Clicklaw Wikibooks - User contributions [en]

Resolving Family Law Problems in Court

2016-06-01T20:28:04Z

Andrea Glen: /* Court procedure in a nutshell */

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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 [http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20F%20--/Family%20Law%20Act%20%5BSBC%202011%5D%20c.%2025/00_Act/11025_01.xml#section1 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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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 settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the chapter about [[Case Conferences]].
*'''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 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 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?]]
*'''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 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 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===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[Andrea Glen]], May 10, 2016}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-06-01T20:23:50Z

Andrea Glen: /* Hold on for a minute, do you really have to go to court? */

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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 [http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20F%20--/Family%20Law%20Act%20%5BSBC%202011%5D%20c.%2025/00_Act/11025_01.xml#section1 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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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 settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the chapter about [[Case Conferences]].
*'''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 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 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.
*'''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 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 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===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[Andrea Glen]], May 10, 2016}}

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Resolving Family Law Problems in Court

2016-05-12T20:49:29Z

Andrea Glen: Updated section at the bottom identifying when this page was last reviewed

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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,
*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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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 settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the chapter about [[Case Conferences]].
*'''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 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 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.
*'''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 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 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===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[Andrea Glen]], May 10, 2016}}

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Enforcing Orders in Family Matters

2016-05-12T17:40:34Z

Andrea Glen: Corrected significant error in first paragraph regarding the application of Convention and updated list of signatory countries as at April 2016.

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}}

Having an order in a family law court proceeding is one thing; whether or not the terms of that order are followed is another. Although most people are prepared to follow the court orders they are bound by, when someone fails to honour his or her obligations, steps must be taken to secure compliance and enforce the order.

The section provides a brief comment on the enforcement of orders generally, and discusses the enforcement of orders for spousal and child support, including the role of the Family Maintenance Enforcement Program (FMEP), and the enforcement of orders for parenting time and contact. This section also looks at contempt of court applications.

==Some preliminary comments==

You sometimes hear people complaining about how the court didn't help them do this or that, or how the court failed to protect their children or their car or their chihuahua. A popular misunderstanding about the court system is that it monitors and enforces its own decisions. It doesn't. That's up to you.

In a very narrow sense, the job of the court is to hear the court proceedings brought before it and to make decisions about what is fair and appropriate in the circumstances of each proceeding. The person who begins the court proceeding, the ''claimant'', is responsible for managing his or her case and ultimately convincing the judge why the orders he or she is asking for are fair and appropriate. The person against whom the proceeding is brought, the ''respondent'', is responsible to defending him- or herself and explaining why the orders the claimant wants are unfair and inappropriate. The job of the judge is to manage the trial, listen to the parties and their evidence, and then decide what a fair and appropriate result is.

The judge's decision is a ''court order''. It is binding on the parties and they risk being held in contempt of court if they do something different than what the order requires.

Once the decision is made, the judge's job is over and it is each party's responsibility to see to it that the order is followed. The court is not responsible for supervising its own orders and monitoring people to make sure that they're obeying each term of every order it makes. If the respondent notices that the claimant isn't living up to a term of an order, the respondent is responsible for enforcing the order, whether the steps taken to enforce the order include asking the court to find the claimant in contempt, garnishing the claimant's wages, or something else altogether. The claimant has the same rights against the respondent.

It is not the court's job to enforce its orders, it's ''yours''. It's up to you to do something about it when someone fails to live up to an order.

The Supreme Court has the power to punish for ''contempt of court'', disobedience of its orders or directions, and this is one way you can seek to have your order enforced. Once you bring an application to court for a finding that the person breaching the order be "found in contempt," the court can punish that person by a fine, by jail time, by both a fine and some time in jail, or by something more creative. Again, it is your responsibility to make this application; the court won't do it for you.

Both the Supreme Court and the Provincial Court have the ability to enforce orders under laws like the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]'' and the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Enforcement under these laws requires making an application to court. This too is your responsibility.

It is true that the court system can be complex and challenging. That isn't an excuse for you not to take the steps that are required to enforce an order, and it doesn't give anyone an excuse to complain that the system didn't help them out. If you are finding it difficult to enforce an order, you should seriously consider hiring a lawyer to handle the matter for you, get some legal advice from a legal clinic or apply to a group like [http://accessprobono.ca/ Access Pro Bono] to see if they can introduce you to a lawyer who may be able to handle your case for free.

