Application of rule

(1)   This rule applies if proceedings in the Supreme Court under the Divorce Act (Canada) or the Family Relations Act have been commenced at a registry of the Provincial Court that has been designated as a registry of the Supreme Court under section 4 of the Provincial Court Act.

Form of application

(2)   A party to a proceeding referred to in subrule (1) may make an interlocutory application under this rule before a judge of the Provincial Court having jurisdiction under section 4 (3) of the Provincial Court Act by completing an application in Form 116 and filing it at the designated registry where the proceeding was commenced and not by following the provisions of Rule 44.

Interlocutory applications

(3)   Interlocutory applications may be made under this rule for

(a) interim custody, access or maintenance under the Family Relations Act,

(b) interim corollary relief under the Divorce Act (Canada),

(c) interim restraining orders under section 37 (a), 38 (1) (a) or (b) or (5) of the Family Relations Act,

(d) exclusive possession of the matrimonial home under section 124 of the Family Relations Act, or

(e) variation of an order made by a judge of the Provincial Court under this rule.

Repealed

(4)   Repealed. [B.C. Reg. 192/95.]

Transfers to other registries

(5)   Where

(a) a judge of the Provincial Court at a designated registry, or

(b) a judge or master of the Supreme Court

is satisfied that, due to urgency or the convenience of the parties, the hearing of an interlocutory application should be transferred to another registry of the Supreme Court, the judge or master may order it to be transferred to the other registry for any or all purposes.

No costs or fees payable

(6)   No costs are payable and no filing fee is chargeable in respect of an application under this rule.

[en. B.C. Reg. 161/98, s. 17 (b).]

Appeal to Supreme Court

(7)   A party may appeal a decision of a judge of the Provincial Court that has been made under this rule to a judge of the Supreme Court.

Notice of appeal

(8)   An appeal shall be commenced by filing a notice of appeal in Form 117.

Service

(9)   The person appealing (the appellant) shall serve the notice of appeal on the other party (the respondent).

Transcripts required

(10)   The appellant must obtain a transcript of the hearing that took place before the Provincial Court judge and serve a copy on the respondent.

Place of hearing appeal

(11)   Unless a judge of or a master of the Supreme Court otherwise orders, the appeal shall be heard at the registry of the court that is nearest, by road, to the designated registry where the interlocutory application was heard.

Nature of appeal

(12)   The appeal shall consist of a review of the proceeding before the judge of the Provincial Court and the judge hearing the appeal may make any order that the judge appealed from could have made at the hearing of the interlocutory application from which the appeal has been brought.

Application of Rule 49

(13)   Rule 49 does not apply to an appeal under this rule.

Interpretation

(1)   In this rule:

"applicable income documents" means, in respect of a person,

(a) a copy of every personal income tax return filed by the person for each of the 3 most recent taxation years,

(b) a copy of every notice of income tax assessment or reassessment issued to the person for each of the 3 most recent taxation years,

(c) if the person is receiving employment insurance benefits, a copy of the 3 most recent employment insurance benefit statements,

(d) if the person is receiving workers' compensation benefits, a copy of the 3 most recent workers' compensation benefit statements,

(e) if the person is receiving social assistance, current documentary evidence of the social assistance that is being received by that person,

(f) if the person owns or has an interest in real property, a copy of the most recent assessment notice issued from an assessment authority for each property,

(g) if the person is an employee,

(i)  the most recent statement of earnings indicating the total earnings paid to the person in the year to date, including overtime, or

(ii)  if that statement is not provided by the employer, a letter from the person's employer setting out the information referred to in subparagraph (i) and including the person's rate of annual salary or remuneration,

(h) if the person is self employed, the following information for the 3 most recent taxation years:

(i)  the financial statements of the person's business or professional practice, other than a partnership;

(ii)  a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the person does not deal at arm's length,

(i) if the person is a partner in a partnership, confirmation of the person's income and draw from, and capital in, the partnership for each of its 3 most recent taxation years,

(j) if the person controls a corporation, the following information for the corporation's 3 most recent taxation years:

(i)  the financial statements of the corporation and its subsidiaries;

(ii)  a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation and every related corporation does not deal at arm's length, and

(k) if the person is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust's 3 most recent financial statements;

"child support guidelines" means,

(a) in reference to an application under the Family Relations Act, the child support guidelines established under the Family Relations Act, or

(b) in reference to an application under the Divorce Act (Canada), the child support guidelines established under the Divorce Act (Canada);

"Form 89 financial statement" means a statement in Form 89;

"party" means a party to a family law proceeding who is claiming, or against whom is claimed,

(a) an order for child support or an order varying an order for child support,

(b) an order for spousal support or an order varying an order for spousal support,

(c) an order for parental support or an order varying an order for parental support, or

(d) relief under Part 5 of the Family Relations Act;

"social assistance" includes

(a) income assistance within the meaning of the BC Benefits (Income Assistance) Act,

(b) a youth allowance within the meaning of the BC Benefits (Youth Works) Act, and

(c) a disability allowance within the meaning of the Disability Benefits Program Act;

"stepparent" means, in relation to a child,

(a) a stepparent of the child within the meaning of section 1 (2) of the Family Relations Act, or

(b) a person who stands in the place of a parent for the child within the meaning of the Divorce Act (Canada);

"support" includes maintenance.

Application of this rule

(2)   This rule applies to a family law proceeding in which an application is made to obtain or to vary an order for child support, for spousal support, for parental support or for relief under Part 5 of the Family Relations Act as follows:

(a) if an application is made to obtain or to vary an order for child support, subrules (1), (3) to (8) and (13) to (38) apply in respect of that application;

(b) if an application is made to obtain or to vary an order for spousal support or parental support, subrules (1), (9), (10), (13) to (15) and (17) to (36) apply in respect of that application;

(c) if an application is made to obtain or to vary an order for relief under Part 5 of the Family Relations Act, subrules (1), (11) to (15), (17) to (33), (34) (a) to (d), (35) and (36) apply in respect of that application.

Numbering applicable income documents

(2.1)   Each page of the applicable income documents that are to be used in court must be numbered sequentially.

[en. B.C. Reg. 191/2000, s. 14.]

Who must provide Part 1 of a Form 89 financial statement

(3)   Each party who is required under the child support guidelines to provide income information must provide to the other party

(a) Part 1 of a Form 89 financial statement,

(b) the party's applicable income documents, and

(c) any other documents that the party is required to provide under subrules (4) to (6).

