The Supreme Court of British Columbia is slowly opening its doors again to regular applications for family law files. On March 27, 2020, the court initially shut down for all but urgent application due to COVID-19 health and safety concerns. On April 24th, 2020, the court extended what it would hear to non-urgent application which had already been set prior the pandemic shutdown.
As of April 27th, 2020, the court announced that it would start hearing new, non-urgent applications, but with a condition: the new applications would be based on limited affidavit materials and written submissions only.
- The application can only be about one issue. Previously, parties could go to court and deal with several issues at once. For example, the court could decide about child support, parenting time and spousal support, all in the same application. Now the court will only deal with one issue per application.
- Each party is only allowed to rely on one affidavit and that affidavit can only be a maximum of ten pages long, including exhibits. Each party is also allowed to rely on an accurate Financial Statement if the issue requires it. Previously, when people wanted to settle issues in court, they swore affidavits which sets out all the facts related to the issues that they wanted the court to decide. Those affidavit were not limited in length and could also contain exhibits which backed up the facts that were sworn to in the affidavit. There was also no stated limit as to how many affidavits a party or his or her witnesses could swear.
- The argument before the judge will not be oral, but rather will be written. Before the COVID-19 related restrictions came into play, a party or his or her lawyer would attend at court and argue the matter before the judge, relying on the affidavit evidence. Under the new rules, parties or their lawyers will not have the opportunity to speak to the judge. Instead, they will have to convince the judge by writing down their argument, a document which is to be limited to 20 pages.
It is very heartening that the courts are slowly opening up again to regular applications; but I am very concerned that by limiting argument to written form only, many vulnerable groups of people will be disproportionately hurt. People who find it difficult to write in English will be especially hard hit by these provisions. Further, people who cannot afford a lawyer will be at a severe disadvantage; likely greater than if they were attending court on their own behalf but able to speak with a judge.
I sincerely hope that, given the technology that is available, ranging from a simple telephone conferencing to more complex video conferencing, the courts will soon open applications up so that litigants’ voices can again be heard.