Responding to a Court Proceeding in a Family Matter

If an action has been started against you, you have two choices: do nothing or defend yourself. If you agree with the orders sought, 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 answer the claim or you risk losing by default.

This chapter will discuss the process for defending an action in the Supreme Court and in the Provincial Court. Sample court documents are provided.

For a more complete picture of the court process, this chapter should be read together with the previous chapter, The Legal System > Starting an Action, which sets out the obligations and responsibilities of the person who starts an action and features a detailed discussion of Judicial Case Conferences and Family Case Conferences.

DRAFT ONLY

The Supreme Court

If you are being sued in the Supreme Court, you are the Respondent in the Claimant's action. The court form you must prepare is a Response to Family Claim; you may also prepare a form called a Counterclaim if there is a claim you would like to make against the Claimant. These documents, and the Claimant's Notice of Family Claim, are called pleadings.

The primary rules about Responses to Family Claim and Counterclaims, and defending a law suit are:

Rule 1-1: definitions Rule 3-1: commencing an action Rule 4-1: starting an action Rule 4-3: Responses to Family Claim Rule 4-4: Counterclaims Rule 5-1: financial disclosure Rule 6-3: personal service Rule 7-1: Judicial Case Conferences Part 9: disclosure and discovery of documents Part 10: chambers procedure Rule 11-4: discontinuing an action Part 13: expert witnesses Rule 11-3: summary trial procedure Rule 14-7: trial procedure A link to the Supreme Court Family Rules is provided in the section Resources & Links, and much more detailed information about the rules is available in New Rules 101.

Sample court forms and blank court forms for download are available in the Downloads segment below.

Preparing, Filing and Delivering the Response to Family Claim

This document contains your reply, or defence, to the Claimant's Notice of Family Claim. A Response to Family Claim sets out:

which of the Claimant's claims you agree with and which you oppose; which of the facts given by the Claimant are true and which you say are untrue; and, your address for service. The form which must be used is Form F4, set out in Appendix A of the Supreme Court Family Rules of Court. You must file your Response to Family Claim at the court registry within 30 days of being served with the Notice of Family Claim, and send a copy of the filed Response to Family Claim to the Claimant by ordinary service.

It costs $25.00 to file a Response to Family Claim.

Preparing, Filing and Delivering the Counterclaim

A Counterclaim sets out the Respondent's claims against the Claimant. 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 subject 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 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 what you don't agree with. Unless a Counterclaim is filed, the only person asking for anything is the Claimant. If you are successful in your defence, there may be no claims left for the court to make an order about. Say the Claimant wants you to have the children on one weekend a month, but you would prefer a shared-parenting arrangement and have them every other week. It isn't enough just to say "I don't want to see the children just once each month" (which is what you'll say in your Response to Family Claim ), you also need to say "I want them for half the time" (which is what you'll say in your Counterclaim).

A Counterclaim is almost a mirror of the form used for the Notice of Family Claim. A Counterclaim sets out your version of the facts and the relief you seek against the Claimant.

The form which must be used is Form F5, set out in Appendix A of the Supreme Court Family Rules. This is a special form of Counterclaim used in family law actions. You must file your Counterclaim within 30 days of being served with the Notice of Family Claim, and send a copy of the filed Response to Family Claim to the Claimant by ordinary service.

It costs $200.00 to file a 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 are going to happen in your action:

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; you'll not be able to agree, and the intervention of the court at a trial will be required; or, after some initial scuffles, neither you nor the Claimant will take any steps to further the litigation and the matter will languish. Whether you're off to trial or a settlement can be reached, the steps until trial are usually these:

Exchange Financial Statements: Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements must be exchanged before the first Judicial Case Conference, and updated statements will be required throughout the case and before trial. Have a Judicial Case Conference: 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 canvas areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail in the last part of this chapter. Interim Applications: 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 in their conduct towards each other and the children until the issues can be 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. The process for bringing interim applications is discussed in detail in the chapter The Legal System > Interim Applications. Document Disclosure and Production: The Rules require that each party produce to the other all documents in their possession that are relevant to the matters at issue in an action. This can include things like bank statements, report cards, medical records, school reports and so forth. Each party must list these documents in a formal List of Documents, and keep their Lists of Documents updated when new documents are found or become available. Discovery: The parties may, if they wish, conduct a cross-examination of the other party under oath, outside of court. This is called an Examination for Discovery. Examinations for Discovery are helpful to get the other party's views of the evidence and the matters at issue on the record. Discoveries are almost always held after Financial Statements have been prepared and the documents have been exchanged. Have a Settlement Conference: The Rules allow a party to set a Settlement Conference before a judge ahead of trial. At this hearing, the parties will explain their positions to the court and their areas of disagreement and hopefully negotiate a settlement. These conferences can be very helpful, as the judge will often function as mediator and help the parties work towards setttlement. The judge may also express his or her opinion about the stengths and weaknesses of each party's position, which also encourages settlement. Have a Trial Management Conference: 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 call, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can 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. Trial: At the end of the day, if you can't agree 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 is, of course, just a rough sketch of the lengthy process of bringing an action to a conclusion. Not every case 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.

D. Downloads In this segment you can download blank court forms in Word format, samples of completed forms in PDF format and technical papers about the Supreme Court Family Rules. Additional court form templates can be found in the Resources & Links section of this website.

