business day means a Monday, Tuesday, Wednesday, Thursday or Friday that is not a holiday;
clerk means a member of the registry staff;
Indigenous governing body has the same meaning as in An Act respecting First Nations, Inuit and Métis children, youth and families (Canada), as amended from time to time;
lawyer of record, in relation to a party, means a lawyer who has provided notification or advised the court in accordance with Rule 10 (20);
method of attendance, in relation to a case conference and hearing, includes
attending in person, and
attending by telephone, video conference or other means of electronic communication;
party means a person who, under the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], is a party to a proceeding under that Law;
registry means a registry of the court;
Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children] means Snuw'uy'ulhtst tu Quw'utsun Mustimuhw u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws of the Cowichan People for Families and Children] as amended or replaced from time to time.
words and expressions not defined in these Rules have the meaning given to them in the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], unless the context indicates otherwise;
sections 1.4 to 1.8 in Part 1 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children] apply to the interpretation of these Rules;
words in English in square brackets in these Rules are intended for convenience of reference only;
the words and expressions referred to in paragraph (a) may be capitalized in these Rules when capitalized in the defined terms in the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children];
these Rules are to be interpreted and administered in accordance with the Purpose and Guiding Principles in Part 2, and the Minimum Standards in Part 3, of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], including the provisions in Part 3 that relate to the best interests of the Smun'eem [child];
proceedings are to be conducted in accordance with the Purpose and Guiding Principles in Part 2, and the Minimum Standards in Part 3, of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], including the provisions in Part 3 that relate to the best interests of the Smun'eem [child];
orders and directions are to be made in accordance with the Purpose and Guiding Principles in Part 2, and the Minimum Standards in Part 3, of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], including the provisions in Part 3 that relate to the best interests of the Smun'eem [child].
in the registry where the file is located, unless Rule 10 (12) or (13) applies, or
if there is no file, in the Duncan registry unless a judge permits otherwise.
an order under Rule 8 (12), permitting the use of another service method;
an order under Rule 10 (3), shortening or extending a time period;
an order under Rule 11 (5), changing the method of attendance unless the order is in relation to a hearing at which sworn oral evidence is given;
an order under section 8.8 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], shortening or extending the time for serving notice or dispensing with notice;
a consent order, or an order dispensing with consent, under section 8.13 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children].
an affidavit setting out the facts on which the application is based, and
the Application Respecting Orders (Form 2). (See Rule 3 (2))
a party may request a case conference, or
a judge may direct the parties and their lawyers and the Sul-hween Harmony Restoring Advisory established under section 8.9 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children] to attend a case conference.
must utilize the Sul-hween Harmony Restoring Advisory to resolve any issue involving a Smun'eem [child] who has been removed from their Parent or Care Provider in accordance with the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], and
may do one or more of the following:
facilitate the resolution of any issue in dispute;
mediate any issue in dispute, other than the issue of whether the Smun'eem [child] needs protection;
with the consent of the parties, refer any issue, other than the issue of whether the Smun'eem [child] needs protection, to mediation or another alternative dispute resolution mechanism;
decide any issue that does not require evidence or that can be decided on the basis of facts agreed to by the parties;
subject to section 8.13 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], make any order in the terms the parties agree to;
review the adequacy of disclosure by the parties;
order that a party provide to another party, within a set time, a summary of the intended evidence of a potential witness;
order a party to allow another party to inspect and copy specific documents or records to the extent permitted by the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children];
order that those applications that cannot be made at the case conference be made within a set time;
order that a statement of agreed facts be filed within a set time;
give directions about any evidence that will be required, how it will be received and the procedure that will be followed, if a hearing is necessary;
order a party to produce anything as evidence at a hearing;
without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing;
set a date for a hearing;
direct that any further case conference be held before the same judge;
make an order about the method of attendance of a person at a further case conference;
make any other order or give any other direction to further the achievement of the purpose of these Rules.
the parties and their lawyers;
the Smun'eem [child],
if the Smun'eem [child] is 12 years of age or over, unless the judge orders otherwise, or
if the Smun'eem [child] is under 12 years of age, if the judge allows the Smun'eem [child] to attend;
any other person the judge allows.
complete a Subpoena (Form 4), and
serve a copy of the subpoena on the witness personally at least 7 days before the date the witness is required to appear. (See Rule 8)
for a subpoena to appear in person, reasonable estimated travelling expenses, or
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.
must direct the witness
how, and by what date, to submit and serve any records and other things, if the witness will not be attending in person, and
where or how to attend, including by providing a telephone number or video conferencing information, if applicable, and
may order
the return of any money that was provided under subrule (2) of this Rule, or
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.
appear in court on the date and at the time and place stated on the subpoena, and
if the witness attends court in person, bring to court any records and other things required by the subpoena.
