Difference between revisions of "Replying to a Court Proceeding in a Family Matter"

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===Legislation===
 
===Legislation===
  
* ''[http://canlii.ca/t/849w Provincial Court Act]''
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* ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-379/latest/rsbc-1996-c-379.html Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
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* [https://www.canlii.org/en/bc/laws/regu/bc-reg-417-98/latest/bc-reg-417-98.html Provincial Court Family Rules]
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
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* ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-443/latest/rsbc-1996-c-443.html Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
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* [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
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* ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-80/latest/rsbc-1996-c-80.html Court Rules Act]''
  
 
===Resources===
 
===Resources===

Revision as of 10:23, 28 June 2019

If a court proceeding has been started against you, you have two choices: do nothing or 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 discusses the process for responding to a court 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 Starting a Court Proceeding.

The Supreme Court[edit]

If you are being sued in the Supreme Court, you are the respondent in a court proceeding that has been started by the claimant. If you disagree with any of the orders the claimant is asking for, you must prepare a form called Response to Family Claim. You also prepare a form for Counterclaim if there is an order you would like to ask for. These documents, together with the claimant's Notice of Family Claim, are called pleadings.

The primary Supreme Court Family Rules to review when responding to a family claim, preparing a counterclaim, and the steps leading up to trial 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 How Do I? part of this resource.

Quick tips: Defending an action in the Supreme Court[edit]

The following tips are located in the section Defending an Action in the How Do I? part of this resource:

Preparing, filing and serving your response[edit]

You must file a Response to Family Claim at the court registry 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 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). 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[edit]

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 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 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 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 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[edit]

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[edit]

Contesting the claimant's claims and filing a Response to Family Claim or Counterclaim does not 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 won't be able to agree, and the court will need to decide what should happen in your case at a trial.
  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[edit]

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 applicant. 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 Reply.

The primary Provincial Court (Family) Rules about replying to a claim, making your own counterclaims against the claimant, and the steps leading up to trial are:

  • Rule 1: definitions
  • Rule 3: replying to the family claim and making a counterclaim
  • 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 (Family Law). As a respondent, you use the same form for your reply and any counterclaim. 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[edit]

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 take care of things like drafting court orders. The main disadvantages of proceeding in the Provincial Court are that the authority of the court is limited and there are fewer opportunities to explore the other party's case before the trial. 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,
  • spousal support,
  • protection orders, and
  • payment of household bills such as mortgage 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[edit]

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 Order. 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[edit]

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[edit]

Certain registries may have special programs or requirements that are unique to the registry. The registry will advise you of what is needed when you file your materials.

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 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 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. 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.

For family law matters going through Provincial Court in the Victoria Registry, there is the Victoria Early Resolution and Case Management Model, described in a separate section in this chapter.

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[edit]

Legislation[edit]

Resources[edit]

Links[edit]


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shannon Aldinger and Julie Brown, June 8, 2019.


Creativecommonssmall.png 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.
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