Who must provide Parts 2 and 3 of a Form 89 financial statement

(4)   In addition to the documents that a party is obliged to provide under subrule (3) (a) and (b), the party must provide to the other party Parts 2 and 3 of a Form 89 financial statement if

(a) the child support guidelines require the court to consider any or all of the following:

(i)  the financial ability of the parties;

(ii)  the means of the parties;

(iii)  the condition, means, needs and other circumstances of the parties or the child, or

(b) the party who is to pay the child support is a stepparent of the child.

If special or extraordinary expenses are claimed

(5)   A party who makes a claim for special or extraordinary expenses must provide to the other party Part 4 of a Form 89 financial statement in addition to any documents that the party is obliged to provide under subrules (3), (4) and (6).

If undue hardship is claimed

(6)   If a claim for undue hardship is made, a party must provide to the other party the following documents, as applicable, in addition to any documents that the party is obliged to provide under this rule:

(a) the party making that claim must provide Parts 1, 2, 3, 5 and 6 of a Form 89 financial statement along with all applicable income documents;

(b) unless the court otherwise orders, the other party must provide Parts 1, 2, 3 and 6 of a Form 89 financial statement along with all applicable income documents.

When party must serve documents

(7)   Subject to Rule 60E, each party who is obliged to provide documents under subrule (3), (4), (5) or (6) must serve those documents on the other party as follows:

(a) if the party is obliged to provide the documents in respect of a claim made by that party in a pleading or in application materials, within 30 days after serving that pleading or those application materials on the other party;

(b) if the party is obliged to provide the documents in respect of a claim made by the other party in a pleading or in application materials and is served with a notice in Form 91 in accordance with subrule (15),

(i)  within 30 days after service if the party resides in Canada or the United States of America, or

(ii)  within 60 days after service if the party resides elsewhere;

(c) within such time as the court may order.

[am. B.C. Reg. 120/2006, Sch. 1, s. 3.]

Agreement instead of documents

(8)   Parties are deemed to have complied with the requirements of the child support guidelines, and with the requirements of this rule, respecting the provision of documents if

(a) the parties have agreed on the annual income of the party who is to pay the child support and on the amount to be paid for child support,

(b) the parties have signed an agreement in Form 91A, and

(c) the agreement in Form 91A has been filed with the court together with the documents referred to in that Form 91A.

Who must provide income documents

(9)   A party must provide to the other party Parts 1, 2 and 3 of a Form 89 financial statement, along with the party's applicable income documents, if

(a) the party is seeking to obtain a spousal or parental support order,

(b) the party is seeking to vary a spousal or parental support order,

(c) a spousal or parental support order is being sought against the party, or

(d) the other party is seeking to vary a spousal or parental support order obtained against the party.

When party must serve documents

(10)   Each party who is obliged to provide documents under subrule (9) must serve those documents on the other party as follows:

(a) if the party is obliged to provide the documents in respect of a claim made by that party in a pleading or in application materials, within 30 days after serving that pleading or those application materials on the other party;

(b) if the party is obliged to provide the documents in respect of a claim made by the other party in a pleading or in application materials and is served with a notice in Form 91 in accordance with subrule (15),

(i)  within 30 days after service if the party resides in Canada or the United States of America, or

(ii)  within 60 days after service if the party resides elsewhere;

(c) within such time as the court may order.

Who must provide Part 3 of a Form 89 financial statement

(11)   Each party who is making a claim under Part 5 of the Family Relations Act or against whom such a claim is being made, if not otherwise obliged under this rule to provide any portion of a Form 89 financial statement to the other party, must provide to the other party Part 3 of a Form 89 financial statement.

When parties must serve documents

(12)   Each party who is obliged to provide documents under subrule (11) must serve those documents on the other party as follows:

(a) if the party is obliged to provide the documents in respect of a claim made by that party in a pleading or in application materials, within 30 days after serving that pleading or those application materials on the other party;

(b) if the party is obliged to provide the documents in respect of a claim made by the other party in a pleading or in application materials and is served with a notice in Form 91 in accordance with subrule (15),

(i)  within 30 days after service if the party resides in Canada or the United States of America, or

(ii)  within 60 days after service if the party resides elsewhere;

(c) within such time as the court may order.

Assessment notice to be included

(13)   Part 3 of a Form 89 financial statement must have attached to it or have accompanying it a copy of the notice that is, at the time that the statement is provided to a party under this rule, the most recent assessment notice provided by an assessment authority for any real property that the party owns or has an interest in unless that assessment notice has already been provided.

When documents must be filed

(14)   A party who is obliged under this rule to serve a Form 89 financial statement on any other party must file a copy of that document with the court before the end of the period within which that service must be completed.

Service of notice to file financial statement

(15)   Each party who, under this rule, is entitled to receive documents from another party, including a Form 89 financial statement and applicable income documents, must serve on the other party a Notice to File a Form 89 Financial Statement in Form 91 along with the pleading or application materials referred to in subrule (7), (10) or (12), as the case may be.

Endorsement of notice

(16)   If a claim for child support is made in the family law proceeding, the notice referred to in subrule (15) may be endorsed with a statement that if the party receiving the notice does not comply with the applicable requirement under subrule (3), (4), (5) or (6), the requesting party will, for the purposes of determining child support, apply to the court to attribute to the party receiving the notice an annual income in a specified amount.

Particulars may be demanded

(17)   If a Form 89 financial statement lacks particularity, the other party may demand particulars.

Court may order particulars

(18)   If the party from whom particulars are demanded under subrule (17) fails to provide those particulars within 7 days after receipt of the demand, the court may, on terms it considers appropriate,

(a) order particulars to be delivered within a specified time, or

(b) order that a new Form 89 financial statement be delivered within a specified time.

Cross-examination on Form 89 financial statements

(19)   A party may be cross-examined on his or her Form 89 financial statement at any time before the trial or hearing, and Rules 27 and 40 (27), (29), (31) and (32) apply to the cross-examination.

Information must be kept current

(20)   Whenever a material change in circumstances renders information provided by a party inaccurate or incomplete, the party must, whether the inaccurate or incomplete information is contained in a Form 89 financial statement, in particulars provided under subrule (17) or (18) (a), in the party's applicable income documents or in a statement provided under this subrule, promptly after that change, deliver to the other party

(a) a written statement setting out particulars of the accurate or complete information, or

(b) a revised Form 89 financial statement containing the correct current information.

Additional documents

(21)   If the change in circumstances referred to in subrule (20) is such that the party becomes obliged to provide documents under this rule that are additional to the documents previously provided by that party, the party must

(a) provide those additional documents, and

(b) comply with subrule (20) in relation to the previously provided documents.

If written statement or particulars provided

(22)   If a party provides a written statement under subrule (20) or particulars under subrule (17) or (18) (a),

(a) the statement or particulars may be treated at a trial or hearing as if they formed part of the original Form 89 financial statement of the party, and

(b) the other party may, with leave of the court, require that the statement or particulars be

(i)  verified by an affidavit of the party providing the statement or particulars, or

(ii)  the subject of further cross-examination.

