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Difference between revisions of "Resolving Family Law Problems in Court"

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Resolving Family Law Problems in Court (view source)

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*'''Family law action''' or '''Family law proceeding:''' In general a family law action is a type of ''civil action'' (i.e. it's not a criminal case), and is started by a person (or persons) seeking to resolve a family law dispute. A family law action can still include other civil claims related to that family law dispute, but the both the BC Supreme Court and Provincial Court treat family law actions differently from other general civil actions, and each level of court has a specific set of court rules, which include their forms, for family law matters. The court records for family law actions are also not as open to the public, and are treated differently from other kinds of actions according to the courts' records access policies.
*'''Family law action''' or '''Family law proceeding:''' A general term for any kind of family law issue that is brought before the courts. A family law action is a type of ''civil action'' (i.e. it's not a criminal case), and is started by a person (or persons) seeking the court's help in resolving questions or disputes about their legal rights, obligations, or status in relation to other family members. A family law action can include other civil claims related to family law issues, but both the BC Supreme Court and Provincial Court treat family law actions differently from general civil claims. Each level of court has specific sets of court rules related to family law actions, which include unique forms for family law matters. Court records for family law actions are not as open to the public as general civil claims, and are treated differently by the courts' records access policies.  
*'''Claim:''' In basic terms, a claim is an assertion of a legal right to an order or to a thing. It can also refer to the remedy or relief sought by a party to a court proceeding. Claims are usually contained in the initial documents (specific court forms) that the parties file. The claim usually includes a summary of the relevant facts alleged by the claimant, the laws the claimant says are relevant, and the claimant's list of the orders they want the court to make.
*Various terms to do with ''cases'', ''proceedings'', ''matters'':
*'''Application:''' In both BC Supreme Court and Provincial Court an application often refers to any request that a party makes for a court to grant an order or provide a decision, and it usually implies an interim step. In Provincial Court, however, ''application'' is also used to describe the document that starts a claim.
** '''Family law matter''' is defined in the Provincial Court Family Rules and does not appear in the Supreme Court Family Rules, the ''Family Law Act'', or the ''Divorce Act''. A ''family law matter'' is narrowly defined as a "case" before the Provincial Court about: parenting arrangements (including parental responsibilities and parenting time), child support, contact with a child, guardianship of a child, spousal support, and/or property division in respect of a companion animal. It does not include cases about ''child protection'', ''protection orders'' (for victims of family violence), or adult guardianship, and it does not include to claims under the ''Divorce Act'', adoption matters, or (most) claims for property or pension division, for which the Provincial Court has no jurisdiction.
*'''Claimant:''' The person who starts a family law action in BC Supreme Court is called the ''claimant''. There can be more than one claimant, but we will use the singular for simplicity.
**'''Family law case''' is defined in the Supreme Court Family Rules and does not appear in the Provincial Court Family Rules, the ''Family Law Act'', or the ''Divorce Act''. A ''family law case'' is broadly defined as a "proceeding" (including ''joint'' or ''undefended'' ones)  before the BC Supreme Court where the claims relate to: orders under the ''Divorce Act'' or the ''Family Law Act'', orders for adoption, common law claims based on ''unjust enrichment'' (if in a marriage-like relationship), and/or orders under ''FHRMIRA'' (legislation dealing with family homes on First Nations reserve land).
*'''Applicant:''' In the Provincial Court, the person who starts a court proceeding is the ''applicant''. In the litigation chapters, claimants and applicants may be referred to as a "claimant".)
**'''Family law dispute''' is a defined term from the ''Family Law Act'' meaning any dispute respecting a matter to which the ''Family Law Act'' itself relates. The term does not really show up in the Supreme Court Family Rules or the Provincial Court Family Rules. It should not be confused with ''family dispute resolution process'', which appears in the ''Divorce Act'', or ''family dispute resolution professional'', which appears in the ''Family Law Act'' and both the family rules of both courts.
*'''Respondent:''' Any person a ''claimant'' names and seeks orders against in a family law action is called a ''respondent''. There can be more than one respondent, but we will use the singular for simplicity.  
**'''Divorce proceeding''' is defined in the ''Divorce Act'' and means a "proceeding" where either or both spouses seeks a divorce order, either on its own or along with a child support order, a spousal support order, or a parenting order. The Provincial Court cannot hear ''Divorce Act'' proceedings, so this term is only applicable in BC Supreme Court.
*'''Parties:''' The claimant and the respondent are, together, called the ''parties'' to the family law action (no matter how many actual claimants or respondents there might be).
