Question: Is a separation agreement better than going to court?
Answer: In British Columbia parties have a choice of whether or not they go to Supreme Court or Provincial Court with respect to some issues. If parties are not seeking a divorce and simply want to deal with the issues of custody, access and support, they can proceed in Provincial Court. Some people believe this can be more cost effective as there are no filing fees and they can make use of family law mediators from the government free of charge. As with all mediation however, people should be aware of their rights before attending a family law mediator in Provincial Court because once they have agreed to an Order or filed an Agreement in Provincial Court, it will likely be impossible to have it reviewed.
The Supreme Court of British Columbia is the only court in the province, which can deal with divorce and asset division. It also has jurisdiction to deal with custody and access matters, child support and spousal support under both the Family Relations Act and the Divorce Act. As well, it is often the better forum because document disclosure is required pursuant to the Rules of Court in a much broader way than in Provincial Court and other discovery mechanisms are available in Supreme Court and not Provincial Court. Further, if there is property at issue or a divorce at issue, because the Provincial Court cannot deal with these matters, if you commence an application in Provincial Court you may find that later on you have to commence an action in Supreme Court to deal with assets or a divorce, which can lead to having to fund two law suits on the same matter.
In the Provincial Court, it is mandatory to go to mediation through the court mediator prior to having an application heard. Similarly in Supreme Court, except for very limited Orders, it is required to go to a Judicial Case Conference prior to setting any applications for hearing. At the Judicial Case Conference a judge of the court presides and parties attend with their lawyers to discuss the case. The judge will provide some input as to what they think is a reasonable outcome and may assists the parties in coming to settlement. The process is informal and is off the record. This means that nothing said at the Judicial Case Conference can be used in court in the future. By consent of the parties at very little expense, the judge at the Judicial Case Conference can make any Order temporarily or final that the parties agree to. Further, the judge can make procedural directions to ensure the court process proceeds in a proper way. This can involve things like setting a trial date, granting orders regarding document disclosure and setting down times when things in the process will be accomplished by the parties like when various applications will be heard. The choice of forum is important and counsel should be consulted before you decide where to start your case. You must also bear in mind that even if you start a case in court you can still resolve it at any time with the assistance of counsel or on your own if you do not have counsel. Many court procedures like the Judicial Case Conference are set up to promote settlement because the judges themselves see the value to a settlement process, which weeds out cases that can be resolved and stream lines those cases which remain.