Updated statements

(23)   A party who has delivered a Form 89 financial statement more than 90 days before the commencement of the trial or hearing must deliver to the other party an updated Form 89 financial statement at least 30 days and not more than 60 days before the commencement of the trial or hearing, but the delivering party may not be cross-examined before the trial or hearing on the updated Form 89 financial statement, unless the court gives leave or the parties agree.

Production of documents

(24)   If a party discloses business or corporate interests in a Form 89 financial statement delivered under this rule, the party receiving the statement may, in writing, request the disclosing party to produce for inspection and copying specified documents or classes of documents in the disclosing party's possession or control that might reasonably be required to verify the valuation of the disclosing party's interest or to determine the disclosing party's income.

Responding to demand

(25)   A party receiving a request under subrule (24) must, within 21 days after receipt, deliver a notice to the requesting party stating

(a) a time and place, during normal business hours, at which the documents may be inspected, and

(b) the cost of copying the documents.

Request to corporation, partnership or proprietorship

(26)   If the party who makes a request under subrule (24) is not satisfied with the response to the request, that party may make a written request to the corporation, partnership or proprietorship in which the other party has disclosed an interest, to produce for inspection all documents that are relevant to the valuation of the interest or the determination of the disclosing party's income.

Production required

(27)   A corporation, partnership or proprietorship receiving a request under subrule (26) must, within 21 days after receipt, provide a written statement to the requesting party

(a) detailing the documents, in its possession or control, that it is obliged to produce in response to the request,

(b) identifying those documents, if any, in respect of which the corporation, partnership or proprietorship intends to seek an exemption under subrule (29),

(c) specifying a time and place at which the documents for which an exemption is not being sought may be inspected, and

(d) specifying the cost of copying the documents for which an exemption is not being sought.

Application to court for directions

(28)   A corporation, partnership or proprietorship or either of the parties may apply to the court at any time for directions respecting any request for production of documents under subrule (24) or (26), including directions respecting payment of the costs of copying the documents, and the court may give those directions accordingly.

Application to court for exemption

(29)   A corporation, partnership or proprietorship may, within 21 days after the date a request is served on it under subrule (26), apply to the court for an order exempting it from the requirement to produce any document.

Application by person authorized

(30)   An application under subrule (28) or (29) may be made on behalf of a corporation or partnership by a person who has been authorized by the corporation or partnership for that purpose.

Court may order exemption

(31)   On an exemption application under subrule (29), the court may issue an order exempting the applicant from the requirement to produce all or any of the requested documents if the court considers that

(a) the documents and information already received by the party who made the request under subrule (26) are sufficient for the purposes of the main application,

(b) the production of the documents is not necessary for the purposes of the main application,

(c) in the case of a corporation, the prejudice likely to be caused to the corporation, or to its directors or shareholders, by refusing to exempt the corporation, outweighs the prejudice likely to be caused to the person requesting the documents if the corporation is exempted, or

(d) in the case of a partnership, the prejudice likely to be caused to the partnership, or to its partners or associates, by refusing to exempt the partnership, outweighs the prejudice likely to be caused to the person requesting the documents.

Costs

(32)   The costs of producing documents under subrule (25) or (27) and the costs of an application under subrule (28) or (29) are in the discretion of the court and the court may order that the costs be paid in favour of or against

(a) either of the parties to the proceeding, or

(b) the corporation, the partnership or the owner of the proprietorship, as the case may be.

When costs are payable

(33)   The court may order when any costs awarded under subrule (32) are payable.

Relief

(34)   If a party fails to comply with a requirement under this rule to file or serve a Form 89 financial statement, particulars if ordered or any applicable income document, or fails to comply with a notice under subrule (15), the court may do any or all of the following:

(a) order that the Form 89 financial statement, particulars or applicable income document, as the case may be, be delivered on terms the court considers appropriate;

(b) dismiss the application or strike out a party's responding document;

(c) proceed under Rule 56 to punish the party for contempt of court;

(d) draw an adverse inference against the party;

(e) attribute income to that party in an amount the court considers appropriate.

Confidentiality

(35)   Any person who has access to documents obtained under this rule must keep the documents and any information contained in them in confidence and must not disclose the documents or information to anyone other than

(a) for the purposes of a valuation of an asset,

(b) for a determination of the disclosing party's income, or

(c) in the course of permitting the documents to be introduced into evidence during the proceeding.

Sealing of financial information

(36)   If the court considers that public disclosure of any information filed in a family law proceeding to which this rule applies would be a hardship on the person in respect of whom the information is filed,

(a) the court may order that the whole or any part of the document in which the information is contained, and the whole or any part of the transcript of the cross-examination on the document, must promptly be sealed in an envelope, and

(b) if an order is made under paragraph (a), no person may search the sealed documents without an order of the court.

Child support guidelines prevail

(37)   If and to the extent that there is a conflict between any provision of this rule and a provision of the child support guidelines, the provision of the child support guidelines prevails.

No conflict

(38)   For the purposes of subrule (37), it is not a conflict between the child support guidelines and this rule merely because this rule

(a) requires a person to provide information that is different from or additional to the information, if any, that that person would be obliged to provide under the child support guidelines,

(b) requires that certain information required by this rule but not by the child support guidelines be presented in a manner or form that is different from the manner or form in which information required under the child support guidelines is to be presented, or

(c) requires the provision, in one manner or form, of information some or all of which is required under the child support guidelines to be provided in a different manner or form.

Judicial case conference required

(1)   Subject to subrule (2), a party to a family law proceeding commenced after July 1, 2002 must not deliver to another party a notice of motion or affidavit in support of an interlocutory application unless a judicial case conference has been conducted in relation to the proceeding.

Exceptions

(2)   Subrule (1) does not apply to an application made

(a) under section 57 of the Family Relations Act,

(b) under section 67 of the Family Relations Act,

(c) by consent, or

(d) without notice.

Court may grant relief

(3)   On application by a party, a judge or master may relieve a party from the requirements of subrule (1) if

(a) it is premature to require the parties to attend a judicial case conference,

(b) it is impracticable or unfair to require the party to comply with the requirements of subrule (1),

(c) the application referred to in subrule (1) is urgent,

(d) delaying the application referred to in subrule (1) or requiring the party to attend a judicial case conference is or might be dangerous to the health or safety of any person, or

(e) the court considers it appropriate to do so in the circumstances.

