Difference between revisions of "Starting and Responding to Supreme Court Family Law Proceedings"

From Clicklaw Wikibooks
(→‎Preparing, filing and serving the notice of family claim)
 
(82 intermediate revisions by 8 users not shown)
Line 1: Line 1:
−
{{JP Boyd on Family Law TOC|expanded = incourt}}
+
{{DEMOWARNING}}{{JP Boyd on Family Law TOC|expanded = bcsc}}{{JPBOFL Editor Badge
 +
|CoAuthor = [[Elizabeth Cameron]] and [[Rosemary Gallo]]
 +
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
 +
}}
  
−
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, you must begin a court proceeding. There are certain steps you must take, certain fees you must pay and certain forms you must fill out before the court will hear your claim. Although the staff at the court registries are friendly and very helpful, it is your job to prepare these materials, gather your evidence, and take the steps necessary to bring your case before a judge.  
+
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. If you can't settle your legal dispute by agreement with the other party first, your court proceeding will end with a trial, after which the judge will make an order. 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 reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court. For a more complete picture of the court process, read this section together with the section on [[Replying_to_a_Court_Proceeding_in_a_Family_Matter|Replying to a Court Proceeding]].
+
This section deals with the processes for starting or responding to a proceeding in the British Columbia Supreme Court.
 +
 
 +
Before starting a court proceeding, you should consider what court you wish to proceed in - the Supreme Court or the Provincial Court.  Reasons to proceed in the Supreme Court may include that you wish to resolve an issue relating to the division of family property, family debt, or pensions, which can only be dealt with in the Supreme Court and cannot be addressed, with the exception of ownership or possession of companion animals, in the Provincial Court. The Supreme Court is also able to make divorce orders, which cannot be made by the Provincial Court. However, it is possible to resolve other family law issues, such as parenting, child support, or spousal support, in the Provincial Court and then apply separately in the Supreme Court for a divorce order. Reasons you may not wish to proceed in Supreme Court may include that the [http://canlii.ca/t/8mcr Supreme Court Family Rules] are comprehensive and Supreme Court processes may be more difficult to navigate than Provincial Court processes if you are representing yourself without the assistance of a lawyer. Additionally, the Supreme Court can make orders for a party to a legal dispute to pay costs to the other party if the other party to the court proceeding is successful in obtaining court orders against them. For more detailed information about the differences between Supreme Court and Provincial Court, see [[The Court System for Family Matters]].  
  
 
==The Supreme Court==
 
==The Supreme Court==
  
−
To start a proceeding in the Supreme Court, the main document you will have to prepare is a Notice of Family Claim in Form F3, a special form prescribed by the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]. (This document is one of the basic legal documents in a court proceeding known as pleadings.) This is the document that says who you are suing and the orders you want to the court to make.
+
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 [http://canlii.ca/t/8mcr 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 are governed by the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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.  
+
Family law proceedings in the Supreme Court are governed by the [http://canlii.ca/t/8mcr 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 court proceedings in Supreme Court are:
  
−
The primary rules about Notices of Family Claim and the management of court proceedings are:
+
*Rule 1-1: Definitions
−
 
+
*Rule 3-1: Starting a court proceeding
−
*Rule 1-1: definitions
 
−
*Rule 3-1: starting a court proceeding
 
 
*Rule 4-1: Notices of Family Claim and service requirements
 
*Rule 4-1: Notices of Family Claim and service requirements
−
*Rule 4-3: replying to a Notice of Family Claim
+
*Rule 4-3: Replying to a Notice of Family Claim
−
*Rule 5-1: financial disclosure
+
*Rule 5-1: Financial disclosure
−
*Rule 6-3: personal service
+
*Rule 6-3: Personal service
−
*Rule 7-1: judicial case conferences
+
*Rule 7-1: Judicial case conferences
−
*Part 9: disclosure and discovery of documents
+
*Part 9: Disclosure and discovery of documents
−
*Part 10: interim applications and chambers procedure
+
*Part 10: Interim applications and chambers procedure
−
*Rule 11-4: discontinuing a court proceeding
+
*Rule 11-4: Discontinuing a court proceeding
−
*Part 13: expert witnesses
+
*Part 13: Expert witnesses
−
*Rule 11-3: summary trial procedure
+
*Rule 11-3: Summary trial procedure
−
*Rule 14-7: trial procedure
+
*Rule 14-7: Trial procedure
−
*Rule 15-2.1: guardianship orders
+
*Rule 15-2.1: Guardianship orders
 +
*Rule 15-2.2: Corollary relief proceedings and information that must be provided to the court
  
−
Links to and examples of the Notice of Family Claim and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & 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 section ''Starting an Action'' in the ''How Do I?'' part of this resource.  
+
Links to and examples of the Notice of Family Claim and other court forms can be found in [[Supreme Court Forms (Family Law)|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 Tips: Starting an action in the Supreme Court===
+
===Quick answers for common questions===
  
−
The following tips are located in the section ''Starting an Action'' in the ''[[JP_Boyd_on_Family_Law_—_How_Do_I%3F|How Do I?]]'' part of this resource:
+
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 pay court fees, you can apply for indigent status. If you are granted indigent status the court fees will be waived for all or part of your court proceeding. To find out more, see [[How Do I Apply for Indigent Status in the Supreme Court?]]  
+
* '''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?]]
  
