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Difference between revisions of "Starting a Court Proceeding in a Family Matter"
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Starting a Court Proceeding in a Family Matter (view source)
Revision as of 23:08, 30 July 2017
, 23:08, 30 July 2017no edit summary
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|resourcetype = further step-by-step information on | |resourcetype = further step-by-step information on | ||
|link = [http://www.familylaw.lss.bc.ca/guides/start/cantAgree/supreme/apply/steps.php How to start a family law case<br/> in Supreme Court] | |link = [http://www.familylaw.lss.bc.ca/guides/start/cantAgree/supreme/apply/steps.php How to start a family law case<br/> in Supreme Court] | ||
}}The | }}The claimant, the person starting the court proceeding, must fill out a Notice of Family Claim and file the claim in court. The Notice of Family Claim provides: the claimant's name and address; the name and address of the person against whom the claim is made, the ''respondent''; the basic history of the parties' relationship; and, an outline of the orders the claimant would like the court to make. | ||
The court form that must be used is Form F3, set out in the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional pages that require more detailed information must be added to the Notice of Family Claim when the claimant seeks orders about: | The court form that must be used is Form F3, set out in the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional pages that require more detailed information must be added to the Notice of Family Claim when the claimant seeks orders about: | ||
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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 | 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" means physically handing the Notice of Family Claim to the respondent. 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 to go without saying, don't use one of your children to serve your ex. | |||
===Deadline for reply=== | ===Deadline for reply=== | ||
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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). | 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 | 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. | ||
===The next steps=== | ===The next steps=== | ||
If the respondent has chosen to file a Response to Family Claim, | 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 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 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. | ||
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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 in a Family Law Matter|Next Steps: An Overview of Case Conferences and Discovery]] | For more information on the next steps in a family law proceeding, see [[Next Steps: An Overview of Case Conferences and Discovery in a Family Law Matter|Next Steps: An Overview of Case Conferences and Discovery]]. | ||
==The Provincial Court== | ==The Provincial Court== | ||
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*Rule 21: Parenting After Separation program | *Rule 21: Parenting After Separation program | ||
Links to and examples of the Application to Obtain an Order and other court forms can be found in [[Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For a quick introduction to how to start a proceeding, see [[How Do I Start a Family Law Action in the Provincial Court?]] It's located in the section Starting an Action in the ''How Do I?'' part of this resource. | Links to and examples of the Application to Obtain an Order and other court forms can be found in [[Provincial Court Forms (Family Law)|Provincial Court Forms & Examples]]. For a quick introduction to how to start a proceeding, see [[How Do I Start a Family Law Action in the Provincial Court?]] It's located in the section ''Starting an Action'' in the ''How Do I?'' part of this resource. | ||
===Limitations of the Provincial Court=== | ===Limitations of the Provincial Court=== | ||
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Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] says that an applicant cannot personally be the one who serves a respondent. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Don't use one of your children to serve your ex. | Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules] says that an applicant cannot personally be the one who serves a respondent. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Don't use one of your children to serve your ex. | ||
If you're not sure where you ex lives, see [[How Do I Find My Ex?]] It's located in the section Marriage, Separation & Divorce in the ''How Do I?'' part of this resource. | If you're not sure where you ex lives, see [[How Do I Find My Ex?]] It's located in the section ''Marriage, Separation & Divorce'' in the ''How Do I?'' part of this resource. | ||
===Deadline for reply=== | ===Deadline for reply=== | ||
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The respondent has 30 days to fill out and file a court form called a Reply after being served with the applicant's Application to Obtain an Order. If the respondent doesn't do this, the applicant may be able to apply for the orders asked for in the Application to Obtain an Order as a ''default judgment'', a final order made in default of the respondent's reply. | The respondent has 30 days to fill out and file a court form called a Reply after being served with the applicant's Application to Obtain an Order. If the respondent doesn't do this, the applicant may be able to apply for the orders asked for in the Application to Obtain an Order as a ''default judgment'', a final order made in default of the respondent's reply. | ||
You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An applicant should not expect to win on a technicality like this. If a respondent files | You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An applicant should not expect to win on a technicality like this. If a respondent files his or her reply 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. | ||
===The next steps=== | ===The next steps=== | ||
If the respondent has chosen to file a Reply, | 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 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. | # You'll not be able to agree, and the intervention of the court at a trial will be required. | ||