Application by requisition

(4)   An application under subrule (3) may be made by requisition, supported by a letter signed by counsel or the party setting out the reasons why the order is sought, and a judge or master may do one or more of the following:

(a) require that further material be provided;

(b) require that the party or counsel appear in person to speak to the application;

(c) make the order without requiring the party or counsel to appear to speak to the application;

(d) refuse to make the order;

(e) make such other order as the judge or master considers appropriate.

[en. B.C. Reg. 120/2006, Sch. 1, s. 4 (b).]

Judicial case conference may be requested

(5)   A party to a family law proceeding may request a judicial case conference by filing at the registry a requisition and notice of judicial case conference in Form 145.

[en. B.C. Reg. 120/2006, Sch. 1, s. 4 (b).]

Time for delivery of notice

(6)   The party requesting a judicial case conference must serve on each of the other parties of record, at least 30 days before the date set for the judicial case conference,

(a) a requisition and notice of judicial case conference, and

(b) a copy of Parts 1, 2, 3 and 4 of a Form 89 financial statement.

[en. B.C. Reg. 120/2006, Sch. 1, s. 4 (b).]

Judicial case conference may be directed

(7)   At any stage of a family law proceeding, a judge or master may direct that a judicial case conference take place and may order a party to serve a requisition and notice of judicial case conference in accordance with subrule (6).

[am. B.C. Reg. 120/2006, Sch. 1, s. 4 (c).]

Party requesting a judicial case conference must file Form 89 with court

(7.1)   The party delivering a requisition and notice of judicial case conference in accordance with subrule (6) or (7) must, at least 7 days before the date set for the judicial case conference, file with the court the original of Parts 1, 2, 3 and 4 of a Form 89 financial statement.

[en. B.C. Reg. 120/2006, Sch. 1, s. 4 (d).]

Other parties must file and serve Form 89

(7.2)   At least 7 days before the date set for a judicial case conference, a party who has been served with a requisition and notice of judicial case conference in accordance with subrule (6) or (7) must

(a) serve on the party who served that document and on every other party of record a copy of Parts 1, 2, 3 and 4 of a Form 89 financial statement, and

(b) file with the court the original of those Parts 1, 2, 3 and 4 of the Form 89 financial statement.

[en. B.C. Reg. 120/2006, Sch. 1, s. 4 (d).]

Judicial case conference must be conducted by judge or master

(8)   A judicial case conference must be conducted by a judge or master.

Attendance

(9)   Unless a judge or master orders otherwise, if a judicial case conference is held, each of the parties of record and their counsel must attend that judicial case conference.

Non-attendance at judicial case conference

(10)   If a party fails to appear at a judicial case conference, the judge or master may

(a) proceed in the absence of the party who failed to appear,

(b) adjourn the judicial case conference, or

(c) order that the party who failed to appear pay costs to the other party.

Matters for consideration

(11)   The purposes for which a judicial case conference is to be held include the following:

(a) identifying the issues that are in dispute and those that are not in dispute;

(b) exploring ways in which the issues in dispute may be resolved other than by way of trial;

(c) ensuring disclosure of the relevant evidence;

(d) setting the date for a settlement conference, if appropriate, and giving directions for the conduct of the settlement conference;

(e) if appropriate, setting a timetable for the steps to be taken in the case before it comes to trial;

(f) considering any other matters that may aid in the resolution of the proceeding.

Orders at judicial case conference

(12)   At a judicial case conference, the judge or master may

(a) make any of the following orders, whether or not on the application of a party:

(i)  the pleadings be amended or closed within a fixed time;

(ii)  a party deliver a list of documents or a statement in Form 89 within a fixed time;

(iii)  interlocutory applications be brought within a fixed time;

(iv)  examinations for discovery be conducted within a schedule that the court directs;

(v)  setting limitations on discovery procedures;

(vi)  experts’ reports be exchanged within a schedule that the court directs;

(vii)  the parties attend a mini-trial or settlement conference;

(viii)  the proceeding be set for trial on a particular date or on a particular trial list, subject to the approval of the Chief Justice, and

(b) make any other order with the consent of the parties.

Judge or master may be seized of further applications

(13)   At a judicial case conference, or at any other time, a judge or master may order that all interlocutory applications in the family law proceeding be heard by that judge or master.

Other judges or masters may hear applications

(14)   A judge or master who has made an order under subrule (13) may at any time direct that any or all interlocutory applications in the family law proceeding may be heard by another judge or master.

Repealed

(15)   Repealed. [B.C. Reg. 120/2006, Sch. 2, s. 2.]

Repealed

(16)   Repealed. [B.C. Reg. 120/2006, Sch. 1, s. 4 (e).]

Interpretation and application

(1)   (a)   Except where a contrary intention appears, the interpretation section of the Estate Administration Act applies to this rule.

(b) This rule applies to "non-contentious business" defined as the obtaining of a grant of probate or administration where there is no contention as to the right thereto and includes

(i)  the obtaining of grants of probate or administration in contentious cases where the contest has been concluded,

(ii)  the filing of caveats against the granting of probate or administration,

(iii)  the fixing of remuneration and passing of accounts, and

(iv)  all non-contentious matters relating to testacy and intestacy, not being proceedings in an action.

Application for probate or letters of administration

(2)   Application for probate or letters of administration may be made in any registry.

Idem

(3)   Subject to subrule (12), the applicant shall deposit with the registrar the original will, if any, and file a requisition and an affidavit of executor or administrator, in Form 69, 70 or 71, and any further affidavits as may be required by these rules.

[am. B.C. Reg. 201/2004, s. 1.]

Proof of death

(4)   Where the applicant specifies in the applicant's affidavit the day on which the testator or the intestate died, no further proof of death shall be required by the registrar. If the fact of the death is certain, but the exact date is unknown, the affidavit shall state the date on which the deceased was last seen alive and the date on which his or her body was found.

Approval by registrar

(5)   The registrar may approve the application and mark the documents as approved, but if the registrar refuses to approve the application the registrar shall note on the documents his or her reasons for refusing approval.

Hearing of application

(6)   The applicant may set down the application for hearing by the court at any time after the registrar has approved or refused to approve it.

Proof of execution where no attestation clause

(7)   Where there is no attestation clause to a will or codicil, or if the attestation clause is insufficient, the registrar shall require an affidavit from at least one of the subscribing witnesses, if they or either of them are living, to prove that the requirements of the Wills Act as to execution, were in fact complied with.

Affidavit of witness

(8)   Where, on perusing the affidavit of a subscribing witness, it appears that the requirements of the Wills Act were not or may not have been complied with, the registrar shall refuse to approve the application.

Proof where no affidavit of witness

(9)   Where no affidavit can be obtained from either subscribing witness, an affidavit shall be provided from any other person present at the execution of the will or codicil, but if no affidavit of any person can be obtained, evidence shall be provided on affidavit

(a) of that fact and of the handwriting of the deceased and the subscribing witnesses, and

(b) of any circumstances which may raise a presumption in favour of proper execution.