cancel the subpoena if
the person is not needed as a witness,
it would be a hardship for the person to appear in court as required by the subpoena, or
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
vary the subpoena to allow the witness to attend court by another method of attendance.
the subpoena was served on the witness,
reasonable travelling expenses were offered to the witness, and
justice requires the presence of the witness.
the witness named in the warrant appears in court either voluntarily or under the warrant, or
a judge cancels the warrant.
release the witness on giving the witness a Release (Form 6) requiring the witness to appear in court on the date and at the time and place stated in the release, or
order a sheriff or peace officer to detain the witness in custody until the presence of the witness is no longer required.
by affidavit, subject to Rule 7,
by statements of facts agreed to by the parties, or
as permitted under section 8.6 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children].
the party provides a written summary of the expert's evidence to all other parties at least 30 days before the expert is called to give evidence, or
a judge grants permission.
the party provides a copy of the report to all other parties at least 30 days before the report is introduced, or
a judge grants permission.
copies of the affidavit are filed in the registry, and
a copy of the affidavit is served on every person who is entitled to notice of the hearing. (See Rule 8)
a mailing address;
an email address;
a facsimile number.
on the other parties, and
if an order is sought against some other person, on that person.
the application is for permission to use another service method,
the application is for access to a Smun'eem [child] under section 6.12 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children],
the application is for a consent order and each of the required consents has been obtained, or is for an order dispensing with consent, under section 8.13 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children],
the application is for a protective intervention order or restraining order under section 8.14 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children], or
a judge so orders.
on an individual,
by leaving a copy with the individual,
by registered mail, email or facsimile transmission to the last address, email address or facsimile number given as an address for service under subrule (2) or (7) of this Rule, or
if the individual is a party with a lawyer of record, by leaving a copy at that lawyer's office or by email or facsimile transmission to that lawyer's office;
on a Speaker, by leaving a copy with the Speaker;
on a designated representative of a First Nation, of a Treaty First Nation or of the Nisg̱a'a Lisims Government or on an Indigenous governing body,
by email to the email address, or by sending a facsimile transmission to the facsimile number, if provided as an address for service, or
by leaving a copy with the designated representative or the Indigenous governing body at the main office of the designated representative or the Indigenous governing body, as applicable;
on a society within the meaning of the Societies Act,
by registered mail to the mailing address of the society's registered office on file with the Registrar of Companies,
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
if the society has provided an email address as an address for service, by email to the email address of the society;
on a company within the meaning of the Business Corporations Act,
by registered mail to the mailing address of the company's registered office on file with the Registrar of Companies,
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
if the company provided an email address as an address for service, by email to the email address of the company;
on an unincorporated association,
by registered mail to the registered office of the association,
by leaving a copy with an officer of the association, or
if the association provided an email address as an address for service, by email to the email address of the association;
on a Provincial director,
by leaving a copy with, or by sending a facsimile transmission to, the Provincial director's lawyer of record,
by email to the Provincial director's lawyer of record, or
by leaving a copy at, or by sending a facsimile transmission to, the district office with conduct of the case;
on the CEO,
by leaving a copy with, or by sending a facsimile transmission to, the CEO or the CEO's lawyer of record,
by email to the CEO or to the CEO's lawyer of record, or
by leaving a copy at, or by sending a facsimile transmission to, the main office of the Stsi'elh stuhw'ew't-hw tun Smun'eem [Cowichan Tribes' Child and Family Services Authority].
on the face of a document filed by the party, or
by filing a Notice of Address for Service (Form 8).
on the face of a document filed by the party, or
by filing a new Notice of Address for Service (Form 8).
if the Smun'eem [child] has a Speaker, leaving a copy of it with the Speaker, or
if the Smun'eem [child] does not have a Speaker, leaving a copy with the Smun'eem [child] unless a judge orders otherwise.
if the Smun'eem [child] has a Speaker, leaving a copy of it with the Speaker, or
if the Smun'eem [child] does not have a Speaker and if a judge so orders, leaving a copy with the Smun'eem [child].
permit another method of service to be used, and
direct how service is to be proved.
for personal service of a document, a Certificate of Service (Form 9);
for service by registered mail, a Certificate of Service (Form 9) that includes one of the following:
a copy of the signature obtained by Canada Post at the time the document was delivered;
a printout of the delivery confirmation made available on the internet by Canada Post;
for personal service on the lawyer of record, a copy of the document signed by the lawyer of record, an articled student or a partner or employee of the firm;
for service by facsimile transmission, a Certificate of Service (Form 9) with a transmission report generated by the sending machine;
for service by email, a Certificate of Service (Form 9) with the following attached to the certificate:
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;
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.
if the document is transmitted before 4 p.m. on a business day, the document is deemed to be served on the day of transmission;
if the document is transmitted on a day that is not a business day, or after 4 p.m. on a business day, the document is deemed to be served on the next business day.
