How Do I Start a Family Law Action in the Provincial Court?

From Clicklaw Wikibooks

Starting a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. in the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." is fairly straightforward. Essentially, you have to fill out a document called an Application to Obtain an OrderA legal document required by the Provincial Court Family Rules to start a court proceeding, which sets out the relief sought by the applicant against the person named as respondent. See "action," "applicant," "pleadings," "relief," and "respondent." and file it in the registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse. of the court closest to you.

There are no filing fees, and the court will tell you how to go about serving the other side.

You can get a copy of the Application to Obtain an Order from the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. for free. The forms are also available online; see the Provincial Court Forms section. The version of the form that you can get from the court registry includes lots of information about how to fill it out.

If you are making a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. for spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. or child supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses., you'll also have to fill out a form called a Financial StatementA legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property or the division of debt must describe their income, expenses, assets and liabilities under oath or affirmation. See "affirm," "oath," and "perjury.". The court registry will provide you with this form. Again, the form is fairly easy to fill out. However, there are certain documents that you must gather and attach to the form, including your last three years' worth of tax returns, your most recent paystub, and so forth.

If you are making a claim for guardianship of a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.", you will also have to fill out a special affidavit in Form 34, and provide copies of recent police and Ministry of Children and Family Development records checks.

When to use the Provincial Court

The authority of the Provincial Court is limited and it can only deal with certain issues. You should use the Provincial Court when the things you need to deal with involve any of the following:

  • guardianship of children,
  • parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time." for children,
  • contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." with a child,
  • child support,
  • spousal support, and
  • protection orders.

When not to use the Provincial Court

The Provincial Court cannot deal with issues involving propertySomething which can be owned. See "chattels" and "real property." or debts. The Provincial Court cannot make orders under the Divorce Act, including divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." orders. If you need orders about property, debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed. or divorce, you might think about starting your court proceeding in the Supreme Court which can deal with all of these issues and all of the issues that the Provincial Court can deal with.

What happens next?

Once you've filed your Application to Obtain an Order, you'll have to have it served on the other person and get your process server to complete an Affidavit of Service. Once the other person has been served, they will have 30 days to file a form called a ReplyA legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim," and "Counterclaim.", and, if either of you are making a claim for spousal support or child support, their Financial Statement as well. The court will mail you a copy of these documents. they When the court receives the other person's Reply, the court will normally set up an appointment for you to meet with a family justice counsellor or schedule a date for an initial meeting with the court, called a first appearance. The family justice counsellor's job is to see whether any of your issues can be resolved, to give you information about the law and other dispute resolutions and to try, if you're interested, to mediate your dispute. The family justice counsellor can also prepare consent orders, that is, an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." that you and the other person both agree the court should make.

If you are unable to reach an agreement after seeing the family justice counsellor, you can ask to be referred to a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal. for a hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." of the issues. The court registry will book a time for the hearing and send a notice of the hearing to you and the other side.

For more information

You can find more information about this in the chapter Resolving Family Law Problems in Court within the section Starting a Court Proceeding in a Family Matter.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Thomas Wallwork, May 9, 2017.
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