Order Taxonomy in Supreme Court

The “final order” made after application

Order Taxonomy in Supreme Court

Under the Supreme Court Civil Rules [SCCR], R. 2-1, various actions are started by a Notice of Civil Claim (“NoCC”). The NoCC will generally either culminate in a settlement or trial, pending which various applications may be brought for interlocutory relief — it is usually easy to tell what is an application versus a summary trial: applications ask for something different than the NoCC. After a hearing under the SCCR, costs are assessed on the basis of a tariff set out at Appendix B to those Rules (bit.ly/bt1021bh-1).

Thus, it is generally clear under the SCCR what is a trial (results in a final order) and what is not a trial (results in not a final order). Not so much under the Supreme Court Family Rules (“SCFR”).

The originating pleading under the SCFR is the Notice of Family Claim (“NoFC”). Like the NoCC, the NoFC generally results in a trial or settlement, and similar to the SCCR, various applications may be brought for interlocutory relief in the meantime. Like the SCCR, the SCFR provides a costs tariff (though much simplified) at Appendix B (bit.ly/bt1021bh-2).

Costs under the SCCR are, on their face, significantly more adaptable to the nuances of a case. Under the SCFR, for example, it appears $3,000 (item 1) is awarded for various initiating steps in a case of ordinary difficulty, irrespective of the number of issues claimed (claimable issues include divorce, parenting, child support, spousal support, assets/debt division, and parenting).

It’s what happens after the final order or settlement is reached under the SCFR, that things get interesting. “After the final order” non-family lawyers may be wondering, “except for costs and appeals, isn’t the case basically over at that point?”  While in large part, the SCFR seem to contemplate that (or perhaps simply fails to robustly grapple with the inverse), the answer is no.

Family Law very frequently deals with various “ongoing” issues — child support, spousal support, and parenting. Each of these may require “revisiting” as circumstances change. Unlike the Provincial Court of British Columbia, whose originating pleading (the “Application About a Family Law Matter”) contemplates that you may be applying in respect of “new” or “existing” issues and asks whether there are existing orders or agreements (so you do actually start a new case [a.k.a. file a new originating pleading] in respect of variation of previous orders), under the SCFR one does not start a new action to vary an existing order. Rather, one makes an application in the existing action (R. 10-3 (1) (c), R. 10-5 (2) (b)), which action would generally have been started by NoFC. This creates a somewhat confusing state of affairs.

The SCFR defines a “final order” as “an order finally resolving a claim in a family law case even though the order may be subject to change” (R. 1-1 (1) “final order”). So obviously, both an order after trial, and a non-interim order which varies a trial order, are final orders. Why, then, does the SCFR provide an order made after a variation be titled “Order Made After Application” — the same title given to orders after interlocutory applications — while an order after trial is titled “Final Order” (R. 15-1 (1))? I don’t have a good answer. Form here does not appear to match function, and is especially likely to create confusion in our growing population of self-represented litigants.

The rabbit hole gets deeper. Knock-on procedural confusion may include the ability (or lack thereof) to file a Notice of Trial (R. 14-1 (1)), the (remaining) duration of examination for discovery (R. 9-2 (2)), the correct tariff items for costs (try to suss out which items under Appendix B (bit.ly/bt1021bh-2) apply to an application to vary; then see B.K.A. v D.M.A., 2011 BCSC 17 (especially at para 59) and Pousette v Janssen, 2021 BCSC 1364 (especially at para 8)), and whether leave to appeal is required (Court of Appeal Act, s. 7, Court of Appeal Rules, R. 2-1 (c)).

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