B.C. Reg. 216/2022, deposited November 8, 2022, under the COURT RULES ACT [section 1]. Order in Council 559/2022, approved and ordered November 8, 2022.

On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that, effective December 19, 2022, the Provincial Court (Child, Family and Community Service Act) Rules, B.C. Reg. 533/95, are amended as set out in the attached Schedule.

— M. RANKIN, Attorney General and Minister Responsible for Housing; L. POPHAM, Presiding Member of the Executive Council.

Schedule

1 The Provincial Court (Child, Family and Community Service Act) Rules, B.C. Reg. 533/95, are amended by repealing the definition section and substituting the following:

Definitions

In these rules:

"Act" means the Child, Family and Community Service Act;

"business day" means a Monday, Tuesday, Wednesday, Thursday or Friday that is not a holiday;

"clerk" means a member of the registry staff;

"court" means the Provincial Court except where the Act or these rules provide otherwise;

"lawyer of record", in relation to a party, means a lawyer who has provided notification or advised the court in accordance with Rule 8 (20);

"method of attendance", in relation to a case conference, mini-hearing and hearing, includes

(a) attending in person, and

(b) attending by telephone, video conference or other means of electronic communication;

"party", with respect to a proceeding under the Act, means a person who, under the Act, is a party to that proceeding;

"registry" means a registry of the court.

Interpretation

In these rules, other words and expressions have the meaning given to them in the Act, unless the context indicates otherwise.

2 Rule 1 is amended

(a) in subrule (2) by adding "or an Application to Change Method of Attendance (Form 10.5), as applicable," after "Form (2)",

(b) in subrule (6) by striking out "Form 2 or Form 3" and substituting "Form 2, Form 3 or Form 10.5",

(c) by repealing subrule (7) and substituting the following:

Conduct of hearings

(7) A judge may conduct a hearing or part of a hearing with one or more persons attending by telephone, video conference or other means of electronic communication. ,

(d) in subrule (8) by adding the following paragraph:

(b.1) an order under Rule 9 (4), changing the method of attendance unless the order is in relation to a hearing at which sworn oral evidence is given; ,

(e) in subrule (9) by striking out "under subrule (8)" and substituting "under subrule (8) (a), (b), (c) or (d)", and

(f) by adding the following subrules:

How to apply for an order for changing method of attendance without a hearing

(10) To apply for an order under subrule (8) (b.1), a person must file the application form (Form 10.5). (See Rule 9 (5))

Forms 1, 2 and 3 – transition

(11) A person may, until January 17, 2023,

(a) complete and file with the court a Presentation Form using Form 1 as it read on December 18, 2022,

(b) complete and file with the court an Application for an Order using Form 2 as it read on December 18, 2022, and

(c) complete and file with the court an Application to Change or Cancel an Order using Form 3 as it read on December 18, 2022.

3 Rule 2 is amended

(a) by repealing subrule (1),

(b) in subrule (2) by striking out "at any other time" and substituting "at any time",

(c) in subrule (3) by striking out "When a judge directs a case conference under subrule (1)," and substituting "When a case conference is directed,",

(d) in subrule (4) by striking out "their lawyers" and substituting "their lawyers of record",

(e) by adding the following to subrule (5):

(p.1) make an order about the method of attendance of a person at a further case conference; ,

(f) in subrule (6) by striking out "a clerk" and substituting "the court", and by striking out "their lawyers" and substituting "their lawyers of record", and

(g) by repealing subrule (9), and substituting the following:

Direction where case conference to be conducted

(9) The chief judge may direct that case conferences set at one place be conducted at another place.

4 Rule 3 (1) (b) is amended by striking out "at least 2 days" and substituting "at least 7 days".

5 Rule 3 (2) is amended by striking out "reasonable estimated travelling expenses." and by adding the following paragraphs:

(a) reasonable estimated travelling expenses for a subpoena to appear in person, or

(b) for a subpoena to appear by another method of attendance, the reasonable estimated cost of the telephone call, video conference or other method of attendance.