−
* '''Guide to personal service:''' For a quick summary of what's involved in personal service, see [[How Do I Personally Serve Someone with Legal Documents?]]
+
===Preparing, filing and serving the Notice of Family Claim===
 +
{{LSSbadge
 +
|resourcetype = guided pathway information on how to
 +
|link        = [https://mylawbc.com/pathways/family-orders Get family orders]
 +
}}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:
  
−
* '''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?]]
+
#the claimant's name and address;
 +
#the name and address of the person against whom the claim is made, the ''respondent'';
 +
#the basic history of the parties' relationship;
 +
#the names and birthdates of any children; and,
 +
#a list of the orders the claimant would like the court to make.
  
−
* '''Not sure where your ex is:''' If you're not sure where your ex lives in order to start a court proceeding, see [[How Do I Find My Ex?]]
+
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:
  
−
* '''Need to change something in the 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?]]
+
#divorce;
 +
#the care of children and child support;
 +
#spousal support;
 +
#the division of property and debt; and,
 +
#orders about other subjects, like orders for the protection of people or orders for the change of a person's name.
  
−
* '''Want the court action to stop:''' To find out if you can stop a family law action in the Supreme Court once you've started it, see [[How Do I Stop a Family Law Action in the Supreme Court?]]
+
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.
  
−
===Preparing, filing and serving the notice of family claim===
+
''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.''
−
{{LSSbadge
 
−
|resourcetype = further step-by-step information on
 
−
|link        = [http://www.familylaw.lss.bc.ca/guides/start/cantAgree/supreme/apply/steps.php How to start a family law case<br/> in Supreme Court]
 
−
}}The claimant, the person starting the court proceeding, must fill out a Notice of Family Claim and file the claim in court. The Notice of Family Claim provides: the claimant's name and address; the name and address of the person against whom the claim is made, the ''respondent''; the basic history of the parties' relationship; and, an outline of the orders the claimant would like the court to make.
 
−
 
 
−
The court form that must be used use is Form F3, set out in the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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:
 
−
 
 
−
*divorce,
 
−
*the care of children and child support,
 
−
*spousal support,
 
−
*the division of property and debt, and
 
−
*other orders, like protection orders 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 are 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 costs $200 to file a Notice of Family Claim, or $210 if the claim includes a claim for a divorce.
 
−
 
 
−
"Personal service" essentially means physically handing the Notice of Family Claim to the respondent. The ''[[Divorce Act]]'' and Rule 6-3(2) of the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules] say that a claimant cannot serve a respondent him- or herself. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Although this ought to go without saying, don't use one of your children to serve your ex.
 
  
 
===Deadline for reply===
 
===Deadline for reply===
  
−
The respondent has 30 days to file a Response to Family Claim after being served with the claimant's Notice of Family Claim. If the respondent doesn't do this, the claimant may be able to apply for the orders asked for in the Notice of Family Claim as a ''default judgment'', a final order made in default of the respondent's 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 in most cases the courts are fairly lenient towards people who miss filing deadlines. A claimant should not expect to win on a technicality like this. If a respondent files his or her 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.
 
  
−
===The next steps===
+
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.
  
−
If the respondent has chosen to file a Response to Family Claim, he or she has 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:
+
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.
  
−
#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.
+
The respondent may also file and serve a Counterclaim, setting out claims of their own in relation to your family law matter. If they do, you have two options. You can do nothing or you can respond to the proceeding by Counterclaim and defend yourself. If you completely agree with the orders the other party is asking for in their Counterclaim, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or completely disagree you ''must'' respond to the Counterclaim by filing a Response to Counterclaim in Form F6 within 30 days after being served with the Counterclaim or you risk losing by default.
−
#You'll not be able to agree, and the intervention of the court at a trial will be required.
 
−
#After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.
 
