Starting a Court Proceeding in a Family Matter

If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of assets, you must begin a court proceeding. There are certain steps you must take, certain fees you must pay and certain forms you must fill out before the court will hear your claim. Although the staff at the court registries are friendly and very helpful, it is your job to prepare these materials, gather your evidence and take the steps necessary to bring your case before a judge.

This page offers a brief caution about starting an action in haste and reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court.

JP finished. No glossary tags to be added. Links to be added, including to other pages in wiki. Downloadable documents to be added.

Is litigation really necessary?

Sometimes, you really have no choice except to start a court proceeding. But please think twice before you do, and make certain that litigation is your only choice.

The end of a relationship, especially a long relationship, is an emotionally charged, stressful moment. Litigation is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to court, think about these things first:

Your future relationship with your ex. Right now you might hate your ex and want to rip his or her eyes out. You might not feel that way in a year or two. If you don't have children, it might be entirely possible for you to simply walk out of each other's lives and into the sunset. If you do have children, you don't have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.

Your children, and your relationship with your children. Your children will be aware that there is a conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in litigation, it can be tremendously difficult to shield the children from the litigation, and from your emotional reactions to the litigation. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely and often in ways you don't expect.

Your own worries and anxieties. Litigation is always an uncertain affair. No one, not even your lawyer, will guarantee that you will be successful about any 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.

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.

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 law. 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 Resolving Problems out of Court chapter.)

Now, in fairness, there are times when litigation is your only choice. It may be critical to start an action when:

1. there is a threat or a risk of child abduction;
2. there has been physical, verbal or sexual abuse in the relationship, whether to you or to your children;
3. threats have been made to your physical safety, or to the safety of your children;
4. there is a threat or a risk that your ex will damage, hide or dispose of property;
5. there is an urgent need to immediately secure some financial support; or,
6. negotiations have failed and, despite your best efforts, you can't agree on how to solve your differences.

Absent these important factors, your dispute, no matter how ugly it might seem to you, can always be resolved by negotiation or mediation rather than litigation. Even an action for a divorce order, which is the only other time when litigation is required, can be done in a cooperative, non-confrontational manner.

Think twice before deciding that litigation 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 chapter Marriage & Divorce > Separating Emotionally. You should also track down and read a copy of Tug of War by Mr. Justice Brownstone from the Ontario Court of Justice. He gives a lot of practical advice about the family law court system, when it works best and when it doesn't work at all.

The Supreme Court

The main document you will have to prepare is a Notice of Family Claim in Form F3, a special form prescribed by the Supreme Court Family Rules. (This document is one of the basic legal documents in a court proceeding known as "pleadings".) The primary rules about Notices of Family Claim and the commencement of a court proceeding are:

• Rule 1-1: definitions
• Rule 3-1: commencing an action
• Rule 4-1: Notices of Family Claim and service requirements
• Rule 4-3: replying to an action
• Rule 5-1: financial disclosure
• Rule 6-3: personal service
• Rule 7-1: Judicial Case Conferences
• Part 9: disclosure and discovery of documents
• Part 10: chambers procedure
• Rule 11-4: discontinuing an action
• Part 13: expert witnesses
• Rule 11-3: summary trial procedure
• Rule 14-7: trial procedure

A link to the Supreme Court Family Rules is provided in the chapter _____. Sample court forms and blank court forms for download are available in ____.

Notice of Family Claim

The Notice of Family Claim sets out: the name and address for service of the person starting the court proceeding, the Claimant; the name and address of the person against whom the claim is made, the Respondent; the basic history of the parties' relationship; and, the bare essentials of the Claimant's claims.

The form which must be used is Form F3, set out in Appendix A of the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional schedules, which require a lot more detailed information, must be added to the Notice of Family Claim when the Claimant seeks orders about:

1. divorce;
2. children, including child support;
3. spousal support;
4. the division of property; and,
5. other orders, like restraining orders or orders for the change of a person's name.

The Notice of Family Claim must be filed in the court registry and be personally served on the Respondent. (The Respondent has thirty days from the date of service to file a Response to Family Claim.) If you are asking for a divorce order, you'll have to fill out a Registration of Divorce Proceeding form when you file your Notice of Family Claim.

It costs $200 to file Notice of Family Claim, or $210 if the claim includes a claim for a divorce.

The Divorce Act and Rule 6-3(2) of the Supreme Court Family Rules say that a Claimant cannot serve a Respondent him- or herself. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Although this ought go without saying, do not use one of your children to serve your ex.

Default

If the Respondent fails to file and deliver his or her Response to Family Claim within 30 days, the Claimant may be able to apply for the orders asked for in the Notice of Family Claim by way of a default judgment, using the desk order process described in the _____ chapter.

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. A Claimant should not expect to "win" on a technicality of this nature; if a Respondent files his or her Response to Family Claim late, the court will usually give the Respondent an extension of time and overlook the missed due date.