==Enforcing orders for child support and spousal support==

When a person obliged to pay child support or spousal support, the ''payor'', stops making those payments, a debt begins to accumulate in favour of the person entitled to the payments, the ''recipient''. This debt is known as the payor's ''arrears of support''.

Orders made under the federal ''[[Divorce Act]]'' can be enforced in British Columbia and in any other province. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced has an agreement with the federal government about the mutual enforcement of support orders.

Orders made under the provincial ''[[Family Law Act]]'' can be enforced in British Columbia, as well as in other provinces and territories when the orders are filed in the courts of those provinces and territories. They may also be enforceable outside of Canada, depending on whether the place in which the order is to be enforced is a "reciprocating jurisdiction" under the provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''.

The website of the Department of Justice has a helpful [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/info_cont.html overview of support enforcement mechanisms] in Canada.

===The Family Maintenance Enforcement Program===

The [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] (FMEP) is a government service operated by a private company under provincial legislation, the ''Family Maintenance Enforcement Act''. FMEP will monitor payments as they are made (or not made), and calculate the interest accumulating on any arrears. FMEP is a free service.

[http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw's HelpMap] has contact information for FMEP.

====Recipients of support====

FMEP will enforce the provisions of support orders that are registered with the program. FMEP can take all the steps a private creditor can to collect on any outstanding arrears and will supervise monthly payments. There is no cost to register with FMEP and you do not need to hire a lawyer to have FMEP get to work on your behalf.

FMEP has extremely long arms, and the steps it can take to compel payment are substantial, including:

*the diversion of federal payments to the payor (like tax refunds and CPP benefits),
*the garnishment of wages,
*preventing a payor from renewing his or her driver's licence,
*seizing a payor's passport and federal licences like pilots' licences,
*putting a lien on property owned by the payor, and
*arranging for the payor's arrest.

For the payee, FMEP is a free service. While FMEP may not be as quick as a lawyer to collect on arrears or compel regular payment, I recommend its services.

If you choose to enroll with FMEP, you might want to stop any efforts you have made to collect from the payor, as your actions may conflict or interfere with steps being taken by FMEP and frustrate their process. As well, you'll need the permission of the Director of FMEP if you want to take any independent steps to collect support on your own.

====Payors of support====

People usually assume that when FMEP is involved it is the payor who is delinquent rather than the recipient. It can sometimes happen, usually as part of a larger dispute, that a recipient will refuse to accept the payor's support payments. If a payor simply throws up his or her hands and says "fine, I'll keep the money," the payor can find him- or herself seriously disadvantaged if the larger problem ever goes to a hearing, plus the payor may have to pay the money the recipient refused to accept!

Payors who find themselves in such a situation can enroll in FMEP, just the way that recipients do. FMEP will accept the payor's payments and attempt to forward them to the recipient. If the recipient still refuses to accept the payments, FMEP will keep the payments on behalf of the recipient as well as a record of the payments made. This will protect the payor's interests at the hearing of the larger problem, if there ever is one, and will save the payor from falling into arrears.

There is a serious potential downside for payors who enroll in FMEP. Once you have enrolled, you can't escape the program without the consent of the recipient. In other words, once you've enrolled you may very well find yourself stuck there until your support obligation ends.

===Collecting without the help of FMEP===

Recipients can take steps to enforce orders and family agreements without FMEP's involvement. Such actions can include:

*forcing the payor to produce financial statements, income tax returns and other financial information,
*getting an order to compel the disclosure of the payor's employer, assets and sources of income,
*getting an order to garnish the payor's wages or bank accounts, and
*summoning the payor to a special hearing for an order for the payment of the arrears and the terms on which the arrears will be paid.

====Collecting in the Supreme Court====

Other ways of obtaining financial information and compelling payment are available under the [http://canlii.ca/t/8mcr Supreme Court Family Rules] and under the provincial ''Court Order Enforcement Act''. These remedies include the garnishment of wages, forcing the sale of property, and commencing proceedings against the payor for contempt of court, among other things.

These are the important parts of the Supreme Court Family Rules dealing the collection of arrears:

*Rule 15-4: Writ of Execution
*Rule 15-6: subpoenas to debtors
*Rule 15-8: sales by the court
*Rule 15-7: examination in aid of execution
*Rule 21-7: contempt of court

A Writ of Execution can also be issued by a recipient under Part 5 of the ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. Section 3 of that act also allows for the attachment of wages.

