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BarTalk June 1999
Volume 11, Number 3
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 250.387.0096 or fax 250.356.6806.
How is an adoption proceeding commenced? Adoption Act, Rule 10(2)
Adoption applications may be commenced by praecipe or petition. The applications are Supreme Court adoption proceedings filed in adoption file folders and kept separate from regular Supreme Court files. A praecipe is permitted when consents are filed and/or applications to dispense with notice or consent pursuant to sections 11 or 17 are made. Otherwise, a petition is required. Where the non-disclosure provisions apply (i.e., the identity of the adoptive parents is not known to a birth parent) or where you cannot serve the person entitled to notice of the application(s), an application to dispense with consent or notice must be made by way of a separate petition in a regular (non-adoption) Supreme Court file. These separate proceedings are commenced in the names of “John Doe/Jane Doe”.
What constitutes a contested family law proceeding and enables a party to proceed for a divorce and/or corollary relief under Rule 18A? Rule 18A(1)(c)
A matter becomes a contested family law proceeding once a statement of defence has been filed.
What form of order should be used in any desk order application? Can desk orders be rejected because of a policy that the reference to Justice, Master or Registrar be left incomplete and in its place should be “Before a...“. Rule 41(16)
Registries should accept Form 56A and should not be adapting this form to a style they prefer. One of the reasons for these forms is to promote consistency throughout the Province.
Has there been a change in the notice requirement for an appointment before the Registrar under the Legal Profession Act or for an assessment of costs? Rule 57(29) and Rule 11
Yes. Rule 57(29) was amended effective December 31st, 1998. Form 24, the Appointment before the Registrar, together with any attachments must now be served personally at least five (5) days before the date of the appointment. Rule 11 “Service and Delivery of Documents” applies:
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If there is an address for delivery given by a party of record, the appointment can be delivered to that address (Rule 11(6)).
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If there is no address for service (as in all L.P.A. applications), the appointment must be served, either personally (under Rule 11(2)) or substitutionally, under Rule 12(4) or (7). Thus “serve” includes “deliver” in some instances.
Should registries accept a statement of claim in a family law proceeding if the text of a paragraph appears but is not completed, struck out, or marked “N/A”? Rule 60
Parties filing statements of claim in family law proceedings must either strike out or mark “N/A” those paragraphs which do not apply and the paragraph may be omitted and only the number appear.
Form 136 (order in a family law proceeding) is headed “Before The Honourable..” and the Family Law Practice Direction sets out orders as “Before a Judge of the Court”. Which is the acceptable form of order? Rule 60
In desk order applications, the preferable phrase is “Before a Judge of the Court”. If the order is spoken to in court it should read “Before The Honourable Mr./Madam Justice .....”.
Should a Registrar grant leave to file a writ of summons, family law proceeding, without the marriage certificate when the reason given is: “it has been ordered and will be filed upon receipt”? Rule 60(15)
No, there must be a reason for the Registrar to consider, i.e., defendant leaving town, application for a restraining order, maintenance required, etc.,
What is required when a photograph is used as identification in the service of a writ of summons in a family law proceeding? Rule 60(20)
The plaintiff must set out in an affidavit (Form 132) that the picture attached to the affidavit of service is a true likeness of the defendant. The courts are rejecting applications that do not have this link to the identification of the defendant.
Must a party pay fees for the court room or hearing room if they are represented on a Legal Aid basis? Appendix C, Schedule 1, Items 14 & 19
Yes, the party must pay the fee to the Minister of Finance and then submit the receipt to Legal Aid for reimbursement.
Can a document prepared for use in court utilize both sides of the paper? Rule 4(2)
Yes, Rule 4(2) does not preclude using both sides: “...every document purported for use in the court shall be in the English language, legibly printed, typewritten, written or reproduced on 8 1/2 inch x 11 inch durable white paper...”
What is the role of the registry concerning the contents of documents which are submitted for filing? Registry Practice Rule 19(25)
Documents submitted for filing should be filed. The role of the registry is to receive documents and maintain a file of proceedings. The contents of documents are not an issue for registry staff. Contents of documents may be an issue for a Registrar when called upon to issue process, such as a garnishing order or a writ of execution. A Registrar also has an overriding jurisdiction under Rule 19(25) after a document has been filed to refer certain documents to the court for a ruling. That discretion is only to be exercised where a Registrar considers the contents of a document could be found by the court to:
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disclose no reasonable claim or defence;
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be unnecessary, scandalous, frivolous or vexatious,
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prejudicial, embarrass or delay the fair trial or hearing of the proceeding, or
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be an abuse of the process of the court.
This article was published in the June 1999 issue of BarTalk. |