7,759
edits
Difference between revisions of "Resolving Family Law Problems in Court"
From Clicklaw Wikibooks
Resolving Family Law Problems in Court (view source)
Revision as of 22:47, 3 January 2025
, 3 Januaryno edit summary
Nate Russell (talk | contribs) |
Nate Russell (talk | contribs) |
||
| Line 79: | Line 79: | ||
|} | |} | ||
The rules of the Supreme Court can be very complicated and fees are charged for many steps in the court process, including filing the paperwork that starts a court proceeding, making an application, or going to trial. The Provincial Court process is intended to be more affordable and easier to navigate without a lawyer's help. Visit Legal Aid BC's Family Law website for more information, including ''[https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court If you have to go to court]'' and ''[https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/trials-provincial-court Trials in Provincial Court].'' | The rules of the Supreme Court can be very complicated and fees are charged for many steps in the court process, including filing the paperwork that starts a court proceeding, making an application, or going to trial. The Provincial Court process is intended to be more affordable and easier to navigate without a lawyer's help, although there are still many different forms and the paperwork can be long and complicated. Visit Legal Aid BC's Family Law website for more information, including ''[https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court If you have to go to court]'' and ''[https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/trials-provincial-court Trials in Provincial Court].'' | ||
It is possible to start a proceeding in the Provincial Court to deal with things like child support, and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. It can be complicated to split your family law issues between two courts. A lot of people find it easier just to deal with everything in one court, but because of the limits of the authority of the Provincial Court, the Supreme Court is the only choice available. | It is possible to start a proceeding in the Provincial Court to deal with things like child support, and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. It can be complicated to split your family law issues between two courts. A lot of people find it easier just to deal with everything in one court, but because of the limits of the authority of the Provincial Court, the Supreme Court is the only choice available. | ||
| Line 85: | Line 85: | ||
==What's the court process going to be like?== | ==What's the court process going to be like?== | ||
If you need the court to make an order about something, even about something you might agree to, like a divorce, you must start a ''court proceeding''. Court proceedings are also called cases, lawsuits, and actions. There are two types of court proceedings, ''criminal matters'' and ''civil matters''. Criminal matters concern the government's claim that someone has broken a criminal law, like the ''[http://canlii.ca/t/7vf2 Criminal Code]'' or the ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''. Civil matters concern claims between people, companies and governments. Family law cases are civil matters. | If you need the court to make an order about something, even about something you might agree to, like a divorce, you must start a ''court proceeding''. 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. | ||
Court proceedings are also called cases, lawsuits, and actions. There are two types of court proceedings, ''criminal matters'' and ''civil matters''. Criminal matters concern the government's claim that someone has broken a criminal law, like the ''[http://canlii.ca/t/7vf2 Criminal Code]'' or the ''[http://canlii.ca/t/7vtc Controlled Drugs and Substances Act]''. Civil matters concern claims between people, companies and governments. Family law cases are civil matters. | |||
===A few definitions=== | ===A few definitions=== | ||
Before going further, it'll help to learn some of the terminology used in litigation. (You can | Before going further, it'll help to learn some of the terminology used in litigation. (You can find more definitions in the [[Terminology|Common Legal Words and Phrases]] chapter of this resource.) | ||
*'''Family law proceeding:''' A court proceeding that is started to resolve a family law dispute, and other civil claims related to that dispute. | *'''Family law proceeding:''' A court proceeding that is started to resolve a family law dispute, and other civil claims related to that dispute. | ||
| Line 102: | Line 104: | ||
===The court process in a nutshell=== | ===The court process in a nutshell=== | ||
Even though there are many important differences between BC Provincial Court and BC Supreme Court, they follow a similar sequence of steps: | |||
<blockquote>'''The claimant starts the proceeding.''' | <blockquote>'''The claimant starts the proceeding.''' Someone has to start the litigation process, and the person who takes initiative for seeking a court order is called the ''claimant''. The claimant starts a court proceeding by filing a ''claim'' in court and serving the filed claim on the respondent. The claims says what orders the claimant wants the court to make. Serving the filed claim involves having the claim hand-delivered to the ''respondent'' by someone other than the claimant.</blockquote> | ||
<blockquote>'''The respondent files a response.''' The respondent has a | <blockquote>'''The respondent files a response.''' The respondent has a fixed amount of time after being served to reply to the court proceeding by filing a ''response'' in court. (The number of days is indicated in the document filed by the claimant to start the court proceeding.) The response says which of the orders sought by the claimant are agreed to by the respondent and which are opposed. The respondent can also ask the court for orders they want. If the respondent wants a court order, the respondent will file a claim of their own, called a ''counterclaim''. The response and any counterclaim must be delivered to the claimant.</blockquote> | ||