Proof of date of execution

(10)   Where there is doubt as to the date on which a will was executed, the registrar may require evidence he or she thinks necessary to establish the date, and shall endorse a note of the date on the will.

Proof in solemn form

(11)   Where the circumstances appear to justify the direction, the court may require that proof of the will be made in solemn form.

Idem

(12)   An application for proof of a will in solemn form shall be by petition in Form 3, and Rule 10 applies.

Idem

(13)   On application for proof of a will in solemn form, copies of the petition shall be served on all persons having an interest in upholding or contesting the validity of the will, and the petition shall contain a warning to those persons that they will be bound by the result of the proceeding.

Interlineations and alterations

(14)   When an interlineation or alteration appears in the will, which is not properly executed, or recited in, or otherwise identified by the attestation clause, an affidavit in proof of its existence in the will before execution must be filed, except when the alteration is of small importance and is evidenced by the initials of the attesting witnesses.

[am. B.C. Reg. 10/92, s. 10.]

Erasures and obliterations

(15)   An erasure or obliteration shall not prevail unless it is

(a) proved to have existed in the will at the time of its execution,

(b) properly executed and attested, or

(c) rendered valid by the re-execution of the will, or by the subsequent execution of a codicil,

but if no satisfactory evidence can be adduced as to the time when the erasure or obliteration was made, and the words erased or obliterated are not entirely effaced, but can be ascertained on inspection, the words must form part of the probate.

Affidavit explaining

(16)   Where words that might have been of importance have been erased or obliterated, the registrar may require an affidavit explaining the circumstances.

Document referred to in a will

(17)   Where a will contains a reference to a document, which is of such nature as to raise a question whether the document ought to form part of the will, the registrar shall require the production of the document to ascertain whether it is entitled to probate, and, if not produced, its non-production must be accounted for.

Idem

(18)   No document can form part of a will unless it was in existence at the time the will was executed.

Appearance of the paper

(19)   Where there is an indication on the testamentary papers leading to the inference that a document has been attached to them, the indication must be satisfactorily explained, or the registrar shall require the document to be produced, and, if not produced, its non-production must be accounted for.

Notice to next of kin

(20)   Where a person applies for letters of administration under section 6 of the Estate Administration Act, the names and kinship of those having a prior right or an equal right to a grant shall be shown, and it shall be shown that each of them has consented or renounced, otherwise the registrar may direct notice to be given in Form 72 to any of them by mail.

Limited administrations

(21)   Unless the court otherwise orders, a limited administration shall not be granted unless every person entitled to a general grant has consented or renounced, or has been cited and has failed to file an appearance.

[en. B.C. Reg. 55/93, s. 26 (a).]

Idem

(22)   Unless the court otherwise orders, no person entitled to a general grant of administration of the personal estate and effects of a deceased will be permitted to take a limited grant.

Grants to an attorney

(23)   Where a person entitled to administration resides outside British Columbia, administration, or administration with the will annexed, may be granted to the person or the person's attorney acting under a power of attorney.

Grants of administration to guardians

(24)   With the consent of the Public Guardian and Trustee, a grant of administration may be made to the guardians of an infant for his or her use and benefit.

[am. B.C. Reg. 191/2000, s. 3.]

Administration bonds

(25)   Unless the court otherwise orders, the bond to be given upon any grant of administration shall be in Form 73 or Form 74.

Affidavit of surety

(26)   The sureties in an administration bond are required to prove by affidavit that they together have assets equal to the amount of the bond. No registrar shall become surety to any administration bond.

Idem

(27)   In all cases other than those to which section 20 (1) to (4) of the Estate Administration Act applies, unless the court otherwise orders, not less than 2 sureties shall be required to the administration bond, and the bond shall be in an amount as the court may order, and the court may also order that more than one bond shall be given so as to limit the liability of a surety.

Time of issuing grant

(28)   Unless the court otherwise orders, no grant of probate or administration shall issue until after 7 days from the death of the deceased.

Delay in application

(29)   Where probate or administration is applied for more than 3 years after the death of the deceased,

(a) the reason for the delay shall be set out in an affidavit, and

(b) the registrar may require further proof of the alleged cause of delay as the registrar thinks fit.

Identity of parties

(30)   The registrar may require proof, in addition to the affidavit of the executor or administrator, of the identity of the deceased, or of the party applying for a grant.

Proof of search for will

(31)   On every application for administration it must be shown that a search for a will or testamentary paper has been made in all places where the deceased usually kept his or her documents, and the applicant must file a letter from the Director of Vital Statistics showing the results of a search at the director's office for a notice of a will filed by or on behalf of the deceased under the Wills Act.

Idem

(32)   An executor who swears or affirms that the executor is presenting the last will of the deceased, and who files a letter from the Director of Vital Statistics showing the results of a search at the director's office for a notice of a will filed by or on behalf of the deceased, shall not be required by the registrar to prove by affidavit that the executor made a search for a later will.

[en. B.C. Reg. 55/93, s. 26 (b).]

Renunciations

(33)   No person, other than an official administrator, who renounces as executor of the will or who renounces the right to apply for administration of the estate of a deceased person in one capacity, shall be appointed the personal representative of the deceased in another capacity.

Caveats

(34)   A person intending to oppose the issue of a grant of probate or administration shall, in any registry of the court, file a caveat in Form 75.

Idem

(35)   The registrar in whose registry a caveat has been filed shall forthwith notify the registrar at Victoria who shall forthwith notify all other registrars in the Province.

Contents of caveat

(36)   The caveator must declare in the caveat the nature of his or her interest in the property of the deceased, and state generally the grounds upon which the caveat is entered. The caveat shall be signed by the caveator, or by the caveator's solicitor, and shall state an address for delivery in accordance with Rule 4.

[am. 16B.C. Reg. 165/97, s. 17.]

Time caveat in force

(37)   Subject to subrule (42), a caveat remains in force for 6 months after being filed, unless it is sooner withdrawn by notice filed by the caveator, and then it expires and is of no effect, but by order of the court, it may be renewed from time to time.

No grant while caveat in force

(38)   No grant of administration or probate shall be made while a caveat is in force.

Notice to caveator

(39)   A person intending to apply for probate or administration or claiming an interest in an estate with respect to which a caveat has been filed, may file a notice to caveator in Form 76 in the registry in which the caveat was filed, and shall deliver a copy to the address for delivery set out in the caveat.

Contents of notice

(40)   The notice to caveator shall state the name and interest of the person on whose behalf it is issued and, if that person claims under a will or codicil, shall also state

(a) the date of the will or codicil, and

(b) the person's address for delivery to which Rule 4 (6) applies.