====Collecting in the Supreme Court and the Provincial Court====

Other ways of compelling payment are available under the ''Family Maintenance Enforcement Act'' and the ''Family Law Act'' in both the Supreme Court and the Provincial Court.

Under the ''Family Maintenance Enforcement Act'', a recipient can take steps like requiring the payor to file a statement of finances, enforcing against a company owned by the payor, applying to garnish the payor's wages, and requiring the payor to attend a default hearing. Remember, though, that if you are registered with FMEP, only FMEP may enforce the order. You must either withdraw from FMEP or get permission from FMEP to make your own efforts to enforce.

Orders for child support and spousal support can also be enforced under the general and extraordinary enforcement provisions of the ''[[Family Law Act]]''. Under s. 230, the court may require a payor to:

#post security,
#pay the recipient's expenses incurred as a result of the payor's actions, or
#pay up to $5,000 to the recipient as a fine.

Under s. 231 of the act, the court may jail a payor in breach of an order if no other order will secure the payor's compliance. Going to jail will not cancel any arrears that are still owing.

==Enforcing orders about the care of children==

Enforcing orders about the care of children can be just as difficult as enforcing orders about support. Orders about the care of children can be enforced under the ''[[Family Law Act]]'', the ''[http://canlii.ca/t/7vf2 Criminal Code]'', the [http://canlii.ca/t/8mcr Supreme Court Family Rules], and, in certain circumstances involving people located outside of Canada, the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction].

Orders about custody and access made here under the ''[[Divorce Act]]'' can be registered and enforced anywhere in Canada.

Orders about guardianship, parenting arrangements, and contact made here under the ''Family Law Act'' can be registered and enforced anywhere in Canada. Orders made outside of British Columbia can be enforced by the courts here under Part 4 Division 7 of the ''[[Family Law Act]]''. Once an order made outside the province is recognized by our court it is enforceable as if our court had made the order.

===Alternatives to enforcement===

Before you do anything else, it's possible that you may not need to jump through all the hoops necessary to enforce your order at all. Enormous problems can be caused just from how an order is written. If this is the case for you, it may be easier and less conflictual to try to correct the order instead!

If your order says only that you will have "reasonable and generous parenting time," or otherwise fails to specify the terms of your parenting time or contact with the child, you may be able to clear up the problem by applying to court to specify the terms of parenting time or contact. It is too easy for someone to avoid allowing parenting time or contact that is "reasonable and generous" simply by saying "well, it isn't convenient for me," or "the children are busy this weekend." Your first recourse should be to ask the court for a precise schedule for your parenting time or contact — including weekends, holidays, evenings during the workweek, or whatever else you'd like.

Even an order that says that you will have "parenting time every other weekend" can be difficult. When does the weekend start, Saturday or Friday? If it's Friday, when on Friday? After school? After work? At 6:00pm? Who's doing the picking up and dropping off? What if you're sick? What if the child is sick? What if you're going to be late? What if the Friday is a holiday?

If a vague schedule isn't working, the best thing to do is to ask the court to clarify and specify the schedule. This often solves the problem without having to get everyone's back up with an enforcement application.

===''Divorce Act'' orders===

Orders for custody and access made under the federal ''Divorce Act'' are enforced under provincial laws. However, they can't be enforced under the ''Court Order Enforcement Act'' because that act deals with orders about money and property, and they can't be enforced under the ''Family Law Act'' because that act only allows for the enforcement of its own orders and foreign orders about the care of children.

These are your options:

*Section 292 of the ''[http://canlii.ca/t/7vf2 Criminal Code]'' makes interference with a parent's right to custody under a court order a criminal offence. You could complain to the police.
*You could apply in the Supreme Court for an order that the person who is breaching the order be found in contempt of court.

Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] outlines the procedure for contempt of court applications. A person found to be in contempt can be punished by a fine, by jail time, by both a fine and some time in jail, or by something else. Contempt applications can be complicated and are discussed in more detail below.

===''Family Law Act'' orders and foreign orders===

Under the ''[[Family Law Act]]'', the court can make orders allocating parenting time among guardians or giving someone who isn't a guardian rights of contact with a child. Foreign orders that are similar to orders for parenting time or contact can be filed in court and, upon being recognized under s. 75 of the act, may be enforced in the same way as orders made in British Columbia.

