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

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{{JP Boyd on Family Law TOC}}
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{{DEMOWARNING}}{{JP Boyd on Family Law TOC|expanded = bcsc}}{{JPBOFL Editor Badge
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|CoAuthor = [[Elizabeth Cameron]] and [[Rosemary Gallo]]
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|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
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If you want the court to make an order about anything, such as the custody of children or the payment of spousal support or the division of assets, 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 case. While the staff at the court registries are friendly and extremely helpful, it is your job to prepare these materials, gather your evidence and take the steps necessary to bring your case before a judge.
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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.
  
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This chapter offers a brief caution about starting an action in haste and a handy legal fees guesstimator which will help you calculate the potential cost of a trial. This chapter reviews the processes for starting an action in the Supreme Court and the Provincial Court, with a separate discussion of Judicial Case Conferences and Family Case Conferences. Sample court documents are also provided.
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This section deals with the processes for starting or responding to a proceeding in the British Columbia Supreme Court.  
  
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'''DRAFT ONLY'''
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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]].  
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==Hold on for a minute, is litigation really necessary?==
 
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Sometimes, you really have no choice except to start an action. But, please think twice before you do, and make certain that ligitation is your only choice.
 
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The end of a relationship, especially a long relationship, is an emotionally charged, stressful moment. Ligitation is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to court, think about these things first:
 
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Your future relationship with your ex: Right now you might hate your ex and want to rip his or her eyes out. You might not feel that way a in a year or two. If you don't have children, it might be entirely possible for you to simple walk out of each other's lives and into the sunset. If you do have children, you do not have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.
 
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Your children, and your relationship with your children: Your children will be aware that there is a conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in litigation, it can be tremendously difficult to shield the children from the litigation and shield the children from your emotional reaction to the litigation. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely and often in ways you don't expect.
 
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Your own worries and anxieties: Litigation is almost always an uncertain affair. No one, not even your lawyer, will guarantee that you will be successful about any issue. At the end of the day, fundamental decisions will be made by a complete stranger — the judge — about the things that matter the most to you, and his or her decision is not something you can predict with absolute certainty. On top of that, litigation, especially when you're doing it yourself, is extremely stressful. The documents and processes will be new to you, and each court appearance will be a fresh cause of anxiety and uncertainty.
 
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Your pocket book: The only time litigation isn't expensive is when you do it yourself. If you opt to hire a lawyer, be prepared to pay and pay a lot. Sometimes a lawyer can help you get things done quickly and with a minimum of fuss and bother, but if emotions are running high, you stand to pay a whopping legal bill, espcially if you go all the way through to trial.
 
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Speaking of your lawyer's bill, you may want to try my trial fees guesstimator to get a very rough, and probably low, idea of the potential legal fees involved in going to trial.
 
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There are other ways of solving your problem than litigation. Going to court is only one of the ways to bring your dispute to an end. Other, less confrontational and less adversarial approaches include: negotiation, mediation, arbitration and collaborative law. All of these other approaches generally cost a lot less, and, because they are co-operative in nature, they'll give you the best chance of maintaining a working relationship with your ex after the dust has settled. (These options are discussed in more detail the Alternatives to Court section of this website.)
 
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Now, in fairness, there are times when litigation is your only choice. It may be critical to start an action when:
 
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there is a threat or a risk of child abduction;
 
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there has been physical, verbal or sexual abuse in the relationship, whether to you or to your children;
 
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threats have been made to your physical safety, or to the safety of your children;
 
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there is a threat or a risk that your ex will damage, hide or dispose of property;
 
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there is an urgent need to immediately secure some financial support; or,
 
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negotiations have failed and, despite your best efforts, you can't agree on how to solve your differences.
 
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Absent these important factors, your dispute, no matter how ugly it might seem to you, can always be resolved by negotiation or mediation rather than litigation. Even an action for a divorce order, which is the only other time when litigation is required, can be done in a co-operative, non-confrontational manner.
 
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Think twice before deciding that litigation is your only option.
 
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For more information about the emotions that surround the end of a long-term relationship, and how these emotions can affect the course of litigation, read the chapter Marriage & Divorce > Separating Emotionally. You should also track down and read a copy of Tug of War by Mr. Justice Brownstone from the Ontario Court of Justice. He gives a lot of practical advice about the family law court system, when it works best and when it doesn't work at all.
 