The Next Steps

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

1. you'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make;
2. you'll not be able to agree, and the intervention of the court at a trial will be required; or,
3. after some initial scuffles, neither you nor the Respondent will take any steps in the court proceeding and the proceeding will languish.

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

Exchange Financial Statements. Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements must be exchanged before the first Judicial Case Conference, and updated statements will be required throughout the case and before trial.

Have a Judicial Case Conference. A JCC is necessary before most interim applications can be brought. JCCs are informal, off-the-record meetings between the parties, their lawyers and a judge intended to canvas areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail in the last part of this chapter.

Interim Applications. In almost all cases, parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them until the claims at issue in the court proceeding are finally determined. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, and the payment of child support and spousal support. The process for bringing interim applications is discussed in detail in ______.

Document Disclosure and Production. The rules of court require that each party produce to the other all documents in their possession that are relevant to the matters at issue in an action. This can include things like bank statements, report cards, medical records, school reports and so forth. Each party must list these documents in a formal List of Documents, and keep their Lists of Documents updated when new documents are found or become available.

Discovery. The parties may, if they wish, conduct a cross-examination of the other party under oath, outside of court. This is called an Examination for Discovery. Examinations for Discovery are helpful to get the other party's views of the evidence and the matters at issue on the record. Discoveries are almost always held after Financial Statements have been prepared and the documents have been exchanged.

Have a Settlement Conference. The rules allow a party to schedule a Settlement Conference before a judge ahead of trial. At this hearing, the parties will explain their positions to the court and their areas of disagreement and hopefully negotiate a settlement. These conferences can be very helpful, as the judge serves as a mediator and helps the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement.

Have a Trial Management Conference. A TMC is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes about evidence before trial as possible. Among other things, the judge will ask about the witnesses each party intends to call, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions.

Trial. At the end of the day, if you can't agree you will wind up at trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to decide the case in their favour. The judge will hear all the evidence and the arguments, and reach a decision in the form of Reasons for Judgment. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the Reasons for Judgment.

This is, of course, just a rough sketch of the lengthy process of bringing an action to a conclusion. Not every case will need to use all of these steps (some people may not need to have Examinations for Discovery and others won't see the point of holding a Settlement Conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process is much, much more complex that my brief description.

Financial Statements

If the case involves a claim for spousal support, child support or the division of assets, each party must prepare and file a Financial Statement. A Financial Statement sets out a person's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an Affidavit, by a lawyer, notary public or registry clerk.

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

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

1. the last three years' worth of tax returns (what's required are the complete T1 income tax and benefit returns, not tax return "summaries" or "informations");
2. all Notices of Assessment and Reassessment received in connection with the last three tax years;
3. the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement or EI statement;
4. business and/or corporate records such as financial statements and corporate income tax returns, if the party has an incorporated or unincorporated business; and,
5. the most recent BC Assessments for all real property.

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

Judicial Case Conferences

Judicial Case Conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom. JCCs must be held in all contested family law actions, and, in most cases, they must be held before any interim applications can be heard.

JCCs are discussed in more in _____ .

The Provincial Court

The Provincial (Family) 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 takes care of things like drafting court orders. The only downside of bringing your case to the Provincial Court is that the court has a limited jurisdiction and can only hear applications under the Family Relations Act dealing with certain issues, including:

child support; spousal support; the variation of previous Provincial Court orders about child and spousal support; arrears of child support or spousal support; custody and guardianship of children; and, access to children. The Provincial Court cannot hear your application if you are applying for orders under the federal Divorce Act or for orders relating to the division of property under the Family Relations Act.

A link to the Provincial (Family) Court Rules of Court is provided in the Resources & Links section.

Application to Obtain an Order

Most actions are started in the Provincial (Family) Court by filing an Application to Obtain an Order. (Actions can also be started with an Application to Change an Order or Agreement where there is already a court order or separation agreement.) The person beginning the action, the Applicant, fills out the form, providing: the Applicant's name and address for service; the name and address of the person against whom the application is being made, the Respondent; a list of the orders the Applicant is asking the court to make; and, a brief statement of the relevant facts. The Applicant then files the form in the court registry.

The form which must be used is Form 1, set out in the Provincial Court Family Court Manual. Applications to Change an Order or Agreement are prepared using Form 2.

Once the application has been filed, the court registry may take care of serving the Respondent with a copy of the materials you filed. Most registries will require that you take care of serving the Respondent. Once the Respondent has been served, he or she must file a Reply within 30 days.

Default

A Respondent who fails to file and deliver his or her Reply by 30 days is not entitled to be notified of any further steps taken in the action. This will change, of course, if the Respondent files a Reply down the road, but until that happens the Applicant is free to set a date for the hearing of the action, or for the hearing of an interim application, with no notice to the Respondent.

