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{{JP Boyd on Family Law TOC}}
If an action a court proceeding has been started against you, you have two choices: do nothing or defend yourself. If you agree with the orders soughtthe 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 answer reply to the claim or you risk losing by default.
This chapter page will discuss the process for defending an action replying to a court proceeding 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 page should be read together with the previous chapterpage, 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 ConferencesCourt Proceeding.
'''DRAFT ONLY'''
==The Supreme Court==
If you are being sued in the Supreme Court, you are the ''Respondent '' in the 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, and together with the Claimant's Notice of Family Claim, are called pleadings.
The primary rules about Responses to Family Claim and Counterclaims, defending replying to a court proceeding and trials are:
*Rule 1-1: definitions
*Rule 3-1: commencing an action*Rule 4-1: starting an actiona court proceeding
*Rule 4-3: Responses to Family Claim
*Rule 4-4: Counterclaims
*Rule 5-1: financial disclosure
*Rule 6-32: personal 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 an actiona court proceeding and withdrawing a Response to Family Claim
*Part 13: expert witnesses
*Rule 11-3: summary trial procedure
*Rule 14-7: trial procedure
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 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 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. 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).
The Counterclaim must be filed in the court registry and be served on the Claimant by ordinary service. It costs $200.00 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; I 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: #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 Respondent will take any further steps to further in the litigation court proceeding and the matter proceeding will languish.
Whether you're off to trial or a settlement can be reached, the steps until trial are usually these:
<blockquote>'''1. 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 These are discussed in a more detail further on 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 supportpage. The process for bringing interim applications is discussed in detail in the chapter The Legal System </blockquote> 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.
==The Provincial Court==
E. Downloads
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)
The link below will open a sample Reply in a new window.
Areas where you must supply information are indicated in black script.
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