  
−
Whether you're off to trial or a settlement can be reached, the steps until trial are usually these:
+
===Other documents at the outset of your court proceeding===
  
−
<blockquote>'''1. Exchange Financial Statements.''' Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements are prepared in Form 8. Financial Statements must be exchanged before the first judicial case conference, and updated statements will be required throughout the case and before trial. These are discussed in more detail further on in this section.</blockquote>
+
If you have made a claim in the Supreme Court about child support, spousal support, or the division of family property, family debt, or pensions, you may be required to file a Financial Statement in Form F8. If you are required to file a Financial Statement in Form F8 as a result of the claims you have set out in your Notice of Family Claim, you must to do so within 30 days after service of your Notice of Family Claim on the other party. See [[Disclosure and Discovery in Supreme Court Family Law Proceedings]] for more information.  
  
−
<blockquote>'''2. Have a judicial case conference (JCC).''' A JCC is necessary before most interim applications can be brought. JCCs are informal, off-the-record meetings between the parties, their lawyers and a judge intended to talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this section.</blockquote>
+
If you have made a claim in the Supreme Court under the ''Divorce Act'' about child support, spousal support, or parenting, you are required by Rule 15-2.2 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] to file a statement of information for corollary relief proceedings in Form F102 before a child support order, spousal support order or parenting order is made.
  
−
<blockquote>'''3. Make interim applications as needed.''' In almost all cases, parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them until the claims at issue in the court proceeding are finally determined. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, and the payment of child support and spousal support. This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].</blockquote>
+
===The next steps===
  
−
<blockquote>'''4. Disclose documents and information.''' The rules of court require each party to produce to the other all documents that are relevant to the issues in a court proceeding. This can include things like bank statements, report cards, medical records, school reports, and income tax returns. Each party must list these documents in a formal List of Documents, and keep their List of Documents updated when new documents are found or become available.</blockquote>
+
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:
  
−
<blockquote>'''5. Examine each other out of court.''' The parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an ''examination for discovery.'' Examinations for discovery, also called ''discoveries'', are helpful to get each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged.</blockquote>
+
#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''.
 +
#you'll not be able to agree, and the intervention of the court at a ''trial'' will be required; or,
 +
#after some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.
  
−
<blockquote>'''6. Have a settlement conference.''' The rules of court allow a party to schedule a settlement conference before a judge ahead of trial. At this hearing, the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement.</blockquote>
+
Hopefully, it'll be the first.
  
−
<blockquote>'''7. Have a trial management conference (TMC).''' A TMC is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes about evidence before trial as possible. Among other things, the judge will ask about the witnesses each party intends to present, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions, although the judge at the TMC can order that a settlement conference happen.</blockquote>
+
==Responding==
 +
If a court proceeding has been started against you, you have two choices. You can do nothing or you can respond to the proceeding and defend yourself. If you completely agree with the orders the other party is asking for, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or completely disagree you ''must'' respond to the claim or you risk losing by default.
  
−
<blockquote>'''8. Go to trial.''' At the end of the day, if you can't agree on a resolution you will wind up at trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to decide the case in their favour. The judge will hear all the evidence and the arguments, and reach a decision in the form of ''reasons for judgment''. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the reasons for judgment.</blockquote>
+
If a court proceeding has been started against you in the Supreme Court, you are the ''respondent'' in the proceeding. The person who started the court proceeding is the ''claimant''. If you disagree with any of the orders the claimant is asking for, you must prepare a form called a ''Response to Family Claim'' in Form F4. If there are any orders you want to ask for, you can prepare a form called a ''Counterclaim'' in Form F5. These are special forms required by the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. (These documents, together with the claimant's Notice of Family Claim and Response to Counterclaim, are called "pleadings.")
  
−
This description of the steps involved is just a rough sketch of the lengthy process of bringing a court proceeding to a conclusion. Not every proceeding will need to use all of these steps (some people may not need to have examinations for discovery and others won't see the point of holding a settlement conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process is much, much more complex that my <span class="noglossary">brief</span> description.
+
The main Supreme Court Family Rules about replying to a Notice of Family Claim, making your claims of your own against the claimant, and the management of court proceedings are:
  
−
===Financial statements===
+
*Rule 1-1: Definitions
 +
*Rule 3-1: Starting a court proceeding
 +
*Rule 4-3: Responding to a claim
 +
*Rule 4-4: Making a counterclaim
 +
*Rule 5-1: Financial disclosure
 +
*Rule 6-2: Ordinary 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 and withdrawing a response to one
 +
*Part 13: Expert witnesses
 +
*Rule 11-3: Summary trial procedure
 +
*Rule 14-7: Trial procedure
 +
*Rule 15-2.1: Guardianship orders
 +
*Rule 15-2.2: Corollary relief proceedings and information that must be provided to the court
  
−
If a court proceeding involves a claim for spousal support, child support, the division of property or the division of debt, each party must prepare and file a Financial Statement. A Financial Statement sets out a person's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an affidavit, before a lawyer, notary public, or registry clerk.
+
Links to and examples of the Response to Family Claim, Counterclaim and other court forms can be found in this resource under [[Supreme Court Forms (Family Law)]]. For a quick introduction to how to reply to a proceeding, see [[How Do I Respond to a Family Law Action in the Supreme Court?]]. It's located in the Helpful Guides & Common Questions part of this resource.
  