[am. B.C. Reg. 165/97, s. 17.]

Appearance to notice

(41)   An appearance to a notice to caveator shall be in Form 7.

Effect of failure to appear to notice

(42)   Where a notice to caveator has been filed and a copy delivered to the caveator and no appearance has been filed within the time stated in the notice, the registrar shall cancel the caveat and notify the registrar at Victoria.

Citation to accept executorship

(43)   Where an executor fails to apply for the probate of a will, any person interested may cite the executor to accept or refuse probate of the will, or to show cause why administration should not be granted to the executor or to some other person having a prior right who is willing to accept the grant, but no citation shall issue until 14 days after the testator's death.

Form of citation and answer

(44)   The citation shall be in Form 77 and an answer in Form 78.

Citation to propound an alleged will

(45)   (a)   Where there is or may be a document that may be alleged to be a will of a deceased person, a citation to propound the document as a will may be issued by any person interested.

(b) The citation must

(i)  be in Form 79,

(ii)  be supported by affidavit, and

(iii)  be directed to the executor and any other person named in the document.

(c) An answer shall be in Form 80.

Citation to bring in a will

(46)  (a) Where a testamentary document may be in the possession or control of a person, a citation may be issued to the person calling on the person to deposit with the registrar any testamentary document in the person's possession or control, or to state under oath that no testamentary document is in the person's possession or control.

(b) The citation shall be in Form 81 and shall be supported by affidavit.

(c) Where it is shown by affidavit, to the satisfaction of the registrar, that a person has knowledge of a will or other document or any asset relating to or belonging to an estate, the registrar may issue a subpoena in Form 82 for service on that person.

Filing and service of citations and answers

(47)   A citation shall be served personally, and Rules 11, 12 and 13 apply. An answer shall be filed and delivered.

Foreign grants

(48)   If probate or administration has been granted by a court of competent jurisdiction outside British Columbia and the grant cannot be resealed under the provisions of the Probate Recognition Act,

(a) a grant of administration, limited to the estate of the deceased in British Columbia, may be made to the attorney of the personal representative appointed by the foreign court, or

(b) an ancillary grant of probate or administration may be made to the personal representative appointed by the foreign court.

Foreign wills

(49)   A copy of a foreign will to be annexed to a grant of administration must be certified by the court out of which probate or administration has been granted.

Application to reseal grant

(50)   An application to reseal a grant of probate or letters of administration under the Probate Recognition Act may be made in any registry by the personal representative or the representative's attorney.

Idem

(51)   The applicant for resealing shall file the grant of probate or letters of administration, or a copy certified by the issuing court.

Affidavit on resealing

(52)   An application for resealing must be accompanied by an affidavit of the executor, administrator or attorney, in Form 83.

Domicile of deceased on resealing

(53)   (a)   If the domicile of the deceased at the time of death as sworn to in the affidavit differs from that suggested by the description in a foreign grant, the registrar may require further evidence as to domicile.

(b) If the registrar is satisfied that the deceased was not at the time of death domiciled within the jurisdiction of the court from which the foreign grant issued, the registrar shall mark the application accordingly.

Application of other rules on resealing

(54)   Subrules (5) and (6) apply to an application for resealing.

Grant to be resealed

(55)   No grant of probate or administration or certified copy shall be resealed unless it includes a copy of any testamentary paper admitted to probate.

Notice of resealing

(56)   Notice of a resealing of a grant shall be sent to the court from which the grant issued.

Idem

(57)   Where the registrar has notice of the resealing of a British Columbia grant, the registrar shall give notice of the revocation of or any alteration in the grant to the court which resealed it.

Remuneration and passing of accounts

(58)   An application to the court for passing of accounts and remuneration shall be made without notice by notice of motion supported by an affidavit in Form 84.

[am. B.C. Reg. 191/2000, s. 15.]

Idem

(59)   On the application, the court shall give all necessary directions and may refer the matter to the registrar under Rule 32.

Affidavit required for passing of accounts and remuneration

(60)   As part of an application for the passing of accounts and remuneration under subrule (58), the applicant must file an affidavit, in Form 136A,

(a) describing the assets and liabilities of the estate for which the statement is prepared as at the later of

(i)  the date of the deceased’s death, and

(ii)  the effective date of the most recent of any previous accounting done under this rule,

(b) describing capital transactions since the applicable date referred to in paragraph (a), including expenses related to and necessary for the maintenance of capital assets,

(c) describing income transactions, other than transactions included under paragraph (b), since the applicable date referred to in paragraph (a), including the payment of any liabilities of the estate,

(d) describing the assets and liabilities of the estate as at the effective date of the statement of account,

(e) including a calculation of the remuneration, if any, claimed by the applicant for

(i)  the applicant, and

(ii)  any previous trustee for whom a claim for remuneration has not yet been made,

(f) describing all distributions made or anticipated to be made out of the estate, and

(g) including, in any other schedules, details or information the court may require or the applicant may consider relevant.

[en. B.C. Reg. 136/2005, s. 8.]

Interpretation

(1)   In this rule, "probate action" means an action for the grant of probate of the will of, or letters of administration of the estate of, a deceased person, or for the revocation of a grant or for an order pronouncing for or against the validity of an alleged testamentary paper, but does not include a proceeding governed by Rule 61.

Dispute as to the validity of a testamentary paper

(2)   In an action where the validity of a testamentary paper is questioned, all persons having an interest in upholding or disputing its validity shall be joined as defendants.

Commencement of action

(3)   A probate action shall be commenced by writ of summons, and the endorsement on the writ, or the statement of claim if it is set out in the writ, shall contain a statement of the interest of the plaintiff and of each defendant in the estate of the deceased.

Parties

(4)   Each person who is entitled or claims to be entitled to administer the estate of a deceased person under or by virtue of an unrevoked grant of probate or letters or administration must be made a party to any action for revocation of the grant, and by leave of the court, a person interested in the estate, but not named as a defendant, may enter an appearance and defend the action as though the person were a defendant.

Action for revocation of grant

(5)   In an action for the revocation of a grant of probate or administration,

(a) if the action is commenced by a person to whom the grant was made, the person shall lodge the grant with the registrar within 7 days after the issue of the writ, or

(b) if a defendant to the action has the grant in his or her possession or under his or her control, the defendant shall lodge it with the registrar within 7 days after the service of the writ upon him or her,

and the person to whom the grant was issued shall not act under it without leave of the registrar.

Failure to lodge grant on action for revocation

(6)   Where a person fails to comply with subrule (5), the registrar may issue a citation in Form 85 calling on the person to bring the grant into the registrar's office, and a person against whom the citation is issued shall not take any step in the action without leave of the court until the person has complied with the citation.

