Difference between revisions of "Responding to a Court Proceeding in a Family Matter"

This page will discuss the process for replying to a court proceeding in the Supreme Court and the Provincial Court. For a more complete picture of the court process, this page should be read together with the previous page, Starting a Court Proceeding.

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 can also prepare a ''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 rules about Responses to Family Claim and Counterclaims, replying to a court proceeding and trials are:

Sample court forms and blank court forms for download are available in _______ .

===Preparing, Filing and Serving the Response to Family Claim===

You must file your Response to Family Claim at the court registry within 30 days of being served with the Claimant's Notice of Family Claim.

The Notice of Family Claim sets out the basic history of the parties' relationship and an outline of the orders the Claimant would like the court to make. Your Response to Family Claim says which of the Claimant's claims you agree with and which you oppose and which of the facts set out in the Notice of Famiy Claim are inaccurate.

The form which must be used is Form F4, set out in the Supreme Court Family Rules. This is a special form of response used only in family law cases.

The Response to Family Claim must be filed in the court registry and be served on the Claimant by ordinary service. It costs $25 to file a Response to Family Claim. Ordinary service means sending a copy of the filed response to the Claimant at any of the addresses for service identified in the Notice of Family Claim.

===Preparing, Filing and Serving the Counterclaim===

If there are any orders you would like to ask for, you may file a Counterclaim at the court registry within 30 days of being served with the Claimant's Notice of Family Claim. Your Counterclaim describes the orders you would like the court to make.  

It can be very important to file a Counterclaim if you want the court to make an order on different terms or about a different issue than the claims made in the Notice of Family Claim. Think of it like this. Your Response to Family Claim is your defence to the claims made the Claimant in his or her Notice of Family Claim. Your Response to Family Claim doesn't ask for anything, it just says what you do and don't agree with. Unless a Counterclaim is filed, the only person asking for any orders is the Claimant. If you are successful in your defence, there may be no claims left for the court to make an order about.  

The form which must be used is Form F5, set out in the Supreme Court Family Rules. This is a special form of counterclaim used in family law cases. Additional pages which require more detailed information must be added to the Counterclaim when the Respondent seeks orders about:

#divorce;

#children, including child support;

#spousal support;

#the division of property and debt; and,

#other orders, like protection orders or orders for the change of a person's name.

The Counterclaim must be filed in the court registry and be served on the Claimant by ordinary service. It costs $200.00 to file a Counterclaim.

The Claimant has 30 days to file a ''Response to Counterclaim'' in Form F6 after being served with the Respondent's Counterclaim. Very few people bother to file a Response to Counterclaim; I would only go to the trouble of preparing a response if there was something unusual or unexpected in the Counterclaim.

===The Next Steps===

Although you've decided to defend the Claimant's claims, you're not necessarily going to 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 not be able to agree, and the intervention of the court at a trial will be required; or,

#after some initial scuffles, neither you nor the Respondent will take any further steps in the court proceeding and the proceeding will languish.

#the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations");

#all Notices of Assessment and Reassessment received for the last three tax years;

#the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement or EI statement;

#business records like financial statements and corporate income tax returns, if the party has a company; and,

The form which must be used is Form F8, set out in the Supreme Court Family Rules.

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

JCCs are discussed in more in the <span style="color: red;">Case Conferences</span> page.

If you 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''. You have two choices after being served with Applicant's Application to Obtain an Order: do nothing or defend yourself. If you agree with the relief sought, doing nothing is the cheapest and 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 Applicant has 30 days to file a ''Reply'' in Form 3 after being served with the Respondent's Reply if the Reply asks for any orders. Very few Applicants bother to file a Reply; I would only go to the trouble of preparing a response if there was something unusual or unexpected in the Counterclaim.