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

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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.)
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.
 
*'''Claimant or Applicant:''' The person who starts a court proceeding in the Supreme Court is the ''claimant''. In the Provincial Court, this person is the ''applicant''. (In this section, "claimant" refers to both claimants and applicants.)
*'''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.
*'''Respondent:''' The person or people against whom a court proceeding is brought are the ''respondents''.
*'''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.
*'''Parties:''' The claimant and the respondent are, together, called the ''parties'' to the court proceeding.
*'''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.
*'''Claim or Application:''' The document that is filed to start a court proceeding in the Supreme Court is a ''Notice of Family Claim'' or, less often, a ''Petition''. In the Provincial Court, court proceedings are started with an ''Application About a Family Law Matter''. (In this section, "claim" refers to all of these documents.)
*'''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.
*'''Reply and Counterclaim:''' A respondent who objects to all or some of the orders sought by a claimant in the Supreme Court will file a ''Response to Family Claim'' and sometimes a ''Counterclaim:'' A Counterclaim lets a respondent make claims of their own against a claimant. In the Provincial Court, a respondent will file a ''Reply to an Application about a Family Law Matter'', which includes a section to make a counterclaim against an applicant. (In this section, "reply" refers to all of these documents.)
*'''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".)
*'''Pleadings:''' The basic documents that are used to start and reply to a court proceeding are called the ''pleadings''. In most Supreme Court family law proceedings, the pleadings are the Notice of Family Claim, the Response to Family Claim, and, usually, a Counterclaim. In most Provincial Court proceedings, the pleadings are the Application About a Family Law Matter and the Reply to an Application about a Family Law Matter.
*'''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.  
*'''Trial:''' The formal hearing of a claim, a response to a claim and a counterclaim by a judge, following which the judge makes an order resolving all of the claims and counterclaims made in the court proceeding.
*'''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).
*'''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.
*'''Response to Counterclaim:''' A claimant who objects to all or some of the orders requested in the ''counterclaim'' will file a specific form depending on the court they are in. This document is similar to a ''reply'', but the claimant states if they agree or disagree with (some or all of) the facts contained in the counterclaim, and if they agree or disagree with (some or all of) the orders the respondent is asking for.  
*'''Pleadings:''' The documents that a claimant and a respondent file in court to start or reply to family law action are called ''pleadings''. In most BC Supreme Court family law actions, the pleadings are the Notice of Family Claim, the Response to Family Claim, Counterclaim, and Response to Counterclaim. In Provincial Court, these are typically the Application about a Family Law Matter and the Reply to an Application about a Family Law Matter.
*'''Judicial Case Conference (or JCC)''': In BC Supreme Court family law actions this is likely the first court appearance where the parties must attend. A JCC happens early on, takes about an hour and a half, and is a somewhat informal process. The parties and their lawyers (if they have them) sit down at a table with a judge to discuss a possible resolution of some or all of the orders requested in the claim and counterclaim. A JCC is like a mini mediation. The judge cannot make any orders (other than some procedural orders) unless the parties agree, and what is discussed is confidential and cannot be used outside of the JCC proceedings. 
* '''Interim Application:''' An interim application is an application that a claimant or respondent brings to court, when they want the court to make a temporary (interim) order. Interim applications are made after the court action has been started, after the parties have attended whatever mandatory conferences the court requires, and before trial. A party can sometimes apply for an order that allows them to bring their interim application before a conference is held.
* '''Affidavit:''' A legal document in which a person provides evidence of certain facts and events in writing. Affidavits are important in applications and summary trials because written testimony is generally the only form of evidence that the court will hear from parties and witnesses outside of a proper trial setting. The person making the affidavit (called the ''deponent'') must confirm that the statements made in the affidavit are true, and they must be signed in front of a ''commissioner for taking oaths'' (usually a lawyer, a notary public, or a court official) who takes the ''oath'' or ''affirmation'' of the deponent. Affidavits are used as evidence, and as a substitute for having the person make the statements in court before a judge. An affidavit often includes documents (that are attached to the affidavit as ''exhibits'') to support the facts stated in the affidavit. For example, if the deponent says that they received a text message from one of the parties stating their plan to move to Alberta, a printed copy of the text message can be printed and attached to the affidavit as an exhibit. Depending on the type of interim application a party brings, they will usually need to file an affidavit together with their application.
* '''Financial statement:''' Both levels of court have a special form for the parties to swear or affirm their financial statements. It is basically an affidavit specifically tailored to provide financial information about the party who swears or affirms it. A party in a family law action that involves child support, spousal support, the division of property, or the division of debt will need to prepare a financial statement, and fill in information and provide specific documents according to the orders being requested by the parties.
* '''Trial:''' The court makes its final decision about the orders the parties request in their claim and counterclaim at trial. A trial is a formal hearing where the parties and their lawyers (if they have them), appear before a judge and present their evidence by calling on live witnesses to give testimony. The parties or their lawyers provide their argument (submissions) which tells the court why it should make the orders listed in their claim or counterclaim. In BC Supreme Court, a summary trial is the same as a trial except that the evidence from parties and their witnesses is given by affidavit, as opposed to each person appearing in-person to tell the court their evidence. A BC Supreme Court summary trial can resolve some or all of the orders the parties are asking for in their claim or counterclaim. For simplicity, when we use the term ''trial'', we refer to both summary trials and traditional trials.
* '''Costs:''' This has a specific meaning in BC Supreme Court. ''Costs'' are what one party must pay another party based on a formula set out in the Supreme Court Family Rules. Costs are usually payable by the unsuccessful party, but costs orders can also be made against parties that behave poorly or act unreasonably. Since a party might receive a costs award in one application where they were successful, have mixed success in another application, then be unsuccessful at trial, etc., costs are usually tallied up and sorted out after litigation has ended. Parties may then settle costs by agreement, or go before the Registrar to have them determined for them. Costs mean that there are some financial consequences for pursuing a weak claim (or resisting a stronger one), but costs will almost never compensate even the most successful party for what they actually spent on legal fees and other expenses. Judges retain a lot of discretion to decide costs consequences for specific hearings, deprive or reward costs for parties, and use costs as a mechanism to discourage unreasonable behaviour.
* '''Judge:''' Both levels of court have their own judges. In the BC Supreme Court there are a few different judicial roles relevant to family law actions. In BC Supreme Court, the term ''judge'' typically refers to a full ''Justice'' of the court, someone with the power to make final or interim decisions for any type of claim, and under any kind of procedure. An ''Associate Judge'' (formerly called a ''Master'' of the court) has more restricted jurisdiction, but is an important judicial officer especially for family law matters in the BC Supreme Court. Associate judges can hear and decide on ''interim applications'' (where interim and procedural orders are made) but they cannot preside at trial or issue a ''final judgment''. The other judicial role within the BC Supreme Court to be aware of is that of the ''Registrar'', who can preside over limited and specific types of hearings (e.g. hearings to settle costs). The kind of BC Supreme Court judge that might hear your application depends on the orders you are asking the court to make. In the litigation chapters "judge" is used to refer to all types of judges in both courts.


===The court process in a nutshell===
===The court process in a nutshell===