Responding to a Court Proceeding in a Family Matter

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JP Boyd on Family Law
JP Boyd on Family Law
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If a court proceeding has been started against you, you have two choices: do nothing or reply to the proceeding and defend yourself. If you 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 reply to the claim or you risk losing by default.

This section discusses the process for replying to a court proceeding in the Supreme Court and the Provincial Court. For a more complete picture of the court process, read this section together with the section on Starting a Court Proceeding.

The Supreme Court

If you are being sued in the Supreme Court, you are the respondent in a court proceeding that has been started by the claimant. If you disagree with any of the orders the claimant is asking for, you must prepare a Response to Family Claim. You can also prepare a Counterclaim if there is an order you would like to ask for. These documents, together with the claimant's Notice of Family Claim, are called pleadings.

The primary Supreme Court Family Rules about Responses to Family Claim and Counterclaims, replying to a court proceeding and trials are:

  • Rule 1-1: definitions
  • Rule 3-1: starting a court proceeding
  • Rule 4-3: Responses to Family Claim
  • Rule 4-4: Counterclaims
  • 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 Family Claim
  • Part 13: expert witnesses
  • Rule 11-3: summary trial procedure
  • Rule 14-7: trial procedure
  • Rule 15-2.1: guardianship orders

Links to and examples of the Response to Family Claim, Counterclaim and other court forms can be found in Supreme Court Forms & Examples. 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 section Defending an Action in the How Do I? part of this resource.

Quick Tips: Defending an action in the Supreme Court

The following tips are located in the section Defending an Action in the How Do I? part of this resource:

Preparing, filing and serving your response

You must file a Response to Family Claim at the court registry within 30 days of being served with the claimant's Notice of Family Claim.

The Notice of Family Claim sets out the basic history of the parties' relationship and an outline of the orders the claimant would like the court to make. Your Response to Family Claim says which of the claimant's claims you agree with and which you oppose, and 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.

The Response to Family Claim must be filed in the court registry and be served on the claimant by ordinary service. It costs $25 to file a Response to Family Claim. Ordinary service means sending a copy of the filed response to the claimant at any of the addresses for service identified in the Notice of Family Claim.

Preparing, filing and serving a counterclaim

If there are any orders you would like to ask for, you may file a Counterclaim at the court registry within 30 days of being served with the claimant's Notice of Family Claim. Your Counterclaim describes the orders you would like the court to make.

It can be very important to file a Counterclaim if you want the court to make an order on different terms or about a different issue than the claims made 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 his or her Notice of Family Claim. Your Response to Family Claim doesn't ask for anything; it just says what you do and don't agree with. Unless a Counterclaim is filed, the only person asking for any orders is the claimant. If you are successful in your defence, there may be no claims left for the court to make an order about.

The form you must use is Form F5, set out in the Supreme Court Family Rules. 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:

  • divorce,
  • children, including child support,
  • spousal support,
  • the division of property and debt, and
  • other orders, like protection orders or orders for the change of a person's name.

The Counterclaim must be filed in the court registry and be served on the claimant by ordinary service. It costs $200 to file a Counterclaim.

Deadline for reply

The claimant has 30 days to file a Response to Counterclaim in Form F6 after being served with the respondent's Counterclaim. Very few people bother to file a Response to Counterclaim. Many would only go to the trouble of preparing a response if there was something unusual or unexpected in the Counterclaim.

The next steps

Although you've decided to defend the claimant's claims, you're not necessarily going to 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.
  3. After some initial scuffles, neither you nor the claimant will take any further steps in the court proceeding and the proceeding will languish.

Whether you're off to trial or a settlement can be reached, the steps until trial are usually these:

1. Exchange Financial Statements. Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements are prepared in Form 8. Financial Statements must be exchanged before the first judicial case conference, and updated statements will be required throughout the case and before trial. These are discussed in more detail further on in this section.

2. Have a judicial case conference (JCC). 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 talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this section.

3. Make interim applications as needed. 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 until the claims at issue in the court proceeding are 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. This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.

4. Disclose documents and information. The rules of court require each party to produce to the other all documents that are relevant to the issues in a court proceeding. This can include things like bank statements, report cards, medical records, school reports, and income tax returns. Each party must list these documents in a formal List of Documents, and keep their List of Documents updated when new documents are found or become available.

5. Examine each other out of court. The parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an examination for discovery. Examinations for discovery, also called discoveries, are helpful to get each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged.

6. Have a settlement conference. The rules of court allow a party to schedule a settlement conference before a judge ahead of trial. At this hearing, the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement.

7. Have a trial management conference (TMC). 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 present, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be 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, although the judge at the TMC can order that a settlement conference happen.

8. Go to trial. At the end of the day, if you can't agree on a resolution 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.

This description of the steps involved is just a rough sketch of the lengthy process of bringing a court proceeding to a conclusion. Not every proceeding 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.

Financial statements

If a court proceeding involves a claim for spousal support, child support, the division of property or the division of debt, 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, before a lawyer, notary public, or registry clerk.

Financial Statements are very important in family law proceedings. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish value, the portions about assets and debts may be used to determine the value of an asset and the amount owing on a debt. As well, since Financial Statements are sworn statements, someone making a Financial Statements 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.