Orders for parenting time and contact are enforced under Part 4 Division 5 of the act. Under these provisions, someone who has been wrongfully denied parenting time or contact may apply to the court and, under s. 61, the court may:

<blockquote><tt>(a) require the parties to participate in family dispute resolution;</tt></blockquote>
<blockquote><tt>(b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs;</tt></blockquote>
<blockquote><tt>(c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses;</tt></blockquote>
<blockquote><tt>(e) require that the transfer of the child from one party to another be supervised by another person named in the order;</tt></blockquote>
<blockquote><tt>(f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to</tt></blockquote>
<blockquote><blockquote><tt>(i) give security in any form the court directs, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court;</tt></blockquote></blockquote>
<blockquote><tt>(g) require the guardian to pay</tt></blockquote>
<blockquote><blockquote><tt>(i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) a fine not exceeding $5 000.</tt></blockquote></blockquote>

However, the denial must have happened within the last year, and the denial must be ''wrongful''. Under s. 62, denial is not wrongful in the following circumstances:

<blockquote><tt>(a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised;</tt></blockquote>
<blockquote><tt>(b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised;</tt></blockquote>
<blockquote><tt>(c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised;</tt></blockquote>
<blockquote><tt>(d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child;</tt></blockquote>
<blockquote><tt>(e) the applicant</tt></blockquote>
<blockquote><blockquote><tt>(i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all;</tt></blockquote></blockquote>
<blockquote><tt>(f) other circumstances the court considers to be sufficient justification for the denial.</tt></blockquote>

Even if the court decides that the denial was not wrongful, the court may still make an order for make-up time.

Under s. 63, the court can also enforce orders for parenting time and contact where the person entitled to parenting time or contact fails to follow the order. In cases like this, the court may:

#order that the parties attend family dispute resolution,
#order that one or more parties or a child attend counselling,
#require that the transfer of the child be supervised,
#order that any expenses incurred as a result of the failure be reimbursed,
#require the person to report to the court, or
#require the person to post security.

Under the act's extraordinary enforcement provisions, when things have gotten really bad the court may enforce orders for parenting time and contact by:

#jailing the person for up to 30 days;
#requiring the police to take the child to the person who is entitled to parenting time and contact; or,
#when a person with contact refuses to return the child, requiring the police to return the child to the child's guardian.

===The Hague Convention===

The ''[http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction]'' can be used to deal with cases of international child abduction. The Convention is an international treaty that requires foreign governments who have signed the Convention to take certain steps to return the child to the person who is entitled to the care of the child when there is an order in place governing which parent should have the child.

The ''Hague Convention'' only applies between states that have signed the Convention. As of April 2016, the countries that have agreed to enforce custody orders with Canada are:

<blockquote>Albania, Andorra, Argentina, Australia, Austria, Bahamas, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Georgia, Germany, Greece, Honduras, Hong Kong Special Administrative Region, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Macao Special Administrative Region, Malta, Mauritius, Mexico, Moldova, Republic of, Monaco, Montenegro, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Saint Kitts and Nevis, San Marino, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Trinidad and Tobago, Turkey, Turkmenistan, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Uzbekistan, Venezuela and Zimbabwe.</blockquote>

As of April 2016, the signatory countries who have not agreed to enforce custody orders with Canada, but will enforce custody orders with other countries (shame on them), are:

<blockquote> Armenia, Gabon, Guatemala, Guinea, Iraq, Kazakhstan, Korea, Republic of, Lesotho, Morocco, Nicaragua, Philippines, Russian Federation, Seychelles, Thailand and Zambia.</blockquote>

Countries not listed above have elected not to participate in the convention. For more information and the current standing of signatory nations, check out the website of the [http://www.hcch.net/index_en.php Hague Conference on Private International Law], which reports on the status of the various Hague Conventions.

==Contempt of court==

If the other party persistently refuses to live up to his or her obligations under a court order, you may have no choice but to make an application to court for a finding that the other party is in contempt of court. Contempt of court is punishable by a fine, jail time, both a fine and jail time, or by something else altogether, like community service. Both the Supreme Court and the Provincial Court have certain powers to punish someone for breaching their orders under the legislation, as was discussed above, but only the Supreme Court has the power to punish for contempt. Unlike the Provincial Court, the Supreme Court has something called ''inherent jurisdiction'', meaning that the scope of its authority is limited only by our Constitution and the rules of the common law. As a result, the court can punish a party for contempt of court without being confined to the provisions of any particular statute.

