7,759
edits
Difference between revisions of "Starting and Responding to Supreme Court Family Law Proceedings"
Jump to navigation
Jump to search
Starting and Responding to Supreme Court Family Law Proceedings (view source)
Revision as of 22:29, 20 December 2024
, 22:29, 20 December 2024no edit summary
Nate Russell (talk | contribs) |
Nate Russell (talk | contribs) |
||
| Line 16: | Line 16: | ||
* '''Steps 10 & 11''' are follow-up steps applicable to both parties. | * '''Steps 10 & 11''' are follow-up steps applicable to both parties. | ||
==Step 1: | ==Step 1: Claimant completes the correct forms== | ||
As a claimant who's initiating the court action, you need to use the correct court form depending on the types of orders you are asking for. | |||
Rule 3-1 of the [https://canlii.ca/t/8mcr BC Supreme Court Family Rules]. This rule says which court form you need to file to start your BC Supreme Court family action. In general, these actions are started by completing and filing a Form F3 Notice of Family Claim. See Rule 3-1(1). Some exceptions include when: | Rule 3-1 of the [https://canlii.ca/t/8mcr BC Supreme Court Family Rules]. This rule says which court form you need to file to start your BC Supreme Court family action. In general, these actions are started by completing and filing a Form F3 Notice of Family Claim. See Rule 3-1(1). Some exceptions include when: | ||
| Line 54: | Line 54: | ||
* If you require a '''Certificate of Pending Litigation''' (CPL): A CPL is a ''lien'' you can file against the title of real estate property that the other side has an interest in. You need to complete Form 33 from the ''Land Title Act'', file it in court, and then register it against the other party’s interest in the title of the property. Courthouse Libraries BC has an [https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/filing-certificate-pending-litigation information page about CPLs on its website], which includes a link to the BC Supreme Court's information package about CPLs. | * If you require a '''Certificate of Pending Litigation''' (CPL): A CPL is a ''lien'' you can file against the title of real estate property that the other side has an interest in. You need to complete Form 33 from the ''Land Title Act'', file it in court, and then register it against the other party’s interest in the title of the property. Courthouse Libraries BC has an [https://www.courthouselibrary.ca/how-we-can-help/our-legal-knowledge-base/filing-certificate-pending-litigation information page about CPLs on its website], which includes a link to the BC Supreme Court's information package about CPLs. | ||
=== | ===Starting a BC Supreme Court action is a one-time thing=== | ||
Once you have filed a Form F3 Notice of Family Claim, you do not need to file a new one to ask for other court orders against the same respondent. No matter how many years have passed since you started your BC Supreme Court action, or how many years have passed since the court last made an order in the action, the court action stays alive. You may want to add to or make changes to the orders you are requesting, but you do this by a process called ''amendment''. See [[How Do I Change Something in My Notice of Family Claim?]] in the [[Helpful Guides & Common Questions]] part of this resource. | Once you have filed a Form F3 Notice of Family Claim, you do not need to file a new one to ask for other court orders against the same respondent. No matter how many years have passed since you started your BC Supreme Court action, or how many years have passed since the court last made an order in the action, the court action stays alive. You may want to add to or make changes to the orders you are requesting, but you do this by a process called ''amendment''. See [[How Do I Change Something in My Notice of Family Claim?]] in the [[Helpful Guides & Common Questions]] part of this resource. | ||
| Line 109: | Line 109: | ||
If the respondent asks a claimant for more time to file their Form F4 Response to Family Claim, Form F4, the claimant will normally give the Respondent a reasonable extension to file their response. What is reasonable in any given case depends on how urgent you want the court to make orders you ask for in your Form F3 Notice of Family Claim. The more urgent, the shorter the extension of time, the less urgent the more time you can give the respondent. As a rule of thumb, in non-urgent cases, two to three week extensions of time are commonly agreed to. | If the respondent asks a claimant for more time to file their Form F4 Response to Family Claim, Form F4, the claimant will normally give the Respondent a reasonable extension to file their response. What is reasonable in any given case depends on how urgent you want the court to make orders you ask for in your Form F3 Notice of Family Claim. The more urgent, the shorter the extension of time, the less urgent the more time you can give the respondent. As a rule of thumb, in non-urgent cases, two to three week extensions of time are commonly agreed to. | ||
