Any BC Family Lawyer who has worked with the BC Supreme Court Family Rules for any length of time understands and has likely experienced that there is often a disconnect between those Rules and the actual practice of family law. An example of just this type of discrepancy came across my desk today:
Rule 4-4 of the BC Supreme Court Family Rules says that a Respondent has 30 days to file a counterclaim after you have received a Notice of Family Claim. This is not a loose guideline. It is mandatory. A Respondent has no more than 30 days to file that document.
Rule 21-2 of the BC Supreme Court Family Rules says that a Respondent can apply to the Supreme Court to lengthen that 30 day period. That application can even be made after the 30 day period has passed. If however, the Respondent does not get the permission of the court pursuant to this rule, he or she cannot file the counterclaim.
While this all sounds fairly simple, I received a Counterclaim today, three months after the initial Notice of Family Claim had been filed and served, which had been filed and accepted by the Supreme Court Registry. It had the proper stamp on its first page and it has been inserted in the court file at the courthouse.
In this case, the Respondent should have had to apply to the court for permission to file the Counterclaim. Instead, despite the clarity of the BC Supreme Court Family Rules, the Claimant is now in the position of having to pay for an application to the court to strike the Counterclaim.
Whose fault is this? It would be simple for a BC Family Lawyer facing this situation to point fingers at the beleaguered court registry and claim that it is the culprit. It should not be the case that a barred document is accepted by the Registry without question. The BC Supreme Court Registry is not, however, the offender. The Court Registry is the backbone of the BC legal system. The Registry workers are tireless. With a pared back budget and a shrinking workforce, they deal with an ever increasing workload. The blame should be placed on the government for having slashed the budget of a vital component of the legal system. If there were sufficient support, it would be a simple matter for someone to check the system for the commencement date of each action prior to accepting a Counterclaim for filing. As it stands, I do not believe that the Registry has the manpower to spare for such a task.
Unfortunately, the current state of affairs tarnishes the reputation of our legal system and without money to add to the pot, we as BC Family Lawyers are left in the position of naming the problem without proposing a solution
Author: Kevin J. Heinrichs