did not come to the person's notice,
came to the person's notice later than when it was served or effectively served, or
was incomplete or illegible.
the judge orders otherwise, or
the order, including a protective intervention order or restraining order, is made under section 8.15 or 8.17 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children].
delivered to the registry to be signed by a judge,
filed with the court, and
date-stamped with the registry stamp.
to the lawyer of record for each party who was represented, and
to every other party, on request.
with the permission of a judge, or
in the case of a hearing at which sworn oral evidence will not be given, if the CEO's lawyer of record files with the court a Consent Adjournment (Form 12) after having obtained consent of all of the parties or their lawyer of record, as applicable.
that party applies for the change or cancellation within a reasonable time,
the party had a good reason for failing to attend when the order was made,
there is a good reason for changing or cancelling the order, and
the change or cancellation would be in the best interests of the Smun'eem [child] in accordance with the Minimum Standards in Part 3 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children].
receive the reports and information presented to the court at a presentation hearing;
adjourn a hearing before evidence is heard;
make orders or give directions on procedural matters;
hold a case conference under Rule 4;
make orders about a person's method of attendance at a case conference or hearing.
start the hearing again and rehear all the evidence, or
with the consent of the parties, continue with the hearing where it left off, giving directions for hearing evidence as the judge considers necessary.
a direction on any procedural matter that is not provided for in the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children] or these Rules, and
any other direction the judge considers appropriate in relation to evidence received from a Smun'eem [child].
the balance of convenience,
any special circumstances that exist, and
the best interests of the Smun'eem [child] in accordance with the Minimum Standards in Part 3 of the Snuw'uy'ulhtst u' tu Shhw'a'luqwa'a' i' Smun'eem [Laws for Families and Children].
complete a written and signed consent to the transfer, and
file the consent in the registry where the file is located.
a party;
a party's lawyer of record;
a person authorized in writing by a party;
a person authorized in writing by a party's lawyer of record.
cancel a step taken or an order made or disregard a document filed in the course of the application, or
make any order or give any direction that the judge thinks is fair, including an order dismissing the application.
be in substantial compliance with the prescribed forms, and
show the applicable words of the prescribed form in regular type and the words supplied by the user in boldface type.
a lawyer must provide notification to the other parties that the lawyer is the lawyer of record for a party by
completing and filing with the court a Notice of Lawyer of Record for Party (Form 13), and
serving on each party the form referred to in subparagraph (i), or
a lawyer must advise the court, when appearing in court, that the lawyer is the lawyer of record for a party.
a lawyer must provide notification to the other parties that the lawyer is no longer the lawyer of record for a party by
completing and filing with the court a Notice of Removal of Lawyer of Record for Party (Form 14), and
serving on each party the form referred to in subparagraph (i), or
a lawyer must advise the court, when appearing in court, that the lawyer is no longer the lawyer of record for a party.
the chief judge gives a direction under subrule (2) of this Rule that a case conference or hearing may or must be attended by telephone, video conference or other means of electronic communication;
an application is granted under subrule (5) of this Rule that a person may attend a case conference or hearing by telephone, video conference or other means of electronic communication;
a person attends a hearing that is required under subrule (6) (a) or (b) of this Rule by telephone, video conference or other means of electronic communication;
a designated representative attends a case conference or hearing by telephone, video conference or other means of electronic communication,
how, and by what date, to submit and serve any records and other things if the person will not be attending in person, and
where or how to attend, including by providing a telephone number or video conferencing information, if applicable.
the judge requires notice and a hearing, in which case the judge may require service in accordance with Rule 8 or in any other manner the judge considers appropriate, or
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 8.
may, despite subrules (1) and (2) of this Rule, attend a case conference 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
must attend a case conference 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
a direction under subrule (2) of this Rule applies to the designated representative, or
the designated representative makes a successful application under subrule (5) of this Rule.
adjourn the conference or hearing at any time, and
require persons to attend the case conference or hearing, or any further case conferences or hearings, in person or by another method of attendance that the judge considers appropriate in the circumstances.
Appendix A — List of Forms [Note: forms appear at the end of this consolidation.] Form 1 — Application For a Presentation Hearing Form 2 — Application Respecting Orders Form 3 — Application to Change Method of Attendance Form 4 — Subpoena Form 5 — Warrant Form 6 — Release Form 7 — Affidavit Form 8 — Notice of Address For Service Form 9 — Certificate of Service Form 10 — Order Form 11 — Protective Intervention Order Form 12 — Consent Adjournment Form 13 — Notice of Lawyer of Record For Party Form 14 — Notice of Removal of Lawyer of Record Form 15 — Written Consent
Appendix — Forms Form 1 Form 2 Form 3 Form 4 Form 5 Form 6 Form 7 Form 8 Form 9 Form 10 Form 11 Form 12 Form 13 Form 14 Form 15