Starting a Court Proceeding in a Family Matter

From Clicklaw Wikibooks

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 anything, from the care of children to the payment of 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 the division of propertySomething which can be owned. See "chattels" and "real property.", you must begin 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.. There are certain steps you must take, certain fees you must pay and certain forms you must fill out before the court will hear your 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.. Although the staff at the court registries are friendly and very helpful, it is your job to prepare these materials, gather your 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.", and take the steps necessary to bring your case before a 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..

This section reviews the processes for starting a 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." in the Supreme Court and 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.". For a more complete picture of the court process, read this section together with the section on Replying to a Court Proceeding.

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."

To start a proceeding in the Supreme Court, the main document you will have to prepare 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." in Form F3, a special form prescribed by the Supreme Court Family Rules. (This document is one of the basic legal documents in a court proceeding known as pleadings.) This is the document that says who you are suing and the orders you want to the court to make.

Family law proceedings are governed by the Supreme Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about judicial case conferences, disclosureA step in a court proceeding in which each party advises the other of the documents in his or her possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial., interim applications, and trials.

The primary rules about Notices of Family Claim and the management of court proceedings are:

  • Rule 1-1: definitions
  • Rule 3-1: starting a court proceeding
  • Rule 4-1: Notices of Family Claim and service requirements
  • Rule 4-3: replying to a Notice of Family Claim
  • Rule 5-1: financial disclosure
  • Rule 6-3: personal serviceIn law, the delivery of a legal document to a party in a court proceeding in a manner which complies with the rules of court, usually by physically handing the document to the party and verifying his or her identity. Personal service is usually required for the proper delivery of the pleadings that are used to start a proceeding to ensure that the party is given proper notice of the proceeding and the opportunity to mount a defence. See also "ordinary service," "pleadings" and "service, substituted."
  • Rule 7-1: judicial case conferences
  • Part 9: disclosure and discoveryA step in a court proceeding in which a party is entitled to demand that the other produce requested documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be trial. See "examination for discovery." of documents
  • Part 10: interim applications and chambers procedure
  • Rule 11-4: discontinuing a court proceeding
  • Part 13: expert witnesses
  • Rule 11-3: summary 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." procedure
  • Rule 14-7: trial procedure
  • Rule 15-2.1: guardianship orders

Links to and examples of the Notice of Family Claim and other court forms can be found in Supreme Court Forms & Examples. For a quick introduction to how to start a proceeding, see How Do I Start a Family Law Action in the Supreme Court? It's located in the section Starting an Action in the How Do I? part of this resource.

Quick Tips: Starting an 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. in the Supreme Court

The following tips are located in the section Starting an Action in the How Do I? part of this resource:

  • Can't pay your court fees: If you can't afford pay court fees, you can apply for indigentBeing flat broke. Persons with limited or no income may apply to the Supreme Court and Court of Appeal for ''indigent status'', which will exempt them from paying the usual court fees for all or a part of a court proceeding. status. If you are granted indigent status the court fees will be waived for all or part of your court proceeding. To find out more, see How Do I Apply for Indigent Status in the Supreme Court?
  • Can't personally serve the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim.": If it is impossible to personally serve the Notice of Family Claim on the respondent, you can ask the court to be allowed to use a substitute form of personal service. To find out what's involved, see How Do I Substitutionally Serve Someone with Legal Documents?
  • Not sure where your ex is: If you're not sure where your ex lives in order to start a court proceeding, see How Do I Find My Ex?

Preparing, filing and serving the notice of family claim

The claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent.", the person starting the court proceeding, must fill out a Notice of Family Claim and file the claim in court. The Notice of Family Claim provides: the claimant's name and address; the name and address of the person against whom the claim is made, the respondent; the basic history of the parties' relationship; and, an outline of the orders the claimant would like the court to make.

The court form that must be used use is Form F3, set out in the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional pages that require more detailed information must be added to the Notice of Family Claim when the claimant seeks orders about:

  • divorce,
  • the care of children and 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.,
  • spousal support,
  • the division of property and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed., and
  • other orders, like protection orders or orders for the change of a person's name.

The Notice of Family Claim must be filed in the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. and be personally served on the respondent. If you are asking for a divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." order, you'll have to fill out a Registration of Divorce Proceeding form when you file your Notice of Family Claim. It 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." $200 to file a Notice of Family Claim, or $210 if the claim includes a claim for a divorce.

"Personal service" essentially means physically handing the Notice of Family Claim to the respondent. The Divorce Act and Rule 6-3(2) of the Supreme Court Family Rules say that a claimant cannot serve a respondent him- or herself. You must either pay a process server to do it or enlist the help of a friend over the age of majorityThe age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant.". Although this ought to go without saying, don't use one of your children to serve your ex.

Deadline for 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."

The respondent has 30 days to 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." after being served with the claimant's Notice of Family Claim. If the respondent doesn't do this, the claimant may be able to apply for the orders asked for in the Notice of Family Claim as a default judgmentA judgment obtained by a claimant following the respondent's failure to reply to the claimant's claim within the proper time from service. In the Supreme Court, a respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without the response being served on the claimant, the claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See "desk order divorce" and "Response to Family Claim.", a final order made in default of the respondent's reply.