<blockquote>'''The claimant files a reply.''' The claimant has a | <blockquote>'''The claimant files a reply.''' The claimant has a fixed amount of time after receiving the counterclaim to reply to any claim made by the respondent. This ''reply'' to the counterclaim is filed in court. The reply says which of the orders sought by the respondent are agreed to by the claimant and which are opposed. The claimant's reply must be delivered to the respondent.</blockquote> | ||
<blockquote>'''The parties exchange information.''' Next, the parties gather the information and documents they need to explain why they should have the orders they are asking for. Because trials are not run like an ambush, the parties must exchange their information and documents well ahead of trial. This way everyone knows exactly what is going on and how strong each | <blockquote>'''The parties exchange information.''' Next, the parties gather the information and documents they need to explain why they should have the orders they are asking for. Because trials are not run like an ambush, the parties must exchange their information and documents well ahead of trial. This way everyone knows exactly what is going on and how strong each person's case is. There are different processes in Supreme Court and Provincial Court for exchanging information, which are covered in their own sections for the chapters dedicated to each court. In BC Supreme Court there is another important step related to exchanging information, which is called ''discovery''. Supreme Court litigants are usually required to attend an ''examination for discovery''. This is an opportunity for each party to ask the other parties questions about things that are relevant to the legal issues so that everyone knows the evidence that will be given at the trial. BC Supreme Court discovery procedures also offer an opportunity to obtain more documents and information from the other side.</blockquote> | ||
<blockquote>'''The parties attend case conferences.''' ''Case conferences'' are meetings with judge to talk about the court proceeding. They often provide an opportunity to talk about settlement option and to ask for orders about steps in the court proceeding as the proceeding heads to trial. For more about case conferences, see the | <blockquote>'''The parties attend case conferences.''' ''Case conferences'' are meetings with a judge to talk about the court proceeding. They often provide an opportunity to talk about settlement option and to ask for orders about steps in the court proceeding as the proceeding heads to trial. For more about case conferences, see the sections about Case Conferences in the chapters dedicated to each court. </blockquote> | ||
<blockquote>'''Go to trial.''' Assuming that settlement isn't possible, court proceedings are resolved by trials. At trial, each of the parties presents their evidence and explains to the judge why the judge should make the orders they're asking for. The judge may make a decision resolving the decision on the spot; most often, however, the judge will want to think about the evidence and the parties' arguments and will give a written decision after taking some time, often giving the decision weeks or even months later.</blockquote> | |||
<blockquote>'''Go to trial.''' Assuming that settlement isn't possible, court proceedings are resolved by trials. At trial, each of the parties presents their evidence and explains to the judge why the judge should make the orders they're asking for. The judge may make a decision resolving the decision on the spot; most often, however, the judge will want to think about the evidence and the parties' arguments and will give a written decision | |||
Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process. You can even decide to try mediation in the middle of a court proceeding, and, if you are getting tired of the court process or are worried about how long it will take to have a trial, you can abandon the court process altogether and go to arbitration. | Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process. You can even decide to try mediation in the middle of a court proceeding, and, if you are getting tired of the court process or are worried about how long it will take to have a trial, you can abandon the court process altogether and go to arbitration. | ||
====The role of interim applications==== | |||
While working your way through the court process, you may find that it's sometimes necessary to ask for ''interim orders''. These are temporary orders that address a short-term problem or need, or that help the court proceeding get to trial. In family law cases, people often ask for interim orders to protect someone when family violence is an issue, to deal with the payment of child support or spousal support, to get a parenting schedule in place, to determine how the children will be cared for, or to protect property while waiting for the trial. | While working your way through the court process, you may find that it's sometimes necessary to ask for ''interim orders''. These are temporary orders that address a short-term problem or need, or that help the court proceeding get to trial. In family law cases, people often ask for interim orders to protect someone when family violence is an issue, to deal with the payment of child support or spousal support, to get a parenting schedule in place, to determine how the children will be cared for, or to protect property while waiting for the trial. | ||
The process for interim orders is a miniature version of the larger process for getting a claim to trial. | It is common for parties to make interim applications in BC Supreme Court. The process for interim orders in BC Supreme Court is a miniature version of the larger process for getting a claim to trial. | ||
Here is a quick look at how interim applications work in BC Supreme Court: | |||
