Joining Provincial and Supreme Court actions

In a situation where two different family law actions have been commenced dealing with the same parties – one in B.C. Provincial Court and the other in the Supreme Court of British Columbia – it is often the case that a party may wish the matters to be unified and joined in a single court.  A shift from one court to another can have financial and strategic ramifications and the question is therefore raised, how can this be accomplished?  In the recent B.C. Provincial Court of B.C. case of  R.(J.A.) v. K.(K.M.), 2010 CarswellBC 1629, 2010 BCPC 98, Judge E. Rae clarified that the Provincial Court has no power to transfer an action to the Supreme Court.  She succinctly noted that “The Provincial Court is a Court of statutory jurisdiction, and any authority to transfer the file to the Supreme Court must come from a statute or a rule” (paragraph 5).  She then went on to find that there was not statutory jurisdiction or legislation permitting the court to enable that transfer and that, “It may be open to the Supreme Court to assume jurisdiction over the matter, given that they have inherent jurisdiction and parens patriae jurisdiction, but that is a decision that must be made by the Supreme Court.” (paragraph 12).  In short, while the actions may be transfered and joined, the ruling has to come from the Supreme rather than from the Provincial Court.

Posted: September 9th, 2010 under Case Analysis, Procedure.
Tags: , , , , ,

Financial Statement Assumptions

Some thoughts about Financial Statements:  The Form 89 financial statement is divided into major sections – income, expenses and property.  Generally, income and property pose few conceptual problems.  Parties might disagree with values of assets or with characterization of income, but there little room for assumptions (ie, you would not include a Ferrari in section 2 of Part 3 (Vehicles) premised on “IF I had a Ferrari, THEN I would have a Ferrari”).

The same cannot be said for the expense section of the Form 89, which is rife with assumptions.  It is not clear on the face of the document what, exactly, is called for.  Is one being asked to say what one’s expenses have been for the past year?  What one expects them to be in the coming year?  What they will be if one gets what one is proposing that the court order, or what one will be paying if the other party is successful?  Does one calculate expenses on the most one believes one should be spending or the least?   The answer to all of these questions is, unfortunately, yes.

Because there is so much grey in the Financial Statement, it is important that one clarifies for the court any assumptions and decisions that you make.  If one is filling out the document based upon what one expects to pay if one receives what one is seeking, that assumption should be set out in affidavit material and brought to the attention of any judge hearing a related matter.  Clarifying affidavits are very helpful for the court and helps them to see exactly what logic lies behind the income and expense calculations you or your counsel may be promoting.

Posted: February 24th, 2010 under Child Support, Procedure, Property Division, Spousal Support.
Tags: , , ,