Difference between revisions of "Starting a Court Proceeding in a Family Matter"
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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 property, 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, they cannot provide legal advice and it is your job to prepare these materials, gather your evidence, and take the steps necessary to bring your case before a judge. | 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 property (and even just a divorce), 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, they cannot provide legal advice and it is your job to prepare these materials, gather your evidence, and take the steps necessary to bring your case before a judge. | ||
This section reviews the processes for starting a 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 [[Replying_to_a_Court_Proceeding_in_a_Family_Matter|Replying to a Court Proceeding]]. | This section reviews the processes for starting a 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 [[Replying_to_a_Court_Proceeding_in_a_Family_Matter|Replying to a Court Proceeding]]. | ||
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*other orders, like protection orders or orders for the change of a person's name. | *other orders, like protection orders or orders for the change of a person's name. | ||
The Notice of Family Claim must be filed in the court registry and be personally served on the respondent. 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 a Notice of Family Claim, or $210 if the claim includes a claim for a divorce. | The Notice of Family Claim must be filed in the court registry and be personally served on the respondent. 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 a Notice of Family Claim, or $210 if the claim includes a claim for a divorce. When you file any document in Supreme Court (including the Notice of Family Claim), the registry will keep the original of the document, so you will want to make and keep at least two additional copies (one for you to keep and one to give to the other party). | ||
"Personal service" | "Personal service" means physically handing the Notice of Family Claim to the respondent. The ''[[Divorce Act]]'' and Rule 6-3(2) of the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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 to go without saying, don't use one of your children to serve your ex. | ||
===Deadline for reply=== | ===Deadline for reply=== | ||
The respondent has 30 days to file a Response to Family Claim after being served with the claimant's Notice of Family Claim. If the respondent doesn't do this, the claimant may be able to apply for the orders asked for in the Notice of Family Claim as a ''default judgment'', a final order made in default of the respondent's reply (and | The respondent has 30 days to file a Response to Family Claim after being served with the claimant's Notice of Family Claim. If the respondent doesn't do this, the claimant may be able to apply for the orders asked for in the Notice of Family Claim as a ''default judgment'', a final order made in default of the respondent's reply (and possibly without further notice to the respondent). | ||
You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. A claimant should not expect to win on a technicality like this. If a respondent files his or her Response to Family Claim late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for. | You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. A claimant should not expect to win on a technicality like this. If a respondent files his or her Response to Family Claim late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for. | ||
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#After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish. | #After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish. | ||
For more information on the next steps in a family law proceeding, see [[Next Steps: An Overview of Case Conferences and Discovery]]. | |||
==The Provincial Court== | ==The Provincial Court== | ||
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*parental responsibilities and parenting time, | *parental responsibilities and parenting time, | ||
*contact with a child, | *contact with a child, | ||
*child support, | *child support, | ||
*spousal support. | *spousal support | ||
*protection orders, and | |||
*payment of household bills such as mortgage and utilities pending trial or settlement. | |||
The Provincial Court cannot hear your application if you are applying for orders under the federal ''[[Divorce Act]]'' or for orders relating to the division of property and debt under the ''Family Law Act''. | The Provincial Court cannot hear your application if you are applying for orders under the federal ''[[Divorce Act]]'' or for orders relating to the division of property and debt under the ''Family Law Act''. | ||
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===The next steps=== | ===The next steps=== | ||
If the respondent has chosen to file a Reply, he or she has decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. One of three things is going to happen in your court proceeding: | |||
# 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. | |||
# After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish. | |||
=== Parenting After Separation === | |||
In certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php 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 | 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://parenting.familieschange.ca 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. | |||
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==Further Reading in this Chapter== | ==Further Reading in this Chapter== |