Resolving Family Law Problems in Court

The process of starting a court proceeding and wrapping it up at trial can be complicated. This chapter discusses the process for starting, and replying to, court proceedings in British Columbia's Provincial Court and Supreme Court, making applications before trial, and completing a trial.

This section provides a thumbnail sketch of the basic court process common to all family law court proceedings. The following sections in this chapter provide more detail about starting a proceeding, replying to a proceeding, going to case conferences, making applications for temporary and urgent orders, enforcing orders, and changing final orders.

Hold on for a minute, do you really have to go to court?

Sometimes, you really have no choice except to start a court proceeding. But you should think twice before you do, and make sure that litigation is your best choice.

The end of a relationship, especially a long relationship, is an emotionally charged, stressful time. Court 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 start a court proceeding, think about these things first:

Your future relationship with your ex. Right now you might hate your ex and want to make their life miserable. You might not feel that way in a year or two. If you don't have children, it might be entirely possible for you to simply walk out of each other's lives and into the sunset. If you do have children, however, you don't have that option. Your relationship as lovers and partners might be over, but your relationship as parents will continue forever.

Your children, and your relationship with your children. Your children will be aware that there is a certain degree of conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in a court proceeding, it can be tremendously difficult to shield the children from the litigation, from your emotional reactions to the litigation, and from your conflict with their other parents. 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.

Your own worries and anxieties. Litigation is always an uncertain process. No one, not even your lawyer, can guarantee that you will be completely successful about any particular issue. At the end of the day, fundamental decisions will be made by a complete stranger — a judge — about the things that matter the most to you, and the judge's decision is not something you can predict with any certainty. On top of that, litigation, especially when you're doing it yourself, is very stressful. The forms and processes will be new to you, and each court appearance will likely be a fresh cause of anxiety and uncertainty.

Your wallet. If you opt to hire a lawyer, be prepared to pay and to 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, especially if you go all the way through to trial. Even if you don't hire a lawyer, litigation can be expensive, and if you are unsuccessful you can also be ordered to pay the other side's court costs.

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, collaborative negotiation and arbitration. All of these other approaches generally cost a lot less, and, because they are cooperative 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 in the chapter Resolving Family Law Problems out of Court.

Now, in fairness, there are times when going to court may be your only choice. It may be critical to start a court proceeding when:

1. there has been family violence in your relationship, whether involving you or your children;
2. there have been threats to your physical safety, or to the safety of your children;
3. your ex has threatened to take the children out of town, out of the province, or out of the country against your wishes;
4. there is a threat or a risk that your ex will damage, hide, or dispose of property;
5. you urgently need to get some financial help;
6. negotiations have failed and, despite your very best efforts, you and your ex can't agree on how to solve your differences; or,
7. your ex refuses to communicate with you about the legal issues that need to be resolved.

While you should think twice before deciding that court is your only option, starting a lawsuit doesn't mean that you can't continue to try to negotiate a resolution outside of the court process.

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 section Separating Emotionally in the chapter Separation and Divorce. 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.

You might also want to read a paper I wrote for people who are representing themselves in court proceedings, "The Rights and Responsibilities of the Self-Represented Litigant".

Okay, I'm going to court. Which court do I go to?

Before getting any deeper into this chapter, go review the chapter Understanding the Legal System, in particular, the section on The Court System. What you'll learn there is that there are two courts that hear trials in British Columbia, the Provincial Court and the Supreme Court, and that these courts are very different from one another.

The Provincial Court deals with issues relating to parenting children, child support, spousal support, and orders protecting people under the Family Law Act. The Supreme Court has the authority to deal with all of those issues, but can also deal with issues about parentage, dividing property and debt, and orders protecting property under the act. Only the Supreme Court has the authority to make orders under the Divorce Act, including orders for divorce. This chart shows which trial court can deal with which family law problem:

	Supreme Court	Provincial Court
Claims under the Divorce Act	All claims
Claims under the Family Law Act	All claims	Some but not all claims
Divorce	Yes
Guardianship and parenting children	Yes	Yes
Time with children	Yes	Yes
Child support	Yes	Yes
Children's property	Yes
Spousal support	Yes	Yes
Family property and family debt	Yes
Orders protecting people	Yes	Yes
Orders protecting property	Yes

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 rules of the Provincial Court are shorter and more straightforward, and the court doesn't charge any fees.

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.

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 Criminal Code or the Controlled Drugs and Substances Act. Civil matters concern claims between people, companies and governments. Family law cases are civil matters.

Provincial Court Early Resolution and Case Management Pilot Project

Differences

A few definitions

Before going further, it'll help to learn some of the terminology used in litigation. (You can call find more definitions in the 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.)<
• Respondent: The person or people against whom a court proceeding is brought are the respondents.
• Parties: The claimant and the respondent are, together, called the parties to the court proceeding.
• 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 to Obtain an Order or an Application to Change or Cancel an Order. (In this section, "claim" refers to all of these documents.)
• 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, which includes a section to make a counterclaim against an applicant. (In this section, "reply" refers to all of these documents.)
• 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 to Obtain an Order and the Reply.
• 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.

The court process in a nutshell

Court proceedings in the Provincial Court and the Supreme Court, other than proceedings in criminal matters, work more or less like this.

The claimant starts the proceeding. The person who wants a court order, 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.

The respondent files a response. The respondent has a certain amount of time after being served to reply to the court proceeding by filing a response in court. (The number of days is set out 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.

The claimant files a reply. The claimant has a certain amount of time after receiving the counterclaim to reply to any claim made by the respondent by filing a reply 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.

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. For more details, see the section Starting a Court Proceeding in a Family Matter in this chapter.

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 section about Case Conferences in this chapter.

Each party answers questions out of court. In court proceedings before the Supreme Court, each party is 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. This is also an opportunity to ask each party to provide more documents.

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 later, often weeks or even months later.

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.

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.

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.

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.

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.

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.

For more details see the section Interim Applications in this chapter.

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 Provincial Court are very different than the rules of the 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.

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.

Resources and links

Legislation

• Provincial Court Family Rules
• Provincial Court Act
• Supreme Court Family Rules
• Supreme Court Act
• Court of Appeal Rules
• Court of Appeal Act
• Court Rules Act

Resources

• Provincial Court Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Court of Appeal Practice Directives
• Tug of War by Mr. Justice Brownstone
• "The Rights and Responsibilities of the Self-Represented Litigant" (PDF) by John-Paul Boyd

Links

• Courts of British Columbia website
• Provincial Court website
• Supreme Court website
• Supreme Court Trial Scheduling
• Court of Appeal website
• Guidebooks from the BC Supreme Court website
• Justice Education Society's Court Tips for Parents (videos)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 3 April 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.