Responding to a Court Proceeding in a Family Matter

If a court proceeding has been started against you, you have two choices. You can do nothing or you can respond to the proceeding and defend yourself. If you agree with the orders the other party is asking for, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or completely disagree you must respond to the claim or you risk losing by default.

This section describes basic elements of the Provincial Court process, but please consider the resources on Legal Aid BC's Family Law website and the links posted at the end of this section. This section also deals with the processes for starting a proceeding in the Supreme Court. For a more complete picture of the court process, you should read this section together with the section on Starting a Court Proceeding.

The Provincial Court

If a court proceeding has been started in Surrey or Victoria, a different process for Early Resolution registries will apply.

If you are not in Surrey or Victoria, you are the respondent once you have been served with Application About a Family Law Matter in Form 3. The person who started the proceeding is the applicant. If you agree with the orders the applicant is asking for, doing nothing is the fastest way to handle things and you should let the applicant know that you're okay with the orders they're asking for. On the other hand, if you only partly agree or if you completely disagree with what the applicant is asking for, you should prepare a Reply to an Application About a Family Law Matter in Form 6. This is a special form required by the Provincial Court Family Rules.

You can learn more about the Provincial Court's procedure from Legal Aid BC's Family Law website, in particular the resource called Respond if you've been served with Form 3.

Limitations of the Provincial Court

The Provincial Court is built for people who are not represented by a lawyer. There are no filing fees in this court, in some ways the forms are easier to prepare, the rules of court are simplified, and the court registry will sometimes take 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:

1. guardianship;
2. parental responsibilities and parenting time;
3. contact with a child;
4. child support;
5. spousal support;
6. protection orders; and,
7. payment of household bills such as mortgage and utilities until trial or settlement.

The Provincial Court cannot hear any claims under the federal Divorce Act. However, it also cannot hear claims for orders relating to the division of property and debt under the provincial Family Law Act.

Parallel proceedings in the Supreme Court

If the applicant has started a court proceeding against you in the Provincial Court, the Provincial Court is where you are. If you need to ask for orders under the Divorce Act or orders about the division of property and debt, you can start a separate court proceeding in the Supreme Court. My personal preference, and I think the preference of most family law lawyers, is to keep everything in the same court if that's at all possible. The general rules about what happens if there's a court proceeding in each court are set out in section 194 of the Family Law Act:

(1) If a proceeding respecting a family law dispute may be started in either the Supreme Court or the Provincial Court, the starting of a proceeding in one court does not prevent the starting of a second proceeding in the other court, unless the relief applied for in the second proceeding has already been granted or refused in the first proceeding.

(2) If proceedings are started in both courts and each court may make an order for the same relief, the making of an order by one court does not prevent an application for an order in the other court unless the relief that is the subject of the application to the other court has already been granted or refused by the first court.

(3) If proceedings are started in both courts, a court, on application and to the extent that the matter is within the court's jurisdiction under section 192 [Supreme Court jurisdiction] or 193 [Provincial Court jurisdiction], as applicable, may do one or more of the following:

(a) decline to hear a matter;

(b) decline to hear a matter until another matter under this Act, or under any other law of British Columbia or Canada, has been heard in the other court;

(c) consolidate proceedings started in the other court with proceedings started in the court;

(d) hear a matter.

(4) Despite subsection (2), the Supreme Court may change, suspend or terminate, under section 215 [changing, suspending or terminating orders generally], an order of the Provincial Court if

(a) the Supreme Court is making an order that affects an order of the Provincial Court, and

(b) the parties would have to go back to the Provincial Court to have the Provincial Court's order changed, suspended or terminated as a result.

(5) If the Supreme Court acts under subsection (4), the Supreme Court's order is deemed to be an order of the Provincial Court for all purposes.

(6) Nothing in this section authorizes the Supreme Court to change, suspend or terminate an order of the Provincial Court if the Provincial Court has refused to change, suspend or terminate the order, except as provided under section 233 [appeals from Provincial Court orders].

Let's boil this down a bit. What section 194 says is this:

1. the fact that there's a court proceeding in one court doesn't stop you from starting a second proceeding in another court;
2. you can even ask orders about the same things, unless the first court has already made an order about that thing;
3. once a court has made an order about a thing, the other court cannot make an order about that thing... unless the Supreme Court decides to change an order of the Provincial Court;
4. a court can instead refuse to make an order about a thing the other court can make orders about; and,
5. a court can also order that the two proceedings be consolidated, that they be combined into a single court proceeding.

Consolidation under section 194(3)(c) is usually a good option if you want to get everything into one court. However, since the Supreme Court can deal with all of the claims that the Provincial Court can, as well as a bunch that it can't, the consolidated proceeding will be in the Supreme Court.

Preparing, filing and delivering the Reply

If you disagree with any of the orders the applicant is asking for in their Application About a Family Law Matter, you must complete a form called a Reply to an Application About a Family Law Matter and file it within 30 days of the date you were served with the Application About a Family Law Matter. There is no fee to file a Reply to an Application About a Family Law Matter.

In your reply, you can do one or more of the following things:

1. consent to some or all of the orders the applicant is asking for;
2. object to some or all of the orders the applicant is asking for; and,
3. ask for any orders you want the court to make.

The form you must use is Form 6, set out in the Provincial Court Family Rules. Your Reply to an Application About a Family Law Matter must be filed in the same court registry that the applicant filed in. The court clerk will take care of delivering your Reply to an Application About a Family Law Matter to the applicant.

