Replying to a Court Proceeding in a Family Matter

From Clicklaw Wikibooks

If 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. has been started against you, you have two choices: do nothing or replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut." to the proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." and defend yourself. If you agree with the orders the other partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." 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 reply to the 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. or you risk losing by defaultIn law, failing to do something which is either optional or mandatory, such as failing to respond to an application or to a claim within the time limits set out in the rules of court. See "default judgment. ".

This section discusses the process for replying to a court proceeding in the Supreme Court and 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.". For a more complete picture of the court process, read this section together with the section on Starting a Court Proceeding.

The Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

If you are being sued in the Supreme Court, you are the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim." in a court proceeding that has been started by the claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent.". If you disagree with any of the orders the claimant is asking for, you must prepare a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings.". You can also prepare a CounterclaimA legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim." if there 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." you would like to ask for. These documents, together with the claimant's Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief.", are called pleadings.

The primary Supreme Court Family Rules about Responses to Family Claim and Counterclaims, replying to a court proceeding and trials are:

  • Rule 1-1: definitions
  • Rule 3-1: starting a court proceeding
  • Rule 4-3: Responses to Family Claim
  • Rule 4-4: Counterclaims
  • Rule 5-1: financial disclosureA step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.
  • Rule 6-2: ordinary serviceSending legal documents to a party at that party's "address for service," usually by mail, fax or email. Certain documents, like a Notice of Family Claim, must be served on the other party by personal service. Most other documents may be served by ordinary service. See also "address for service" and "personal service."
  • Rule 7-1: judicial case conferences
  • Part 9: disclosure and discoveryA step in a court proceeding in which a party may demand that the other party produce specific documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be trial. See "examination for discovery." of documents
  • Part 10: interim applications and chambers procedure
  • Rule 11-4: discontinuing a court proceeding and withdrawing a Response to Family Claim
  • Part 13: expert witnesses
  • Rule 11-3: summary trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." 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 Supreme Court Forms & Examples. 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 section Defending an Action in the How Do I? part of this resource.

Quick tips: Defending an actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. in the Supreme Court

The following tips are located in the section Defending an Action in the 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 for indigentBeing flat broke. Persons with limited or no income used to apply to the Supreme Court and Court of Appeal for ''indigent status'', which exempts them from paying the usual court fees for all or a part of a court proceeding. The terms ''indigent'' or ''impoverished'' are no longer used. The Rules for both the Supreme Court and Court of Appeal now refer to applications that fees are waived or not payable. status. If you are granted indigent status the court fees for all or part of the proceeding will be waived. To find out more, see How Do I Apply for Indigent Status in the Supreme Court?
  • Want the court action to stop: You might want to stop defending the claim or stop your counterclaim if, for example, you have reached a settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer.". To find out how to do this, see How Do I Stop Defending a Family Law Action in the Supreme Court?

Preparing, filing and serving your response

You must file a Response to Family Claim at 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. within 30 days of being served with the claimant's Notice of Family Claim.

The Notice of Family Claim sets out the basic history of the parties' relationship and an outline of the orders the claimant would like the court to make. Your Response to Family Claim says which of the claimant's claims you agree with and which you oppose, and 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.

The Response to Family Claim must be filed in the court registry and be served on the claimant by ordinary service. It currently costs $25 to file a Response to Family Claim. When you file any document in Supreme Court (including the Response to Family Claim), 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. 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). Ordinary service means sending a copy of the filed response to the claimant at any of the addresses for service identified in the Notice of Family Claim.

Preparing, filing and serving a counterclaim

If there are any orders you would like to ask for, you may file a Counterclaim at the court registry within 30 days of being served with the claimant's Notice of Family Claim. Your Counterclaim describes the additional orders you would like the court to make.