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. A claimant should not expect to win on a technicality like this. If a respondent files his or her Response to Family Claim late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

The next steps

If the respondent has chosen to file a Response to Family Claim, he or she has decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. One of three things is going to happen in your court proceeding:

  1. You'll settle your disagreement out of court, and come up with either a separation agreementA contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." or an order that you both agree the court should make, called a consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make..
  2. You'll not be able to agree, and the intervention of the court at a trial will be required.
  3. After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

Whether you're off to trial or a 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." can be reached, the steps until trial are usually these:

1. Exchange Financial Statements. Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements are prepared in Form 8. Financial Statements must be exchanged before the first judicial case conference, and updated statements will be required throughout the case and before trial. These are discussed in more detail further on in this section.
2. Have a judicial case conference (JCC). 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 talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this section.
3. Make interim applications as needed. 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 until the claims at issue in the court proceeding are 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 support. This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.
4. Disclose documents and information. 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. require 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." to produce to the other all documents that are relevant to the issues in a court proceeding. This can include things like bank statements, report cards, medical records, school reports, and income tax returns. Each party must list these documents in a formal List of Documents, and keep their List of Documents updated when new documents are found or become available.
5. Examine each other out of court. The parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an examination for discoveryThe cross-examination of a party under oath or affirmation about the matters at issue in a court proceeding conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, in certain circumstances, be used at trial. See "discovery.". Examinations for discovery, also called discoveries, are helpful to get each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged.
6. Have a settlement conference. The rules of court allow a party to schedule a settlement conference before a judge ahead of trial. At this 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.", the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement.
7. Have a trial management conference (TMC). 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 present, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be 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, although the judge at the TMC can order that a settlement conference happen.
8. Go to trial. At the end of the day, if you can't agree on a resolution 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 argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of 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 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." in the form of reasons for judgmentA judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, 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," "findings of fact," and "final judgment.". The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the reasons for judgment.

This description of the steps involved is just a rough sketch of the lengthy process of bringing a court proceeding to a conclusion. Not every proceeding 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.

Financial statements

If a court proceeding involves a claim for spousal support, child support, the division of property or the division of debt, each party must prepare and file a Financial StatementA legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property or the division of debt must describe his or her income, expenses, assets and liabilities under oath or affirmation. See "affirm," "oath," and "perjury.". A Financial Statement sets out a person's income, expenses, assets and liabilities and is sworn on oathIn law, a promise of the truth of a statement secured by one's faith in a god, and the prospect of torment in the afterlife in the event the promise is falsely made. Someone making an affidavit will often give his or her evidence in that affidavit under oath; a witness giving oral evidence will often give his or her evidence in court under oath. See "affidavit," "affirm," "perjury" and "witness." or affirmation, just like an 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.", before a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.", notary publicA person authorized to administer affirmations and oaths, and to execute or certify documents. All lawyers are notaries public in addition to being barristers and solicitors. See "barrister and solicitor.”, or registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse. clerk.

Financial Statements are very important in family law proceedings. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish value, the portions about assets and debts may be used to determine the value of an asset and the amount owing on a debt. As well, since Financial Statements are sworn statements, someone making a Financial Statements can find his or her credibility being challenged if the numbers don't make sense, if they are overblown or understated, if they omit critical information, or if they are outright fabrications.

Each party must attach to their Financial Statements a number of important documents:

  1. the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
  2. all notices of assessment and reassessment received for the last three tax years,
  3. the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement,
  4. business records like financial statements and corporate income tax returns, if the party has a company, and
  5. the most recent BC Assessments for all real propertyA parcel of land and the buildings on that land. See "chattel," "ownership" and "possession.".

The form you must use is Form F8, set out in the Supreme Court Family Rules.

Judicial case conferences

Judicial case conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom. JCCs must be held in all family law court proceedings where the parties can't agree, and, in most cases, they must be held before any interim applications can be heard.

JCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at JCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim applicationAn application, also called in "interlocutory application," made after the start of a court proceeding but before its conclusion, usually for temporary relief pending the final resolution of the proceeding at trial or by settlement. In family law, interim applications are useful to determine issues like where the children will live, who will pay child support and whether spousal support should be paid on a rough and ready basis. See "application" and "interim order."!

This chapter has more information about JCCs in the section Case Conferences in a Family Law Matter.

The Provincial Court

To start a proceeding in the Provincial Court, the main document you have to prepare is 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." in Form 1, a special form prescribed by the Provincial Court Family Rules. This is the document that says who you are suing and what you are suing for.

Family law proceedings are governed by the Provincial Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about Family Case Conferences, disclosure, interim applications, and trials. The primary rules about Applications to Obtain an Order and the management of court proceedings are:

  • Rule 1: definitions
  • Rule 2: Applications to Obtain an Order and service requirements
  • Rule 3: replying to an Application to Obtain an Order
  • Rule 4: financial disclosure
  • Rule 6: the first and subsequent appearances in court
  • Rule 7: family case conferences
  • Rule 11: trial procedure
  • Rule 12: interim applications
  • Rule 14: consent orders
  • Rule 18: orders
  • Rule 18.1: guardianship orders
  • Rule 21: Parenting After Separation program

Links to and examples of the Application to Obtain an Order and other court forms can be found in Provincial Court Forms & Examples. For a quick introduction to how to start a proceeding, see How Do I Start a Family Law Action in the Provincial Court? It's located in the section Starting an Action in the How Do I? part of this resource.