  
 
==The Supreme Court==
 
==The Supreme Court==
  
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The main document you will have to prepare is a Notice of Family Claim in form F3, a specical form prescribed by the Supreme Court Family Rules. (This document is one of the basic legal documents in a law suit collectively known as "pleadings".) The primary rules about Notices of Family Claim and the commencement of a law suit are:
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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.
  
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Rule 1-1: definitions
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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:
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Rule 3-1: commencing an action
 
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Rule 4-1: Notices of Family Claim and service requirements
 
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Rule 4-3: replying to an action
 
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Rule 5-1: financial disclosure
 
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Rule 6-3: personal service
 
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Rule 7-1: Judicial Case Conferences
 
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Part 9: disclosure and discovery of documents
 
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Part 10: chambers procedure
 
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Rule 11-4: discontinuing an action
 
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Part 13: expert witnesses
 
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Rule 11-3: summary trial procedure
 
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Rule 14-7: trial procedure
 
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A link to the Supreme Court Family Rules is provided in the section Resources & Links, and much more detailed information about the rules is available in New Rules 101.
 
  
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Sample court forms and blank court forms for download are available in the Downloads segment below.
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*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
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*Rule 5-1: Financial disclosure
 +
*Rule 6-3: Personal service
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*Rule 7-1: Judicial case conferences
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*Part 9: Disclosure and discovery of documents
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*Part 10: Interim applications and chambers procedure
 +
*Rule 11-4: Discontinuing a court proceeding
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*Part 13: Expert witnesses
 +
*Rule 11-3: Summary trial procedure
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*Rule 14-7: Trial procedure
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*Rule 15-2.1: Guardianship orders
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*Rule 15-2.2: Corollary relief proceedings and information that must be provided to the court
  
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===Notice of Family Claim===
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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.  
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The Notice of Family Claim sets out: the name and address for service of the person bringing the claim, the Claimant; the name and address of the person against whom the claim is made, the Respondent; the basic history of the parties' relationship; and, the bare essentials of the Claimant's claims.
 
  
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The form which must be used is Form F3, set out in Appendix A of the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional schedules, which require a lot more detailed information, must be added to the Notice of Family Claim when the Claimant seeks orders about:
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===Quick answers for common questions===
  
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divorce;
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The following issues are addressed in the ''Starting an Action'' section in the Helpful Guides & Common Questions part of this resource:
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children, including child support;
 
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spousal support;
 
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the division of property; and,
 
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other related matters, such as restraining orders.
 
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The Notice of Family Claim must be filed in the court registry and be personally served on the Respondent. (The Respondent has thirty days from the date of service to file a Response to Family Claim.) If you are asking for a divorce order, you'll have to fill out Registration of Divorce Proceeding form when you file your Notice of Family Claim.
 
  
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It costs $200 to file Notice of Family Claim, or $210 if the claim includes a claim for a divorce.
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* '''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?]]
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* '''Personally serving someone:''' For a quick summary of what's involved in personal service, see [[How Do I Personally Serve Someone with Legal Documents?]]
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* '''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?]]
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* '''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?]]
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* '''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?]]
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* '''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?]]
  
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The Divorce Act and Rule 6-3(2) of the 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 go without saying, do not use one of your children to effect service.
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===Preparing, filing and serving the Notice of Family Claim===
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{{LSSbadge
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|resourcetype = guided pathway information on how to
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|link        = [https://mylawbc.com/pathways/family-orders Get family orders]
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}}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:
  
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===Default===
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#the claimant's name and address;
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If the Respondent fails to file and deliver his or her Response to Family Claim within 30 days, the Claimant may be able to obtain an order for the relief claimed in the Notice of Family Claim by way of a default judgment, using the desk order process described in the Marriage & Divorce > Divorce chapter. The idea here is that the Claimant can ask the court for a judgment in default of the Respondent's response by arguing that the Respondent either agrees with the Claimant's claim or has chosen not to oppose it since no Response to Family Claim.
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#the name and address of the person against whom the claim is made, the ''respondent'';
 +
#the basic history of the parties' relationship;
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#the names and birthdates of any children; and,
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#a list of the orders the claimant would like the court to make.
  
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You should be aware that in most cases the courts are fairly lenient towards litigants who miss filing deadlines. A Claimant should not expect to "win" on a technicality of this nature; if a Respondent files his or her Response to Family Claim late, the court will usually, depending on the circumstances, allow the Respondent an extension of time and overlook the missed due date.
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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:
  
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===The Next Steps===
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#divorce;
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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 relief you're seeking. One of three things are going to happen in your action:
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#the care of children and child support;
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#spousal support;
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#the division of property and debt; and,
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#orders about other subjects, like orders for the protection of people or orders for the change of a person's name.
  
