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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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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. | 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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*Rule 15-2.1: guardianship orders | *Rule 15-2.1: guardianship orders | ||
Links to and examples of the Notice of Family Claim and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For a quick introduction to how to start a proceeding, see [[How Do I Start a Family Law Action in the Supreme Court?]] It's located | Links to and examples of the Notice of Family Claim and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]]. For a quick introduction to how to start a proceeding, see [[How Do I Start a Family Law Action in the Supreme Court?]]. It's located in the ''How Do I?'' part of this resource. | ||
===Quick tips: Starting an action in the Supreme Court=== | ===Quick tips: Starting an action in the Supreme Court=== | ||
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The following tips are located in the section ''Starting an Action'' in the ''[[JP_Boyd_on_Family_Law_—_How_Do_I%3F|How Do I?]]'' part of this resource: | The following tips are located in the section ''Starting an Action'' in the ''[[JP_Boyd_on_Family_Law_—_How_Do_I%3F|How Do I?]]'' part of this resource: | ||
* '''Can't pay your court fees:''' If you can't afford to pay court fees, you can apply | * '''Can't pay your court fees:''' If you can't afford to pay court fees, you can apply to court to have those fees waived. This used to be called applying for ''indigent status'', but this term is no longer used. To find out more, see [[How Do I Waive Filing Fees in the Supreme Court?]]. | ||
* '''Guide to personal service:''' For a quick summary of what's involved in personal service, see [[How Do I Personally Serve Someone with Legal Documents?]] | * '''Guide to personal service:''' For a quick summary of what's involved in personal service, see [[How Do I Personally Serve Someone with Legal Documents?]] | ||
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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 currently 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). | 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 currently 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 | ''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 themselves. 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 Provincial Court== | ==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 [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 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 | 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 ''How Do I?'' part of this resource. | ||
===Limitations of the Provincial Court=== | ===Limitations of the Provincial Court=== | ||
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*contact with a child, | *contact with a child, | ||
*child support, | *child support, | ||
*spousal support | *spousal support, | ||
*protection orders, and | *protection orders, and | ||
*payment of household bills such as mortgage and utilities pending trial or settlement. | *payment of household bills such as mortgage and utilities pending trial or settlement. | ||
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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 | If you're not sure where you ex lives, see [[How Do I Find My Ex?]]. It's located in the ''How Do I?'' part of this resource. | ||
===Deadline for reply=== | ===Deadline for reply=== | ||
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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. | ||
Certain registries may have special programs or requirements that are unique to the registry. For example, in | Certain registries may have special programs or requirements that are unique to the registry. For example, the Provincial Court in Victoria has the [[Victoria Early Resolution and Case Management Model]], and there's a section on this program in this chapter. In other registries you are required to take the parenting after separation program described in further detail later in this section. The registry will inform you of any special requirements when you file. | ||
=== Parenting After Separation === | === Parenting After Separation === | ||
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* [http://www.provincialcourt.bc.ca/ Provincial Court website] | * [http://www.provincialcourt.bc.ca/ Provincial Court website] | ||
* [ | * [https://www.bccourts.ca/supreme_court/ Supreme Court website] | ||
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society Website for BC Supreme Court] | * [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society Website for BC Supreme Court] | ||
* | * BC Ministry of Attorney General: [https://www.clicklaw.bc.ca/resource/2636 Parenting After Separation Handbook] | ||
* [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course] from Justice Education Society | * [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course] from Justice Education Society | ||