Failure to enter appearance

(7)   Rule 17 does not apply to a probate action, and if a defendant fails to enter an appearance within the time allowed, the plaintiff may proceed with the action on serving a statement of claim.

Counterclaim

(8)   A defendant to a probate action who alleges that he or she has a claim or is entitled to relief in respect of a matter relating to the grant of probate or letters of administration shall deliver a counterclaim in respect of that claim or relief.

[am. B.C. Reg. 95/96, s. 23.]

Failure to serve statement of claim

(9)   Where the plaintiff fails to serve a statement of claim, a defendant may, with the leave of the court, deliver a counterclaim, and the action shall then proceed as if the defendant were the plaintiff.

Defence limited to proof in solemn form

(10)   In a probate action, a statement of defence may state that the defendant merely requires that the will be proved in solemn form, and that the defendant only intends to cross-examine the witnesses produced in support of the will, and in that event the defendant is not liable for costs, unless the court determines that there was no reasonable ground for requiring proof in solemn form.

Certain rules not to apply

(11)   Rules 25 (1), (2), (3), (12), (13) and 36 do not apply to a probate action.

Order for discontinuance or dismissal

(12)   At any stage of a probate action the court may order the action to be discontinued or dismissed, and may order that a grant of probate or administration be made to the person entitled.

Compromise

(13)   No probate action shall be compromised without leave of the court.

Originating application

(1)   Applications for relief in the nature of mandamus, prohibition, certiorari or habeas corpus are governed by these rules and must be commenced by petition under Rule 10.

Writs abolished

(2)   No writ of mandamus, prohibition, certiorari or habeas corpus shall be issued, but all necessary directions shall be made by order.

Person affected may take part in proceeding

(3)   The court may order that a person who may be affected by a proceeding for an order in the nature of mandamus may take part in the proceeding to the same extent as if served with the petition.

Copy of document filed in registry

(1)   Unless otherwise provided by an enactment, a person may, on payment of the proper fees, obtain from the registry a copy of a document on file in a proceeding.

Repealed

(1.1)   Repealed. [B.C. Reg. 267/98, s. 3.]

When registry open

(2)   Except on Saturdays, holidays and those days that are prescribed by the Lieutenant Governor in Council as holidays for the Public Service of the Province, the registry shall be kept open to the public for the transaction of business from 9 a.m. until 4 p.m.

Hours of registrar

(3)   The hours of attendance by the registrar and the registry staff are from 8:30 a.m. until 4:30 p.m.

Lunch hours

(4)   Where a registry has insufficient staff to allow continuous staff attendance at the lunch hour, the Chief Justice may, in writing, authorize that registry to close.

Use of seal

(5)   In each registry the seal, directed by the rules, shall be used and shall be stamped on every writ and other document requiring a seal, issued out of or filed in that registry.

Name of registry

(6)   The name of the registry shall be written or stamped on the face of every document issued from or filed or recorded in a registry.

Signature of registrar

(7)   Where the signature or endorsement of the registrar is required on a document, the document shall be deemed to have been signed or endorsed by the registrar if the document is signed or endorsed by a person appointed for that purpose by the registrar, district registrar or deputy district registrar.

[en. B.C. Reg. 143/94, s. 15.]

Business not to be done out of office hours

(8)   No writ or process shall be issued from and no proceedings shall be taken in the registry out of office hours, but in case of urgency, the court may order that a registry be opened for the purpose of commencing a proceeding or for some other good reason.

Request to registry by requisition

(9)   If a person wishes the registry to perform some act under these rules,

(a) the person must make the request,

(i)  if the request is made under Rule 41 (16), (16.1) or (16.3), by requisition in Form 56, or

(ii)  in any other case, by requisition in Form 2, and

(b) the registry may discard the requisition after the required act has been done.

[en. B.C. Reg. 161/98, s. 18; am. B.C. Reg. 201/2004, s. 1.]

Incapacity of judge before judgment given

(10)   Where an application ought to be made to, or any jurisdiction exercised by, the judge by whom a proceeding has been tried or partly tried, or heard or partly heard, then if that judge dies or ceases to be a judge of the court during or after the trial or hearing, or if for any other reason it is impossible or inconvenient for that judge to act in the proceeding, the Chief Justice or next senior judge of the court may either by a special or by a general order nominate some other judge to whom the application may be made or by whom the jurisdiction may be exercised.

Idem

(11)   Without restricting the generality of the foregoing, that other judge may order that the proceeding be restored to the proper registry for retrial or rehearing, and, in case the original trial or hearing was upon evidence given orally, may direct that the retrial or rehearing shall be upon an official transcript of that evidence, or upon such transcript and evidence given orally and evidence given by affidavit, or upon new evidence, or otherwise, as in his or her opinion the circumstances of the case require, and may dispose of the costs of the original trial or hearing and of the costs of furnishing any copies of the transcript of the evidence, or may refer the question of costs to the judge presiding at the retrial or rehearing.

[am. B.C. Reg. 165/97, s. 18.]

Idem

(12)   No directions for a retrial or rehearing which include a direction for the use of the transcript of the evidence shall limit or restrict the power of the judge presiding at the retrial or rehearing to permit in his or her discretion the recalling of any witness called at the original trial or hearing, or to receive other or additional evidence.

Transfers

(13)   At any time after a proceeding is commenced, the court may on application order it to be transferred from the registry in which it was commenced to any other registry of the court for any or all purposes.

Object

(1)   The object of this rule is to provide a speedier and less expensive determination of certain actions the trial of which can be completed within 2 days.

Repealed

(2)   Repealed. [B.C. Reg. 83/2002, s. (a) (ii).]

Exclusions from Rule 66

(3)   This rule does not apply to family law proceedings.

This rule prevails in event of a conflict

(4)   In the event of a conflict between this rule and another rule, this rule applies.

Court may dispense with this rule

(5)   The court may dispense with compliance with the whole or any part of this rule if the court considers it just and convenient to do so.

Election to use fast track

(6)   Subject to subrule (3), this rule applies to an action if an endorsement in Form 137 is added or attached to the statement of claim or a statement of defence filed in the action.

[am. B.C. Reg. 198/2003, s. 9 (a).]

Repealed

(7)   Repealed. [B.C. Reg. 198/2003, s. 9 (b).]

When rule ceases to apply

(8)   This rule ceases to apply to an action if

(a) the parties to the action file a consent order to that effect,

(b) the court, on its own motion or on the application of any party, so orders, or

(c) none of the parties to the action applies for a trial date within 4 months after the date on which this rule becomes applicable to the action.