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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;
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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.
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you'll not be able to agree, and the intervention of the court at a trial will be required; or,
 
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after some initial scuffles, neither you nor the Respondent will take any steps to further the litigation and the matter will languish.
 
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Whether you're off to trial or a settlement can be reached, the steps until trial are usually these:
 
  
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Exchange Financial Statements: Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements must be exchanged before the first Judicial Case Conference, and updated statements will be required throughout the case and before trial.
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''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.''
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Have a Judicial Case Conference: 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 canvas areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail in the last part of this chapter.
 
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Interim Applications: 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 in their conduct towards each other and the children until the issues can be 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. The process for bringing interim applications is discussed in detail in the chapter The Legal System > Interim Applications.
 
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Document Disclosure and Production: The Rules require that each party produce to the other all documents in their possession that are relevant to the matters at issue in an action. This can include things like bank statements, report cards, medical records, school reports and so forth. Each party must list these documents in a formal List of Documents, and keep their Lists of Documents updated when new documents are found or become available.
 
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Discovery: The parties may, if they wish, conduct a cross-examination of the other party under oath, outside of court. This is called an Examination for Discovery. Examinations for Discovery are helpful to get the other party's views of the evidence and the matters at issue on the record. Discoveries are almost always held after Financial Statements have been prepared and the documents have been exchanged.
 
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Have a Settlement Conference: The Rules allow a party to set a Settlement Conference before a judge ahead of trial. At this hearing, the parties will explain their positions to the court and their areas of disagreement and hopefully negotiate a settlement. These conferences can be very helpful, as the judge will often function as mediator and help the parties work towards setttlement. The judge may also express his or her opinion about the stengths and weaknesses of each party's position, which also encourages settlement.
 
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Have a Trial Management Conference: 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 call, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can 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.
 
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Trial: At the end of the day, if you can't agree 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.
 
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This is, of course, just a rough sketch of the lengthy process of bringing an action to a conclusion. Not every case 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 brief description.
 
  
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===Financial Statements===
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===Deadline for reply===
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If the case involves a claim for spousal support, child support or the division of assets, 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, by a lawyer, notary public or registry clerk.
 
  
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Financial Statements are very important in family law cases. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish amount, the portions about assets and debts will sometimes be used to establish the value of an asset and the outstanding balance of a liability. As well, since Financial Statements are sworn statements, someone making a Financial Statment 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.
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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.
  
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Each party must attach to their Financial Statements a number of important documents:
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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.
  
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the last three years' worth of tax returns (what's required are the complete T1 income tax and benefit returns, not tax return "summaries" or "informations");
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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.
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all Notices of Assessment and Reassessment received in connection with the last three tax years;
 
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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;
 
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business and/or corporate records such as financial statements and corporate income tax returns, if the party has an incoporated or unincorporated business; and,
 
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the most recent BC Assessments for all real property.
 
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The form which must be used is Form F8, set out in Appendix A of the Supreme Court Family Rules.
 
  
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===Judicial Case Conferences===
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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.
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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 contested family law actions, and, in most cases, they must be held before any interim applications can be heard.
 
  
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JCCs are discussed in more detail below.
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===Other documents at the outset of your court proceeding===
  
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===Downloads===
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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.  
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In this segment you can download blank court forms in Word format, samples of completed forms in PDF format and technical papers about the Supreme Court Family Rules. Additional court form templates can be found in the Resources & Links section of this website.
 
  
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1. Sample Documents
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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.
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The links below will open sample court documents in a new window. You will require Adobe Acrobat Reader to view these files, a free program available for download from Adobe Software.
 
  
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In this sample, our fictitious Claimant, Jane Doe, is suing her husband, John Doe, for a divorce, orders relating to the care and control of the children, orders for the payment of spousal and child support, orders relating to the division of property, a common financial restraining order, and a declaration that the parties are unable to reconcile. Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.
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===The next steps===
  
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Also included is a sample of the form required when divorce proceedings are commenced, which notifies the central divorce registry in Ottawa, Ontario, of the commencement of the action for divorce.
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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:
  
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Form F3: Notice of Family Claim (PDF)
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#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''.
−
Registration of Divorce Proceeding (PDF)
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#you'll not be able to agree, and the intervention of the court at a ''trial'' will be required; or,
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Form F8: Financial Statement (PDF)
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#after some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.
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Form F19: Notice of Judicial Case Conference (PDF)
 
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These sample documents are just that: samples. While they represent a more or less accurate picture of how Jane Doe might fill out her forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.
 