===Respondent agrees with | ===Respondent agrees with your orders=== | ||
A respondent may not reply to your Form F3 Notice of Family Claim if they agree to the orders you are asking for. This often happens when a claimant is merely asking for a divorce, but it can also happen for other orders. In cases like this, the action becomes an "undefended family law case" and you can apply for a default judgment under Rule 10-10 of the Supreme Court Family Rules. For more information about the do-it-yourself divorce process (which can include a request for more than just divorce orders), see the [[Divorce and the Law on Getting Divorced]] section in the chapter on [[Separating and Getting Divorced]]. | |||
==Step 5: Respondent choice to reply== | |||
If you have been served with a Form F3 Notice of Family Claim, a BC Supreme Court family law action has been started against you and you are the respondent in this case. | |||
===Options for the respondent=== | |||
As the respondent you have two choices: | |||
# If you agree with all the court orders the claimant requests in their Form F3 Notice of Family Claim you can do nothing. | |||
# If you disagree with any of the orders, you can respond to the proceeding and defend yourself, as well as ask for court orders you do want. | |||
If you ''completely 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 agree to only some of the orders, or if you completely disagree, you must respond to the claim. Doing nothing means you risk default judgement, and the claimant can try to obtain final orders against you without you even knowing of their application to do so. | |||
===Deadlines for the respondent=== | |||
If you intend to respond, you must do so within 30 days from the date you received the Form F3 Notice of Family Claim. If you need more time to respond, send an email to the claimant's email address for service asking for more time, and tell them how much more time you need to file your responding material. | |||
==Step 6: Respondent completes the correct forms== | |||
If you disagree with any of the orders the claimant is asking for, you must prepare a form called a Form F4 Response to Family Claim. There is a good chance you want the court to make a different set of orders, in which case you need to complete a Form F5 Counterclaim. | |||
Both of these forms need to be filed in court and served on the claimant within 30 days from the date you received the Form F3 Notice of Family Claim. | |||
Links to these forms can be found in this resource under [[Supreme Court Forms (Family Law)]]. 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?]] under the [[Helpful Guides & Common Questions]] part of this resource. | |||
===Preparing a Form F4 Response to Family Claim=== | |||
The Form F3 Notice of Family Claim that you were served with describes the claimant's version of the history of your relationship, and it provides an outline of the orders the claimant would like the court to make. The Form F4 Response to Family Claim lets you: | |||
* Consent to some or all of the orders the claimant is asking for. | |||
* Object to some or all of the orders the claimant is asking for. | |||
* Indicate which of the facts set out in the claimant's Form F3 Notice of Family Claim are inaccurate. | |||
===Form F5 Counterclaim=== | |||
If there are any orders you want to ask for, you must prepare a Form F5 Counterclaim. This lets you list the orders you would like the court to make. | |||
It is very important to prepare your counterclaim if you want the court to make an order on different terms, or about different issues, than the orders described in the Form F3 Notice of Family Claim. Think of it like this: | |||
* Your Form F4 Response to Family Claim is your defense to the claims made by the claimant, but it doesn't ask for anything by itself. The response just says what orders you do and don't agree with. | |||
* Unless you file a Form F5 Counterclaim, the only person with a claim is the claimant. If you are successful in your defense, there may be no claims left for the court to make an order about. | |||
Rule 4-4 of the Supreme Court Family Rules talks about counterclaims. The Form F5 Counterclaim has two introductory pages where you provide general information about you and the other party, your relationship, any orders or agreement already in place, and your list of orders that you want the court to make. You will also need to complete the schedules that relate to the orders you are asking for. These schedules are similar to the schedules in the Form F3 Notice of Family Claim that were discussed in step one. Here are the typical schedules according to the orders that a respondent might ask for in a Form F5 Counterclaim: | |||
1. Divorce (complete schedule 1) | |||
2. The care of children and child support (complete schedule 2) | |||
3. Spousal support (complete schedule 3) | |||
4. The division of property and debt (complete schedule 4) | |||
