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

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{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
 
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If a court proceeding has been started against you, you have two choices: do nothing or reply 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 reply to the claim or you risk losing by default.
+
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 replying 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 in a Family Matter|Starting a Court Proceeding]].
+
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 in a Family Matter|Starting a Court Proceeding]].
  
 
==The Supreme Court==
 
==The Supreme Court==
  
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 Response to Family Claim. You can also prepare a 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.
+
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 [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules] about Responses to Family Claim and Counterclaims, replying to a court proceeding and trials are:
+
The primary [http://canlii.ca/t/8mcr 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 1-1: definitions
 
*Rule 3-1: starting a court proceeding
 
*Rule 3-1: starting a court proceeding
*Rule 4-3: Responses to Family Claim
+
*Rule 4-3: responding to a claim
*Rule 4-4: Counterclaims
+
*Rule 4-4: making a counterclaim
 
*Rule 5-1: financial disclosure
 
*Rule 5-1: financial disclosure
*Rule 6-2: ordinary service
+
*Rule 6-2: ordinary service  
*Rule 7-1: judicial case conferences
+
*Rule 7-1: Judicial Case Conferences
 
*Part 9: disclosure and discovery of documents
 
*Part 9: disclosure and discovery of documents
 
*Part 10: interim applications and chambers procedure
 
*Part 10: interim applications and chambers procedure
*Rule 11-4: discontinuing a court proceeding and withdrawing a Response to Family Claim
+
*Rule 11-4: discontinuing a court proceeding and withdrawing a response to one
 
*Part 13: expert witnesses
 
*Part 13: expert witnesses
 
*Rule 11-3: summary trial procedure
 
*Rule 11-3: summary trial procedure
Line 28: Line 28:
 
*Rule 15-2.1: guardianship orders
 
*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 (Family Law)|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.
+
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===
+
===Quick tips: Defending an action in the Supreme Court===
  
The following tips are located in the section ''Defending 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 Defending 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 for indigent 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?]]  
 
* '''Can't pay your court fees:''' If you can't afford to pay court fees, you can apply for indigent 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?]]  
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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 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 [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]. This is a special form of response used only in family law cases.
+
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 <span class="noglossary">costs</span> $25 to file a Response to Family Claim. 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.
+
The Response to Family Claim must be filed in the court registry and be served on the claimant by ordinary service. It currently <span class="noglossary">costs</span> $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===
 
===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 orders you would like the court to make.
+
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 his or her 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.  
+
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.  
  
The form you must use is Form F5, set out in the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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:
+
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,
 
*divorce,
Line 64: Line 64:
 
*other orders, like protection orders or orders for the change of a person's name.
 
*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 <span class="noglossary">costs</span> $200 to file a Counterclaim.
+
The Counterclaim must be filed in the court registry and be served on the claimant by ordinary service. It currently <span class="noglossary">costs</span> $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===
 
===Deadline for reply===
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===The next steps===
 
===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:
+
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:
  
#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.
+
#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''.
#You'll not be able to agree, and the intervention of the court at a trial will be required.
+
#You won't be able to agree, and the court will need to decide what should happen in your case at a trial.
 
#After some initial scuffles, neither you nor the claimant will take any further steps in the court proceeding and the proceeding will languish.
 
#After some initial scuffles, neither you nor the claimant will take any further steps in the court proceeding and the proceeding will languish.
  
Whether you're off to trial or a settlement can be reached, the steps until trial are usually these:
+
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.
 
 
<blockquote>'''1. Exchange Financial Statements.''' Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements are prepared in Form 8. Financial Statements must be exchanged before the first judicial case conference, and updated statements will be required throughout the case and before trial. These are discussed in more detail further on in this section.</blockquote>
 
 
 
<blockquote>'''2. Have a judicial case conference (JCC).''' A JCC is necessary before most interim applications can be brought. JCCs are informal, off-the-record meetings between the parties, their lawyers and a judge intended to talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this section.</blockquote>
 
 
 
<blockquote>'''3. Make interim applications as needed.''' In almost all cases, parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them until the claims at issue in the court proceeding are finally determined. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, and the payment of child support and spousal support. This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].</blockquote>
 
 
 
<blockquote>'''4. Disclose documents and information.''' The rules of court require each party to produce to the other all documents that are relevant to the issues in a court proceeding. This can include things like bank statements, report cards, medical records, school reports, and income tax returns. Each party must list these documents in a formal List of Documents, and keep their List of Documents updated when new documents are found or become available.</blockquote>
 
 
 
