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Difference between revisions of "Family Law Litigation in Supreme Court"
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This chapter breaks down family law litigation in BC Supreme Court into six stages, and the sections in this chapter reflect this structure. While the laws and court rules don't actually refer to there being "stages", it's a convenient way to explain the litigation process. Parties will also typically experience litigation in stages, and generally in the order summarized below. Be sure to read and reference the definitions above, as these terms are used in the descriptions below. | This chapter breaks down family law litigation in BC Supreme Court into six stages, and the sections in this chapter reflect this structure. While the laws and court rules don't actually refer to there being "stages", it's a convenient way to explain the litigation process. Parties will also typically experience litigation in stages, and generally in the order summarized below. Be sure to read and reference the definitions above, as these terms are used in the descriptions below. | ||
===Stage 1: Starting and | ===Stage 1: Starting and responding to a claim=== | ||
The section on [[Starting and Responding to Supreme Court Family Law Proceedings]] in this chapter talks about how a family law claim begins with the parties filing and serving their first court documents. This is also called the ''pleadings'' phase. | The section on [[Starting and Responding to Supreme Court Family Law Proceedings]] in this chapter talks about how a family law claim begins with the parties filing and serving their first court documents. This is also called the ''pleadings'' phase. | ||
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The claimant starts a BC Supreme Court action by initiating ''pleadings'' at one of the court's registries. This is done by filing a ''claim'' at the registry. Once the action is filed at one registry, all further court documents must be filed at the same registry unless there is a court order transferring the court action to another registry. After the claim is filed, the claimant must serve a copy on the respondent. Serving the filed claim involves having it hand-delivered to the respondent by someone other than the claimant. Remember that the ''claim'' only lists the claimant's wish list for court orders. The claim by itself is not an actual court order. It is up to the judge to decide, at an interim application or at a trial, if the orders contained in the claim will be granted. | The claimant starts a BC Supreme Court action by initiating ''pleadings'' at one of the court's registries. This is done by filing a ''claim'' at the registry. Once the action is filed at one registry, all further court documents must be filed at the same registry unless there is a court order transferring the court action to another registry. After the claim is filed, the claimant must serve a copy on the respondent. Serving the filed claim involves having it hand-delivered to the respondent by someone other than the claimant. Remember that the ''claim'' only lists the claimant's wish list for court orders. The claim by itself is not an actual court order. It is up to the judge to decide, at an interim application or at a trial, if the orders contained in the claim will be granted. | ||
====The respondent files their | ====The respondent files their response==== | ||
The respondent has a certain amount of time after being served with the ''claim'' to respond to the court proceeding by filing their '' | The respondent has a certain amount of time after being served with the ''claim'' to respond to the court proceeding by filing their ''response'' and, if applicable, their ''counterclaim''. The number of days that the respondent has to file their response is set out in the claim they were served with. The respondent must deliver their response and any counterclaim to the claimant at the claimant's ''address for service'', which will have been listed in the claim. Remember that a respondent's ''counterclaim'', just like the claimant's ''claim'', is only a list of the orders that the respondent wants. It is not an actual court order. It is up to the judge to decide, at an interim application or at trial, whether the orders that the respondent asks for in their counterclaim will be granted. | ||
If the respondent does not file a | If the respondent does not file a response, the claimant must file an affidavit of personal service. The affidavit of personal service is sworn or affirmed by the person who hand-delivered the claim to the respondent (i.e. not the claimant themself). If the service period as stated in the claim has run out and the respondent has not filed a response, the claimant could obtain orders without the respondent's knowledge or participation. | ||
====The claimant files their | ====The claimant files their response to any counterclaim==== | ||
If the respondent filed and served a counterclaim, the claimant has a fixed amount of time after receiving it to file their own | If the respondent filed and served a counterclaim, the claimant has a fixed amount of time after receiving it to file their own response. The claimant must deliver their filed response to the respondent's address for service, which will have been listed in the respondent's ''counterclaim''. | ||
Generally speaking, once the parties have filed, delivered, and received each other's claim, counterclaim, and | Generally speaking, once the parties have filed, delivered, and received each other's claim, counterclaim, and responses, the ''pleadings'' phase is concluded. There can be other opportunities for the parties to ''amend'' their pleadings, however. | ||
===Stage 2: The parties exchange documentation and information=== | ===Stage 2: The parties exchange documentation and information=== | ||
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====The Notice to Mediate Regulation==== | ====The Notice to Mediate Regulation==== | ||
Under the [https://canlii.ca/t/85bd Notice to Mediate (Family) Regulation], someone who is a party to a court proceeding in the BC Supreme Court can make the other parties go to mediation by serving a Notice to Mediate on them. | Under the [https://canlii.ca/t/85bd Notice to Mediate (Family) Regulation], someone who is a party to a court proceeding in the BC Supreme Court can make the other parties go to mediation by serving a Form 1 Notice to Mediate on them. This form is not found in the Supreme Court Family Rules, but in the Notice to Mediate (Family) Regulation. | ||
A Notice to Mediate must be served at least 90 days after the '' | A Form F1 Notice to Mediate must be served at least 90 days after the first ''response'' is filed, but at least 90 days before the scheduled trial date. Once the notice is served, the parties ''must'' attend mediation unless: | ||
# | #the parties have already tried a mediation (a JCC does not count); | ||
#there is a protection order against a party; | #there is a protection order against a party; | ||
#the mediator decides that the mediation is not appropriate or will not be productive; or, | #the mediator decides that the mediation is not appropriate or will not be productive; or, | ||