Considerations of court

(9)   In exercising its discretion under subrule (8) (b), the court must take into account

(a) the likelihood that a trial of the action will occupy more than 2 days, and

(b) whether it is reasonable in the circumstances to continue the action under this rule.

Style of proceeding for fast track proceeding

(10)   The style of a proceeding must include the words "Subject to Rule 66" immediately below the listed parties.

List of documents

(11)   Each party must deliver, in accordance with subrule (12), a list, in Form 93, of the documents that are or have been in the party’s possession or control relating to every matter in question in the action, enumerating the documents in a convenient order with a short description of the documents.

[am. B.C. Reg. 201/2004, s. 10.]

Delivery of list of documents

(12)   A party (the "delivering party") must deliver the list of documents referred to in subrule (11) to all other parties of record,

(a) if the delivering party added or attached an endorsement in Form 137 to a pleading, with that pleading,

(b) if the delivering party is a plaintiff to whom the defendant has delivered a statement of defence to which an endorsement in Form 137 has been added or attached, within 14 days after delivery of the statement of defence, or

(c) if the delivering party is a defendant to whom the plaintiff has delivered a statement of claim to which an endorsement in Form 137 has been added or attached, within the time limited for filing the statement of defence.

(d) and (e) Repealed. [B.C. Reg. 198/2003, s. 9 (c).]

[en. B.C. Reg. 191/2000, s. 17; am. B.C. Reg. 198/2003, s. 9 (c).]

Duration of examinations for discovery

(13)   Subject to subrule (14), an examination for discovery must not exceed 2 hours in duration unless the parties otherwise consent.

Extension of time for examinations for discovery

(14)   On the application of a party made before or after the examination for discovery permitted under this rule, the court may extend the time allowed for the examination for discovery.

Considerations of court

(15)   In exercising its discretion under subrule (14), the court must take into account

(a) the issues identified in the pleadings,

(b) the number and nature of the documents disclosed by the parties,

(c) the subject areas to be canvassed,

(d) the parties' estimates of the time that will be required to complete the examination, and

(e) any other circumstances relevant to the fair resolution of the dispute on its merits.

Applicant not obliged to reveal questions

(16)   An applicant under subrule (14) need not reveal, on that application, any questions to be asked of the witness.

Date for completion of examinations for discovery

(17)   Unless the court otherwise orders or the parties to the examination consent, an examination for discovery must be completed at least 14 days before the date assigned for the trial.

No interrogatories

(18)   Unless the court otherwise orders, no party is obliged to answer interrogatories.

Trial without jury

(19)   A trial must be heard by the court without a jury.

Trial date within 4 months

(20)   Subject to subrule (21), if a party to the action applies for a trial date within 4 months after the date on which this rule becomes applicable to the action, the registrar must set a date for the trial that is not later than 4 months after the application for the trial date.

Chief Justice may alter time to trial

(21)   The Chief Justice may, by practice direction, extend or reduce the time limit within which the registrar must set a trial date under subrule (20).

Trial agenda

(22)   The parties must file a trial agenda in Form 139

(a) at least 2 clear days before trial, or,

(b) if the action is brought in a registry in which there is a calling of trial lists, on the day preceding the calling of the list.

What trial agenda must contain

(23)   The trial agenda must contain an estimate of the time required for each of the following:

(a) the opening statement by each party;

(b) the examination in chief of each expected witness;

(c) the cross-examination of each expected witness;

(d) the final submission by each party;

(e) any other matter that may affect the length of the trial.

Trial record

(24)   The trial record must be filed at the same time as the trial agenda.

Confirmation of estimates

(25)   At the commencement of a trial, the court may consult with the parties to

(a) verify the time estimates contained in the trial agenda, and

(b) determine the time that will be allowed for the items listed in subrule (23) (a) to (e).

Parties may be confined to time estimates

(26)   The court may limit the parties to the time limits verified or determined under subrule (25), or may extend or shorten the time limits.

Considerations of the court

(27)   In exercising its discretion under subrule (26), the court must take into account

(a) the object of this rule, and

(b) any other circumstances relevant to the fair resolution of the dispute on its merits.

Trial may be adjourned

(28)   If, as a result of the consultation referred to in subrule (25), the court considers that the trial will likely require more than 2 days, the judge who engaged in that consultation

(a) may adjourn the trial to a date to be fixed as if the action were not subject to this rule, and

(b) is not seized of the action.

Costs

(29)  Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows::

(a) if the time spent on the hearing of the trial is one day or less, $5 000;

(b) if the time spent on the hearing of the trial is more than one day, $6 600.

[am. B.C. Reg. 193/2007, s.10 (a) and (b).]

Court may consider settlement offers

(29.1)   In exercising its discretion under subrule (29), the court may consider a settlement offer delivered in accordance with Rule 37 or 37A whether or not other special circumstances exist.

[en. B.C. Reg. 198/2003, s. 9 (d).]

Tax on costs

(29.2)   If tax is payable by a party in respect of legal services, an additional amount to compensate for that tax must be added to the amount of costs to which the party is entitled under subrule (29), which additional amount must be determined by multiplying the amount of costs to which the party is entitled under subrule (29) by the percentage rate of the tax.

[en. B.C. Reg. 120/2006, Sch. 1, s. 5.]

Repealed

(30)   Repealed. [B.C. Reg. 83/2002, s. (a) (ii).]

Application of Rule 67

(1)   This rule applies only to those proceedings that are filed at the Chilliwack, Cranbrook, Dawson Creek, Kamloops, Kelowna, Nelson, Penticton, Prince George, Rossland, Salmon Arm, Smithers, Terrace, Vernon or Williams Lake registry of the court.

Document may be submitted for filing by fax

(2)   Subject to this rule, a person wishing to file a document with the court may transmit that document by fax to the applicable court registry.

Means of transmission

(3)   A document may be transmitted by fax to a registry for filing if

(a) the document is transmitted to the appropriate registry at the fax number designated for that registry by a practice direction of the Chief Justice,

(b) the document is

(i)  sent under cover of a fax cover sheet in Form 140, and

(ii)  accompanied by payment of the applicable filing fees, and

(c) the document is not one referred to in subrule (4).

Application of this rule

(4)   The following documents may not be transmitted by fax to the registry for filing:

(a) any document pertaining to the following:

(i)  probate;

(ii)  adoption;

(iii)  setting down an application under Rule 51A;

(iv)  reciprocal enforcement of orders under the Court Order Enforcement Act;

(b) any of the following documents:

(i)  a certified copy of any document being filed for enforcement purposes;

(ii)  a chambers record;

(iii)  a trial record;

(iv)  a proof of marriage from a foreign jurisdiction;

(v)  a certificate of judgment;

(vi)  a certificate of pending litigation;

(vii)  a Form 89 Financial Statement;