At the hearing, the Applicant can ask the court to make a default judgment in the Respondent's absence. You should not assume that you'll necessarily get what you want, especially if the action concerns the care and control of children. In a case like that, the court will also consider what is in the children's best interests, and despite the lack of a Reply from the Respondent, the court may not conclude that the children's best interests are served by allowing your claim.

The Next Steps

In certain registries of the Provincial (Family) Court the parties must meet with a Family Justice Counsellor, and, if children are involved, attend a Parenting After Separation program before any further steps can be taken in a case. This will apply even if you are seeking a default judgment. The court clerk will refer you to the Family Justice Counsellor and tell you where the Parenting After Separation is offered. You will have to file a certificate that you've completed the program before any further steps can be taken in your case.

At court registries that do not have this requirement, an interim application can be brought at any time after the action has commenced by the filing of an Application to Obtain an Order or an Application to Change an Order or Agreement.

The steps which follow the commencement of an action in Provincial (Family) Court are a simplified version of the Supreme Court process. There are less hoops to jump through, but also fewer means to extract information and documents from the other side.

Interim Applications: In almost all cases, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them in their conduct towards each other and the children until the issues between them can be finally determined. The most common applications in family law involve restraining orders, issues relating to the care and control of the children, child support and spousal support. The process for bringing interim applications is discussed in detail in the chapter The Legal System > Interim Applications. Exchange Financial Statements: Financial Statements are required whenever the payment of support is at issue. Financial Statements are prepared using Form 4. Have a Family Case Conference: This is a hearing similar the the Judicial Case Conference required by the Supreme Court. It is an informal, off-the-record meeting between the parties, their lawyers and a judge intended to canvas areas of agreement and set dates and deadlines for the remaining steps in the litigation. Although FCCs are very helpful and often result in settlement, FCCs are not mandatory unless you have been referred to an FCC by a judge. If you think a FCC will help resolve your case, ask for one! Have a Settlement Conference: The Rules allow a party to have a Settlement Conference with a judge. At this hearing, the parties will explain their positions to the court and hopefully negotiate a settlement, with the judge acting as a kind of mediator. These conferences can be very helpful, as the judge will often express his or her opinion about each party's position and what the judge thinks the likely result of a trial will be. Trial: At the end of the day, if you can't agree on an appropriate settlement, you will wind up at trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to decide the case in their favour. The judge will hear all the evidence and the arguments and reach a decision in the form of Reasons for Judgment. Where neither party is represented by a lawyer, the court clerk will draft a final order based on the judge's Reasons for Judgment.

Financial Statements

If a case involves a claim for spousal support or child support, each party must prepare and file a Financial Statement. A Financial Statement sets out a party's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an Affidavit, by a lawyer, notary public or registry clerk. Each party must attach to their Financial Statements the following documents:

their last three years' worth of tax returns; their Notices of Assessment and Reassessment for the last three tax years; their most recent paystub, showing their earnings-to-date, or if the party isn't working, then their most recent WCB statement, social assistance statement or EI statement; and, if the party is involved in a business, certain other business and/or corporate records. The form which must be used is Form 4, set out in the provincial court Family Court Manual.

Family Case Conferences

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

FCCs are discussed in more detail below.

F. Downloads The links below will open a sample Application to Obtain an Order and a sample Application to Change an Order or Agreeement in a new window.

In the sample Application to Obtain an Order, our fictitious applicant, Simon Chang, is suing his common-law partner, Suzie Schwartz, for orders relating to the care and control of the children, an order for the payment child support, and a common restraining order stopping Suzie from removing the children from British Columbia. In the sample Application to Change an Order or Agreement, Simon is asking for an order that Suzie's child support obligation be increased because her income has increased.

Form 1: Application to Obtain an Order Form 2: Application to Change an Order or Agreeement Form 4: Financial Statement These sample documents are just that: samples. While they represent a more or less accurate picture of how Simon Chang might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

Areas where you must supply information are indicated in handwritten script.

Further Reading in this Chapter

Return to the first page in this chapter.

• Mediation
• Arbitration
• Parenting Coordination

Page Resources, Links and Downloads

Legislation

• bulleted list of legislation referred to in page

Links

• bulleted list of linked external websites referred to in page
• Collab Roster

Downloads

The link below will open a sample collaborative process participation agreement in a new window. You may require a PDF reader to view this file; Adobe Acrobat Reader is a free PDF reader available for download from Adobe Software. In this sample, Jane Doe and John Doe are entering into a collaborative process agreement with their lawyers, Alice Smith and Sylvia Black.

Collaborative Process Agreement (PDF)

This sample document is just that: a sample. While it represents a more or less accurate picture of how these sorts of agreements might look, it may not be applicable to your situation and may not reflect the terms of the agreement you will sign if you decide to use a collaborative settlement process. Use it as a reference only.