6 Rule 3 is amended by adding the following subrules:

How to change a witness’s method of attendance

(2.1) A witness may apply to a judge under Rule 9 (5) to change a witness’s method of attendance.

Judge may change a witness’s method of attendance

(2.2) The judge may order a witness to attend court by any method of attendance that the judge considers appropriate in the circumstances.

7 Rule 3 (3) (b) is amended by adding "if the witness attends court in person," before "bring to court".

8 Rule 3 (4) is repealed and the following substituted:

Subpoena may be cancelled or varied

(4) A person who is served with a subpoena may apply under Rule 1 (2) to a judge, who may

(a) cancel the subpoena if

(i) the person is not needed as a witness,

(ii) it would be a hardship for the person to appear in court as required by the subpoena, or

(iii) in the case of a child witness, the judge considers that it would not be in the child’s best interests to require the child to testify, or

(b) vary the subpoena to allow the witness to attend court by another method of attendance.

9 Rule 3 is amended by adding the following subrule:

If a judge changes a witness’s method of attendance

(5.1) If a judge changes a witness’s method of attendance, the judge

(a) must direct the witness

(i) how, and by what date, to submit and serve any records and other things, if the witness will not be attending in person, and

(ii) where or how to attend, including by providing a telephone number or video conferencing information, if applicable, and

(b) may order

(i) the return of any money that was provided under subrule (2), or

(ii) that the party subpoenaing the witness pay for the witness’s travelling expenses, telephone call, video conference or other reasonable estimated cost of the method of attendance.

10 Rule 3 (8) (b) is amended by striking out "his or her presence" and substituting "the presence of the witness".

11 Rule 5 (4) (b) is amended by striking out "on everyone who is entitled" and substituting "on every person who is entitled".

12 Rule 6 is amended by adding the following subrule:

Address for service

(0.1) An address for service may be any of the following:

(a) a mailing address;

(b) an email address;

(c) a facsimile number.

13 Rule 6 (4) is repealed and the following substituted:

How documents may be served

(4) Documents required by the Act or these rules to be served may be served as follows:

(a) on an individual

(i) by leaving a copy with the individual,

(ii) if the individual is a party, by registered mail or by email to the last address for service given under subrule (5), (6) or (7), or by facsimile transmission to the last facsimile number given as an address for service under subrule (5), (6) or (7), or

(iii) if the individual is a party with a lawyer of record, by leaving a copy at that lawyer’s office or by emailing or by sending a facsimile transmission to that lawyer’s office;

(b) on a designated representative of a First Nation, an Indigenous community, a Treaty First Nation or the Nisga’a Lisims Government by emailing to the email address, or by sending a facsimile transmission to the facsimile number for service provided by the First Nation, Indigenous community, Treaty First Nation or Nisga’a Lisims Government or by leaving a copy with the designated representative;

(c) on a society within the meaning of the Societies Act

(i) by registered mail to the mailing address of the society’s registered office on file with the Registrar of Companies,

(ii) by leaving a copy at the delivery address of the society’s registered office on file with the Registrar of Companies or with a director or officer of the society, or

(iii) by emailing to the email address of the society, if the society has provided an email address as an address for service;

(d) on a company within the meaning of the Business Corporations Act

(i) by registered mail to the mailing address of the company’s registered office on file with the Registrar of Companies,

(ii) by leaving a copy of it at the delivery address of the company’s registered office on file with the Registrar of Companies or with a director or officer of the company, or with a receptionist or a person at the company’s place of business who appears to manage the company’s business there, or

(iii) by emailing to the email address of the company, if the company provided an email address as an address for service;

(e) on an unincorporated association

(i) by registered mail to the registered office of the association,

(ii) by leaving a copy with an officer of the association, or

(iii) by emailing to the email address of the association, if the association provided an email address as an address for service;

(f) on a director

(i) by leaving a copy with or by sending a facsimile transmission to the director’s lawyer of record,

(ii) by emailing to the director or to the director’s lawyer of record, or

(iii) by leaving a copy at, or by sending a facsimile transmission to, the district office with conduct of the case.

