BC Spousal Support & Family Law Issues: Is Summary Trial Suitable?

In BC, spousal support and other family law issues can be settled by agreement between the separating spouses. However, if the separating spouses are unable to agree on how to settle family law issues such as spousal support, BC courts can make orders for them following a trial. The reality, however, is that full trials are costly, complex, and time-consuming. As such, Rule 11-3 of the Supreme Court Family Rules, B.C. Reg. 169/2009 permits “summary trials” in certain cases as an option for more expedient and less expensive resolution. But how do you know if a summary trial is suitable in your case?  This article will provide discuss some of the considerations for determining whether a summary trial is right to resolve your family law issues.

Interim orders in BC (spousal support, custody, etc.)

While working toward settlement of family law issues or waiting for the trial to get a final order from the court, separating spouses can apply for temporary court orders from the Provincial Court or Supreme Court. Temporary orders of the court are known as “interim orders” and they can address family law issues including custody and access, child support, and spousal support. BC Supreme Court Family Rules do not allow for interim orders by way of summary trial, so you must bring a motion or attend a Family Case Conference to obtain an interim order for issues such as child support or spousal support.

BC Courts: Final orders

While interim orders apply in the short-term, final orders are intended to apply for the foreseeable future and once made, can only be varied by the court (but only for specific reasons or changes in circumstances) or by agreement between the ex-spouses. Final orders will deal with any family law issues in BC (spousal support, asset division, child support, parenting, etc.).

Full trial vs. summary trial to obtain a final order in BC

Spousal support and other family law issues that are not settled by agreement of the separating spouses must be dealt with at trial. There are two modes of trial to get final orders in family law matters:

• A full trial, which requires witnesses to testify and be cross-examined in person at the trial.
• A shortened version of a regular trial, called a “summary trial”, which is conducted using sworn statements of the parties (“affidavit evidence”) and documentary evidence that is exchanged before the summary trial takes place.

Generally speaking, summary trials are more expedient and less expensive than the traditional trial process. Full trials are more complex, costly, and take longer to be heard by the courts. It may take several months or years to get a court date for a full trial, whereas a summary trial can typically be set down for a court hearing in a matter of weeks.

Why aren’t all family law issues decided by summary trial?

Some issues are too complex or are simply not appropriate for a summary trial. To be suitable for summary trial, a judge must be able to find the necessary facts and decide issues on affidavit evidence and documents alone. The court must approve the use of a summary trial and has broad discretion in granting or denying an application for summary trial. So, for example, if credibility is at issue or the sworn statements conflict to a significant degree, the court may reject the case being heard by way of summary trial and a full trial will be necessary.

BC spousal support and division of property by summary trial

Final orders for BC spousal support and property division are frequently made by way of summary trial, thereby saving the parties the time and expense of a full trial. Where matrimonial property and employment income are fairly straightforward and there are no major credibility issues, summary trial may be the best option.  Because of the potential for saving time and money, it is advisable to speak with a BC family lawyer to determine whether your matter is suitable for summary trial.

Litigation by ambush is not allowed

The purpose of the summary trial process is to facilitate fair and speedy resolution. To achieve this goal, the application for summary trial must set out the evidence that the party will rely on so that the parties and the court are aware of all relevant evidence in advance of the summary trial. If a party attempts to “ambush” the other party with evidence at the summary trial, the court may reject the case being heard by way of summary trial (resulting in a waste of time and legal fees to prepare the application) or the court may proceed with the summary trial hearing but refuse to consider the additional evidence (which can result in a final order that does not take into account evidence you view as relevant or important to your case).

Ambush at summary trial to decide spousal support/property division

In Slugoski v. Slugoski, 2016 ABQB 423, the husband made the application for summary trial to determine spousal support and division of property.  The husband and wife each filed affidavits which purported to be the evidence which would be relied on at this trial. However, when making submissions at the summary trial hearing, counsel for the husband proposed to tender, as evidence, “read-ins” from the examination for discovery of the wife solely for the purpose of attacking the wife’s credibility.  The court refused to allow the husband to flout summary trial procedure and held that the proper approach was to determine the issues in dispute without any reference to wife’s discovery evidence. The summary trial resulted in mixed success for the husband with respect to the substantive issues of spousal support and division of property.

If the husband wanted to rely on the discovery evidence, it should have been dealt with well in advance of the summary trial date. Failure to do so was seen by the court as “thwarting” the summary trial process and amounting to an “ambush, disguised as trial advocacy” (at paras. 6 to 8). Had it been apparent that the credibility of the wife was, in reality, to be the primary issue in the trial, an early review by a judge may have determined that this was not an appropriate case for summary trial and halted the summary trial process.

Bottom line on summary trials to determine BC spousal support/family law issues

Summary trials offer key advantages including the potential to save time and money, but they are not suitable for every family law matter. In BC, spousal support and division of property claims may be appropriate for determination by summary trial, particularly where the issues are not overly complex and there are no significant attacks on credibility. In all cases, the best approach is to talk to family lawyer about the options for resolving your case.