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Responding to a Court Proceeding in a Family Matter (view source)
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{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge | {{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge | ||
|ChapterEditors = [[Shannon Aldinger]] and [[ | |ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]] | ||
}} | }} | ||
If a court proceeding has been started against you, you have two choices: do nothing or | If a court proceeding has been started against you, you have two choices: do nothing or respond to the proceeding and defend yourself. If you agree with the orders the other party is asking for, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or completely disagree you must respond to the claim or you risk losing by default. | ||
This section discusses the process for | This section discusses the process for responding to a court proceeding in the Supreme Court and the Provincial Court. For a more complete picture of the court process, read this section together with the section on [[Starting a Court Proceeding in a Family Matter|Starting a Court Proceeding]]. | ||
<span style="color:#D2691E">'''Important changes'''</span> <br /> | |||
The rules used by the Provincial Court changed in May 2021. Read [[Recent Changes to Family Law in British Columbia]]. As well, special processes are now being used by the Provincial Court in Victoria and Surrey. If you have a family law case in the Victoria and Surrey courthouses, speak to the court staff about how your case is affected. | |||
==The Supreme Court== | ==The Supreme Court== | ||
If you are being sued in the Supreme Court, you are the ''respondent'' in a court proceeding that has been started by the ''claimant''. If you disagree with any of the orders the claimant is asking for, you must prepare a Response to Family Claim. You | If you are being sued in the Supreme Court, you are the ''respondent'' in a court proceeding that has been started by the ''claimant''. If you disagree with any of the orders the claimant is asking for, you must prepare a form called Response to Family Claim. You also prepare a form for Counterclaim if there is an order you would like to ask for. These documents, together with the claimant's Notice of Family Claim, are called pleadings. | ||
The primary [http://canlii.ca/t/8mcr Supreme Court Family Rules] | The primary [http://canlii.ca/t/8mcr Supreme Court Family Rules] to review when responding to a family claim, preparing a counterclaim, and the steps leading up to trial are: | ||
*Rule 1-1: definitions | *Rule 1-1: definitions | ||
*Rule 3-1: starting a court proceeding | *Rule 3-1: starting a court proceeding | ||
*Rule 4-3: | *Rule 4-3: responding to a claim | ||
*Rule 4-4: | *Rule 4-4: making a counterclaim | ||
*Rule 5-1: financial disclosure | *Rule 5-1: financial disclosure | ||
*Rule 6-2: ordinary service | *Rule 6-2: ordinary service | ||
*Rule 7-1: | *Rule 7-1: Judicial Case Conferences | ||
*Part 9: disclosure and discovery of documents | *Part 9: disclosure and discovery of documents | ||
*Part 10: interim applications and chambers procedure | *Part 10: interim applications and chambers procedure | ||
*Rule 11-4: discontinuing a court proceeding and withdrawing a | *Rule 11-4: discontinuing a court proceeding and withdrawing a response to one | ||
*Part 13: expert witnesses | *Part 13: expert witnesses | ||
*Rule 11-3: summary trial procedure | *Rule 11-3: summary trial procedure | ||
| Line 28: | Line 31: | ||
*Rule 15-2.1: guardianship orders | *Rule 15-2.1: guardianship orders | ||
Links to and examples of the Response to Family Claim, Counterclaim and other court forms can be found in [[Supreme Court Forms (Family Law) | Links to and examples of the Response to Family Claim, Counterclaim and other court forms can be found in this resource under [[Supreme Court Forms (Family Law)]]. For a quick introduction to how to reply to a proceeding, see [[How Do I Respond to a Family Law Action in the Supreme Court?]]. It's located in the ''How Do I?'' part of this resource. | ||
===Quick tips: Defending an action in the Supreme Court=== | ===Quick tips: Defending an action in the Supreme Court=== | ||
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===The next steps=== | ===The next steps=== | ||
Contesting the claimant's claims and filing a Response to Family Claim or Counterclaim does not necessarily mean you will wind up in a trial. One of three things is going to happen in your court proceeding: | |||
#You'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make, called a consent order. | #You'll settle your disagreement out of court, and come up with either a ''separation agreement'' or an order that you both agree the court should make, called a ''consent order''. | ||
#You' | #You won't be able to agree, and the court will need to decide what should happen in your case at a trial. | ||
#After some initial scuffles, neither you nor the claimant will take any further steps in the court proceeding and the proceeding will languish. | #After some initial scuffles, neither you nor the claimant will take any further steps in the court proceeding and the proceeding will languish. | ||
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==The Provincial Court== | ==The Provincial Court== | ||
If a court proceeding has been started against you in the Provincial Court, you are the ''respondent'' in the proceeding. The person who started the court proceeding is the ''applicant''. If you agree with the orders the applicant is asking for, doing nothing is the quickest way to handle things. On the other hand, if you only partly agree or if you completely disagree with what the applicant is asking for, you must prepare a Reply. | If a court proceeding has been started against you in the Provincial Court, you are the ''respondent'' in the proceeding. The person who started the court proceeding is the ''applicant''. If you agree with the orders the applicant is asking for, doing nothing is the quickest way to handle things. On the other hand, if you only partly agree or if you completely disagree with what the applicant is asking for, you must prepare a ''Reply''. | ||
