The following questions on registry practice and procedure have been asked by Registry staff and members of the Bar throughout BC. The answers are formulated by Elizabeth Dunn, Registrar and Joanne Power, Manager of the Registrar Program, and are vetted by their panel of editors. The questions and answers are published in the Registrar’s Newsletter, distributed quarterly to BC Supreme Court Registries. If you have a question or comment, please direct it to Joanne Power at 250.387.0096 or fax 250.356.6806.

Question
How does a party register the award of an arbitrator for enforcement pursuant to this Act? Commercial Arbitration Act, s. 29

Answer
The award may be enforced in the same manner as a judgment or order of the court. “Leave of the court” is required to enter a judgment in the terms of the award.

The party should file a praecipe with the proper fee and draft order setting out the award, together with an affidavit in support of the application. The Registrar would refer the application to the court pursuant to Rule 41(16.3).

Question
How does a party transfer a claim filed in Small Claims to the Supreme Court? Small Claims, Rule 7.1

Answer
If the Judge in the Provincial Court is satisfied the claim may exceed $10,000.00, they must, on their own motion, or an application by a party, transfer the file to the Supreme Court.

Once this order has been made the Small Claims Registry would forward the entire file to the Supreme Court. See Rule 8A - Transfer of Proceedings from Provincial Court, effective 1 July 1999.

Question
Have changes been made to the Rules regarding the procedure for substituted service? Rule 12

Answer
Yes. Until 1997, documents could only be served substitutionally by court order. Amendments to Rule 12 now permit substituted service of documents without a court order.

An order for substituted service is still required for:

Rule 12(10):

• a family law proceeding for divorce, nullity or judicial separation;
• a subpoena;
• a subpoena to debtor;
• an appointment to examine a person in aid of execution; or
• a proceeding for contempt.

Rule 12 provides two alternative methods of substituted service without a court order:

• Rule 12(4) allows a party, who has attempted to serve a document on a person at the place of residence of that person but has been unable to do so, to serve by doing both of the following:
• leaving it, during or after that attempt, in a sealed envelope addressed to that person, at the place of residence of that person, with anyone who appears to be an adult member of the same household;
• subsequently mailing the document addressed to the person at that place of residence.

The affidavit of service must comply with the requirements of Rule 12(6). A document served pursuant to Rule 12(4) is deemed to be served on the same day of the week in the calendar week following mailing as the day on which the document was mailed (Rule 12(5)).

• Rule 12(7) permits a document to be served by mailing it together with an acknowledgement of receipt card in Form 5.1. The affidavit of service must comply with the requirements of Rule 12(9). The effective date of service is the date the sender received the acknowledgement of receipt card (Rule 12(8)(a)) or the post office receipt bearing a signature that purports to be the signature of the person served (Rule 12(8)(b)).

Since January 1st, 1999, however, Canada Post has discontinued the use of double registered mail. Now, when a letter is sent by registered mail, Canada Post will provide a “delivery confirmation” indicating who signed for the item, together with the date, time and address. This information can either be obtained by an automated phone response system at 1.888.550.6333 or at www.canadapost.ca. In addition, however, Rule 12(8)(b) requires the recipient’s signature.

This “signature copy” can be obtained from Canada Post at the aforementioned number via letter mail or within 3 business days by fax.

Question
Does an order made pursuant to a Rule 18(A) application have to be initialed by a Judge? Rule 41

Answer
No, the Practice Direction of the Chief Justice dated October 17, 1990, sets out...”Orders made in chambers need not be inspected or initialed by a Judge or master before the order is entered.”

Question
What recourse is open to an applicant when a registrar, due to deficiencies in documentation, refuses to issue execution proceedings, or enter a judgment? Rule 53

Answer
If the refusal falls under a Rule that has a specific remedy set out, the recourse of the applicant is clear: ie, Rule 17(11) or 25(9) “...the plaintiff may apply to a judge or master in chambers for default judgment”.

If the Rule does not contain a specific remedy:

• the registrar may refer it to a judge or master (Rule 53(5.1)), or
• an appeal may be made by the applicant by summary reference, or notice of appeal (Rule 53(7)).

It is important that the registrar set out a clear and concise statement of the reasons for refusal.

A rejection slip would be useful and should be signed by the registrar.

Question
If a defendant in a divorce proceeding files an appearance, and does not file a statement of defence, can the divorce proceed as “undefended”. Rule 60(1)

Answer
Yes. An appearance does not make the action defended: only filing a statement of defence does, however, the filing of an appearance may be noted on the Registrar’s certificate of pleadings.

Question
Is it the registry’s responsibility to draft Form 131, the Certificate of Divorce? Rule 60(31)

Answer
No. Form 131, Appendix A to the Rules of Court, should be submitted to the registry by the applicant, with the proper fees, for issuance by the Registrar. We should, however, continue to provide certificates when requests are made from out of the Province or in other unusual circumstances.

Question
Does indigent status apply to applications under the Bankruptcy Act or the Divorce Act? Appendix C

Answer
Indigent status relieves the party of the obligation to pay Appendix C fees. Because the Bankruptcy Act has its own tariff, a party cannot claim indigent status for those fees. However, Appendix C fees apply to the Divorce Act proceedings with the exception of the $10 federal registration fee.

Question
If a child resides in another Province or territory than the payor, which Child Support Guideline should be used to calculate child maintenance?

Answer
The Federal Guideline tables for the province or territory in which the person paying support resides should be used.

Question
Do the recent amendments to the Residential Tenancy Act (Bill 75) have any effect on the service of orders of possession filed for enforcement?

Answer
Yes, service of the order of possession must be either:

• as directed by the order of the arbitrator as set out in s.88(2), Residential Tenancy Act; or
• in accordance with Supreme Court Rule 42(12).

The affidavit of service must prove:

• service either in accordance with the order of the arbitrator, or in accordance with Rule 42(12); and
• the time for review under s.60, Residential Tenancy Act, has elapsed; and
• the order has not been suspended by the review process pursuant to s.61(3), Residential Tenancy Act; and
• the tenant has not obeyed the order.

Question
If a party has named in their statement of claim another location as the place of trial, do they need an order to transfer the file to that location? Rule 20(4) Rule 39(7)

Answer
No order is required. Rule 20(4) requires the place of trial to be named in the statement of claim; Rule 39(7) states that the place of trial is the place named in the statement of claim. Once a party has received a trial date in the other location, they should file a praecipe requesting the file be transferred.

Question
Can a party in an undefended divorce proceeding apply by way of a desk order for a final corollary relief order before the end of the one year separation period? Rule 41 (16.3)

Such relief is most unusual, however, a party can apply by filing a praecipe, draft order and evidence in support of the application. The registrar will refer the matter to a judge, as it is a final order. The judge must be satisfied that the other party has had notice and that the relief sought is appropriate.

Question
Can a party proceed with a divorce when another divorce action is outstanding in British Columbia or elsewhere in Canada? Rule 60(28)

Answer
No. A party cannot proceed with a subsequent divorce proceeding unless the first divorce proceeding is discontinued.

This article was published in the December 1999 issue of BarTalk. © 1999 The Canadian Bar Association. All rights reserved.