Resolving Family Law Problems in Court

From Clicklaw Wikibooks

The process of starting a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. and bringing it through to a trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." can be complicated. This chapter discusses the process for starting and replying to proceedings in the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." and the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.".

This section provides a thumbnail sketch of the basic court process common to all non-criminal proceedings. Other sections in this chapter provide more detail about starting a proceeding, replying to a proceeding, attending 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 process. 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 lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." you can find. Before you decide to go to court, think about these things first:

Your future relationship with your ex. Right now you might hate your ex and want to make his or her 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, you don't have that option. Your relationship as 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 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, and from your emotional reactions to the litigation. 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 affair. No one, not even your lawyer, will 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 — the judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. — about the things that matter the most to you, and his or her decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact." is not something you can predict with absolute certainty. On top of that, litigation, especially when you're doing it yourself, is extremely stressful. The documents and processes will be new to you, and each court appearance will be a fresh cause of anxiety and uncertainty.
Your pocket book. 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 in your case you may be ordered to pay the other side's court costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees.".

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: negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute, usually consisting of mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements.", mediationA dispute resolution process in which a mediator facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.", and collaborative settlement processesA dispute resolution process in which the parties to a legal dispute and their lawyers agree that they will make every effort to resolve the dispute through cooperative, transparent negotiations, with the assistance of counsellors and neutral experts in financial issues and children's issues as necessary, without going to court. See "alternative dispute resolution.". 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:

  • there is a threat or a risk of child abductionThe taking of a person by force or fraud. In family law, also the taking of a child contrary to a court order or without the permission of a guardian. In certain circumstances, this may be a criminal offence.,
  • there has been family violence in the relationship, whether to you or to your children ("family violence" is defined in section 1 of the Family Law Act),
  • threats to your physical safety, or to the safety of your children, have been made,
  • there is a threat or a risk that your ex will damage, hide or dispose of propertySomething which can be owned. See "chattels" and "real property.",
  • there is an urgent need to immediately secure some financial help,
  • negotiations have failed and, despite your best efforts, you and your ex can't agree on how to solve your differences, or
  • if 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 & 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 short note I've written for people who are representing themselves in a court proceeding, "The Rights and Responsibilities of the Self-Represented Litigant" (PDF).

An overview of court procedure for civil claims

If you need the court to make an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." about something, you must start a court proceeding (also called a family law proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action."). That's the only way to get a court order. The kind of court you need to go to is civil court, the kind of trial court that deals with claims between people and companies. The other kind of trial court is criminal court, the court that deals with criminal offences.

Before going further, it'll help to learn some of the terminology.

A few definitions

Family Law Proceeding. A court actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order., also known as a lawsuit, that it started to resolve a family law dispute.
Claimant/Applicant. The person or people who start a court proceeding in the Supreme Court are the claimants. In the Provincial Court, this person is the applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application.". In family law proceedings, there is usually only one claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent.". In this section, "claimant" refers to claimants and applicants.
Respondent. The person or people against whom a court proceeding is brought are the respondents. In family law proceedings, there is usually only one respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim.".
Parties. The claimant and the respondent are the parties to the court proceeding.
Claim/Application. The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief." (or less often, a PetitionA court form required by the Supreme Court Family Rules used to commence court proceedings that can be dealt with in the manner of an application, without the need for a protracted process of disclosure and discovery. See "action," "application," "disclosure" and "discovery."). In the Provincial Court, proceedings are started with an Application to Obtain an OrderA legal document required by the Provincial Court Family Rules to bring a court proceeding, which sets out the relief sought by the applicant against the person named as respondent. See "action," "applicant," "pleadings," "relief," and "respondent." or an Application to Change or Cancel an Order. In this section, "claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding." refers to all of these documents.
ReplyA legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim," and "Counterclaim.". A respondent who objects to all or some of the orders sought by the claimant in the Supreme Court will file a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out his or her reply to the claimant's claim and the grounds for his or her reply. See "action," claim," "Notice of Family Claim" and "pleadings." and sometimes a CounterclaimA legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim." if the respondent wants to advanceIn family law, this usually refers to one party obtaining a share of the family property before the property has been finally divided by court order or the parties' agreement. claims or his or her own. In the Provincial Court, the respondent will file a Reply, which includes a section to complete a counterclaim. In this section, "replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut."" refers to all of these documents.
Pleadings. The basic documents that frame a legal dispute (i.e., that list the issues that need to be resolved) 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 also usually a Counterclaim. In most Provincial Court proceedings, the pleadings are the Application to Obtain an Order and the Reply.

