Difference between revisions of "Starting a Court Proceeding in a Family Matter"

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{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
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* [[Starting and Responding to Supreme Court Family Law Proceedings|BC Supreme Court Family Law Proceedings]], or
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* [[Starting and Responding to Provincial Court Family Law Proceedings|Provincial 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 (and even just a divorce), 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, they cannot provide legal advice and it is your job to prepare these materials, gather your evidence, and take the steps necessary to bring your case before a judge.
 
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]].
 
==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/t/8mcr 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 the court to make.
 
Family law proceedings 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 primary rules about Notices of Family Claim and the management of 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 (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.
 
===Quick tips: Starting an action in the Supreme Court===
 
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:
 
* '''Can't pay your court fees:''' If you can't afford to 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?]]
 
* '''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?]]
 
* '''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?]]
 
* '''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?]]
 
* '''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?]]
 
* '''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?]]
 
===Preparing, filing and serving the Notice of Family Claim===
{{LSSbadge
|resourcetype = further step-by-step information on
|link        = [http://www.clicklaw.bc.ca/resource/2278 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; the names and birthdates of any children; and, an outline of the orders the claimant would like the court to make.
 
The court form that must be used is Form F3, 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:
 
*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 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, so 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 themself. 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===
 
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 (and possibly without further notice to the respondent).
 
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.
 
===The next steps===
 
If the respondent has chosen to file a Response to Family Claim, 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:
 
#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.
#After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.
 
For more information on the next steps in a family law proceeding when the Respondent has filed a Response to Family Claim, see [[Overview of Case Conferences and Discovery in Family Law Matters]] in this chapter.
 
If the respondent does not file a Response to Family Claim, then the family law proceeding is characterized as "an undefended family law case" and Rule 10-10 applies.  Under that rule, if the orders being sought are relatively straightforward, then the Claimant can apply for final orders by way of a desk order application, meaning that a requisition, supporting affidavit(s) outlining the Claimant's evidence, and a few other documents (listed in Rule 10-10(2)) are submitted to the registry and reviewed by a judge at his or her desk when the judge finds time to do so.  If the orders being sought have any complexity to them, then Rule 10-10 also allows the case to be set for trial.
 
==The Provincial Court==
{{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:
 
*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 (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.
 
===Limitations of the Provincial Court===
 
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:
 
*guardianship,
*parental responsibilities and parenting time,
*contact with a child,
*child support,
*spousal support
*protection orders, and
*payment of household bills such as mortgage and utilities pending trial or settlement.
 
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''.
 
===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 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.
 
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'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.
 
===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 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:
# 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.
# After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.
 
=== Parenting After Separation ===
 
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.clicklaw.bc.ca/resource/1638 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 your 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.
 
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://www.clicklaw.bc.ca/resource/4395 online]. The online course does not replace the need to attend an in-person course if that is otherwise required. You will have to file a certificate that you've completed the program.
 
<!---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==
 
===Legislation===
 
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial 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]''
 
===Resources===
 
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.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/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
 
===Links===
 
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* Legal Services Society Family Law in BC website: [http://www.clicklaw.bc.ca/resource/2278 How to start a family law case (Supreme Court)] and  [http://www.clicklaw.bc.ca/resource/1701 How to get a final family order (Provincial Court)]
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society Website for BC Supreme Court]
* Legal Services Society website: [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation Program]
* [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course] from Justice Education Society
 
 
{{REVIEWED | reviewer = [[Shannon Aldinger]], June 8, 2019}}
 
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