−
Financial Statements are very important in family law proceedings. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish value, the portions about assets and debts may be used to determine the value of an asset and the amount owing on a debt. As well, since Financial Statements are sworn statements, someone making a Financial Statements can find his or her credibility being challenged if the numbers don't make sense, if they are overblown or understated, if they omit critical information, or if they are outright fabrications.
+
===Quick answers for common questions===
  
−
Each party must attach to their Financial Statements a number of important documents:
+
The following issues are addressed in the ''Defending an Action'' section of the Helpful Guides & Common Questions part of this resource:
  
−
#the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
+
* '''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?]]
−
#all notices of assessment and reassessment received for the last three tax years,
+
* '''Need to change something in your Response to Family Claim or Counterclaim:''' To find out what happens when you need to change something in your Response to Family Claim or Counterclaim, see [[How Do I Change Something in My Response to Family Claim or Counterclaim?]]
−
#the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement,
+
* '''Want to stop the court proceeding:''' You might want to stop defending the claimant's Notice of Family Claim or withdraw your Counterclaim if, for example, you have reached a settlement. To find out how to do this, see [[How Do I Stop Defending a Family Law Action in the Supreme Court?]]
−
#business records like financial statements and corporate income tax returns, if the party has a company, and
 
−
#the most recent BC Assessments for all real property.
 
  
−
The form you must use is Form F8, set out in the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules].
+
===Preparing, filing and delivering the Response to Family Claim===
  
−
===Judicial case conferences===
+
If you disagree with any of the orders the claimant is asking for in their Notice of Family Claim, you must file a Response to Family Claim at the court registry within 30 days of being served with the Notice of Family Claim.
  
−
Judicial case conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom. JCCs must be held in all family law court proceedings where the parties can't agree, and, in most cases, they must be held before any interim applications can be heard.
+
The Notice of Family Claim describes the basic history of your relationship and provides an outline of the orders the claimant would like the court to make. Your Response to Family Claim lets you:
  
−
JCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at JCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application!
+
#consent to some or all of the orders the claimant is asking for;
 +
#object to some or all of the orders the claimant is asking for; and,
 +
#say which of the facts set out in the Notice of Family Claim are inaccurate.
  
−
This chapter has more information about JCCs in the section [[Case Conferences in a Family Law Matter]].
+
The form you must use is Form F4, set out in the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. This is a special form of response used only in family law cases. Your Response to Family Claim must be filed in the same court registry that the Notice of Family Claim was filed in. It currently <span class="noglossary">costs</span> $25 to file a Response to Family Claim.
  
−
==The Provincial Court==
+
You must serve the claimant with a copy of your filed Response to Family Claim by ordinary service. When you file any document in Supreme Court, including your Response to Family Claim, the registry will keep the original of the document, so you will want to make and keep at least two additional copies &mdash; one for you to keep and one to serve on the claimant. ''Ordinary service'' means sending a copy of the filed response to the claimant at any of the addresses for service they provided in their Notice of Family Claim.
−
{{LSSbadge
 
−
|resourcetype = further step-by-step information on
 
−
|link        = [http://www.familylaw.lss.bc.ca/guides/final/cantAgree/provincial/apply/steps.php Starting a family law case<br/> in 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, a special form prescribed by the [http://canlii.ca/t/85pb Provincial Court Family Rules]. This is the document that says who you are suing and what you are suing for.  
 
  
−
Family law proceedings 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 primary rules about Applications to Obtain an Order and the management of court proceedings are:
+
===Preparing, filing and delivering a Counterclaim===
  
−
*Rule 1: definitions
+
If there are any orders you want to ask for, you may file a ''Counterclaim'' at the court registry within 30 days of being served with the Notice of Family Claim. A Counterclaim lets you describe the orders you would like the court to make.
−
*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 (Family Law)|Provincial Court Forms & 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 section ''Starting an Action'' in the ''How Do I?'' part of this resource.
+
It can be very important to prepare a Counterclaim if you want the court to make an order on different terms, or about different issues, than the orders described in the Notice of Family Claim. Think of it like this. Your Response to Family Claim is your defence to the claims made by the claimant in their Notice of Family Claim. Your Response to Family Claim doesn't ask for anything; it just says what orders you do and don't agree with. Unless a Counterclaim is filed, the only person asking for anything is the claimant. If you are successful in your defence, there may be no claims left for the court to make an order about.  
  