<blockquote>'''The applicant starts the application.''' The person who wants the interim order, the ''applicant'', starts the application process by filing an application and an affidavit in court, and delivering the filed application and affidavit on the other party, called the ''application respondent''. The application describes the orders the applicant wants the court to make. The affidavit describes the facts that are relevant to the application and the orders the applicant is looking for. For more information about affidavits, see the page, [[How Do I Prepare an Affidavit?]], in the Helpful Guides & Common Questions part of this resource.</blockquote> | <blockquote>'''The applicant starts the application.''' The person who wants the interim order, the ''applicant'', starts the application process by filing an application and an affidavit in court, and delivering the filed application and affidavit on the other party, called the ''application respondent''. The application describes the orders the applicant wants the court to make. The affidavit describes the facts that are relevant to the application and the orders the applicant is looking for. For more information about affidavits, see the page, [[How Do I Prepare an Affidavit?]], in the Helpful Guides & Common Questions part of this resource.</blockquote> | ||
<blockquote>'''The application respondent files a response.''' The ''application respondent'', the person who is responding to the application, has a certain amount of time after receiving the application and affidavit to file a response and an affidavit in court. The response says which orders the person agrees to and which they object to. The affidavit describes any additional facts that are important to the application. The response and affidavit must be delivered to the applicant.</blockquote> | <blockquote>'''The application respondent files a response.''' The ''application respondent'', the person who is responding to the application, has a certain (and fairly short) amount of time after receiving the application and affidavit to file a response and an affidavit in court. The response says which orders the person agrees to and which they object to. The affidavit describes any additional facts that are important to the application. The response and affidavit must be delivered to the applicant.</blockquote> | ||
<blockquote>'''The applicant may file another affidavit.''' The applicant has a certain amount of time after receiving the application respondent's materials to file another affidavit in court. This affidavit is a response to the application respondent's affidavit and describes any additional facts that are important to the application. This affidavit must be delivered to the application respondent.</blockquote> | <blockquote>'''The applicant may file another affidavit.''' The applicant has a certain amount of time after receiving the application respondent's materials to file another affidavit in court. This affidavit is a response to the application respondent's affidavit and describes any additional facts that are important to the application. This affidavit must be delivered to the application respondent.</blockquote> | ||
| Line 132: | Line 134: | ||
<blockquote>'''Go to the hearing.''' Assuming that settlement isn't possible, the only way to resolve the application is to have a hearing. At the hearing, each of the parties will present the evidence set out in their affidavits and explain to the judge why the judge should, or shouldn't, make the orders asked for. Most of the time the judge will make a decision resolving the decision on the spot; sometimes, however, the judge will want to think about the evidence and the parties' arguments, and will give a written decision later.</blockquote> | <blockquote>'''Go to the hearing.''' Assuming that settlement isn't possible, the only way to resolve the application is to have a hearing. At the hearing, each of the parties will present the evidence set out in their affidavits and explain to the judge why the judge should, or shouldn't, make the orders asked for. Most of the time the judge will make a decision resolving the decision on the spot; sometimes, however, the judge will want to think about the evidence and the parties' arguments, and will give a written decision later.</blockquote> | ||
For | In BC Provincial Court, this process is very different. For details please consult the chapters dedicated to each court, which include sections explaining how applications work: | ||
* [[Interim Applications and Supreme Court Family Law Proceedings]], and | |||
* [[Interim Applications and Provincial Court Family Law Proceedings]] | |||
There are lots of details we've skipped over in this brief overview, including details about important things like experts, case conferences, and the rules of evidence, but this is the basic process in a nutshell. These other details are governed by each court's set of rules. The rules of court are very important, and the rules of the [http://canlii.ca/t/b8rn Provincial Court] are ''very'' different than the rules of the [http://canlii.ca/t/8mcr Supreme Court]. | There are lots of details we've skipped over in this brief overview, including details about important things like experts, different types of case conferences, and the rules of evidence, but this is the basic process in a nutshell. These other details are governed by each court's set of rules. The rules of court are very important, and the rules of the [http://canlii.ca/t/b8rn BC Provincial Court] are ''very'' different than the rules of the [http://canlii.ca/t/8mcr BC Supreme Court]. | ||
You can probably guess that getting a court proceeding to trial can be a long and involved process, and that if you have a lawyer representing you, it'll cost a lot of money to wrap everything up. Making these procedural delays worse, trial dates are often in short supply. In Vancouver, for example, you may not be able to get dates for a one-week trial any sooner than 18 months. | You can probably guess that getting a court proceeding to trial can be a long and involved process, and that if you have a lawyer representing you, it'll cost a lot of money to wrap everything up. Making these procedural delays worse, trial dates are often in short supply. In both Vancouver and Victoria, for example, you may not be able to get dates for a one-week trial any sooner than 18 months. | ||
It's important to remember that you and the other party can agree to resolve your dispute out of court at any time in this process. If you haven't done so already, please read the chapter [[Resolving Family Law Problems out of Court]]. | It's important to remember that you and the other party can agree to resolve your dispute out of court at any time in this process. If you haven't done so already, please read the chapter [[Resolving Family Law Problems out of Court]]. | ||
