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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 02:04, 19 May 2013
, 02:04, 19 May 2013→The Provincial Court
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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/final/cantAgree/provincial/apply/steps.php Starting a family law case<br/> in Provincial Court] | |link = [http://www.familylaw.lss.bc.ca/guides/final/cantAgree/provincial/apply/steps.php Starting a family law case<br/> in Provincial Court] | ||
}}To start a proceeding in the Provincial Court, the main document you have to prepare is an Application to Obtain an Order in Form 1, a special form prescribed by the [http://canlii.ca/t/85pb Provincial Court Family Rules]. This is the document that says who you are suing and what you are suing for | }}To start a proceeding in the Provincial Court, the main document you have to prepare is an Application to Obtain an Order in Form 1, a special form prescribed by the [http://canlii.ca/t/85pb Provincial Court Family Rules]. This is the document that says who you are suing and what you are suing for. | ||
Family law proceedings are governed by the Provincial Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about Family Case Conferences, disclosure, interim applications, and trials. The primary rules about Applications to Obtain an Order and the management of court proceedings are: | Family law proceedings are governed by the Provincial Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about Family Case Conferences, disclosure, interim applications, and trials. The primary rules about Applications to Obtain an Order and the management of court proceedings are: | ||
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*Rule 21: Parenting After Separation program | *Rule 21: Parenting After Separation program | ||
Links to and examples of court forms | 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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===Preparing, filing and serving the application to obtain an order=== | ===Preparing, filing and serving the application to obtain an order=== | ||
Most court proceedings are started in the Provincial Court by filing an | Most court proceedings are started in the Provincial Court by filing an Application to Obtain an Order in Form 1. (Court proceedings can also be started with an Application to Change or Cancel an Order in Form 2 where there is already a court order or separation agreement in place.) The person beginning the action, the ''applicant'', fills out the Application to Obtain an Order and provides certain information, including: the applicant's name and address; 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 very <span class="noglossary">brief</span> statement of the relevant facts. | ||
The Application to Obtain an Order must be filed in the court registry and be personally served on the respondent. No fee is charged to file the Application to Obtain an Order. | The Application to Obtain an Order must be filed in the court registry and be personally served on the respondent. No fee is charged to file the Application to Obtain an Order. | ||
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. | 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. | ||
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===Deadline for reply=== | ===Deadline for reply=== | ||
The respondent has 30 days to fill out and file a court form called a | 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 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. | 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. | ||
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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 the 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. You will have to file a certificate that you've completed the program. | 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 the 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. You will have to file a certificate that you've completed the program. | ||
The steps that follow the commencement of a proceeding in the Provincial Court are a shorter, more streamlined 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 steps that follow the commencement of a proceeding in the Provincial Court are a | |||
<blockquote>'''1. Meet with a family justice counsellor and take the Parenting After Separation program.''' 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.</blockquote> | <blockquote>'''1. Meet with a family justice counsellor and take the Parenting After Separation program.''' 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.</blockquote> | ||
<blockquote>'''2. Exchange | <blockquote>'''2. Exchange Financial Statements.''' Financial Statements are required whenever the payment of child support or spousal support is an issue. Financial Statements are prepared in Form 4.</blockquote> | ||
<blockquote>'''3. Have a family case conference (FCC).''' An FCC is a hearing similar to 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 to talk about the facts and issues, and set dates and deadlines for the remaining steps in the court proceeding. Although FCCs are very helpful and often result in settlement, FCCs only address issues about the care of children and are not mandatory unless you have been referred to an FCC by a judge. If you think an FCC will help resolve your case, ask for one!</blockquote> | <blockquote>'''3. Have a family case conference (FCC).''' An FCC is a hearing similar to 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 to talk about the facts and issues, and set dates and deadlines for the remaining steps in the court proceeding. Although FCCs are very helpful and often result in settlement, FCCs only address issues about the care of children and are not mandatory unless you have been referred to an FCC by a judge. If you think an FCC will help resolve your case, ask for one!</blockquote> | ||