  
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2. Court Forms
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Hopefully, it'll be the first.
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Click the links below to open templates in Word format. Areas where you must supply information are indicated in green text.
 
  
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Form F3: Notice of Family Claim (DOC)
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==Responding==
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Form F8: Financial Statement (DOC)
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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.
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Form F19: Notice of Judicial Case Conference (DOC)
 
  
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==The Provincial Court==
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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.")
  
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The Provincial (Family) 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 takes care of things like drafting court orders. The only downside of bringing your case to the Provincial Court is that the court has a limited jurisdiction and can only hear applications under the Family Relations Act dealing with certain issues, including:
+
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:
  
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child support;
+
*Rule 1-1: Definitions
−
spousal support;
+
*Rule 3-1: Starting a court proceeding
−
the variation of previous Provincial Court orders about child and spousal support;
+
*Rule 4-3: Responding to a claim
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arrears of child support or spousal support;
+
*Rule 4-4: Making a counterclaim
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custody and guardianship of children; and,
+
*Rule 5-1: Financial disclosure
−
access to children.
+
*Rule 6-2: Ordinary service
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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 under the Family Relations Act.
+
*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
  
−
A link to the Provincial (Family) Court Rules of Court is provided in the Resources & Links section.
+
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.
  
−
===Application to Obtain an Order===
+
===Quick answers for common questions===
−
Most actions are started in the Provincial (Family) Court by filing an Application to Obtain an Order. (Actions can also be started with an Application to Change an Order or Agreement where there is already a court order or separation agreement.) The person beginning the action, the Applicant, fills out the form, providing: the Applicant's name and address for service; 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 brief statement of the relevant facts. The Applicant then files the form in the court registry.
 
  
−
The form which must be used is Form 1, set out in the Provincial Court Family Court Manual. Applications to Change an Order or Agreement are prepared using Form 2.
+
The following issues are addressed in the ''Defending an Action'' section of the Helpful Guides & Common Questions part of this resource:
  
−
Once the application has been filed, the court registry may take care of serving the Respondent with a copy of the materials you filed. Most registries will require that you take care of serving the Respondent. Once the Respondent has been served, he or she must file a Reply within 30 days.
+
* '''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?]]
 +
* '''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?]]
 +
* '''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?]]
  
−
===Default===
+
===Preparing, filing and delivering the Response to Family Claim===
  
−
A Respondent who fails to file and deliver his or her Reply by 30 days is not entitled to be notified of any further steps taken in the action. This will change, of course, if the Respondent files a Reply down the road, but until that happens the Applicant is free to set a date for the hearing of the action, or for the hearing of an interim application, with no notice to the Respondent.
+
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.
  
−
At the hearing, the Applicant can ask the court to make a default judgment in the Respondent's absence. You should not assume that you'll necessarily get what you want, especially if the action concerns the care and control of children. In a case like that, the court will also consider what is in the children's best interests, and despite the lack of a Reply from the Respondent, the court may not conclude that the children's best interests are served by allowing your 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:
  
−
===The Next Steps===
+
#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.
  
−
In certain registries of the Provincial (Family) Court the parties must meet with a Family Justice Counsellor, and, if children are involved, attend a Parenting After Separation program before any further steps can be taken in a case. This will apply even if you are seeking a default judgment. The court clerk will refer you to the Family Justice Counsellor and tell you where the Parenting After Separation is offered. You will have to file a certificate that you've completed the program before any further steps can be taken in your case.
+
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.
  
−
At court registries that do not have this requirement, an interim application can be brought at any time after the action has commenced by the filing of an Application to Obtain an Order or an Application to Change an Order or Agreement.
+
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.
  
−
The steps which follow the commencement of an action in Provincial (Family) Court are a simplified version of the Supreme Court process. There are less hoops to jump through, but also fewer means to extract information and documents from the other side.
+
===Preparing, filing and delivering a Counterclaim===
  
−
Interim Applications: In almost all cases, the 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 in their conduct towards each other and the children until the issues between them can be finally determined. The most common applications in family law involve restraining orders, issues relating to the care and control of the children, child support and spousal support. The process for bringing interim applications is discussed in detail in the chapter The Legal System > Interim Applications.
+
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.
−
Exchange Financial Statements: Financial Statements are required whenever the payment of support is at issue. Financial Statements are prepared using Form 4.
 