Each party must attach to their Financial Statements a number of important documents:

  1. the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
  2. all notices of assessment and reassessment received for the last three tax years,
  3. 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,
  4. business records like financial statements and corporate income tax returns, if the party has a company, and
  5. the most recent BC Assessments for all real property.

The form you must use is Form F8, set out in the Supreme Court Family Rules.

Judicial case conferences

Judicial case conferences (JCCs) 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 family law proceedings where the parties can't agree, and, in most cases, they must be held before any interim applications can be heard.

JCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at JCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application!

This chapter has more information about JCCs in the section Case Conferences in a Family Law Matter.

The Provincial Court

If a court proceeding has been started against you in the Provincial Court, you are the respondent in the proceeding. The person who started the court proceeding is the applicant. If you agree with the orders the applicant is asking for, doing nothing is the quickest way to handle things. On the other hand, if you only partly agree or if you completely disagree with what the applicant is asking for, you must prepare a Reply.

The primary Provincial Court (Family) Rules about Replies, defending a court proceeding and trials are:

  • Rule 1: definitions
  • Rule 3: Replies
  • Rule 4: financial disclosure
  • Rule 6: the first and subsequent appearances in court
  • Rule 7: family case conferences
  • Rule 11: trial procedure
  • Rule 12: interim applications
  • Rule 14: consent orders
  • Rule 18: orders
  • Rule 18.1: guardianship orders
  • Rule 21: Parenting After Separation program

Links to and examples of the Reply and other court forms can be found in Provincial Court Forms & Examples. For a quick introduction to how to reply to a proceeding, see How Do I Respond to a Family Law Action in the Provincial Court? It's located in the section Defending an Action in the How Do I? part of this resource.

Limitations of the Provincial Court

The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantage of proceeding in the Provincial Court is that the authority of the court is limited. The Provincial Court can only hear applications under the Family Law Act on certain subjects, including:

  • guardianship,
  • parental responsibilities and parenting time,
  • contact with a child,
  • child support, and
  • spousal support.

The Provincial Court cannot hear claims under the federal Divorce Act. It cannot hear claims under the Family Law Act for orders relating to the division of property and debt.

Preparing, filing and delivering the reply

If you decide to defend yourself, you must complete a form called a Reply and file it within 30 days of the date you were served with the Application to Obtain an Order. There is no fee to file a reply.

In your reply, you can do one or more of the following things:

  • agree to some or all of the orders the applicant is asking for,
  • object to some or all of the orders the applicant is asking for, and
  • apply for any orders you would like the court to make.

The form you must use is Form 3, set out in the Provincial Court Family Rules. The reply must be filed in the court registry and the court clerk will take care of delivering your reply to the applicant.

Deadline for the applicant's reply

The applicant has 30 days to file a Reply in Form 3 after being served with the respondent's Reply if the respondent's Reply asks for any orders. Very few applicants bother to file a Reply of their own. Many applicants only go to the trouble of preparing a Reply if there was something unusual or unexpected in the respondent's Reply.

The next steps

In certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a Parenting After Separation program before you can take any further steps in your case. This may apply even if you are seeking a default judgment. The court clerk at your court registry will tell you what is needed. If necessary, the court clerk will refer you to the family justice counsellor and tell you where the Parenting After Separation program is offered. You will have to file a certificate that you've completed the program.

The steps that follow the commencement of a proceeding in the Provincial Court are a simplified version of the Supreme Court process. There are fewer hoops to jump through, but also fewer means to extract information and documents from the other side.

1. Meet with a family justice counsellor and take the Parenting After Separation Program. Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try mediation. The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available online. The online course does not replace the need to attend an in-person course if that is otherwise required.

2. Exchange financial statements. Financial statements are required whenever the payment of child support or spousal support is an issue. Financial statements are prepared in Form 4.

3. Have a family case conference (FCC). This is a hearing similar to 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 to talk about the facts and issues, and set dates and deadlines for the remaining steps in the court proceeding. Although FCCs are very helpful and often result in settlement, FCCs only address issues about the care of children and are not mandatory unless you have been referred to an FCC by a judge. If you think an FCC will help resolve your case, ask for one!

4. Make interim applications as needed. In almost all family law proceedings, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need orders about things like where the children will live and whether support should be paid until trial. The most common applications in family law involve restraining orders, orders about the care of children, child support, and spousal support. The process for bringing interim applications is discussed in detail in this chapter in the section on Interim Applications in Family Matters.

5. Have a trial preparation conference (TPC). A TPC 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 present, whether documents have been exchanged, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TPC is generally not an opportunity to engage in settlement discussions.

6. Go to trial. At the end of the day, if you can't reach a settlement, you will have to have a 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 should make the orders they are asking for. 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

If a court proceeding involves 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, before a lawyer, notary public, or registry clerk.

Each party must attach to their Financial Statement the following documents:

  1. the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
  2. all notices of assessment and reassessment received for the last three tax years,
  3. 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, and
  4. business records like financial statements and corporate income tax returns, if the party has a company.

The form you must use is Form 4, set out in the Provincial Court Family Rules.

Family case conferences

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.

FCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at FCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application if you have to hire a lawyer.

This chapter discusses FCCs in more detail in Case Conferences in a Family Law Matter.

Resources and links

Court forms and examples of what the court forms look like when they're filled out, are available at Supreme Court Forms (Family Law) and Provincial Court Forms (Family Law).

Legislation

Resources

Links

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 24, 2013.


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