Starting and Responding to Supreme Court Family Law Proceedings

If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of property, or even just an order for your divorce, you must start a court proceeding. Your court proceeding will end with a trial, if you can't settle your legal problem first, after which the judge will make an order... hopefully the order you want the judge to make. There are certain steps you must take, certain fees you must pay, and certain forms you must fill out before you get to your trial. Although the staff at the court registries are friendly and do their best to be helpful, they cannot provide legal advice, fill out forms for you or tell you how to manage your court proceeding. It is your job to prepare these materials, gather the evidence you need, and take the other steps necessary to bring your proceeding to a judge at trial.

This section describes the processes for starting a proceeding in the Provincial Court and the Supreme Court. For a more complete picture of the court process, you should read this section together with the section on Replying to a Court Proceeding.

The Provincial Court

To start a proceeding in the Provincial Court, the main document you have to prepare is an Application to Obtain an Order in Form 1. This is a special form required by the Provincial Court Family Rules. This is document says who you are suing and what you are suing them for.

Family law proceedings in the Provincial Court are governed by the Provincial Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started. As your proceeding progresses, you'll also need to learn the rules about Family Case Conferences, disclosure, interim applications, and trials. The main rules about Applications to Obtain an Order and the management of court proceedings are:

• Rule 1: Definitions
• Rule 2: Applications to Obtain an Order and service requirements
• Rule 3: Replying to an Application to Obtain an Order
• Rule 4: Financial disclosure
• Rule 6: The first and subsequent appearances in court
• Rule 7: Family case conferences
• Rule 11: Trial procedure
• Rule 12: Interim applications
• Rule 14: Consent orders
• Rule 18: Orders
• Rule 18.1: Guardianship orders
• Rule 21: Parenting After Separation Program

Links to and examples of the Application to Obtain an Order and other court forms can be found in Provincial Court Forms and Examples. For a quick introduction to how to start a proceeding, see How Do I Start a Family Law Action in the Provincial Court?. It's located in the Helpful Guides & Common Questions part of this resource.

The information in this section does not apply to family law cases in the Victoria registry of the Provincial Court. Those cases are managed following the Early Resolution and Case Management Model, a new project being tested in that registry. The project is governed by its own rules and uses its own forms. For more information about the pilot project, read the Provincial Court Early Resolution and Case Management Pilot Project section in this chapter.

Limitations of the Provincial Court

The Provincial Court is built for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantage of bringing your case to the Provincial Court is that the authority of the court is limited. The Provincial Court can only hear applications under the Family Law Act on certain subjects, including:

1. guardianship;
2. parental responsibilities and parenting time;
3. contact with a child;
4. child support;
5. spousal support;
6. protection orders; and,
7. payment of household bills such as mortgage and utilities until trial or settlement.

The Provincial Court cannot hear any claims under the federal Divorce Act. However, it also cannot hear claims for orders relating to the division of property and debt under the provincial Family Law Act.

Preparing, filing and serving the Application to Obtain an Order

Most court proceedings are started in the Provincial Court by filing an Application to Obtain an Order in Form 1. (Court proceedings can also be started with an Application to Change or Cancel an Order in Form 2 if you already have a court order or separation agreement.) The person starting the court proceeding, the applicant, fills out the Application to Obtain an Order and provides certain information, including:

1. the applicant's name and address;
2. the name and address of the person against whom the application is being made, the respondent;
3. a list of the orders the applicant is asking the court to make; and,
4. a very brief statement of the relevant facts.

The Application to Obtain an Order must be filed in the court registry and be personally served on the respondent. No fee is charged to file the Application to Obtain an Order.

Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the Provincial Court (Family) Rules says that an applicant cannot personally be the one who serves a respondent. You must either pay a process server to do it or get the help of a friend over the age of majority. Don't use one of your children to serve your ex.

If you're not sure where you ex lives, see How Do I Find My Ex?. It's located in the Helpful Guides & Common Questions part of this resource.

The respondent's Reply

The respondent has 30 days to fill out and file a court form called a Reply after being served with your Application to Obtain an Order. If the respondent doesn't do this, you may be able to get the orders you asked for in you the Application to Obtain an Order as a default judgment, a final order the court makes when the respondent doesn't file a Reply.

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An applicant shouldn't expect to win on a technicality like this. If a respondent files their Reply late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

The next steps

If the respondent has chosen to file a Reply, they have decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. One of three things is going to happen in your court proceeding:

1. you'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make, called a consent order;
2. you'll not be able to agree, and the intervention of the court at a trial will be required; or,
3. after some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

Certain registries have special programs or requirements that are unique to that registry. For example, the Provincial Court in Victoria has the Victoria Early Resolution and Case Management Model, and that project is discussed in the Trials in the Provincial Court section of this chapter. In other registries, you may be required to take the Parenting After Separation program. The registry will inform you of any special requirements when you file your Application to Obtain an Order.

The Parenting After Separation program

In certain registries of the Provincial Court, the parties to a court proceeding must meet with a family justice counsellor and, if children are involved, attend a Parenting After Separation program before they can take any further steps in their case. This rule may apply even if you're asking for a default judgment or an order everyone agrees to, called a consent order. The registry will tell you what is needed. If necessary, the registry will refer you to a family justice counsellor and tell you where the Parenting After Separation program is offered.

Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if all of the parties are prepared to try mediation.

The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available online. The online course does not replace the need to attend an in-person course if that's required. You will have to file a certificate that you've completed the program in court.

The Supreme Court

To start a proceeding in the Supreme Court, the main document you'll have to prepare is a Notice of Family Claim in Form F3, a special form prescribed by the Supreme Court Family Rules. (This document is one of the basic legal documents in a court proceeding known as "pleadings.") This document says who you are suing and what you're suing them for.

