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 Elizabeth Dunn, Registrar and Joanne Power, Manager of the Registrar 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 direct it to Joanne Power at (250) 356-1492 or email jpower@galaxy.gov.bc.ca.

Question
Are funds held in court required to be paid directly to a Trustee in bankruptcy? Bankruptcy & Insolvency Act s.73(2)

Answer
In Bankruptcy of Dore,1 Master Chamberlist held that upon receipt of a copy of the assignment or the receiving order certified by the Trustee as a true copy, any funds paid by or in the name of the bankrupt are to be paid to the Trustee without an order of the court. In order to avoid any misunderstandings, the cashier may decide to informally notify the other party of the Trustee’s request. If the other party raises an objection, the cashier may refer the matter to the court for determination.

Question
When a creditor files an opposition to the discharge of a bankrupt is a fee payable by the Trustee to file the s.170 report, etc.? Bankruptcy & Insolvency Act s.168.1(1)(e) and Part II, Bankruptcy Tariff, s.2(a) & 4(f)1 Prince George Registry No. B168407 (June 11, 1997)

Answer
If the court file has already been opened by the creditor pursuant to s.4(f) of Part II of the Bankruptcy Tariff, then the Trustee need pay no further fee. (If the creditor is the Provincial Loan Administration Branch of the Ministry of Finance and Corporate Relations, then no fee is payable.)

If, however, the Trustee has been notified of the opposition by a creditor pursuant to s.168.1(1)(e) and the creditor has not filed any material with the court, then it is incumbent upon the Trustee to file the necessary documents. To do so, the $50 registry fee must be paid.

Question
If a document has been served on a company by double registered mail and no receipt of service is provided, how is the time calculated? Company Act s.204

Answer
There is no provision in either the Rules or the Company Act to provide that documents sent by mail have been deemed to have been received. In Forbes v G.L. Construction Ltd., the court found that without a signed pink card proving receipt, service had not been effected. As a result, a time calculation is meaningless.

Question
Is there still a difference in the age of a child under the Family Relations Act and the Divorce Act? Divorce Act s.2(1)2 (1979) 15 C.P.C. 71

Answer
No, the definition for “child of the marriage” in the Divorce Act now refers to the age of majority. “Age of majority” is defined, as determined by “the laws of the province where the child ordinarily resides”.

Question
As Registrars, considering probate applications or applications for default judgments, can we rely on affidavits sworn outside British Columbia by a commissioner appointed outside British Columbia? Evidence Act s.63

Answer
No. Section 63 of the Evidence Act lists individuals who may take affidavits outside British Columbia which are “valid and effectual”. Commissioners appointed outside British Columbia are not included in this list unless they fall within s.63(1), for example, the High Court Commissioner of England.

Question
Does a written agreement filed in the court have to signify on the document “In the Provincial Court of B.C.” or “In the Supreme Court of B.C.”? Family Relations Act, s.121 & 122

Answer
No, a written agreement can be filed in either court. It is not a form set out in the rules.

Question
What process is followed in filing a Judicial Review petition relating to a 90 day roadside suspension under the Motor Vehicle Act? Motor Vehicle Act, s.94

Answer
The Judicial Review petition should be filed in Supreme Court, in either the civil or the criminal registry. There are currently no fees to commence this proceeding.

Question
Can a husband change his name after divorce pursuant to section 5 of the Name Act? Name Act s.5

Answer
Yes. Section 5(1) states: “...the Supreme Court may, at any time, on the application of a former spouse, order that his or her name be changed to the name he or she desires.”

Question
Must a document in a proceeding relating to a residential tenancy be personally served? Residential Tenancy and Rule 11 & 42(12) Act s.50(6) & 51

Answer
No. Subsection 85(6) of the Residential Tenancy Act provides that such documents may be served in accordance with s.88 of the Act, which provides for alternate service if the party is absent from their premises or is evading service.3

Question
How is time calculated for delivery by mail? Rule 11(6.3)3

Answer
This answer supersedes the answer at page 35 of the Questions and Answers Consolidation; it applies specifically to service of a Writ of Possession under the Residential Tenancy Act. This up-dated answer is a result of a ruling from the Judges’ Practice Committee.

Service is effective on the same day of the week in the calendar week following mailing, as the day on which the document was mailed. (Rule 11(6.3))

Question
Can a writ be served substitutionally without an order? Rule 12

Answer
Yes. Rule 12 was amended effective 1 July 1997. Any document, except those listed in Rule 12(10), can be served substitutionally without order, provided the person being served has a residential address or acknowledges receipt.

Question
What is required in an affidavit of service if service has been effected pursuant to rule 12(4), which permits substituted service at a residence without an order? Rule 12(4)

Answer
The affidavit should set out:

1. that an unsuccessful attempt to serve the person at the place of residence was made;
2. that the document was left (during or after the unsuccessful attempt) in a sealed envelope addressed to the person to be served at the place of residence of that person, with someone who appeared to be an adult member of the same household;
3. that the document was subsequently mailed to the person to be served at that place of residence; and
4. that the deponent believes that the address at which the document was left and to which the document was mailed is the residential address of the person on whom service was to be effected.

Question
Are there guidelines as to disbursements allowed on a bill of costs presented with a default judgment such as BC On-Line, agent’s fees and search fees? Rules 17, 25 & 57

Answer
Rule 57(4) compels the Registrar to allow expenses and disbursements that were “necessarily or properly incurred in the conduct of the proceeding”. Current allowable rates for fax and photocopy charges are set out in “Practice Before The Registrar”. Generally, BC On-Line is not allowable. The party submitting the bill can prove its necessity and reasonableness [Holzapfel v Matheusik (1987) 14 B.C.L.R. (2d) 135], by including an affidavit proving the disbursements and attaching the invoices. This is particularly true for unusual disbursements.

Question
Can a respondent who has filed an answer in a divorce proceeding set the matter on the chambers list, pursuant to Rule 18A, to ask for a divorce? Rule 18A & Rule 60B

Answer
If the respondent has filed an answer or counter-petition, the parties are eligible to apply for Judgment under Rule 18A(1)(c). In Vancouver, Rule 65 also applies.

Question
Counsel have been filing 18A motions on undefended divorce applications. Is this correct? Rule 18A and Rule 60B(44) & (45)

Answer
No. Rule 18A(1)(c) states that Rule 18A applies only to contested proceedings. See also the Practice Direction of the Chief Justice dated 8 February 1993.

However, a number of the registries have developed a process of putting the matter on the Chambers list and drawing the Judge’s attention to the fact that the matter is not contested. This procedure should not be used where a desk order application for divorce would be appropriate.

Question
Can an application by consent to vary child support to conform to the Federal Child Support Guidelines be done by desk order? Rule 44(13) and Rule 60B(55)

Answer
Yes. Rule 60B(55) requires an application by notice of motion as an interlocutory application. Rule 44(13) provides for orders by consent in those circumstances. The registry will require that: the order contains the wording required by s.13 of the Child Support Guidelines; the child support fact sheet is completed in the form required by Practice Direction #10; the amount of gross income set out in the order matches the amount of gross income set out in the affidavit material; the amount of maintenance ordered meets or exceeds the Guideline amount stipulated for a payor having the specified gross income. If not, the application will be rejected unless one of the statements contained in the practice direction concerning split or shared custody, special expenses, or undue hardship has been completed; if income information for payor is not provided, check to see whether a demand has been made pursuant to Rule 60A or s.21 of the Guidelines. If not, the application will be rejected. If demand has been made, this will be noted for judge’s application.

This article was published in the February 1998 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.