14 Rule 6 (8) is amended by striking out "with him or her," and substituting "with the child,".

15 Rule 6 (10) is amended by striking out "a party may apply" and substituting "a person may apply".

16 Rule 6 (11) is amended

(a) by repealing paragraph (b) and substituting the following:

(b) for service by registered mail, a certificate of service (Form 9) that includes one of the following:

(i) a copy, produced by facsimile or otherwise, of the signature obtained by Canada Post at the time the document was delivered;

(ii) a printout of the delivery confirmation made available on the internet by Canada Post; ,

(b) in paragraph (c) by striking out "on a lawyer" and substituting "on the lawyer of record", and by striking out "the lawyer" and substituting "the lawyer of record", and

(c) by adding the following paragraph:

(e) for service by email, a certificate of service (Form 9) with the following attached to the certificate:

(i) a printout of the first page of the email message that includes the sender’s name, the recipient’s email address, the date the email was sent and the time the email was sent;

(ii) if the printout of the first page of the email message does not list the name of the document as an attachment to the email, a copy of the document.

17 Rule 6 is amended by adding the following subrules:

When service by email is deemed to be completed

(11.01) A document transmitted for service by email under this rule is deemed to be served as follows:

(a) if the document is transmitted before 4 p.m. on a day that is not a business day, the document is deemed to be served on the day of transmission;

(b) if the document is transmitted on a day that is not a business day, or after 4 p.m. on any other day, the document is deemed to be served on the next business day.

If document does not reach a person

(11.02) If a document was served in accordance with subrule (4), a person may show on application that the document

(a) did not come to the person’s notice,

(b) came to the person’s notice later than when it was served or effectively served, or

(c) was incomplete or illegible, and

the judge may make orders or give directions to serve the document in a specified manner or give any other order or direction that the judge considers appropriate.

Form 9 – transition

(11.03) A person may, until January 17, 2023, file with the registry a certificate of service using Form 9 as it read on December 18, 2022.

18 Rule 7 is amended

(a) in subrule (2) by striking out "The director’s lawyer" and substituting "The director’s lawyer of record",

(b) by repealing subrule (4) and substituting the following:

Approving the order

(4) An order must be signed as approved by the lawyer of record for each party who was represented, unless

(a) the judge orders otherwise, or

(b) the order is a protective intervention order made under section 28 of the Act or a restraining order made under section 98 of the Act. , and

(c) in subrule (7) (a) by striking out "to the lawyer for each party" and substituting "to the lawyer of record for each party".

19 Rule 8 is amended

(a) by repealing subrule (4) and substituting the following:

Adjournment

(4) A hearing may be adjourned only

(a) with the permission of a judge, or

(b) in the case of a hearing at which sworn oral evidence will not be given, if the director’s lawyer of record files with the court a Consent Adjournment form (Form 10.2) after having obtained consent of all of the parties or their lawyer of record, as applicable. ,

(b) by repealing subrule (5),

(c) in subrule (8) by adding the following paragraph:

(e) make orders about a person’s method of attendance at a case conference, mini-hearing or hearing. ,

(d) by repealing subrule (15) and substituting the following:

Who may search files

(15) Unless a judge orders otherwise, no person other than the following may search a registry file respecting a matter under the Act:

(a) a party;

(b) a party’s lawyer of record;

(c) a person authorized in writing by a party;

(d) a person authorized in writing by a party’s lawyer of record. , and

(e) by adding the following subrules:

Lawyer of record

(20) For the purposes of these rules,

(a) a lawyer must provide notification to the other parties that the lawyer is the lawyer of record for a party by

(i) completing and filing with the court a Notice of Lawyer of Record for Party (Form 10.3), and

(ii) serving on each party the form referred to in subparagraph (i), or

(b) a lawyer must advise the court, when appearing in court, that the lawyer is the lawyer of record for a party.

Ceasing to be lawyer of record

(21) For the purposes of these rules,

(a) a lawyer must provide notification to the other parties that the lawyer is no longer the lawyer of record for a party by

(i) completing and filing with the court a Notice of Removal of Lawyer of Record for Party (Form 10.4), and

(ii) serving on each party the form referred to in subparagraph (i), or

(b) a lawyer must advise the court, when appearing in court, that the lawyer is no longer the lawyer of record for a party.