Family law proceedings in the Supreme Court are governed by the Supreme Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started. As your proceeding progresses, you'll also need to learn the rules about judicial case conferences, disclosure, interim applications, and trials. The main rules about Notices of Family Claim and the management of ciourt proceedings in Supreme Court are:

• Rule 1-1: Definitions
• Rule 3-1: Starting a court proceeding
• Rule 4-1: Notices of Family Claim and service requirements
• Rule 4-3: Replying to a Notice of Family Claim
• Rule 5-1: Financial disclosure
• Rule 6-3: Personal service
• Rule 7-1: Judicial case conferences
• Part 9: Disclosure and discovery of documents
• Part 10: Interim applications and chambers procedure
• Rule 11-4: Discontinuing a court proceeding
• Part 13: Expert witnesses
• Rule 11-3: Summary trial procedure
• Rule 14-7: Trial procedure
• Rule 15-2.1: Guardianship orders

Links to and examples of the Notice of Family Claim and other court forms can be found in Supreme Court Forms and Examples. For a quick introduction to how to start a proceeding, see How Do I Start a Family Law Action in the Supreme Court?. It's located in the Helpful Guides & Common Questions part of this resource.

Quick answers for common questions

The following issues are addressed in the Starting an Action section in the Helpful Guides & Common Questions part of this resource:

• Can't pay your court fees: If you can't afford to pay court fees, you can apply to court to have those fees waived. This used to be called applying for indigent status, but this term is no longer used. To find out more, see How Do I Waive Filing Fees in the Supreme Court?
• Personally serving someone: For a quick summary of what's involved in personal service, see How Do I Personally Serve Someone with Legal Documents?
• Can't personally serve the respondent: If it is impossible to personally serve the Notice of Family Claim on the respondent, you can ask the court to be allowed to use a substitute form of personal service. To find out what's involved, see How Do I Substitutionally Serve Someone with Legal Documents?
• Can't find your ex: If you're not sure where your ex lives in order to start a court proceeding, see How Do I Find My Ex?
• Need to change something in your Notice of Family Claim: To find out what happens when you want to change something in your Notice of Family Claim, see How Do I Change Something in My Notice of Family Claim?
• Want to stop the court proceeding: To find out if you can stop a family law court proceeding in the Supreme Court once you've started it, see How Do I Stop a Family Law Action in the Supreme Court?

Preparing, filing and serving the Notice of Family Claim

The claimant, the person starting the court proceeding, must fill out a Notice of Family Claim in Form F3 and file the claim in court to start a court proceeding. The Notice of Family Claim provides certain information, including:

1. the claimant's name and address;
2. the name and address of the person against whom the claim is made, the respondent;
3. the basic history of the parties' relationship;
4. the names and birthdates of any children; and,
5. a list of the orders the claimant would like the court to make.

The court form that must be used is set out in the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional pages that require more detailed information must be added to the Notice of Family Claim when the claimant seeks orders about:

1. divorce;
2. the care of children and child support;
3. spousal support;
4. the division of property and debt; and,
5. orders about other subjects, like orders for the protection of people or orders for the change of a person's name.

The Notice of Family Claim must be filed in the court registry and be personally served on the respondent. If you're asking for a divorce order, you'll have to fill out a Registration of Divorce Proceeding form when you file your Notice of Family Claim. It currently costs $200 to file a Notice of Family Claim, or $210 if the claim includes a claim for a divorce. When you file any document in Supreme Court, including the Notice of Family Claim, the registry will keep the original of the document. You will want to make and keep at least two additional copies, one for you to keep and one to give to the other party.

Personal service means physically handing the Notice of Family Claim to the respondent. The Divorce Act and Rule 6-3(2) of the Supreme Court Family Rules say that a claimant cannot serve a respondent themselves. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Don't use one of your children to serve your ex.

Deadline for reply

The respondent has 30 days to file a Response to Family Claim after being served with your Notice of Family Claim. If the respondent doesn't do this, you may be able to get the orders you asked for in your Notice of Family Claim as a default judgment, a final order the court makes when the respondent doesn't file a Response to Family Claim.

You should be aware that judges can be fairly lenient towards people who miss filing deadlines. A claimant should not expect to win on a technicality like this. If a respondent files their Response to Family Claim late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

Sometimes a respondent will not reply to a Notice of Family Claim because they agree to the orders the claimant is asking for. This often happens when the claimant is just asking for a divorce. In a case like this, the court proceeding will qualify as an "undefended family law case" and you can apply for a default judgment under Rule 10-10 of the Supreme Court Rules. For more information about the do-it-yourself divorce process, see the Divorce and the Law on Getting Divorced section in the Separating and Getting Divorced chapter.

The next steps

If the respondent has chosen to file a Response to Family Claim, they have decided to oppose some or all of the orders you are asking for in your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees at least some of the orders you're asking for. One of three things is going to happen in your court proceeding:

1. you'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make, called a consent order.
2. you'll not be able to agree, and the intervention of the court at a trial will be required; or,
3. after some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

Hopefully, it'll be the first.

Resources and links

Legislation

• Provincial Court Act
• Provincial Court Family Rules
• Supreme Court Act
• Supreme Court Family Rules
• Court Rules Act

Resources

• Provincial Court Family Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Supreme Court Trial Scheduling

Links

• Provincial Court website
• Supreme Court website
• Justice Education Society website for BC Supreme Court
• BC Ministry of Attorney General: Parenting After Separation Handbook
• Online Parenting After Separation Course from Justice Education Society

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 4 April 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.