It can be very important to file a Counterclaim if you want the court to make an order on different terms or about a different issue than the claims made in the Notice of Family Claim. Think of it like this: your Response to Family Claim is your defenceA reply, a rebuttal, an answer to a court proceeding or an application; a statement as to why a particular claim or application should not succeed. 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 you do and don't agree with. Unless a Counterclaim is filed, the only person asking for any orders 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, set out in the Supreme Court Family Rules. 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:

  • divorce,
  • children, including 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.,
  • 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.,
  • the division of propertySomething which can be owned. See "chattels" and "real property." and 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., and
  • other orders, like protection orders or orders for the change of a person's name.

The Counterclaim must be filed in the court registry and be served on the claimant by ordinary service. It currently costs $200 to file a Counterclaim. When you file any document in Supreme Court (including the Counterclaim), 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).

Deadline for reply

The claimant has 30 days to file a Response to Counterclaim in Form F6 after being served with the respondent's Counterclaim. Very few people bother to file a Response to Counterclaim. Many would only go to the trouble of preparing a response if there was something unusual or unexpected in the Counterclaim.

The next steps

Although you've decided to defend the claimant's claims, you're not necessarily going to 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 agreementA contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." or an order that you both agree the court should make, called a consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make..
  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 claimant will take any further steps in the court proceeding and the proceeding will languish.

For more information on the next steps in a family law proceeding, see Overview of Case Conferences and Discovery in Family Law Matters in this chapter.

The Provincial Court

If a court proceeding has been started against you in the Provincial Court, you are the respondent in the proceeding. The person who started the court proceeding is the applicantA party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application.". If you agree with the orders the applicant is asking for, doing nothing is the quickest way to handle things. On the other hand, if you only partly agree or if you completely disagree with what the applicant is asking for, you must prepare 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.".

The primary Provincial Court (Family) Rules about Replies, defending a court proceeding and trials are:

  • Rule 1: definitions
  • Rule 3: Replies
  • 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

Links to and examples of the Reply and other court forms can be found in Provincial Court Forms & Examples. For a quick introduction to how to reply to a proceeding, see How Do I Respond to a Family Law Action in the Provincial Court? It's located in the section Defending an Action in the How Do I? part of this resource.

Limitations of the Provincial Court

The Provincial Court is designed for people who are not represented by a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.". There are no filing fees in this court, the forms are a lot easier to prepare, the rules of courtThe guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court. are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantage of proceeding in 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 responsibilitiesA term under the ''Family Law Act'' which describes the various rights, duties and responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian." and parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian.",
  • 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 childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.",
  • child support,
  • spousal support,
  • protection orders, and
  • payment of household bills such as mortgageThe conditional transfer of the title to real property by an owner to another person in return for money given by that person as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in their name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property." and utilities pending trial or settlement.

The Provincial Court cannot hear claims under the federal Divorce Act. It cannot hear claims under the Family Law Act for orders relating to the division of property and debt.

Preparing, filing and delivering the reply

If you decide to defend yourself, you must complete a form called a Reply and file it within 30 days of the date you were served with the 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.". There is no fee to file a reply.

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

  • agree to some or all of the orders the applicant is asking for,
  • object to some or all of the orders the applicant is asking for, and
  • apply for any orders you would like the court to make.

The form you must use is Form 3, set out in the Provincial Court Family Rules. The reply must be filed in the court registry and the court clerk will take care of delivering your reply to the applicant.

Deadline for the applicant's reply

The applicant has 30 days to file a Reply in Form 3 after being served with the respondent's Reply if the respondent's Reply asks for any orders. Very few applicants bother to file a Reply of their own. Many applicants only go to the trouble of preparing a Reply if there was something unusual or unexpected in the respondent's Reply.

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 caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.". This may apply even if you are seeking a default judgmentA judgment obtained by a claimant following the respondent's failure to reply to the claimant's claim within the proper time from service. In the Supreme Court, a respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without the response being served on the claimant, the claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See "desk order divorce" and "Response to Family Claim.". The court clerk at your 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.

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 mediationA dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.".

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. The online course does not replace the need to attend an in-person course if that is otherwise required. You will have to file a certificate that you've completed the program.

The additional 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.

For more information on the next steps in a family law proceeding, see Overview of Case Conferences and Discovery in Family Law Matters in this chapter.

Resources and links

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