| Line 192: | Line 196: | ||
Section 8 of the Rules clearly states that “parties may come to an agreement or otherwise reach resolution about family issues at any time”. That means that even if it’s the morning of your trial and you’re all ready to go, you and your ex can decide to settle without going to trial. | Section 8 of the Rules clearly states that “parties may come to an agreement or otherwise reach resolution about family issues at any time”. That means that even if it’s the morning of your trial and you’re all ready to go, you and your ex can decide to settle without going to trial. | ||
The new Rules have also divided various courthouse registries into different categories. For example, Victoria is an ''Early Resolution Registry'', | The new Rules have also divided various courthouse registries into different categories. For example, Victoria is an ''Early Resolution Registry'', Nanaimo is a ''Family Justice Registry'', and Prince George is a ''Parenting Education Program Registry''. Each type of registry has different requirements and for Early Resolution Registries, parties have to try mediation before proceeding to court (unless the court agrees that mediation isn’t appropriate). For more information about each type of registry, see the section on [[Starting a Court Proceeding in a Family Matter]], under the heading Early Resolution Registries. | ||
No matter the registry in which you find yourself, there are certain steps you have to take before you’ll be able to argue before a judge. In most cases, the first time that parties will be before a judge will be at what’s called a ''Family Management Conference'' (also called an “FMC”), which is a settlement-focused appearance. If settlement isn’t possible at the FMC, the judge can make orders (by consent or not), make interim orders to address needs until resolution is reached, and determine next appropriate steps. | No matter the registry in which you find yourself, there are certain steps you have to take before you’ll be able to argue before a judge. In most cases, the first time that parties will be before a judge will be at what’s called a ''Family Management Conference'' (also called an “FMC”), which is a settlement-focused appearance. If settlement isn’t possible at the FMC, the judge can make orders (by consent or not), make interim orders to address needs until resolution is reached, and determine next appropriate steps. Parties can also attend settlement conferences, where a judge can help the parties see if any or all issues can be settled before trial. | ||
A notable difference between Supreme Court and Provincial Court is that costs are | A notable difference between Supreme Court and Provincial Court is that costs are almost never payable in Provincial Court. That said, a word of caution: if a judge decides that cross examining an expert witness was unnecessary, then the party who decides to cross examine that expert can be responsible for the cost paid to that witness for their time testifying, which can be in the thousands of dollars. | ||
===The Supreme Court=== | ===The Supreme Court=== | ||
The | The [http://canlii.ca/t/8mcr Supreme Court Family Rules] also includes a few carrots and sticks to promote settlement. The biggest stick is the court's jurisdiction to make an order about ''costs''. An order for "costs" is an order that one party pay for some or all of the expenses another party incurred dealing with the court proceeding. Costs are usually, but not always, awarded to the party who is most successful at trial. They can also be awarded to punish bad behaviour in the course of a court proceeding, or to penalize a party who failed to accept a reasonable settlement proposal. | ||
The chapter on [[Family Law Litigation in Supreme Court]] discusses costs and other rules promoting settlement, including: | |||
The Notice to Mediate (Family) Regulation | *'''Judicial case conferences''': Rule 7-1 of the Supreme Court Family Rules requires that the parties attend a ''judicial case conference'' before they can send a Notice of Application or an affidavit to another party. A judicial case conference, usually referred to as a "JCC," is a relatively informal, off-the-record, private meetings between the parties, their lawyers, and a judge in a courtroom. The judge at a JCC holds a broad authority to take steps and make orders that promote settlement. What's really cool about JCCs is that a party may request a judicial case conference at any time, whether or not one or more judicial case conferences have already been held. If there's a chance of settlement as you head toward trial, take advantage of this rule and book another JCC! | ||
*'''Settlement conferences''': Rule 7-2 of the Supreme Court Family Rules allows for settlement conferences. These are are relatively informal meetings between the parties, their lawyers, and a judge that are solely concerned with finding a way to settle the court proceeding. Settlement conferences are private and held on a confidential, off-the-record basis, so that nothing said in the conference can be used against anyone later on. | |||
*'''Offers to settle''': At any time during a BC Supreme Court proceeding, a party can propose how all of the claims made in the claimant's Notice of Family Claim and in the respondent's Counterclaim should be wrapped up. A party receiving an offer to settle can decide to accept the offer or to refuse it. There are, however, important consequences for refusing a reasonable offer. | |||
*'''Notice to Mediate Regulation''': Under the [http://canlii.ca/t/85bd Notice to Mediate (Family) Regulation], someone who is a party to a court proceeding in the Supreme Court can make the other parties go to mediation by serving a Notice to Mediate on them. | |||
The list above is simply a preview of the ways that the BC Supreme Court promotes settlement. The chapter on [[Family Law Litigation in Supreme Court]] explains each one in more detail. | |||
==Resources and links== | ==Resources and links== | ||