5. Orders about other subjects, like orders for the protection of people or orders for the change of a person's name (complete schedule 5) | |||
When drafting your Form F5 Counterclaim make sure to include all the orders you want, even if the Form F3 Notice of Family Claim already includes a request for such orders. Why? You do this so that even if the claimant never applies for final orders, you can ask the court to make final orders. Remember that the Form F3 Notice of Family Claim only contains the claimant's "wish list" of orders. Either the claimant or you will need to take additional steps in the BC Supreme Court action to get final order. | |||
You can ask for orders even if they are the same as what the claimant asked. For example, even if the Form F3 Notice of Family Claim requests a divorce order, you can also ask for a divorce order in your Form F5 Counterclaim. This way, even if the claimant never applies for a final divorce order, you can apply under your own initiative. | |||
===Additional forms=== | |||
You may need to complete more forms depending on the type of orders you are requesting: | |||
* If you are asking for a '''divorce order''': | |||
** If the claimant's Form F3 Notice of Family Claim already asked for a divorce order, and if Schedule 1 of that form states that the claimant already filed an original marriage certificate, you do not need to complete or provide any additional documents. You only need to ask for a divorce order in your Form F5 Counterclaim, assuming you do want a divorce order. | |||
** If the claimant's Form F3 Notice of Family Claim asked for a divorce order, but Schedule 1 of that form say the claimant is not filing the original marriage certificate because they do not have it (perhaps the marriage happened outside of Canada), then you may have to get your hands on the original marriage certificate and file it with your Form F5 Counterclaim. | |||
** If the claimant did not ask for a divorce order in their F3 Notice of Family Claim, you need to complete a [[Registration of Divorce Proceedings (Form)|Registration of Divorce Proceeding]] form, and you need to get your hands on your marriage certificate. The Registration of Divorce Proceedings form is an online form. It needs to be completed and printed on the day that you will be filing your Form F5 Counterclaim. | |||
* If you require a '''Certificate of Pending Litigation''' (CPL): Read step 1, above, for information about CPLs. A respondent with a counterclaim can also file against the title of real estate property that the other side has an interest in. You need to complete Form 33 from the ''Land Title Act'', file it in court, and then register it against the other party’s interest in the title of the property. If the claimant has filed a CPL in respect to the same property that you want to file your CPL, the claimant’s CPL does not protect your interest in that property. If you want to protect your interest, you must file your own CPL on that property. | |||
===Changing your forms=== | |||
If you want to change your Form F4 Response to Family Claim, or your Form F5 Counterclaim, you just need to amend these forms. Perhaps you now disagree to something you previously agreed to in your Form F4 Response to Family Claim, or perhaps you want to ask for new orders you did not originally request. Perhaps you want to drop some of the requests for court orders in your counterclaim. See [[How Do I Change Something in My Response to Family Claim or Counterclaim?]] under the [[Helpful Guides & Common Questions]] part of this resource. | |||
===Stopping your defense or counterclaim=== | |||
If you want to stop defending the claimant's Form F3 Notice of Family Claim, or withdraw your Form F5 Counterclaim, you could withdraw or abandon your position. This can happen when you have reached a settlement, for example. To learn how to do this, see [[How Do I Stop Defending a Family Law Action in the Supreme Court?]] under the [[Helpful Guides & Common Questions]] part of this resource. | |||
==Step 7: Respondent files the court forms and pays (or waives) the court fees== | |||
Make copies: After you have completed all the court forms, if you did so electronically, print them and sign the ones that require your signature (such as the Response to Family Claim, Form F4, Counterclaim, Form F5, Registration of Divorce, and the CPL, Land Title Act Form 33). Make the following copies: | |||
a. three copies of the Family Claim, Form F4: one is for your records, one is to be served on the Claimant (see “___”, below), and the other is to be attached to the Affidavit of Service (see “__”, below). | |||
b. Two copies of the Registration of Divorce Proceeding online form and the CPL, Land Title Act Form 33), if you asked for a divorce and the other party did not: the original is for the court, the copies are for your records. | |||
{{REVIEWED | reviewer = [[Iris Turaglio]], 10 December 2024}} | {{REVIEWED | reviewer = [[Iris Turaglio]], 10 December 2024}} | ||