You are not alone if you panic when you have to bring on a chambers application for short leave notice under Rule 3(3.1) of the Rules of Court.

A short leave application sounds simple but it is not. It is an application made either without notice to the opposing party or when the parties have not reduced the usual time limits set out in Rule 51A (11 days if under Rule 18A or 8 days otherwise). The applicant has the onus to apply to the Court and explain why the usual time limits are not appropriate and why the nature of the application is urgent.

There are many reasons for urgency, such as an adjournment of a trial, production of various records, an independent medical examination that is scheduled on short notice, restraining orders or injunctions. One counsel may need to get the time limits reduced in order to bring on a cross application that has already been set down.

The materials to be prepared for a short leave application are:

 The Notice of Motion for the original relief you are seeking;
 An Affidavit in support of the original relief;
 An Affidavit in support of the short leave application (if not included in the first Affidavit); and
 Short Leave Requisition requiring that leave be granted to reduce the time requirements.

Once these materials are prepared, counsel must take the documents to the Court registry for filing. Short leave applications are generally placed on the chambers list on the same day as they are filed in the court registry.

It is a good practice to notify opposing counsel of your intention to seek short leave and provide the materials to them before attending in Court. Also, try to obtain opposing counsel’s available dates for the hearing of the main application and their position with respect to any of the proposed new time limits set out on the Short Leave Requisition.

If you seek short leave without notice to opposing counsel, the Court will want to know what attempts you have made to contact the Respondent(s) and why no notice was given. These items should be set out in your Affidavit supporting the short leave application.

The Judge/Master or Registrar will make a decision on the facts whether urgency allows an application to be heard in chambers on short notice. If the short leave application is granted, the Court will then fix a date and time for the main application to be heard. The Court will also complete and sign the Order by Endorsement on the Short Leave Requisition. The Order sets out conditions and new time limits for delivery of the Notice of Motion, Affidavit(s), Response(s), reply Affidavits, Outlines and when the Chambers Record should be filed.

When short leave has been granted, the time limits set out in Rules 10, 44 and 51A do not apply. In addition, Rule 3(3.1)(iv) also states that the Court can “give such other directions as may be appropriate”.

Finally, you must prepare additional materials including:

• A Notice of Hearing;
• The original Short Leave Requisition; and
• the usual contents in the Chambers Record.

Once all the filed documents come back to the office, it is a priority to ensure that all the chambers materials, including the Order by Endorsement, are delivered according to the new time limits. Make sure that you retain proof of service of the documents upon all parties.

A good idea is to place the service confirmation documents in a separate tab at the back of the counsel’s chambers binder for their easy reference. When counsel attends for the hearing of the main application, they will need to advise the Court that all delivery conditions set out in the Order of Endorsement have been met.

Once you have completed one short leave application by following the above steps, any future urgent applications should proceed without any surprises.

A desk order divorce may be obtained where the only issue between spouses is the divorce itself or where the spouses have already settled all of the other issues, such as child custody and access, spousal support and division of family property, whether through a separation agreement or an agreement reached as to the terms of a court order. To obtain a desk order divorce, court proceedings are initiated but appearing in court before a judge is not usually required.

The following outlines the usual process to obtain a desk order divorce:

(a) Drafting of a Writ of Summons and Statement of Claim, which is filed with the court, together with an original certificate of marriage – we will ask you to review and approve this document before it is filed, but it can be signed by us on your behalf;

(b) Arranging service of the filed Writ of Summons and Statement of Claim on your spouse – please ensure that you provide us with a photograph of your spouse to give to the process server;

(c) Waiting for expiration of the time given to your spouse to file a response (an ‘Appearance’ and a Statement of Defence) – your spouse has 21 days to respond. If your spouse does not intend to defend or contest your claim for a divorce, he/she need not take any step whatsoever;

(d) Drafting of the final documents required to obtain your desk order divorce, including the divorce order and affidavit(s) – again, we will send you the final documents that you must sign for your review and approval. You will then be required to meet with us to sign those documents;

(e) Reporting to you – upon receiving the divorce order, we will send you a copy. You are also required by the Supreme Court Rules to mail a copy of the order to your spouse, which we will do on your behalf.

Your divorce will take effect on the 31st day from the date of the court order. Once the 31-day period has passed, we will request a Certificate of Divorce from the court and send that to you. At that point, our services will be at an end.

Fees:

Our fees will be fixed at $1,600.00 if there are no children and $1,800.00 if there are children, which includes all legal fees, out of pocket expenses, including court filing fees, postage, photocopies, G.S.T and P.S.T.