−
===Limitations of the Provincial Court===
+
Rule 4-4 of the Supreme Court Family Rules provides information about Counterclaims. The form you must use is Form F5. This is a special form of counterclaim used in family law cases. Additional pages that require more detailed information must be added to the Counterclaim when you are asking for orders about:
  
−
The Provincial Court is designed 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:
+
#divorce;
 +
#the care of children and child support;
 +
#spousal support;
 +
#the division of property and debt; and,
 +
#orders about other subjects, like orders for the protection of people or orders for the change of a person's name.
  
−
*guardianship,
+
Your Counterclaim must be filed in the court registry and be served on the claimant by ordinary service. To save a little bit money and time, you'd normally want to serve the claimant with your  Response to Family Claim and Counterclaim at the same time. It currently <span class="noglossary">costs</span> $200 to file a Counterclaim.
−
*parental responsibilities and parenting time,
 
−
*contact with a child,
 
−
*child support, and
 
−
*spousal support.
 
  
−
The Provincial Court cannot hear your application if you are applying for orders under the federal ''[[Divorce Act]]'' or for orders relating to the division of property and debt under the ''Family Law Act''.
+
===The applicant's Response to Counterclaim===
  
−
===Preparing, filing and serving the application to obtain an order===
+
The claimant has 30 days to complete and file a ''Response to Counterclaim'' in Form F6 after being served with your Counterclaim.
  
−
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 where there is already a court order or separation agreement in place.) The person beginning the action, the ''applicant'', fills out the Application to Obtain an Order and provides certain information, including: the applicant's name and address; the name and address of the person against whom the application is being made, the ''respondent''; a list of the orders the applicant is asking the court to make; and, a very <span class="noglossary">brief</span> 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.
+
===Other documents at the outset of your court proceeding===
  
−
Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the [http://canlii.ca/t/85pb 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 enlist the help of a friend over the age of majority. Don't use one of your children to serve your ex.
+
If you are responding to or have made a claim in the Supreme Court about child support, spousal support, or the division of family property, family debt, or pensions, you may be required to file a Financial Statement in Form F8. If you are required to file a Financial Statement as a result of the claims set out in the other party's Notice of Family Claim, you must to do so within 30 days after the Notice of Family Claim was served on you. If you are not required to file a Financial Statement as a result of claims made by the other party, but you are required to do so as a result of claims you have set out in your Counterclaim, you must do so within 30 days after service of your Counterclaim on the other party. See [[Disclosure and Discovery in Supreme Court Family Law Proceedings]] for more information.  
  
−
If you're not sure where you ex lives, see [[How Do I Find My Ex?]] It's located in the section ''Marriage, Separation & Divorce'' in the ''How Do I?'' part of this resource.
+
If you or the other party has made a claim in the Supreme Court under the ''Divorce Act'' about child support, spousal support, or parenting, you are required by Rule 15-2.2 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] to file a statement of information for corollary relief proceedings in Form F102 before a child support order, spousal support order or parenting order is made.
−
 
 
−
===Deadline for reply===
 
−
 
 
−
The respondent has 30 days to fill out and file a court form called a Reply after being served with the applicant's Application to Obtain an Order. If the respondent doesn't do this, the applicant may be able to apply for the orders asked for in the Application to Obtain an Order as a ''default judgment'', a final order made in default of the respondent's reply.
 
−
 
 
−
You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An applicant should not expect to win on a technicality like this. If a respondent files his or her 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===
 
===The next steps===
  
−
In certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php Parenting After Separation] program before you can take any further steps in your case. This may apply even if you are seeking a default judgment. The court clerk at the court registry will tell you what is needed. If necessary, the court clerk will refer you to the family justice counsellor and tell you where the Parenting After Separation program is offered. You will have to file a certificate that you've completed the program.
+
Disagreeing with the orders the claimant has asked for, or asking for orders of your own, doesn't necessarily mean you will wind up in a trial. One of three things is going to happen in your court proceeding:
−
 
 
−
The steps that follow the commencement of a proceeding in the Provincial Court are a shorter, more streamlined version of the Supreme Court process. There are fewer hoops to jump through, but also fewer means to extract information and documents from the other side.
 