−
Have a Family Case Conference: This is a hearing similar the 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 intended to canvas areas of agreement and set dates and deadlines for the remaining steps in the litigation. Although FCCs are very helpful and often result in settlement, FCCs are not mandatory unless you have been referred to an FCC by a judge. If you think a FCC will help resolve your case, ask for one!
 
−
Have a Settlement Conference: The Rules allow a party to have a Settlement Conference with a judge. At this hearing, the parties will explain their positions to the court and hopefully negotiate a settlement, with the judge acting as a kind of mediator. These conferences can be very helpful, as the judge will often express his or her opinion about each party's position and what the judge thinks the likely result of a trial will be.
 
−
Trial: At the end of the day, if you can't agree on an appropriate settlement, 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. Where neither party is represented by a lawyer, the court clerk will draft a final order based on the judge's Reasons for Judgment.
 
  
−
===Financial Statements===
+
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.
  
−
If a case involves a claim for 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, by a lawyer, notary public or registry clerk. Each party must attach to their Financial Statements the following documents:
+
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:
  
−
their last three years' worth of tax returns;
+
#divorce;
−
their Notices of Assessment and Reassessment for the last three tax years;
+
#the care of children and child support;
−
their most recent paystub, showing their earnings-to-date, or if the party isn't working, then their most recent WCB statement, social assistance statement or EI statement; and,
+
#spousal support;
−
if the party is involved in a business, certain other business and/or corporate records.
+
#the division of property and debt; and,
−
The form which must be used is Form 4, set out in the provincial court Family Court Manual.
+
#orders about other subjects, like orders for the protection of people or orders for the change of a person's name.
  
−
===Family Case Conferences===
+
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.
  
−
Family Case Conferences 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.
+
===The applicant's Response to Counterclaim===
  
−
FCCs are discussed in more detail below.
+
The claimant has 30 days to complete and file a ''Response to Counterclaim'' in Form F6 after being served with your Counterclaim.  
  
−
F. Downloads
 
−
The links below will open a sample Application to Obtain an Order and a sample Application to Change an Order or Agreeement in a new window.
 
  
−
In the sample Application to Obtain an Order, our fictitious applicant, Simon Chang, is suing his common-law partner, Suzie Schwartz, for orders relating to the care and control of the children, an order for the payment child support, and a common restraining order stopping Suzie from removing the children from British Columbia. In the sample Application to Change an Order or Agreement, Simon is asking for an order that Suzie's child support obligation be increased because her income has increased.
+
===Other documents at the outset of your court proceeding===
  
−
Form 1: Application to Obtain an Order
+
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.  
−
Form 2: Application to Change an Order or Agreeement
 
−
Form 4: Financial Statement
 
−
These sample documents are just that: samples. While they represent a more or less accurate picture of how Simon Chang might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.
 
  
−
Areas where you must supply information are indicated in handwritten script.
+
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.
  
−
Back to the top of this chapter.
+
===The next steps===
  
−
==Judicial Case Conferences and Family Case Conferences==
+
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:
  
−
There are a host of reasons why it is important that family law cases are resolved by agreement. From the court's point of view, settlement frees up valuable resources which can be applied to other cases and lessens the likelihood that judicial intervention will be required in the future. From the parties' point of view, settlement is cheap, protects the children from ongoing conflict, and gives everyone involved the best chance of having a tolerable relationship with each other in the future.
+
#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.
  
−
Lawyers also have an interest in settling matters, for all of the same reasons why settlement is important to the courts and to the parties. In addition, we also have a professional and ethical duty to foster and promote settlement wherever possible, providing that a proposed settlement is not an unreasonable compromise of our client's interests.
+
Again, I hope it'll be the first.
  