**'''Corollary relief proceeding''' is defined in both the ''Divorce Act'' and the Supreme Court Family Rules and means a "proceeding" where either or both ''former spouses'' (i.e. people who are already divorced) seek a child support order, a spousal support order, or a parenting order under the ''Divorce Act'' (so not the ''Family Law Act''). The Provincial Court cannot hear ''Divorce Act'' proceedings, so this term is only applicable in BC Supreme Court.
*'''Claim:''' A claim is an assertion of a legal right to an order or to a thing. It can also refer to the remedy or relief sought by a party to a court proceeding. Claims are usually contained in the initial court forms that the parties file (i.e. ''pleadings''). The claim usually includes a summary of the relevant facts alleged by the claimant, the laws the claimant says are relevant, and the claimant's list of the orders they want the court to make.
*'''Application:''' In both BC Supreme Court and Provincial Court an application often refers to any request that a party makes for a court to grant an order or provide a decision. In BC Supreme Court, it implies an interim step taken by a party to get an order after the ''pleadings'' or initial court forms have been filed and a family law proceeding is already commenced. In Provincial Court, however, ''application'' refers to both the court form that starts a family law proceeding ''and'' the interim steps taken afterwards.
*'''Claimant:''' The person who starts a family law case in BC Supreme Court is called the ''claimant''. There can be more than one claimant, but we will use the singular for simplicity.
*'''Applicant:''' In the Provincial Court, the person who starts a family law matter or other proceeding is the ''applicant''. In the litigation chapters, applicants may also be referred to as "claimants".
*'''Respondent:''' Any person a ''claimant'' (in BC Supreme Court) or ''applicant'' (in Provincial Court) names and seeks orders against in a family law action is called a ''respondent''. There can be more than one respondent, but we will use the singular for simplicity.  
*'''Parties:''' The claimant (or applicant) and the respondent are, together, called the ''parties'' to the family law action (no matter how many actual claimants or respondents there might be).
*'''Reply''' or '''Response:''' A respondent who objects to all or some of the orders sought by a claimant will file a document that responds to, or answers, the claimant's claim. This document is usually the ''Response to Family Claim'', in a BC Supreme Court action, and a ''Reply to an Application about a Family Law Matter'', in a Provincial Court action. In their response or reply, the respondent states if they agree or disagree with (some or all of) the facts alleged by the claimant, and if they agree or disagree with (some or all of) the orders the claimant is asking for.
*'''Reply''' or '''Response:''' A respondent who objects to all or some of the orders sought by a claimant will file a document that responds to, or answers, the claimant's claim. This document is usually the ''Response to Family Claim'', in a BC Supreme Court action, and a ''Reply to an Application about a Family Law Matter'', in a Provincial Court action. In their response or reply, the respondent states if they agree or disagree with (some or all of) the facts alleged by the claimant, and if they agree or disagree with (some or all of) the orders the claimant is asking for.
*'''Counterclaim:''' A respondent is not limited to merely responding to the claimant's claim. They also can make a claim and give the court their own list of orders they want the court to make. In BC Supreme Court they do this by filing a separate specific counterclaim form, while in Provincial Court the counterclaim is made in the same form that contains their reply. In BC Supreme Court, if the respondent is served with a ''Petition to Court'', the respondent will need to apply to court to convert the claim from a petition-based proceeding into a full action (typically the Petition to Court would then be deemed to be a Notice of Family Claim, and the respondent could then file a Response to Family Claim in addition to a Counterclaim). A counterclaim is similar to a claim. It provides a summary of the relevant facts of the family law action, the laws the respondent says are relevant, and the respondent's wish list of the orders the respondent will want the court to make in the court action.  
*'''Counterclaim:''' A respondent is not limited to merely responding to the claimant's claim. They also can make a claim and give the court their own list of orders they want the court to make. In BC Supreme Court they do this by filing a separate specific counterclaim form, while in Provincial Court the counterclaim is made in the same form that contains their reply. In BC Supreme Court, if the respondent is served with a ''Petition to Court'', the respondent will need to apply to court to convert the claim from a petition-based proceeding into a full action (typically the Petition to Court would then be deemed to be a Notice of Family Claim, and the respondent could then file a Response to Family Claim in addition to a Counterclaim). A counterclaim is similar to a claim. It provides a summary of the relevant facts of the family law action, the laws the respondent says are relevant, and the respondent's wish list of the orders the respondent will want the court to make in the court action.  
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