked by Registry staff, and members of the Bar throughout BC. The answers are formulated by Katherine Wellburn, Registrar and Dawn Levert, Manager of the Provincial Registrars Program, and are vetted by their panel of editors. The questions and answers are published in the Registrar’s Newsletter, distributed quarterly to BC Supreme Court Registries. If you have a question or comment, please fax 604.660.4631.

Are there changes to chambers practice which will come into effect in 2001?

Yes. There are significant changes to chambers practice which will come into effect around the province July 1, 2001. For further information on the new rule visit www.courts.gov.bc.ca. Rule 44 & 51A

How do the police know whether or not a family law restraining order is in effect?

The police are able to contact the Protection Order Registry by telephone to confirm that the order is in effect and that they have the most recent order.

Can an application for guardianship under the Family Relations Act (ss.30 and 24) be made by desk order?

No, the desk order application will be rejected. The application must be spoken to in Chambers. See the decision of Madam Justice Stromberg-Stein In the Matter of an Application to Change Guardianship: Applicants Yuk Ling Wong and Ngan Hong Yeung 2000 BCSC1536.

A default judgment was filed requesting that judgment be granted “in the sum of $21,458.29 less applicable statutory deductions, plus costs”. Can the judgment be issued in these terms? Rule 17 & 25

No. The amount of the judgment is not a certain sum since the amount of the statutory deductions is not set out.

Can an application to set aside a garnishing order pursuant to Section 5 of the Court Order Enforcement Act be heard in a registry other than the registry where it was issued?

Yes. The application may be made without notice and is usually urgent. The creditor/creditor’s counsel should still be advised of the hearing, and if necessary, could attend by way of telephone conference call.

How is a decision of an arbitrator pursuant to the Strata Property Act enforced? Strata Property Act s. 189

The arbitrator’s decision and order for costs may be filed in a Supreme Court Registry and enforced as an order of the court. The decision may be filed in Provincial Court if the amount claimed or the value of the personal property or services is within the monetary jurisdiction of that court. The decision or an order for costs may not be filed until the time limit for appeal under Section 188 has expired (30 days after receiving the decision) and no appeal has been taken, or the appeal is completed or abandoned.

Can “minutes of settlement” be filed as an agreement under Section 122 of the Family Relations Act?

Yes, if the minutes are a signed copy of a written agreement containing a provision respecting the custody of or access to a child by a parent or the maintenance for a child by a person or of a person by the person’s spouse.

Can a Writ of Execution directed “to a Bailiff” be issued?

No. Form 45 (Writ of Seizure and Sale), Form 46 (Writ of Sequestration), Form 47 (Writ of Possession), Form 48 (Writ of Delivery) and Form 49 (Writ of Delivery or Assessed Value) indicate the order is directed “To the Sheriff”. The Writs of Execution are to be executed by a court authorized bailiff, not a bailiff of the creditor’s choice. Rule 42

What is the procedure for counsel to follow if there is an urgent application that must be heard outside regular court hours e.g., someone is arrested for breach of a family law restraining order?

If there is a Vancouver action or counsel is unable to reach the local registrar, counsel should phone the Vancouver Registry on-call registrar at 604.833.4642. The Deputy District Registrar will call back (usually within ½ hour) to obtain the details of the application and the urgency and will advise whether the application will be heard outside office hours and, if so, the time and method of hearing (either by telephone or at the courthouse).

Why does the registry reject consent orders for division of family assets unless evidence is provided to show that the proposed division is not prima facie unfair? Family Relations Act

See the decision of Mr. Justice Preston in Schlenker v Schlenker 19991207 Docket 03950 Prince George which sets out the court’s duty to ensure that the proposed division achieves a minimum standard of fairness.

This article was published in the February 2001 issue of BarTalk.