Resolving Family Law Problems in Court
|Welcome to page one of the Resolving Family Law Problems in Court chapter. Other parts in this chapter are: Starting a Court Proceeding · Replying to a Court Proceeding · Next Steps: An Overview of Case Conferences and Discovery · Case Conferences · Discovery Process · Interim Applications · Preparing for and Going to Trial in Supreme Court · Preparing for and Going to Trial in Provincial Court · Enforcing Orders · Changing Final Orders|
The process of starting a court proceeding and bringing it through to a trial can be complicated. This chapter discusses the process for starting and replying to proceedings in the Provincial Court and the Supreme Court.
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 lawyer 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 their 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 judge — about the things that matter the most to you, and the judge's decision 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 costs.
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: negotiation, mediation, and collaborative settlement processes. 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 abduction,
- 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 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) which you can find in the chapter From the Author in this resource.
An overview of court procedure for civil claims
If you need the court to make an order about something, you must start a court proceeding (also called a family law proceeding). 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 action, 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 applicant. In family law proceedings, there is usually only one claimant. 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 respondent.
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 Claim (or less often, a Petition). In the Provincial Court, proceedings are started with an Application to Obtain an Order or an Application to Change or Cancel an Order. In this section, claim refers to all of these documents.
Reply. 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 Claim and sometimes a Counterclaim if the respondent wants to advance claims on their own. In the Provincial Court, the respondent will file a Reply, which includes a section to complete a counterclaim. In this section, reply 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 (this could be a process server who you pay or a friend who is over the age of majority).
- 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 they object to. The respondent may ask the court for other orders; if other orders are needed, the respondent will file a claim of their 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 they object 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 section Starting a Court Proceeding in a Family Matter in this chapter.
- 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 settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the section about Case Conferences in this chapter.
- Each party 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 evidence 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 the judge 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 support or spousal support, 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 application. The person who wants the interim order, 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 respondent. 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? in the chapter How Do I in this resource.
- 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 affidavit. 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 hearing. 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 their affidavits and explain to the judge why the judge 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 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 of Vancouver, 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
- Provincial Court Family Rules
- Provincial Court Act
- Supreme Court Family Rules
- Supreme Court Act
- Court of Appeal Rules
- Court of Appeal Act
- Court Rules Act
- Provincial Court Practice Directions
- Supreme Court Family Practice Directions
- Supreme Court Administrative Notices
- Court of Appeal Practice Directives
- Tug of War by Mr. Justice Brownstone
- "The Rights and Responsibilities of the Self-Represented Litigant" (PDF).
- Courts of British Columbia website
- Provincial Court website
- Supreme Court website
- Supreme Court Trial Scheduling
- Court of Appeal website
- Guidebooks from the BC Supreme Court website
- Justice Education Society's Court Tips for Parents (videos)
|The above was last reviewed for legal accuracy by Andrea Glen, May 10, 2016.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|