The rule governing contempt applications is Rule 21-7 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. You can bring an application for a contempt finding under the normal rules governing interim applications. The only difference is that you must personally serve the other person with your Notice of Application and affidavit for the contempt application; you can't simply mail or fax it to his or her address for service. You will need to show the court:

#the terms of the order you say was breached,
#how the order was breached,
#that the other party intended to breach the order, and
#the harm resulting from the breach.

Because the consequences of a finding of contempt can include jail, the court will be very particular about how the application is prepared and presented. You may want to consider consulting with a lawyer about process and procedure, and the legal test to prove contempt, before you start working on your materials.


==Resources and links==

===Legislation===

* ''[[Family Law Act]]''
* ''[[Divorce Act]]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''
* ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''
* ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]''
* ''[http://canlii.ca/t/7vf2 Criminal Code]''

===Links===

* [http://www.justice.gc.ca/eng/fl-df/enforce-execution/info_cont.html Department of Justice: Provincial and Territorial Information on Interjurisdictional and International Support Order Enforcement]
* [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program website]
* [http://clicklaw.bc.ca/helpmap/service/1082 Clicklaw HelpMap: Family Maintenance Enforcement Program details]
* [http://www.hcch.net/index_en.php Hague Conference on Private International Law]
*[http://www.ag.gov.bc.ca/international-child-abduction/ Ministry of Justice Website on International Child Abduction]
* [http://www.justice.gc.ca/eng/pi/fcy-fea/sup-pen/enf-exe/index.html Department of Justice: About support enforcement]
* [http://www.clicklaw.bc.ca/resource/1242 Canadian Bar Association BC Branch: Script on enforcing orders and agreements for support]

{{REVIEWED | reviewer = [[JP Boyd]], March 24, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}
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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-05-11T21:33:55Z

Andrea Glen: /* Court procedure in a nutshell */

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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,
*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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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 settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the chapter about [[Case Conferences]].
*'''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 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 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.
*'''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 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 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===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-05-11T21:33:25Z

Andrea Glen: /* Court procedure in a nutshell */

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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,
*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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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 called "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 settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the chapter about [[Case Conferences]].
*'''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 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 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.
*'''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 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 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===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-05-11T21:32:47Z

Andrea Glen: /* Court procedure in a nutshell */

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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,
*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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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 called "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 settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the chapter entitled "Case Conferences".
*'''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 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 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.
*'''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 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 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===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-05-11T21:31:44Z

Andrea Glen: /* Court procedure in a nutshell */

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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,
*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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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 called "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 settlement possibilities and obtain orders regarding the conduct of the court proceeding. For more about case conferences, see the chapter entitled "Case Conferences".
*'''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 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 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.
*'''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 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 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 entiltd "Resolving Family Law Problems Outside of Court".

==Resources and links==

===Legislation===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

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[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-05-11T21:15:19Z

Andrea Glen:

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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,
*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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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.
*'''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 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. This way everyone knows exactly what is going on and how strong each person’s case is.
*'''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 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.

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 a case involving a car accident, for example, an interim order might be needed to make someone be checked by a doctor or to make someone produce financial information. In family law cases, people often ask for interim orders to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property or a person.

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.
*'''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 new affidavit.''' The applicant has a certain amount of time after being served with the application respondent's materials to file a new affidavit in court. The new affidavit describes any additional facts that are important to the application. The new 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 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 about it. 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, 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.

==Resources and links==

===Legislation===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-05-11T21:14:44Z

Andrea Glen: Added definition of "family law proceeding", clarified a couple of other definitions

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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,
*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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 order about something, you must start a court 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===

<blockquote>'''Family Law Proceeding.''' A court action, also known as a lawsuit, that it started to resolve a family law dispute.

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 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, "reply" refers to all of these documents.</blockquote>

<blockquote>'''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.</blockquote>

===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.
*'''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 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. This way everyone knows exactly what is going on and how strong each person’s case is.
*'''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 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.

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 a case involving a car accident, for example, an interim order might be needed to make someone be checked by a doctor or to make someone produce financial information. In family law cases, people often ask for interim orders to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property or a person.

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.
*'''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 new affidavit.''' The applicant has a certain amount of time after being served with the application respondent's materials to file a new affidavit in court. The new affidavit describes any additional facts that are important to the application. The new 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 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 about it. 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, 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.

