What can I do if I Dont Have Money for a Family Trial? Summary Trials and BC Family Law

If you absolutely have to do a family trial in British Columbia and do not have enough money, you should consider a summary trial. What is a summary trial? Let me first explain the main five issues you may have to deal with in family litigation before getting to the summary trial subject.

The issues in any family law case determine its complexity and therefore, you must have a good idea of the issues you are dealing with before thinking about strategy.

What are the main 5 family law issues in BC?

1. Divorce
2. Spousal Support
3. Child Support
4. Child Custody
5. Property and Debt Division

Depending on which issues you are dealing with, it may or may not be advisable to finish your case through a summary trial.

What is a Summary Trial in BC?

A summary trial is like a mini-trial. It is shorter and less expensive. Evidence can be given by way of affidavits rather than oral evidence which takes up a lot of court time. Oftentimes, no one has to testify or take the stand in court. The lawyer will read the evidence based on the affidavits and will then make arguments or submissions to get you what you are looking for.

Advantages of a Summary Trial Versus Trial

Expense of summary trial vs. Trial: 

1. legal costs of a full family trial range from $50,000 to over $500,000 in most cases;
2. legal costs of a summary trial range from $20,000 to $80,000 in most cases.

Time to Wait for Summary Trial vs. Time to Wait for a Trial 

1. A full trial of a case has a minimum waiting time of 6 to 12 months depending on the number of days the trial will take. Most cases take between 5 to 15 trial days. So the waiting time may be from 6 months up to 2 years.
2. A summary trial can be set by only giving a 12 days’ business notice to your spouse. So you can set down your summary trial in approximately 2 weeks and not have to wait. Summary trials usually take anywhere between 2 hours to 3 days.

Complexity of a Summary Trial vs. Trial

1. Summary trials are by nature less complex than trials. Issues tend to be simple and straightforward.
2. Full trials are very complex. They include an opening argument, a closing argument, examinations for discovery, examinations in chief and cross-examinations. This is why they take much longer than a summary trial.

Suitability of a Summary Trial

Seems like summary trial is the way to go for every case! Not so much. Summary trials first need to be approved. This means the judge must be able to find the necessary facts and issues on affidavit evidence before giving judgment. If the judge thinks that a summary trial does not meet the needs of the litigants and can’t determine credibility or truth based on affidavits, he/she may reject the case being heard by way of summary trial. If this happens, then you will have spent legal fees on an unsuccessful summary trial and will have to do a full trial which means you will have to spend much more legal fees had you not chosen summary trial.

How do you determine if a case is suitable for summary trial?

1. Generally, child custody cases are not suitable because credibility is at issue and much of the evidence is not based on documents, but on the oral evidence of the parents who should be observed by the judge during the trial.
2. Generally, property division and spousal support cases could be suitable for summary trial. If spousal support is being determined based on employment incomes, summary trial is likely suitable. If property is just real estate, then summary trial may be suitable.
3. Simple divorce is almost always done by way of summary trial or a desk order divorce in BC.

There are many other factors which determine whether a summary trial is suitable. It is crucial to obtain the assistance of a BC family lawyer to determine if your case is good to go by way of a summary trial.

For more information or to set up an INITIAL CONSULTATION regarding your rights in family law, contact us at 604-974-9529 or email [email protected]