−
The rules of court have evolved to provide additional opportunities for settlement and steer people toward litigation's off-ramp. In the Supreme Court, we have the Judicial Case Conference under Rule 7-1 and Settlement Conferences under Rule 7-2. In the Provincial Court, we have the Family Case Conference under Rule 7. This segment will discuss the two conferences unique to family law matters.
+
==Resources and links==
  
−
===Judicial Case Conferences===
+
===Legislation===
  
−
Judicial Case Conferences, usually referred to as JCCs, are relatively informal, off-the-record, private meetings between the parties, their lawyers and a master or judge in a courtroom. JCCs must be held in all contested family law actions, and, in most cases, they must be held before any interim applications can be heard.
+
* ''[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/84d8 Supreme Court Act]''
 +
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
 +
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
  
−
Financial Statements must be exchanged by the parties before each JCC. They must also be filed in court in advance of the JCC to give the judge the chance to read through them first.
+
===Resources===
  
−
====Avoiding a JCC====
+
* [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]
 +
* [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]
  
−
Rule 7-1(2) says that:
+
===Links===
  
−
Subject to subrules (3) and (4), unless a judicial case conference has been conducted in a family law case, a party to the family law case must not serve on another party a notice of application or an affidavit in support.
+
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
−
Subrule (3) sets out the exceptions to this requirement:
+
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society website for BC Supreme Court]
 +
* BC Ministry of Attorney General: [https://www.clicklaw.bc.ca/resource/4884 Parenting After Separation Course]
 +
* [https://www.clicklaw.bc.ca/resource/4640 Legal Aid BC's ''Family Law in BC'' website]
 +
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
 +
* 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"]
  
−
where the parties are married, when an application is being made for a declaration that they have no prospect of reconciling;
 
−
when an application is being made for an order restraining either or both parties from disposing of family assets;
 
−
when an order will be made with the consent of both parties; and,
 
−
when the application is being made without notice being given to the other side (sometimes called an ex parte application or a without notice application).
 
−
Subrule (4) sets out some further exceptions to the general rule about JCCs and interim applications, however if you need seek an exception under this subrule, you'll have to make an application to a master for an order granting the exception:
 
  
−
On application by a party, the court may relieve a party from the requirements of subrule (2) if
 
−
(a) it is premature to require the parties to attend a judicial case conference,
 
−
(b) it is impracticable or unfair to require the party to comply with the requirements of subrule (2),
 
−
(c) the application referred to in subrule (2) is urgent,
 
−
(d) delaying the application referred to in subrule (2) or requiring the party to attend a judicial case conference is or might be dangerous to the health or safety of any person, or
 
−
(e) the court considers it appropriate to do so in the circumstances.
 
−
In other words, if your application is urgent you can ask for permission to have your application heard before the first JCC. If your application falls into one of the exceptions set out in Rule 7-1(3), you don't need the court's permission. If your application doesn't fall into either category, you've got little choice but to schedule a JCC for hearing before you can bring your application.
 
  
−
Applications to be exempt from the JCC requirement are made by filing a special form of Requisition, available in the Downloads segment below, without an appearance in court.
 
  
−
====Scheduling a JCC====
+
{{REVIEWED | reviewer = [[Elizabeth Cameron]], 16 January 2024}}
  
−
To set a date for a JCC, first contact the court registry and get their available dates. (JCCs are given a lot of priority by the registry staff, and you should be able to book a hearing date within a month or two.) In most cases, you will want to give these dates to the other side and select a date that you are both available for. It's no more than common courtesy to select a date that's convenient for everyone.
+
{{JP Boyd on Family Law Navbox|type=chapters}}
−
 
+
{{Creative Commons for JP Boyd}}
−
Once you have an agreeable date, call the registry back and tell them which date you've picked. They will then ask you to fill out and file a Notice of Judicial Case Conference in form F19 setting that date. (A sample Notice of Judicial Case Conference can be found in the list of sample documents in the Supreme Court Downloads segment above.)
 
−
 
 
−
According to Rule 7-1(8), you must then serve a copy of your filed Notice of Judicial Case Conference on the other side, along with a copy of your Financial Statement, by ordinary service.
 
−
 
 
−
====The Purpose of JCCs====
 
−
 
 
−
The basic purpose of a JCC is to review the claims eash side is making, determine where there are agreements, and see whether there is anything other than a trial which will resolve the claims in dispute. JCCs are relatively informal affairs, and most of the time everyone sits at a large table with the Judge or Master who is hearing the JCC. JCCs are private: only the parties and their lawyers are allowed to be there. They are also held on an off-the-record basis, so that nothing said in the JCC can be used against anyone later on.
 
−
 
 
−
JCCs are very useful in almost all cases. Some cases will even settle at a JCC, with no need for further litigation.
 