<blockquote>'''5. Examine each other out of court.''' The parties may, if they wish, question each other outside of court, in a formal setting before a court reporter. This is called an ''examination for discovery.'' Examinations for discovery, also called ''discoveries'', are helpful to get each person's views of the evidence and the issues on the record. Discoveries are almost always held after Financial Statements have been prepared and documents have been exchanged.</blockquote>
 
 
 
<blockquote>'''6. Have a settlement conference.''' The rules of court allow a party to schedule a settlement conference before a judge ahead of trial. At this hearing, the parties will explain their positions and areas of disagreement to the judge, and hopefully negotiate a settlement. These conferences can be very helpful; the judge will serve as a mediator and help the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement.</blockquote>
 
 
 
<blockquote>'''7. Have a trial management conference (TMC).''' A TMC is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes about evidence before trial as possible. Among other things, the judge will ask about the witnesses each party intends to present, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions, although the judge at the TMC can order that a settlement conference happen.</blockquote>
 
 
 
<blockquote>'''8. Go to trial.''' At the end of the day, if you can't agree on a resolution you will wind up at trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to decide the case in their favour. The judge will hear all the evidence and the arguments, and reach a decision in the form of ''reasons for judgment''. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the reasons for judgment.</blockquote>
 
 
 
This description of the steps involved is just a rough sketch of the lengthy process of bringing a court proceeding to a conclusion. Not every proceeding will need to use all of these steps (some people may not need to have examinations for discovery and others won't see the point of holding a settlement conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process is much, much more complex that my <span class="noglossary">brief</span> description.
 
 
 
===Financial statements===
 
 
 
If a court proceeding involves a claim for spousal support, child support, the division of property or the division of debt, each party must prepare and file a Financial Statement. A Financial Statement sets out a person's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an affidavit, before a lawyer, notary public, or registry clerk.
 
 
 
Financial Statements are very important in family law proceedings. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish value, the portions about assets and debts may be used to determine the value of an asset and the amount owing on a debt. As well, since Financial Statements are sworn statements, someone making a Financial Statements can find his or her credibility being challenged if the numbers don't make sense, if they are overblown or understated, if they omit critical information, or if they are outright fabrications.
 
 
 
Each party must attach to their Financial Statements a number of important documents:
 
 
 
#the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
 
#all notices of assessment and reassessment received for the last three tax years,
 
#the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement,
 
#business records like financial statements and corporate income tax returns, if the party has a company, and
 
#the most recent BC Assessments for all real property.
 
 
 
The form you must use is Form F8, set out in the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules].
 
 
 
===Judicial case conferences===
 
 
 
Judicial case conferences (JCCs) are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom. JCCs must be held in all family law proceedings where the parties can't agree, and, in most cases, they must be held before any interim applications can be heard.
 
 
 
JCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at JCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application!
 
 
 
This chapter has more information about JCCs in the section [[Case Conferences in a Family Law Matter]].
 
  
 
==The Provincial Court==
 
==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 ''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.
+
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 [http://canlii.ca/t/85pb Provincial Court (Family) Rules] about Replies, defending a court proceeding and trials are:
+
The primary [http://canlii.ca/t/85pb 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 1: definitions
*Rule 3: Replies
+
*Rule 3: replying to the family claim and making a counterclaim
 
*Rule 4: financial disclosure
 
*Rule 4: financial disclosure
 
*Rule 6: the first and subsequent appearances in court  
 
*Rule 6: the first and subsequent appearances in court  
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*Rule 21: Parenting After Separation program
 
*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)|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.
+
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===
 
===Limitations of the Provincial Court===
  
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 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:
+
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,
 
*guardianship,
 
*parental responsibilities and parenting time,
 
*parental responsibilities and parenting time,
 
*contact with a child,
 
*contact with a child,
*child support, and
+
*child support,
*spousal 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.
 
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.
Line 171: Line 131:
  
 
===The next steps===
 
===The next steps===
 +
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 [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php 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. You will have to file a certificate that you've completed the program.
+
In certain registries of the Provincial Court, the parties must meet with a family justice counsellor and, if children are involved, attend a [https://www.clicklaw.bc.ca/resource/2638 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.  
 
 
The 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.
 