−
 
 
−
<blockquote>'''1. Meet with a family justice counsellor and take the Parenting After Separation program.''' Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both 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 [http://parenting.familieschange.ca online]. The online course does not replace the need to attend an in-person course if that is otherwise required.</blockquote>
 
−
 
 
−
<blockquote>'''2. Exchange Financial Statements.''' Financial Statements are required whenever the payment of child support or spousal support is an issue. Financial Statements are prepared in Form 4.</blockquote>
 
−
 
 
−
<blockquote>'''3. Have a family case conference (FCC).''' An FCC is a hearing similar to the judicial case conference required by the Supreme Court. It is an informal, off-the-record meeting between the parties, their lawyers and a judge to talk about the facts and issues, and set dates and deadlines for the remaining steps in the court proceeding. Although FCCs are very helpful and often result in settlement, FCCs only address issues about the care of children and are not mandatory unless you have been referred to an FCC by a judge. If you think an FCC will help resolve your case, ask for one!</blockquote>
 
−
 
 
−
<blockquote>'''4. Make interim applications as needed.''' In almost all family law proceedings, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need orders about things like where the children will live and whether support should be paid until trial. The most common applications in family law involve restraining orders, orders about the care of children, child support, and spousal support. This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].</blockquote>
 
−
 
 
−
<blockquote>'''5. Have a trial preparation conference (TPC).''' A TPC is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes about evidence before trial as possible. Among other things, the judge will ask about the witnesses each party intends to present, whether documents have been exchanged, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TPC is generally not an opportunity to engage in settlement discussions.</blockquote>
 
−
 
 
−
<blockquote>'''6. Go to trial.''' At the end of the day, if you can't reach a settlement, you will have to have a trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge should make the orders they are asking for. The judge will hear all the evidence and the arguments and reach a decision in the form of ''Reasons for Judgment''. Where neither party is represented by a lawyer, the court clerk will draft a final order based on the judge's reasons for judgment.</blockquote>
 
−
 
 
−
===Financial Statements===
 
−
 
 
−
If a Provincial Court proceeding involves spousal support or child support, each party must prepare and file a Financial Statement. A Financial Statement sets out a party's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an affidavit, before a lawyer, notary public, or registry clerk.
 
−
 
 
−
Each party must attach to their Financial Statements the following documents:
 
−
 
 
−
#the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
 
−
#all notices of assessment and reassessment received for the last three tax years,
 
−
#the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement, and
 
−
#business records like financial statements and corporate income tax returns, if the party has a company.
 
−
 
 
−
The form you must use is Form 4, set out in the [http://canlii.ca/t/85pb Provincial Court (Family) Rules].
 
  
−
===Family case conferences===
+
#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''.
 +
#you'll not be able to agree, and the intervention of the court at a ''trial'' will be required; or,
 +
#after some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.
  
−
Family case conferences (FCCs) are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom to explore settlement options. FCCs are not mandatory and there is no requirement that an FCC must be heard before any interim applications.
+
Again, I hope it'll be the first.
−
 
 
−
FCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at FCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application if you have to hire a lawyer.
 
−
 
 
−
This chapter discusses FCCs in more detail in the section [[Case Conferences in a Family Law Matter]].
 
−
<!---HIDDEN
 
−
==Further Reading in this Chapter==
 
−
 
 
−
Return to the <span style="color: red;">first page</span> in this chapter.
 
−
 
 
−
* other chapters
 
−
END HIDDEN--->
 
  
 
==Resources and links==
 
==Resources and links==
Line 223: Line 183:
 
===Legislation===
 
===Legislation===
  
−
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
+
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
−
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
+
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
−
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
+
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
−
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
+
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
 +
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
 
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
 
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
  
 
===Resources===
 
===Resources===
  
−
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
+
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
−
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
+
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
−
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
+
* [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
−
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
+
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
 +
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
 +
* [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
  
 
===Links===
 
===Links===
  
−
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
+
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
−
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
+
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society website for BC Supreme Court]
−
* Legal Services Society Family Law in BC website: [http://www.familylaw.lss.bc.ca/guides/mini/howToStartFamilyCaseSC/apply/index.php How to start a family law case (Supreme Court)] and  [http://www.familylaw.lss.bc.ca/guides/final/cantAgree/provincial/apply/steps.php How to get a final family order (Provincial Court)]
+
* BC Ministry of Attorney General: [https://www.clicklaw.bc.ca/resource/4884 Parenting After Separation Course]
−
* [http://www.supremecourtbc.ca Justice Education Society Website for BC Supreme Court]
+
* [https://www.clicklaw.bc.ca/resource/4640 Legal Aid BC's ''Family Law in BC'' website]
−
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php Parenting After Separation Program]
+
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
−
* [http://parenting.familieschange.ca Online Parenting After Separation Course]
+
* Legal Aid BC's Family Law website's information pages:
 +
** [https://www.clicklaw.bc.ca/resource/4652 "I've been served with a court form"]
 +
 
 +
 
  
  
−
{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}
+
{{REVIEWED | reviewer = [[Elizabeth Cameron]], 16 January 2024}}
  
 
{{JP Boyd on Family Law Navbox|type=chapters}}
 
{{JP Boyd on Family Law Navbox|type=chapters}}
 
{{Creative Commons for JP Boyd}}
 
{{Creative Commons for JP Boyd}}
 +
 +
[[Category:JP Boyd on Family Law]]