The applicant's Reply to your Reply

If you have asked for any orders in your Reply to an Application About a Family Law Matter, the applicant has 30 days after receiving it to complete and file their own Reply to a Counter Application. The applicant's Reply to a Counter Application is in Form 8. The applicant may:

1. consent to some or all of the orders you're asking for; and,
2. object to some or all of the orders you're asking for.

Very few applicants bother to file a Reply is to a Counter Application of their own. Most applicants only go to the trouble of preparing one if there was something really unusual or unexpected in your Form 6 Reply to an Application About a Family Law Matter, and any counterclaims you made.

The next steps

As discussed in the section on Starting a Court Proceeding in a Family Matter, different steps are taken depending on the registry and location where the application was filed.

The Supreme Court

If a court proceeding has been started against you in the Supreme Court, you are the respondent in the proceeding. The person who started the court proceeding is the claimant. If you disagree with any of the orders the claimant is asking for, you must prepare a form called a Response to Family Claim in Form F4. If there are any orders you want to ask for, you can prepare a form called a Counterclaim in Form F5. These are special forms required by the Supreme Court Family Rules. (These documents, together with the claimant's Notice of Family Claim, are called "pleadings.")

The main Supreme Court Family Rules about replying to a Notice of Family Claim, making your claims of your own against the claimant, and the management of court proceedings are

• Rule 1-1: Definitions
• Rule 3-1: Starting a court proceeding
• Rule 4-3: Responding to a claim
• Rule 4-4: Making a counterclaim
• Rule 5-1: Financial disclosure
• Rule 6-2: Ordinary 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 and withdrawing a response to one
• 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 the Response to Family Claim, Counterclaim and other court forms can be found in this resource under Supreme Court Forms (Family Law). For a quick introduction to how to reply to a proceeding, see How Do I Respond to a Family Law Action in the Supreme Court?. It's located in the Helpful Guides & Common Questions part of this resource.

Quick answers for common questions

The following issues are addressed in the Defending an Action section of the Helpful Guides & Common Questions part of this resource:

• 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?
• Need to change something in your Response to Family Claim or Counterclaim: To find out what happens when you need to change something in your Response to Family Claim or Counterclaim, see How Do I Change Something in My Response to Family Claim or Counterclaim?
• Want to stop the court proceeding: You might want to stop defending the claimant's Notice of Family Claim or withdraw your Counterclaim if, for example, you have reached a settlement. To find out how to do this, see How Do I Stop Defending a Family Law Action in the Supreme Court?

Preparing, filing and delivering the Response to Family Claim

If you disagree with any of the orders the claimant is asking for in their Notice of Family Claim, you must file a Response to Family Claim at the court registry within 30 days of being served with the Notice of Family Claim.

The Notice of Family Claim describes the basic history of your relationship and provides an outline of the orders the claimant would like the court to make. Your Response to Family Claim lets you:

1. consent to some or all of the orders the claimant is asking for;
2. object to some or all of the orders the claimant is asking for; and,
3. say which of the facts set out in the Notice of Family Claim are inaccurate.

The form you must use is Form F4, set out in the Supreme Court Family Rules. This is a special form of response used only in family law cases. Your Response to Family Claim must be filed in the same court registry that the Notice of Family Claim was filed in. It currently costs $25 to file a Response to Family Claim.

You must serve the claimant with a copy of your filed Response to Family Claim by ordinary service. When you file any document in Supreme Court, including your Response to 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 serve on the claimant. Ordinary service means sending a copy of the filed response to the claimant at any of the addresses for service they provided in their Notice of Family Claim.

Preparing, filing and delivering a Counterclaim

If there are any orders you want to ask for, you may file a Counterclaim at the court registry within 30 days of being served with the Notice of Family Claim. A Counterclaim lets you describe the orders you would like the court to make.

It can be very important to prepare a Counterclaim if you want the court to make an order on different terms, or about different issues, than the orders described in the Notice of Family Claim. Think of it like this. Your Response to Family Claim is your defence to the claims made by the claimant in their Notice of Family Claim. Your Response to Family Claim doesn't ask for anything; it just says what orders you do and don't agree with. Unless a Counterclaim is filed, the only person asking for anything is the claimant. If you are successful in your defence, there may be no claims left for the court to make an order about.

Rule 4-4 of the Supreme Court Family Rules provides information about Counterclaims. The form you must use is Form F5. This is a special form of counterclaim used in family law cases. Additional pages that require more detailed information must be added to the Counterclaim when you are asking for orders about:

1. divorce;
2. the care of children and child support;
3. spousal support;
4. the division of property and debt; and,
5. orders about other subjects, like orders for the protection of people or orders for the change of a person's name.

Your Counterclaim must be filed in the court registry and be served on the claimant by ordinary service. To save a little bit money and time, you'd normally want to serve the claimant with your Response to Family Claim and Counterclaim at the same time. It currently costs $200 to file a Counterclaim.

The applicant's Response to Counterclaim

The claimant has 30 days to complete and file a Response to Counterclaim in Form F6 after being served with your Counterclaim. Very few people bother to file a Response to Counterclaim. Most claimants would only go to the trouble of preparing a response if there was something really unusual or unexpected in your Counterclaim.

The next steps

Disagreeing with the orders the claimant has asked for, or asking for orders of your own, doesn't necessarily mean you will wind up in a trial. 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; or,
3. after some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

Again, I hope it'll be the first.

Resources and links

Legislation

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

Resources

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

Links

• Supreme Court website
• Provincial Court website
• Provincial Court: Family Cases
• Legal Aid BC's Family Law website's information pages:
  • "I've been served with a court form"
  • "Respond if you've been served with Form 3"

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 4 April 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.