1. Sample Documents The links below will open sample court documents in a new window. You will require Adobe Acrobat Reader to view these files, a free program available for download from Adobe Software.

In this sample, our fictitious Respondent, John Doe, is defending a suit brought by his wife, Jane Doe. Jane is seeking orders relating to the care and control of the children, orders for the payment of spousal and child support, orders relating to the division of property, a common financial restraining order, and a declaration that the parties are unable to reconcile. John agrees with some of her claims, but he opposes her claims about the care of the children and the payment of spousal support. John is seeking orders about the care of the children and the division property, a declaration that the parties cannot reconcile and a certificate of pending litigation against the title of the family home.

Form F4: Response to Family Claim (PDF) Form F5: Counterclaim (PDF) These related materials have already been filed by Jane:

Form F8: Financial Statement (PDF) Form F19: Notice of Judicial Case Conference (PDF) These sample documents are just that: samples. While they represent a more or less accurate picture of how John Doe might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

2. Court Forms Click the links below to open templates in Word format. Areas where you must supply information are indicated in green text.

Form F4: Response to Family Claim (DOC) Form F5: Counterclaim (DOC) Form F8: Financial Statement (DOC) Form F19: Notice of Judicial Case Conference (DOC) Back to the top of this chapter.

The Provincial Court

If you are being sued in the Provincial Court, you are the Respondent to the Applicant's appliction, (which I'll call an action to keep things simple). If you've been served with an Application to Obtain an Order or an Application to Change an Order, you have two choices: do nothing or defend yourself. If you agree with the relief sought, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or if you completely disagree with the Applicant's claims you must reply to the Application to Obtain an Order or the Application to Change an Order, or you risk losing by default.

Preparing, Filing and Delivering the Reply

If you choose to defend yourself, you must complete and file a document called a "Reply" within 30 days of the date you were served with the application. There is no fee to file a Reply.

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

consent to the relief claimed in the application, or consent to only some of the relief claimed by the Applicant; object to all or some of the relief claimed in the application, providing you give reasons as to why you oppose the relief; and, apply for the orders you would like the court to make. The form which must be used is Form 3, set out in the Provincial Court Family Court Manual. A link to the Provincial (Family) Court Rules of Court is provided in the section Resources & Links.

The Next Steps

In certain registries of the Provincial (Family) Court the parties must meet with a "Family Justice Counsellor," and, if children are involved, attend a Parenting After Separation program, before any further steps can be taken in a case. This will apply even if you are seeking a default judgment. The court clerk will refer you to the Family Justice Counsellor and tell you where the Parenting After Separation is offered. You will have to file a certificate that you've completed the program before any action can be taken in your case.

At court registries that do not have this requirement, an interim application can be brought at any time after the action has commenced by the filing of an Application to Obtain an Order, or one of the other sorts of actions listed above.

The steps which follow the commencement of an action in Provincial (Family) Court are a watered down version of the Supreme Court process. There are less hoops to jump through, but also less means to extract information and documents from the other side.

Interim Applications: In almost all cases, the 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 in their conduct towards each other and the children until the issues between them can be finally determined. The most common applications in family law involve restraining orders, issues relating to the care and control of the children, child support and spousal support. The process for bringing interim applications is discussed in detail in the next chapter The Legal System > Interim Applications. Exchange Financial Statements: Financial Statements are required whenever the payment of support is at issue. Financial Statements are prepared using Form 4. Have a Family Case Conference: This is a hearing similar the 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 intended to canvas areas of agreement and set dates and deadlines for the remaining steps in the litigation. All they are very usual and often result in settlement, FCCs are not mandatory unless you have been referred to an FCC by a judge. If you think a FCC will help resolve your case, ask for one! FCCs are discussed in detail in the previous chapter The Legal System > Starting an Action. Have a Settlement Conference: The Rules allow a party to set a Settlement Conference before a judge. At this hearing, the parties will explain their positions to the court and their areas of disagreement and hopefully negotiate a settlement. These conferences can be very helpful, as the judge will often express his or her opinion about each party's position and what the judge thinks the likely result of a trial will be. Trial: At the end of the day, if you can't agree on an appropriate settlement, 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. 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 case involves a claim for 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, by a lawyer, notary public or registry clerk. Each party must attach to their Financial Statements the following documents:

their last three years' worth of tax returns; their Notices of Assessment and Reassessment for the last three tax years; their most recent paystub, showing their earnings-to-date, or if the party isn't working, then their most recent WCB statement, social assistance statement or EI statement; and, if the party is involved in a business, certain other business and/or corporate records. The form which must be used is Form 4, set out in the provincial court Family Court Manual.

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 are discussed in mode detail in the previous chapter The Legal System > Starting an Action.

E. Downloads The link below will open a sample Reply in a new window.

In the sample Reply, our fictitious respondent, Suzie Schwartz, agrees with the application of her partner, Simon Chang, for an order that she not remove their child from British Columbia, but she disagrees with everything else. As well, she seeks a few orders relating to the care and control of the child herself, as well as a restraining Order stopping Simon from harassing her.

Form 3: Reply Form 4: Financial Statement This sample document is just that: a sample. While it represents a more or less accurate picture of how Suzie Schwartz might fill out this form, it may not be applicable to your situation. Use it as a reference only together with the official court form.

Areas where you must supply information are indicated in black script.