The primary [http://canlii.ca/t/85pb Provincial Court (Family) Rules] about | The primary [http://canlii.ca/t/85pb Provincial Court (Family) Rules] about ''replying'' to a claim, making your own counterclaims against the claimant, and the steps leading up to trial are: | ||
*Rule 1: definitions | *Rule 1: definitions | ||
*Rule 3: | *Rule 3: replying to the family claim and making a counterclaim | ||
*Rule 4: financial disclosure | *Rule 4: financial disclosure | ||
*Rule 6: the first and subsequent appearances in court | *Rule 6: the first and subsequent appearances in court | ||
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*Rule 21: Parenting After Separation program | *Rule 21: Parenting After Separation program | ||
Links to and examples of the Reply and other court forms can be found in [[Provincial Court Forms (Family Law) | Links to and examples of the Reply and other court forms can be found in [[Provincial Court Forms (Family Law)]]. As a respondent, you use the same form for your ''reply'' and any ''counterclaim''. For a quick introduction to how to reply to a proceeding, see [[How Do I Respond to a Family Law Action in the Provincial Court?]] It's located in the section Defending an Action in the ''How Do I?'' part of this resource. | ||
===Limitations of the Provincial Court=== | ===Limitations of the Provincial Court=== | ||
The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes take care of things like drafting court orders. The main | The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantages of proceeding in the Provincial Court are that the authority of the court is limited and there are fewer opportunities to explore the other party's case before the trial. The Provincial Court can only hear applications under the ''[[Family Law Act]]'' on certain subjects, including: | ||
*guardianship, | *guardianship, | ||
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===The next steps=== | ===The next steps=== | ||
Certain registries may have special programs or requirements that are unique to the registry. The registry will advise you of what is needed when you file your materials. | |||
In certain registries of the Provincial Court, the parties must meet with a family justice counsellor | In certain registries of the Provincial Court, the parties must meet with a family justice counsellor and, if children are involved, attend a [https://www.clicklaw.bc.ca/resource/2638 Parenting After Separation] program before you can take any further steps in your case. This may apply even if you are seeking a default judgment. The court clerk at your court registry will tell you what is needed. If necessary, the court clerk will refer you to the family justice counsellor and tell you where the Parenting After Separation program is offered. | ||
Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try mediation. | Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try mediation. | ||
The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available [http:// | The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available [http://www.clicklaw.bc.ca/resource/4395 online]. The online course does not replace the need to attend an in-person course if that is otherwise required. You will have to file a certificate that you've completed the program. | ||
For family law matters going through Provincial Court in the Victoria Registry, there is the [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Victoria Early Resolution and Case Management Model], described in a separate section in this chapter. | |||
The additional steps that follow the commencement of a proceeding in the Provincial Court are a simplified version of the Supreme Court process. There are fewer hoops to jump through, but also fewer means to extract information and documents from the other side. | The additional steps that follow the commencement of a proceeding in the Provincial Court are a simplified version of the Supreme Court process. There are fewer hoops to jump through, but also fewer means to extract information and documents from the other side. | ||
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===Resources=== | ===Resources=== | ||
* [ | * [https://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions] | ||
* [ | * [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions] | ||
* [ | * [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices] | ||
* [ | * [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling] | ||
===Links=== | ===Links=== | ||
* [ | * [https://www.bccourts.ca/supreme_court/ Supreme Court website] | ||
* [ | * [https://www.provincialcourt.bc.ca Provincial Court website] | ||
* | * Provincial Court: [https://www.clicklaw.bc.ca/resource/4498 Family Cases] | ||
* [http://www. | * Legal Services Society's Family Law website's information page [https://www.clicklaw.bc.ca/resource/4652 "I've been served with a court form"] | ||
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society's website for BC Supreme Court] | |||
* [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course | * [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course from Justice Education Society] | ||
{{REVIEWED | reviewer = [[Shannon Aldinger]], June 8, | {{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 8, 2019}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