==Resources and links==

===Legislation===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-05-11T21:10:05Z

Andrea Glen: Adding reference to "family violence" and costs if litigation is unsuccessful, other relatively minor improvements in style, wording and content

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''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. </blockquote>

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,
*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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 order about something, you must start a court 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===

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''Claim/Application.''' The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family Claim or 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.</blockquote>

<blockquote>'''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. In the Provincial Court, the respondent will file a Reply. In this section, "reply" refers to all of these documents.</blockquote>

<blockquote>'''Pleadings.''' The basic documents that frame a legal dispute 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.</blockquote>

===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.
*'''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 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. This way everyone knows exactly what is going on and how strong each person’s case is.
*'''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 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.

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 a case involving a car accident, for example, an interim order might be needed to make someone be checked by a doctor or to make someone produce financial information. In family law cases, people often ask for interim orders to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property or a person.

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.
*'''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 new affidavit.''' The applicant has a certain amount of time after being served with the application respondent's materials to file a new affidavit in court. The new affidavit describes any additional facts that are important to the application. The new 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 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 about it. 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, 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.

==Resources and links==

===Legislation===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

{{JP Boyd on Family Law Navbox|type=chapters}}

{{Creative Commons for JP Boyd}}

[[Category:JP Boyd on Family Law]]

Resolving Family Law Problems in Court

2016-05-11T21:02:50Z

Andrea Glen:

{{JPBOFL Start Chapter
|Related = [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]{{·}}[[Replying to a Court Proceeding in a Family Matter|Replying to a Court Proceeding]]{{·}}[[Case Conferences in a Family Law Matter|Case Conferences]]{{·}}[[Interim Applications in Family Matters|Interim Applications]]{{·}}[[Enforcing Orders in Family Matters|Enforcing Orders]]{{·}}[[Changing Final Orders in Family Matters|Changing Final Orders]]
}}
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
}}

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 Court Proceeding in a Family Matter|starting a proceeding]], [[Replying to a Court Proceeding in a Family Matter|replying to a proceeding]], attending [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Final Orders in Family Matters|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:

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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 his or her 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.</blockquote>

<blockquote>'''Your pocket book.''' The only time litigation isn't expensive is when you do it yourself. 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.</blockquote>

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 physical, verbal or sexual abuse in the relationship, whether to you or to your children,
*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, or
*negotiations have failed and, despite your best efforts, you and your ex can't agree on how to solve your differences.

If none of these apply to you, your dispute — no matter how ugly it might seem to you — can always be resolved by negotiation or mediation rather than going to court. Even a court proceeding for a divorce order, which is the only other time when a court proceeding is absolutely necessary, can be done in a cooperative, non-confrontational manner.

Think twice before deciding that court is your only option.

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 ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|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 order about something, you must start a court 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===

<blockquote>'''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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''Parties.''' The claimant and the respondent are the parties to the court proceeding.</blockquote>

<blockquote>'''Claim/Application.''' The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family Claim or 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.</blockquote>

<blockquote>'''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. In the Provincial Court, the respondent will file a Reply. In this section, "reply" refers to all of these documents.</blockquote>

<blockquote>'''Pleadings.''' The basic documents that frame a legal dispute 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.</blockquote>

===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.
*'''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 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. This way everyone knows exactly what is going on and how strong each person’s case is.
*'''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 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.

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 a case involving a car accident, for example, an interim order might be needed to make someone be checked by a doctor or to make someone produce financial information. In family law cases, people often ask for interim orders to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property or a person.

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.
*'''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 new affidavit.''' The applicant has a certain amount of time after being served with the application respondent's materials to file a new affidavit in court. The new affidavit describes any additional facts that are important to the application. The new 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 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 about it. 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, 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.

==Resources and links==

===Legislation===

* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
* ''[http://canlii.ca/t/51x8q Supreme Court Act]''
* [http://canlii.ca/t/85bg Court of Appeal Rules]
* ''[http://canlii.ca/t/51tr9 Court of Appeal Act]''
* ''[http://canlii.ca/t/84h8 Court Rules Act]''

===Resources===

* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/court_of_appeal/Practice_and_Procedure/civil_practice_directives_/index.aspx Court of Appeal Practice Directives]
* ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War]'' by Mr. Justice Brownstone
* "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF).

===Links===

* [http://courts.gov.bc.ca Courts of British Columbia website]
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
* [http://www.courts.gov.bc.ca/Court_of_Appeal/ Court of Appeal website]
* [http://www.courts.gov.bc.ca/supreme_court/self-represented_litigants/guidebooks.aspx Guidebooks from the BC Supreme Court website]
* [http://www.supremecourtbc.ca/family/tips-for-parents Justice Education Society's Court Tips for Parents (videos)]

{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}

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