Judge may waive or modify process in respect of notification of lawyer of record

(22) A judge may, at any time, waive or modify the processes in subrules (20) and (21).

20 The following rule is added:

Rule 9 – Method of Attendance

Default method of attendance

(1) Case conferences, mini-hearings and hearings must be attended in person.

Direction by chief judge for exception to default

(2) Despite subrule (1), the chief judge may direct that a class of case conferences, mini-hearings or hearings may or must be attended by telephone, video conference or other means of electronic communication.

Classes of case conferences, mini-hearings and hearings

(3) A direction under subrule (2) may be different for different court locations, court registries, types of case conferences, mini-hearings or hearings or classes of persons or circumstances.

Direction on how to attend

(4) If the chief judge gives a direction under subrule (2) that a case conference, mini-hearing or hearing may or must be attended by telephone, video conference or other means of electronic communication, the court must direct the persons attending

(a) how, and by what date, to submit and serve any records and other things, if the person will not be attending in person, and

(b) where or how to attend, including by providing a telephone number or video conferencing information, if applicable.

Application to change method of attendance

(5) Despite subrules (1) and (2), a person may apply to change the person’s own or another person’s method of attendance at a case conference, mini-hearing or hearing to the court under Rule 1 (2) by completing and filing with the court an Application to Change Method of Attendance (Form 10.5).

Requirement for notice of hearing

(6) An application under subrule (5) does not require service or a hearing unless

(a) the judge requires notice and a hearing, in which case the judge may require service in accordance with Rule 6 or in any other manner the judge considers appropriate, or

(b) the application is in respect of a court proceeding at which sworn oral evidence will be given, in which case the judge may require service in accordance with Rule 6.

Hearing on application to change method of attendance

(7) Unless a judge orders otherwise, a person may attend a hearing that is required under subrule (6) (a) or (b) by telephone, video conference or other means of electronic communication.

Attendance by designated representatives

(8) A designated representative of a First Nation, an Indigenous community, a Treaty First Nation or the Nisga’a Lisims Government

(a) may, despite subrules (1) and (2), attend a case conference, mini-hearing or hearing by telephone, video conference or other means of electronic communication if the designated representative does not intend to give sworn oral evidence or to call another person to give sworn oral evidence, and

(b) must attend a case conference, mini-hearing or hearing in person if the designated representative intends to give sworn oral evidence or to call another person to give sworn oral evidence unless

(i) a direction under subrule (2) applies to the designated representative, or

(ii) the designated representative makes a successful application under subrule (5).

Requirement to appear in person

(9) Despite subrules (1) and (2), a judge who is conducting a case conference, mini-hearing or hearing at which persons are appearing by telephone, video case conference or other means of electronic communication may

(a) adjourn the conference, mini-hearing or hearing at any time, and

(b) require persons to attend the case conference, mini-hearing or hearing, or any further case conferences, mini-hearings or hearings, in person or by another method of attendance that the judge considers appropriate in the circumstances.

Physical presence not required

(10) For the purposes of these rules, other than subrules (1) and (8) (b) of this Rule, a reference to attending, appearing, conducting, giving, being present, being in court or being at a place or location is not to be interpreted as requiring in-person attendance.

Case conference, mini-hearing or hearing has an associated physical location

(11) If a case conference, mini-hearing or hearing does not take place at a physical location because all persons attend the case conference, mini-hearing or hearing by telephone, video conference or other means of electronic communication, the case conference, mini-hearing or hearing is considered to take place at the court served by the registry where the court file is.

21 Appendix A is amended

(a) by repealing Forms 1, 2, 3, 4, 6, 8, 9, 10, 10.1 and 11, and substituting the attached Forms 1, 2, 3, 4, 6, 8, 9, 10, 10.1 and 11, and

(b) by adding the attached Forms 10.2, 10.3, 10.4 and 10.5.

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