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 section reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court.

The Supreme Court

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 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 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 3-1: starting a court proceeding
• Rule 4-1: Notices of Family Claim and service requirements
• Rule 4-3: replying to a Notice of Family Claim
• 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: interim applications and chambers procedure
• Rule 11-4: discontinuing a court proceeding
• Part 13: expert witnesses
• Rule 11-3: summary trial procedure
• Rule 14-7: trial procedure
• Rule 15-2.1: guardianship orders

Links to and examples of court forms are at Sample Supreme Court Forms (Family Law).

Preparing, filing and serving the notice of family claim

The Notice of Family Claim is a court form that a claimant fills out and files with the court. It 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 that the claimant must use 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:

• divorce,
• children, including child support,
• spousal support,
• the division of property and debt, and
• 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.

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

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.

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

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:

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, called a consent order.
2. You'll not be able to agree, and the intervention of the court at a trial will be required.
3. After some initial scuffles, neither you nor the respondent will take any further 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:

1. Exchange financial statements. Financial statements are required whenever the division of property or the payment of support is at issue. Financial statements are prepared in Form 8. 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.

2. Have a judicial case conference (JCC). 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 section.

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.

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 the List of Documents updated when new documents are found or become available.

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.

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.

7. Have a trial management conference (TMC). 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.

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.

This is 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 a court proceeding involves a claim for spousal support, child support, the division of property or the division of debt, each party must prepare and file a Financial Statement in Form F8. 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 proceedings. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish value, the portions about assets and debts may be used to determine the value of an asset and the amount owing on a debt. 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 is the complete income tax and benefit return, not tax return "summaries" or "informations"),
2. all notices of assessment and reassessment received for 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 records like financial statements and corporate income tax returns, if the party has a company, and
5. the most recent BC Assessments for all real property.

The form that must be used is Form F8, set out in the Supreme Court Family Rules.

Judicial case conferences

Judicial case conferences (JCCs) 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 family law proceedings where the parties can't agree, and, in most cases, they must be held before any interim applications can be heard.

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!

This chapter has more information about JCCs in the section Case Conferences in a Family Law Matter.

The 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 Provincial Court (Family) Rules. This is the document that says who you are suing and what you are suing for. (Court proceedings can also be started with an Application to Change an Order where you already have a court order or separation agreement.)

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:

• Rule 1: definitions
• Rule 2: Applications to Obtain an Order and service requirements
• Rule 3: replying to an Application to Obtain an Order
• Rule 4: financial disclosure
• Rule 6: the first and subsequent appearances in court
• Rule 7: Family Case Conferences
• Rule 11: trial procedure
• Rule 12: interim applications
• Rule 14: consent orders
• Rule 18: orders
• Rule 18.1: guardianship orders
• Rule 21: Parenting After Separation program

See Sample Provincial Court Forms (Family) for links to examples and blanks of court forms.

Limitations of the Provincial Court

The Provincial 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 will sometimes care of things like drafting court orders. The main disadvantage of bringing your case to the Provincial Court is that the authority of the court is limited. The Provincial Court can only hear applications under the Family Law Act on certain subjects, including:

• guardianship,
• parental responsibilities and parenting time,
• contact with a child,
• child support, and
• spousal support.

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.

Preparing, filing and serving the application to obtain an order

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 brief 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.

Personal service means physically handing the Application to Obtain an Order to the Respondent. Rule 2(3) of the 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. Although this ought go without saying, don't use one of your children to serve your ex.

Deadline for 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 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

In certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a 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.

At court registries that do not have this requirement, an interim application can be brought at any time after the court proceeding has been started.

The steps that follow the commencement of a proceeding in the Provincial Court are a simplified 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.

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 online at http://parenting.familieschange.ca. The online course does not replace the need to attend an in-person course if that is otherwise required.

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.

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!

4. Make interim applications as needed. In almost all family law proceedings, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need orders about things like where the children will live and whether support should be paid until trial. The most common applications in family law involve restraining orders, orders about the care of children, child support, and spousal support. This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.

5. Have a trial preparation conference (TPC). A TPC 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, whether documents have been exchanged, 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 TPC is generally not an opportunity to engage in settlement discussions.

6. Go to trial. At the end of the day, if you can't reach a settlement, you will have to have a 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 should make the orders they are asking for. 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 Provincial Court proceeding involves spousal support or child support, each party must prepare and file a Financial Statement.

The form you must use is Form 4, set out in the Provincial Court (Family) Rules.

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:

1. 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"),
2. all notices of assessment and reassessment received for 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, and
4. business records like financial statements and corporate income tax returns, if the party has a company.

Family case conferences

Family case conferences (FCCs) 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 can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at FCCs, 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 if you have to hire a lawyer.

FCCs are discussed in more detail in the section Case Conferences in a Family Law Matter.

Resources and links

Court forms and examples of what the court forms look like when they're filled out, are available at Supreme Court Forms (Family Law) and Provincial Court Forms (Family Law).

Legislation

• Provincial Court Act
• Supreme Court Act
• Court Rules Act

Resources

• Provincial Court Family Rules
• Provincial Court Practice Directions
• Supreme Court Family Rules
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Supreme Court Trial Scheduling

Links

• Provincial Court website
• Supreme Court website
• Legal Services Society Family Law in BC Website: How to start a family law case (Supreme Court)
• Legal Services Society Family Law in BC Website: How to get a final family order (Provincial Court)
• Justice Education Society Website for BC Supreme Court
• Parenting After Separation Program
• Online Parenting After Separation Course: http://parenting.familieschange.ca

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, March 24, 2013.