Latest revision as of 20:13, 2 February 2024

This page from JP Boyd on Family Law—and other pages from this Wikibook that discuss BC family law litigation topics—are under editorial review to provide more thorough, current, and practical guidance. Since 2020, procedures, forms, and laws have changed significantly. While gross inaccuracies have been corrected, some details may still be outdated. These pages were not included in the 2024 print edition, and have been highlighted in orange where they appear in the navigation menu on this website.
JP Boyd on Family Law
Error creating thumbnail: Unable to run external programs, proc_open() is disabled. Error code: 1
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Supreme Court Litigation
 · Starting & Responding to Claims

 · Disclosure & Discovery

 · Court Conferences

 · Interim Applications

 · Supreme Court Trials

 · Changing Orders

 · Enforcing Orders
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
Editorial Manifesto · Rights & Duties of Self-Represented Litigants
v • d • e
Page Editor(s)
Since 2020: Elizabeth Cameron and Rosemary Gallo
Previously: Shannon Aldinger and Julie Brown
Read: Past contributors

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. If you can't settle your legal dispute by agreement with the other party first, your court proceeding will end with a trial, after which the judge will make an order. 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 deals with the processes for starting or responding to a proceeding in the British Columbia Supreme Court.

Before starting a court proceeding, you should consider what court you wish to proceed in - the Supreme Court or the Provincial Court. Reasons to proceed in the Supreme Court may include that you wish to resolve an issue relating to the division of family property, family debt, or pensions, which can only be dealt with in the Supreme Court and cannot be addressed, with the exception of ownership or possession of companion animals, in the Provincial Court. The Supreme Court is also able to make divorce orders, which cannot be made by the Provincial Court. However, it is possible to resolve other family law issues, such as parenting, child support, or spousal support, in the Provincial Court and then apply separately in the Supreme Court for a divorce order. Reasons you may not wish to proceed in Supreme Court may include that the Supreme Court Family Rules are comprehensive and Supreme Court processes may be more difficult to navigate than Provincial Court processes if you are representing yourself without the assistance of a lawyer. Additionally, the Supreme Court can make orders for a party to a legal dispute to pay costs to the other party if the other party to the court proceeding is successful in obtaining court orders against them. For more detailed information about the differences between Supreme Court and Provincial Court, see The Court System for Family Matters.

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 court 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
  • Rule 15-2.2: Corollary relief proceedings and information that must be provided to the court

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:

Preparing, filing and serving the Notice of Family Claim

LSSbadge.jpg
Legal Aid BC's
Family Law in BC website
has guided pathway information on how to
Get family orders.

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 respondent may also file and serve a Counterclaim, setting out claims of their own in relation to your family law matter. If they do, you have two options. You can do nothing or you can respond to the proceeding by Counterclaim and defend yourself. If you completely agree with the orders the other party is asking for in their Counterclaim, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or completely disagree you must respond to the Counterclaim by filing a Response to Counterclaim in Form F6 within 30 days after being served with the Counterclaim or you risk losing by default.

Other documents at the outset of your court proceeding

If you have made a claim in the Supreme Court about child support, spousal support, or the division of family property, family debt, or pensions, you may be required to file a Financial Statement in Form F8. If you are required to file a Financial Statement in Form F8 as a result of the claims you have set out in your Notice of Family Claim, you must to do so within 30 days after service of your Notice of Family Claim on the other party. See Disclosure and Discovery in Supreme Court Family Law Proceedings for more information.

If you have made a claim in the Supreme Court under the Divorce Act about child support, spousal support, or parenting, you are required by Rule 15-2.2 of the Supreme Court Family Rules to file a statement of information for corollary relief proceedings in Form F102 before a child support order, spousal support order or parenting order is made.

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.

Responding

If a court proceeding has been started against you, you have two choices. You can do nothing or you can respond to the proceeding and defend yourself. If you completely agree with the orders the other party is asking for, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or completely disagree you must respond to the claim or you risk losing by default.

If a court proceeding has been started against you in the Supreme Court, you are the respondent in the proceeding. The person who started the court proceeding is the claimant. If you disagree with any of the orders the claimant is asking for, you must prepare a form called a Response to Family Claim in Form F4. If there are any orders you want to ask for, you can prepare a form called a Counterclaim in Form F5. These are special forms required by the Supreme Court Family Rules. (These documents, together with the claimant's Notice of Family Claim and Response to Counterclaim, are called "pleadings.")