 
 
<blockquote>'''1. Meet with a family justice counsellor and take the Parenting After Separation Program.''' 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 [http://parenting.familieschange.ca online]. The online course does not replace the need to attend an in-person course if that is otherwise required.</blockquote>
 
 
 
<blockquote>'''2. Exchange financial statements.''' Financial statements are required whenever the payment of child support or spousal support is an issue. Financial statements are prepared in Form 4.</blockquote>
 
 
 
<blockquote>'''3. Have a family case conference (FCC).''' This is a hearing similar to the judicial case conference required by the Supreme Court. It is an informal, off-the-record meeting between the parties, their lawyers and a judge to talk about the facts and issues, and set dates and deadlines for the remaining steps in the court proceeding. Although FCCs are very helpful and often result in settlement, FCCs only address issues about the care of children and are not mandatory unless you have been referred to an FCC by a judge. If you think an FCC will help resolve your case, ask for one!</blockquote>
 
 
 
<blockquote>'''4. Make interim applications as needed.''' In almost all family law proceedings, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need orders about things like where the children will live and whether support should be paid until trial. The most common applications in family law involve restraining orders, orders about the care of children, child support, and spousal support. The process for bringing interim applications is discussed in detail in this chapter in the section on [[Interim Applications in Family Matters]].</blockquote>
 
 
 
<blockquote>'''5. Have a trial preparation conference (TPC).''' A TPC is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes about evidence before trial as possible. Among other things, the judge will ask about the witnesses each party intends to present, whether documents have been exchanged, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TPC is generally not an opportunity to engage in settlement discussions.</blockquote>
 
 
 
<blockquote>'''6. Go to trial.''' At the end of the day, if you can't reach a settlement, you will have to have a trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge should make the orders they are asking for. The judge will hear all the evidence and the arguments and reach a decision in the form of ''reasons for judgment''. Where neither party is represented by a lawyer, the court clerk will draft a final order based on the judge's reasons for judgment.</blockquote>
 
 
 
===Financial Statements===
 
 
 
If a court proceeding involves spousal support or child support, each party must prepare and file a Financial Statement. A Financial Statement sets out a party's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an affidavit, before a lawyer, notary public, or registry clerk.
 
 
 
Each party must attach to their Financial Statement the following documents:
 
 
 
#the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations"),
 
#all notices of assessment and reassessment received for the last three tax years,
 
#the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement, or EI statement, and
 
#business records like financial statements and corporate income tax returns, if the party has a company.
 
  
The form you must use is Form 4, set out in the [http://canlii.ca/t/85pb Provincial Court Family Rules].
+
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.  
  
===Family case conferences===
+
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 [http://www.clicklaw.bc.ca/resource/4395 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.
  
Family case conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom to explore settlement options. FCCs are not mandatory and there is no requirement that an FCC must be heard before any interim applications.
+
For family law matters going through Provincial Court in the Victoria Registry, there is the [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/your-options/early-resolution Victoria Early Resolution and Case Management Model], described in a separate section in this chapter.
  
FCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at FCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application if you have to hire a lawyer.
+
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.
  
This chapter discusses FCCs in more detail in [[Case Conferences in a Family Law Matter]].
+
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==
 
==Resources and links==
Line 216: Line 152:
 
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
 
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
 
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
 
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules]
+
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
 
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
 
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
  
 
===Resources===
 
===Resources===
  
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
+
* [https://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
+
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
+
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
+
* [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
  
 
===Links===
 
===Links===
  
* [http://www.provincialcourt.bc.ca/ Provincial Court website]
+
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
+
* [https://www.provincialcourt.bc.ca Provincial Court website]
* Legal Services Society Family Law in BC website: [http://www.familylaw.lss.bc.ca/guides/start/cantAgree/supreme/ How to start a family law case (Supreme Court)] and  [http://www.familylaw.lss.bc.ca/guides/final/cantAgree/provincial/apply/steps.php How to get a final family order (Provincial Court)]
+
* Provincial Court: [https://www.clicklaw.bc.ca/resource/4498 Family Cases]
* [http://www.supremecourtbc.ca Justice Education Society Website for BC Supreme Court]
+
* Legal Services Society's Family Law website's information page [https://www.clicklaw.bc.ca/resource/4652 "I've been served with a court form"]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php Parenting After Separation Program]
+
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society's website for BC Supreme Court]
* [http://parenting.familieschange.ca Online Parenting After Separation Course]
+
* [http://www.clicklaw.bc.ca/resource/4395 Online Parenting After Separation Course from Justice Education Society]
  
  
{{REVIEWED | reviewer = [[JP Boyd]], May 17, 2013}}
+
{{REVIEWED | reviewer = [[Shannon Aldinger]] and [[Julie Brown]], June 8, 2019}}
  
 
{{JP Boyd on Family Law Navbox|type=chapters}}
 
{{JP Boyd on Family Law Navbox|type=chapters}}

Latest revision as of 11:20, 31 July 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.


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