−
 
 
−
Different Judges and Masters will handle JCCs in different ways. Some Judges and Masters are very hands-on; others take a more distant, judicial approach. Some are very keen so try and settle a dispute, and will take on almost a mediative function; others are content to let areas of disagreement alone and focus on known areas of agreement instead. Some Judges and Masters will provide an informal opinion about the likely result in the case; others won't. There are no guarantees that a JCC will be run in a particular way.
 
−
 
 
−
The court's powers at JCCs are set out at Rule 7-1(15) and are very broad. The court may:
 
−
 
 
−
(a) identify the issues that are in dispute and those that are not in dispute and explore ways in which the issues in dispute may be resolved without recourse to trial;
 
−
(b) make orders to which all the parties consent;
 
−
(c) mediate any of the issues in dispute;
 
−
(d) with the consent of the parties, refer any issues to mediation with a private mediator;
 
−
(e) refer the parties to a family justice counsellor, or to a person designated by the Attorney General to provide specialized support assistance, if the court has received written advice from the regional manager that the family justice counsellor or designated person is readily available to the parties;
 
−
(f) direct a party to attend the Parenting after Separation program operated by the Family Justice Services Division (Justice Services Branch), Ministry of Attorney General;
 
−
(g) make orders respecting amendment of a pleading, petition or response to petition within a fixed time;
 
−
(h) make orders requiring that particulars be provided in relation to any matter raised in a pleading;
 
−
(i) make orders respecting discovery of documents;
 
−
(j) make orders respecting examinations for discovery;
 
−
(k) direct that any or all applications must be made within a specified time;
 
−
(l) reserve a trial date for the family law case or reserve a date for a trial that is restricted to issues defined by the parties;
 
−
(m) set a date for a trial management conference under Rule 14-3;
 
−
(n) make any orders that may be made at a trial management conference under Rule 14-3 (9);
 
−
(o) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;
 
−
(p) without limiting any other orders respecting timing that may be made under this subrule, make orders respecting timing of events;
 
−
(q) adjourn the judicial case conference;
 
−
(r) direct the parties to attend a further judicial case conference at a specified date and time;
 
−
(s) make any procedural order or give any direction that the court considers will further the object of these Supreme Court Family Rules.
 
−
At the JCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. Frankly, JCCs usually work best when the parties are able their own views and concerns freely.
 
−
 
 
−
It is important to remember that while the Judge or Master may (and should!) push the parties to agree about certain things, they don't have to. The Judge or Master cannot make any orders, except for procedural orders, that the parties don't agree with. If you're not happy with a potential order that's being discussed, you must say so!
 
−
 
 
−
====Potential Outcomes====
 
−
It is possible for some or all issues to be settled at a JCC. Where there are areas of agreement — which could concern anything, from a temporary access schedule, to a restraining order, to the sale of the family home — the Judge or Master will make that order. Areas that can't be agreed upon will be left for further negotiation and further litigation.
 
−
 
 
−
Even if nothing can be agreed upon, the Judge or Master will usually make a series of orders about the next procedural steps in the litigation. Typically, these will include:
 
−
 
 
−
scheduling an application for hearing;
 
−
setting dates for the exchange of documents and lists of documents;
 
−
setting dates for Examinations for Discovery;
 
−
scheduling a Settlement Conference;
 
−
resolving issues about experts and custody and access reports;
 
−
setting the dates for the Trial Management Conference and the trial; and,
 
−
scheduling the dates for any further JCCs.
 
−
At the end of the conference, the court clerk will print out a Case Management Plan that will show the orders that have been agreed to, the issues still in dispute, and any schedule for the next steps in the litigation. Most of the time, both parties and their lawyers will sign the Case Management Plan; no one needs to sign a Case Management Plan where nothing was agreed to.
 
  
−
5. Downloads
+
[[Category:JP Boyd on Family Law]]
−
Click the links below to open templates in Word format. Areas where you must supply information are indicated in green text.
 
−
 
 
−
Form F8: Financial Statement (DOC)
 
−
Form F17 (FPD 2): Requisition to avoid the JCC requirement (DOC)
 
−
Form F19: Notice of Judicial Case Conference (DOC)
 
−
 
 
−
===Family Case Conferences===
 
−
 
 
−
There are two big differences between JCCs in the Supreme Court and FCCs in the Provincial Court. First, FCCs aren't mandatory and you only get to have a FCC if a judge orders that you have one. Second, the judge has the discretion to make orders without the consent of a party. Otherwise FCCs are pretty much just like JCCs.
 
