Playing by the (New) Rules.

By Christine Murray





The Rules came into force on July 1, 2010 with the intended purpose of “making the family justice system more responsive, accessible and efficient.” The Object of the Rules, set out in Rule 1-3, legislate this purpose, emphasizing:

•   the impact that conduct may have on a child;
•   minimizing conflict and promoting cooperation;
•   securing the just, speedy and inexpensive determination of cases; and
•   proportionality in relation to the interest any children affected, the issues in dispute and the complexity of the case.

Over the past year, the Rules have been both amended by further Orders in council and interpreted by the courts. While it is still early to determine if the Rules have achieved the stated purpose, it is clear that the objectives of the Rules are being given weight in the court’s application and interpretation of them.

In Peck v. Peck, Wilson J. considered an application for a summary judgment in regard to retroactive child support and pension division pursuant to Rule 11-3 of the Rules. In determining if the matter could be decided summarily Wilson J. stated that “there must be added, to an inquiry into the suitability of an issue for summary determination, the notion of proportionality, introduced in Rule 1-3 of the Family Rules.”

The objectives of the Rules and proportionality, in relation to a summary trial application, were also of consideration in Fox v. Fox  (Hyslop J.). It was determined that a summary trial would be an appropriate way to resolve the matters of divorce and property division despite the objection of the Respondent in affidavit evidence:

“Your Ladyship, we disagree on the facts and evidence. If you are unable to sort this out today, it should be sorted out at trial. This is premature! She wants pieces of the pie to be carved out now, when the pie should be carved (if it’s not already carved and eaten); it should be decided at a trial based on evidence.”

Proportionality and the objectives of the Rules have also been considered in the award of costs. The case of Lenko v. Lenko confirmed that the leading case law on the issue of costs in family law still applies in the new Rules regime.

In considering an application for costs, Cole J., in the case of Aubin v. Aubin considered Rule 1-3, both the principles of proportionality and the best interests of the child, when declining to make an order for costs which would “negatively impact on the respondent’s financial ability to have regular physical access... and would not promote cooperation between the parties and would not minimize conflict.”

This emphasis on proportionality seen in the above noted decisions is consistent with the work of the Supreme Court Rules Revision Committee.

Eugene Raponi, QC sits on the Rules Revision Committee, an appointed committee made up of judges, masters, representatives of court services, legislative drafting counsel and members of the private Bar.

While the work of the Rules Revision Committee is confidential, Mr. Raponi emphasized in an interview on June 6, 2011 that “the approach that the Committee is taking is to allow the courts and the profession ample time for the new Rules to play out before considering making any recommendations for significant changes.”

The Rules Revision Committee continues to monitor how well the new Rules accomplish the stated purposes set out in Rule 1-3. If you are seeking interpretation of, or revision to, the Rules, without litigation, the Rules Revision Committee receives feedback from the Bar, the Bench and other groups, such as the Canadian Bar Association. Although no official comment has been released, it is likely the Rules Revision Committee is also accepting compliments on the Rules.

Family Lawyer Christine Murray practises at Berge Hart Cassels LLP in Vancouver and Victoria

This article was published in the August 2011 issue of BarTalk. © 2011 The Canadian Bar Association. All rights reserved.