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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)
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{{JP Boyd on Family Law TOC|expanded = incourt}} | {{JP Boyd on Family Law TOC|expanded = incourt}} | ||
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 | 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 section reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court. | |||
==The Supreme Court== | ==The Supreme Court== | ||
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To start a proceeding in 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 [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]. (This document is one of the basic legal documents in a court proceeding known as pleadings.) This is the document that says who you are suing and the orders you want to the court to make. | To start a proceeding in 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 [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]. (This document is one of the basic legal documents in a court proceeding known as pleadings.) This is the document that says who you are suing and the orders you want to the court to make. | ||
Family law proceedings are governed by the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme 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 judicial case conferences, disclosure, interim applications and trials. The primary rules about Notices of Family Claim and the management of court proceedings are: | Family law proceedings are governed by the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme 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 judicial case conferences, disclosure, interim applications, and trials. The primary rules about Notices of Family Claim and the management of court proceedings are: | ||
*Rule 1-1: definitions | *Rule 1-1: definitions | ||
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The Notice of Family Claim sets out: the name and address 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, an outline of the orders the claimant would like the court to make. | The Notice of Family Claim sets out: the name and address 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, an outline of the orders the claimant would like the court to make. | ||
The form which must be used is Form F3, set out in the ''[http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]''. This is a special form of claim used only in family law cases. Additional pages | The form which must be used is Form F3, set out in the ''[http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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: | ||
*divorce, | *divorce, | ||
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Whether you're off to trial or a settlement can be reached, the steps until trial are usually these: | Whether you're off to trial or a settlement can be reached, the steps until trial are usually these: | ||
<blockquote>'''1. 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. These are discussed in a more detail further on in this | <blockquote>'''1. 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. These are discussed in a more detail further on in this section.</blockquote> | ||
<blockquote>'''2. 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 talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this | <blockquote>'''2. Have a Judicial Case Conference.''' A Judicial Case Conference (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 talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this section.</blockquote> | ||
<blockquote>'''3. Make interim applications as needed.''' 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. | <blockquote>'''3. Make interim applications as needed.''' 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. This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].</blockquote> | ||
<blockquote>'''4. Disclose documents and information.''' The rules of court require each party to produce to the other all documents that are relevant to the issues in a court proceeding. This can include things like bank statements, report cards, medical records, school reports and income tax returns. 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.</blockquote> | <blockquote>'''4. Disclose documents and information.''' The rules of court require each party to produce to the other all documents that are relevant to the issues in a court proceeding. This can include things like bank statements, report cards, medical records, school reports and income tax returns. 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.</blockquote> | ||
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<blockquote>'''5. Examine each other out of court.''' The parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an ''examination for discovery.'' Examinations for discovery, also called ''discoveries'', are helpful to get the each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged.</blockquote> | <blockquote>'''5. Examine each other out of court.''' The parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an ''examination for discovery.'' Examinations for discovery, also called ''discoveries'', are helpful to get the each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged.</blockquote> | ||
<blockquote>'''6. Have a Settlement Conference.''' The rules of court allow a party to schedule a Settlement Conference before a judge | <blockquote>'''6. Have a Settlement Conference.''' The rules of court allow a party to schedule a Settlement Conference before a judge ahead of trial. At this hearing, the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help 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.</blockquote> | ||
<blockquote>'''7. 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 present, 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.</blockquote> | <blockquote>'''7. Have a Trial Management Conference.''' A Trail Management Conference (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 present, 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.</blockquote> | ||
<blockquote>'''8. Go to trial.''' At the end of the day, if you can't agree on a resolution 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.</blockquote> | <blockquote>'''8. Go to trial.''' At the end of the day, if you can't agree on a resolution 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.</blockquote> | ||
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#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"), | #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, | #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, | #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 | #business records like financial statements and corporate income tax returns, if the party has a company, and | ||
#the most recent BC Assessments for all real property. | #the most recent BC Assessments for all real property. | ||
The form | The form that must be used is Form F8, set out in the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]Supreme Court Family Rules]. | ||
===Judicial Case Conferences=== | ===Judicial Case Conferences=== | ||
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JCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at JCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application! | JCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at JCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application! | ||
JCCs are discussed in more in | This JCCs are discussed in more in [[Case Conferences in a Family Law Matter]] also in this chapter. | ||
{{LSSbadge | {{LSSbadge | ||