−
 
 
−
====Applying for a FCC====
 
−
Under Rule 7(1), a judge may order the parties to attend a FCC where the case involves contested claims for custody, guardianship or access. Applications for a FCC can be made at a first appearance or at any subsequent appearance, or by Notice of Motion like any other interim application.
 
−
 
 
−
It is fairly easy to get an order that a FCC be heard. The court will not be interested in granting a FCC if:
 
−
 
 
−
it's obvious that you've asked for the FCC to obstruct the hearing of trial or an interim application;
 
−
there's already been an FCC heard in your case and there's nothing to suggest that a new FCC will have a better chance of success; or,
 
−
there is an urgent reason for the case to head to trial without further delay.
 
−
 
 
−
====Scheduling a FCC====
 
−
 
 
−
FCCs are booked by the judicial case manager, and if you get an order for a FCC, the judge will adjourn your case to the JCM to get a date set up. Like JCCs, it is good idea to pick a date on which everyone is available to attend.
 
−
 
 
−
The JCM will fix the date for the FCC on the spot and give you a slip with the date and time on it.
 
−
 
 
−
====The Purpose of FCCs====
 
−
 
 
−
The purpose of a FCC is to reach a settlement of any disputed parenting issues. Although Rule 7 limits the circumstances in which a FCC can be ordered to parenting issues, it doesn't say that no other issues can be discussed at a FCC, and the judge may be prepared to deal with support issues as well.
 
−
 
 
−
FCCs are relatively informal affairs, and most of the time everyone sits at a large table with the judge who is hearing the FCC. FCCs are private; under Rule 7(2) only the parties and their lawyers are allowed to be there. Under Rule 7(3), the judge may give permission for other people, including the parties' child, to attend. FCCs are held on an off-the-record basis, so that nothing said in the FCC can be used against anyone later on.
 
−
 
 
−
Although different judges will handle FCCs in different ways, most of the time the judge will act like a mediator. Some judges will handle the FCC in a very proper, judicious manner. Others are more hands-on and will do everything they can to help the parties settle their issues, including:
 
−
 
 
−
scheduling a series of FCCs;
 
−
speaking directly to the children;
 
−
ordering or recommending views of the child reports; and,
 
−
asking important third-parties, like a new spouse or a half-sibling, to attend a future FCC.
 
−
At the FCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. Frankly, FCCs usually work best when the parties are able their own views and concerns freely.
 
−
 
 
−
Cases often settle at FCCs. In order to maximize the chances of settlement, it is critical that you get proper legal advice about your situation and options before you go to the FCC if you don't have a lawyer. If you do have a lawyer, you should speak to him or her about the range of potential results and areas where you might want to compromise your position.
 
−
 
 
−
====Potential Outcomes====
 
−
 
 
−
It is possible for some or all issues to be settled at a FCC. Where there are areas of agreement, the judge will make that order. Issues that can't be agreed upon will be left for further negotiation and further litigation.
 
−
 
 
−
Rule 7(4) sets out the things a judge can do at a FCC:
 
−
 
 
−
The judge at the family case conference may do one or more of the following:
 
−
(a) mediate any of the issues in dispute;
 
−
(b) decide any issues that do not require evidence;
 
−
(c) with consent of the parties, refer any issues to mediation with a private mediator;
 
−
(d) if the regional manager has advised the court in writing that the person or program is readily available to the parties, refer the parties to a family justice counsellor or to a person designated by the Attorney General to provide specialized maintenance assistance;
 
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(e) adjourn the case for purposes of mediation under paragraph (c) or a referral under paragraph (d);
 
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(f) make an order to which all of the parties consent;
 
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(g) direct that any or all applications must be made within a set time;
 
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(h) direct the parties to attend a further family case conference, setting a date for that conference;
 
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(i) set a date for a trial preparation conference under rule 8;
 
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(j) make any order that may be made at a trial preparation conference under rule 8 (4);
 
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(k) if the judge does not set a date for a further family case conference or for a trial preparation conference, set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;
 
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(l) make an interim or final order requested in an application, reply or notice of motion;
 
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(m) without hearing witnesses, give a non-binding opinion on the probable outcome of a hearing or trial;
 
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(n) make any other order or give any direction that the judge considers appropriate.
 
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Although that last item, "make any other order or give any direction that the judge considers appropriate," sounds pretty all-encompassing and all-powerful, in practice the court rarely makes orders that one or more party opposes.
 
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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
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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
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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.


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