Our fee of $1,600.00/$1,800.00 does not include our out of pocket expense for service of the documents on your spouse, which generally costs in the range of $50.00 to $150.00.

The information and documents we require to commence the process on your behalf are:

• Your full legal name as on your marriage certificate;
• Your spouse’s full legal name as on your marriage certificate;
• Your address, date of birth and how long you have been resident in British Columbia for;
• Your spouse’s address, date of birth and how long she has been resident (or not) in British Columbia ;
• Your date of marriage and place of marriage (pleasure ensure that our office receives your original marriage certificate – this has to be filed with the court documents. If you do not have an original marriage certificate, then we can order one for you from the appropriate Vital Statistics office);
• When did you commence cohabitation (living together) with your spouse (month and year);
• When did you and your spouse cease to cohabitate together (exact date would be great);
• Please provide full legal names of any children involved including dates of birth and whom they are residing with;
• Please provide the same information if there are any step-children involved;
• Has there been any agreements made regarding support or division of property;
• Spouse’s surname prior to marriage AND at birth;
• Your surname prior to marriage AND at birth;
• Marital status of you and your spouse prior to your marriage i.e. never previously married, divorced etc.

Considering what will happen to your property and affairs when you die may be an uncomfortable topic. Or perhaps you are thinking that there are laws in place that will take care of these things, so you don’t have to worry about it. Or you just can’t find the time to get around to dealing with making a Will or considering your other estate planning options.

There are significant benefits to everyone in having a Will. Most importantly, if you do not have a Will, your estate will be distributed not how you may have wished, but as provided for under the Estate Administration Act (British Columbia).* In addition, if you do not have a Will, or have not considered other estate planning options, you may be missing out on significant opportunities to save on the income taxes or probate fees that your estate may have to pay when you die.

There are several common circumstances where it is very important to have a Will or other estate planning documents in place:

Minor Children – If you have minor children, you should have a Will that appoints a guardian (and an alternate) to look after your children until they reach adulthood, in the event both parents die. If you do not have a Will, the Ministry of Children and Family Development of B.C. will decide who is best suited to look after your children. In addition, you should set up trusts in your Will for your children, so that your estate assets can be managed by someone financially responsible on behalf of your children. If you do not have a Will, or do not appoint a trustee of your minor children’s inheritance, the Public Guardian and Trustee of B.C. will be appointed to manage this money on behalf of your children until they reach age 19 (even if only one parent dies, the Public Guardian and Trustee will be required to manage a portion of your estate assets on behalf of your minor children).

Blended Families – If you have children from a first relationship and have entered into a second marriage or common law relationship, you will need to consider carefully your estate planning options. You have an obligation under the Wills Variation Act (British Columbia) to make adequate provision for the proper maintenance and support of both your spouse and children upon your death (spouse includes common law spouse). Unfortunately, this often creates conflict between your new spouse and the step-children as both are entitled to a share of your assets. There are several estate planning tools, such as trusts included in your Will, that can proactively deal with this situation, to avoid conflict in your family in the future.

Disabled Child – If you have a child with a disability, you will want to make arrangements for your disabled child in a Will, including appointing a guardian and a trustee of any assets to be inherited. The use of trusts in the Will in this situation is particularly helpful to ensure there are sufficient funds to support the child, and they can be structured in such a way that the disabled person does not lose their entitlement to government benefits, which may otherwise be the result if they inherit assets directly from you when you die.

Marriage – If you have a Will, but have since been married or are engaged to be married, you should immediately do a new Will. Marriage invalidates your Will (unless it was prepared in contemplation of marriage).

Separation – If you have just separated from your spouse, you should immediately do a new Will if you do not want him or her to inherit your assets. Until you have separated with the intention of living apart for at least one year or have obtained a divorce, your spouse will still be entitled to inherit a portion of your estate (if you have no Will) or will inherit whatever portion of your estate you gifted to him or her under your Will.

* The Estate Administration Act provides that if you die without a Will, if you have a surviving spouse or surviving children (but not both), your estate assets will be transferred solely to your spouse or children. If you have a spouse and children, your spouse receives the first $65,000, the household furnishings and a life interest in the family home, and the remainder is split either 50/50 between the spouse and child (if only one child) or 1/3 to the spouse and 2/3 to the children (if two or more children). If your children are minors, the Public Guardian and Trustee will assume responsibility for managing approximately 1/2 to 2/3 of your assets (other than the family home) on behalf of your children and your spouse will not have control over these funds. If you have no spouse or children, your estate will be transferred to your parents, your siblings or your next closest family members.

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