The main Supreme Court Family Rules about replying to a Notice of Family Claim, making your claims of your own against the claimant, and the management of court proceedings are:

  • Rule 1-1: Definitions
  • Rule 3-1: Starting a court proceeding
  • Rule 4-3: Responding to a claim
  • Rule 4-4: Making a counterclaim
  • Rule 5-1: Financial disclosure
  • Rule 6-2: Ordinary 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 and withdrawing a response to one
  • Part 13: Expert witnesses
  • Rule 11-3: Summary trial procedure
  • Rule 14-7: Trial procedure
  • Rule 15-2.1: Guardianship orders
  • Rule 15-2.2: Corollary relief proceedings and information that must be provided to the court

Links to and examples of the Response to Family Claim, Counterclaim and other court forms can be found in this resource under Supreme Court Forms (Family Law). For a quick introduction to how to reply to a proceeding, see How Do I Respond to 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 Defending an Action section of the Helpful Guides & Common Questions part of this resource:

Preparing, filing and delivering the Response to Family Claim

If you disagree with any of the orders the claimant is asking for in their Notice of Family Claim, you must file a Response to Family Claim at the court registry within 30 days of being served with the Notice of Family Claim.

The Notice of Family Claim describes the basic history of your relationship and provides an outline of the orders the claimant would like the court to make. Your Response to Family Claim lets you:

  1. consent to some or all of the orders the claimant is asking for;
  2. object to some or all of the orders the claimant is asking for; and,
  3. say which of the facts set out in the Notice of Family Claim are inaccurate.

The form you must use is Form F4, set out in the Supreme Court Family Rules. This is a special form of response used only in family law cases. Your Response to Family Claim must be filed in the same court registry that the Notice of Family Claim was filed in. It currently costs $25 to file a Response to Family Claim.

You must serve the claimant with a copy of your filed Response to Family Claim by ordinary service. When you file any document in Supreme Court, including your Response to Family Claim, the registry will keep the original of the document, so you will want to make and keep at least two additional copies — one for you to keep and one to serve on the claimant. Ordinary service means sending a copy of the filed response to the claimant at any of the addresses for service they provided in their Notice of Family Claim.

Preparing, filing and delivering a Counterclaim

If there are any orders you want to ask for, you may file a Counterclaim at the court registry within 30 days of being served with the Notice of Family Claim. A Counterclaim lets you describe the orders you would like the court to make.

It can be very important to prepare a Counterclaim if you want the court to make an order on different terms, or about different issues, than the orders described in the Notice of Family Claim. Think of it like this. Your Response to Family Claim is your defence to the claims made by the claimant in their Notice of Family Claim. Your Response to Family Claim doesn't ask for anything; it just says what orders you do and don't agree with. Unless a Counterclaim is filed, the only person asking for anything is the claimant. If you are successful in your defence, there may be no claims left for the court to make an order about.

Rule 4-4 of the Supreme Court Family Rules provides information about Counterclaims. The form you must use is Form F5. This is a special form of counterclaim used in family law cases. Additional pages that require more detailed information must be added to the Counterclaim when you are asking for 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.

Your Counterclaim must be filed in the court registry and be served on the claimant by ordinary service. To save a little bit money and time, you'd normally want to serve the claimant with your Response to Family Claim and Counterclaim at the same time. It currently costs $200 to file a Counterclaim.

The applicant's Response to Counterclaim

The claimant has 30 days to complete and file a Response to Counterclaim in Form F6 after being served with your Counterclaim.


Other documents at the outset of your court proceeding

If you are responding to or have made a claim in the Supreme Court about child support, spousal support, or the division of family property, family debt, or pensions, you may be required to file a Financial Statement in Form F8. If you are required to file a Financial Statement as a result of the claims set out in the other party's Notice of Family Claim, you must to do so within 30 days after the Notice of Family Claim was served on you. If you are not required to file a Financial Statement as a result of claims made by the other party, but you are required to do so as a result of claims you have set out in your Counterclaim, you must do so within 30 days after service of your Counterclaim on the other party. See Disclosure and Discovery in Supreme Court Family Law Proceedings for more information.

If you or the other party has made a claim in the Supreme Court under the Divorce Act about child support, spousal support, or parenting, you are required by Rule 15-2.2 of the Supreme Court Family Rules to file a statement of information for corollary relief proceedings in Form F102 before a child support order, spousal support order or parenting order is made.

The next steps

Disagreeing with the orders the claimant has asked for, or asking for orders of your own, doesn't necessarily mean you will wind up in a trial. 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.

Again, I hope it'll be the first.

Resources and links

Legislation

Resources

Links



This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Elizabeth Cameron, 16 January 2024.


v • d • e
 
Chapters
Creativecommonssmall.png 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.
Retrieved from "https://stagewiki.clicklaw.bc.ca/index.php?title=Starting_and_Responding_to_Supreme_Court_Family_Law_Proceedings&oldid=51173"
Personal tools
Namespaces

Variants
Actions
Site
Tools
Contributors
Print/export