Limitations of the Provincial Court

The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantage of bringing your case to the Provincial Court is that the authority of the court is limited. The Provincial Court can only hear applications under the Family Law Act on certain subjects, including:

  • guardianship,
  • parental responsibilitiesA term under the ''Family Law Act'' which describes the various responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian." and parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian.",
  • contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." with a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.",
  • child support, and
  • spousal support.

The Provincial Court cannot hear your application if you are applying for orders under the federal Divorce Act or for orders relating to the division of property and debt under the Family Law Act.

Preparing, filing and serving the application to obtain an order

Most court proceedings are started in the Provincial Court by filing an Application to Obtain an Order in Form 1. (Court proceedings can also be started with an Application to Change or Cancel an Order in Form 2 where there is already a court order or separation agreement in place.) The person beginning the action, 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.", fills out the Application to Obtain an Order and provides certain information, including: the applicant's name and address; the name and address of the person against whom the application is being made, the respondent; a list of the orders the applicant is asking the court to make; and, a very brief statement of the relevant facts.

The Application to Obtain an Order must be filed in the court registry and be personally served on the respondent. No fee is charged to file the Application to Obtain an Order.

Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the Provincial Court (Family) Rules says that an applicant cannot personally be the one who serves a respondent. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Don't use one of your children to serve your ex.

If you're not sure where you ex lives, see How Do I Find My Ex? It's located in the section Marriage, Separation & Divorce in the How Do I? part of this resource.

Deadline for reply

The respondent has 30 days to fill out and file a court form called a 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." after being served with the applicant's Application to Obtain an Order. If the respondent doesn't do this, the applicant may be able to apply for the orders asked for in the Application to Obtain an Order as a default judgment, a final order made in default of the respondent's reply.

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An applicant should not expect to win on a technicality like this. If a respondent files his or her reply late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

The next steps

In certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a Parenting After Separation program before you can take any further steps in your caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.". This may apply even if you are seeking a default judgment. The court clerk at the court registry will tell you what is needed. If necessary, the court clerk will refer you to the family justice counsellor and tell you where the Parenting After Separation program is offered. You will have to file a certificate that you've completed the program.

The steps that follow the commencement of a proceeding in the Provincial Court are a shorter, more streamlined version of the Supreme Court process. There are fewer hoops to jump through, but also fewer means to extract information and documents from the other side.

1. Meet with a family justice counsellor and take the Parenting After Separation program. Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try 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.". The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available online. The online course does not replace the need to attend an in-person course if that is otherwise required.
2. Exchange Financial Statements. Financial Statements are required whenever the payment of child support or spousal support is an issue. Financial Statements are prepared in Form 4.
3. Have a family case conference (FCC). An FCC is a hearing similar to the judicial case conference required by the Supreme Court. It is an informal, off-the-record meeting between the parties, their lawyers and a judge to talk about the facts and issues, and set dates and deadlines for the remaining steps in the court proceeding. Although FCCs are very helpful and often result in settlement, FCCs only address issues about the care of children and are not mandatory unless you have been referred to an FCC by a judge. If you think an FCC will help resolve your case, ask for one!
4. Make interim applications as needed. In almost all family law proceedings, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need orders about things like where the children will live and whether support should be paid until trial. The most common applications in family law involve restraining orders, orders about the care of children, child support, and spousal support. This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.
5. Have a trial preparation conference (TPC). A TPC 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 present, whether documents have been exchanged, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TPC is generally not an opportunity to engage in settlement discussions.
6. Go to trial. At the end of the day, if you can't reach a settlement, you will have to have a 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 should make the orders they are asking for. The judge will hear all the evidence and the arguments and reach a decision in the form of Reasons for Judgment. Where neither party is represented by a lawyer, the court clerk will draftA preliminary version of a document; an order prepared following judgment submitted to the court for its approval; to prepare, or ''draw,'' a legal document. a final order based on the judge's reasons for judgment.

Financial Statements

If a Provincial Court proceeding involves spousal support or child support, each party must prepare and file a Financial Statement. A Financial Statement sets out a party's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an affidavit, before a lawyer, notary public, or registry clerk.

Each party must attach to their Financial Statements the following documents:

  1. the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
  2. all notices of assessment and reassessment received for the last three tax years,
  3. the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement, and
  4. business records like financial statements and corporate income tax returns, if the party has a company.

The form you must use is Form 4, set out in the Provincial Court (Family) Rules.

Family case conferences

Family case conferences (FCCs) are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom to explore settlement options. FCCs are not mandatory and there is no requirement that an FCC must be heard before any interim applications.

FCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at FCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application if you have to hire a lawyer.

This chapter discusses FCCs in more detail in the section Case Conferences in a Family Law Matter.

Resources and links

Legislation

Resources

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