Court procedure in a nutshell

Court proceedings in the Provincial Court and the Supreme Court, other than criminal proceedings, 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 reply. The respondent has a certain amount of time after being served to respond to the court proceeding by filing a reply in court. The number of days is set out in the document filed by the claimant. The reply says which orders the respondent agrees to and which he or she objects to. The respondent may ask the court for other orders; if other orders are needed, the respondent will file a claim of his or her own, called a counterclaim. The reply and any counterclaim must be delivered to the claimant.
  • The claimant files a reply. The claimant has a certain amount of time after being served to respond to any claim made by the respondent by filing a reply in court. The claimant's reply says which orders the claimant agrees to and which he or she objects to. 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 also exchange their information and documents well in advance of trial. This way everyone knows exactly what is going on and how strong each person’s case is. If financial matters are in dispute, one the key documents you will need to exchange is a sworn financial statement. There are different processes in Supreme Court and Provincial Court for exchanging information. For more details, see the chapter Starting a Court Proceeding in a Family Matter.
  • The parties attend Case Conferences. Case conferences are conferences that take place in front of a judge, which provide an opportunity for the parties to discuss settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer." possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the chapter about Case Conferences.
  • Each partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." is examined out of court. After the documents have been exchanged, in Supreme Court proceedings each party will schedule an examination of the other party. An examination is an opportunity to ask questions about the facts and the issues out of court so that everyone knows the evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." that will be given at the trial. This is also an opportunity to ask for more documents.
  • Go to trial. Assuming that settlement isn't possible, the only way to resolve the court proceeding is to have a trial. At the trial, each of the parties will present their evidence and explain to the judge why he or she should make the orders asked 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.

And that's pretty much it. Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process.

While working through this process, it is sometimes important to ask for interim orders. These are temporary orders that might be necessary to get a court proceeding through to a trial or to take care of a short-term need. In family law cases, people often ask for interim orders to protect against family violence, to deal with the payment of child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. or spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., to determine how the children will be cared for, or to protect property .

The process for interim orders is a miniature version of the larger process for getting a claim to trial.

  • The applicant starts the applicationA request to the court that it make an order for a specific remedy or relief usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.". The person who wants the interim orderAny order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final order. See "application" and "interim application.", the applicant, starts the application process by filing an application and an affidavit in court, and serving the filed application and affidavit on the other party, called the application respondentA party against whom an interim application has been brought. See also "applicant" and "interim application.". An affidavit is a written statement of the facts that are important to the application. For more information about affidavits, see How Do I Prepare an Affidavit?
  • The application respondent files a reply. The application respondent, the person who is responding to the application, has a certain amount of time after being served to respond to the application by filing a reply and an affidavit in court. The reply says which orders the person agrees to and which are objected to; the affidavit describes any additional facts that are important to the application. The reply and affidavit must be delivered to the applicant.
  • The applicant files a responding affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.". The applicant has a certain amount of time after being served with the application respondent's materials to file a further responding affidavit in court. The responding affidavit describes any additional facts that are important to the application. The responding affidavit must be delivered to the application respondent.
  • Go to the hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence.". 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 his or her affidavits and explain to the judge why he or she should 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.

There are lots of details we've skipped over, including details about important things like experts, case conferences, and the rules of evidence, but this is the basic process in a nutshell. These details are governed by each court's set of rules. The rules of courtThe guidelines governing the court process and the conduct of litigation generally. The rules of court are particular to each level of court. are very important!

You can probably guess that this 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. In the Lower Mainland, for example, it can be possible to get trial dates for short family law trials in as little as six months, but most of the time it takes a year or more to get from the start of a proceeding to trial.

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. You should always be thinking about ways to reach agreement outside of the court process. Just because litigation has been started, that does not mean that you have to continue to litigate. If you haven't done so already, please read the chapter Resolving Family Law Problems out of Court

Resources and links

Legislation

Resources

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