Responding to a Court Proceeding in a Family Matter

If a court proceeding has been started against you, you have two choices: do nothing or 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.

This page will discuss 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, this page should be read together with the previous page, Starting a Court Proceeding.

DRAFT ONLY

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.

The primary 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 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 Family Claim
• Part 13: expert witnesses
• Rule 11-3: summary trial procedure
• Rule 14-7: trial procedure

Sample court forms and blank court forms for download are available in _______ .

Preparing, Filing and Serving the Response to Family Claim

You must file your 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 Famiy Claim are inaccurate.

The form which must be used 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 costs $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.

Preparing, Filing and Serving the 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.

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 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.

The form which must be used 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 which require more detailed information must be added to the Counterclaim when the Respondent seeks orders about:

1. divorce;
2. children, including child support;
3. spousal support;
4. the division of property and debt; and,
5. 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 costs $200.00 to file a Counterclaim.

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; I 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 agreement or an order that you both agree the court should make, called a consent order;
2. you'll not be able to agree, and the intervention of the court at a trial will be required; or,
3. after some initial scuffles, neither you nor the Respondent will take any further steps in the court proceeding and the proceeding will languish.

Whether you're off to trial or a settlement can be reached, the steps until trial are usually these:

1. Exchange Financial Statements. Financial Statements are required whenever the division of property or the payment of support is at issue. 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 a more detail further on in this page.

2. Have a Judicial Case Conference. 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 page.

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. The process for bringing interim applications is discussed in detail in the Interim Applications page.

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 Lists of Documents updated when new documents are found or become available.

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 are helpful to get the 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.

6. Have a Settlement Conference. The rules of court allow a party to schedule a Settlement Conference before a judge before 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.

7. Have a Trial Management Conference. 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.

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.

This is just a rough sketch of the lengthy process of bringing an action to a conclusion. Not every case 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 brief description.

The Provincial Court

If you are being sued in the Provincial Court, you are the Respondent to the Applicant's appliction, (which I'll call an action to keep things simple). If you've been served with an Application to Obtain an Order or an Application to Change an Order, you have two choices: do nothing or defend yourself. If you agree with the relief sought, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or if you completely disagree with the Applicant's claims you must reply to the Application to Obtain an Order or the Application to Change an Order, or you risk losing by default.

Preparing, Filing and Delivering the Reply

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

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

consent to the relief claimed in the application, or consent to only some of the relief claimed by the Applicant; object to all or some of the relief claimed in the application, providing you give reasons as to why you oppose the relief; and, apply for the orders you would like the court to make. The form which must be used is Form 3, set out in the Provincial Court Family Court Manual. A link to the Provincial (Family) Court Rules of Court is provided in the section Resources & Links.

The Next Steps

In certain registries of the Provincial (Family) Court the parties must meet with a "Family Justice Counsellor," and, if children are involved, attend a Parenting After Separation program, before any further steps can be taken in a case. This will apply even if you are seeking a default judgment. The court clerk will refer you to the Family Justice Counsellor and tell you where the Parenting After Separation is offered. You will have to file a certificate that you've completed the program before any action can be taken in your case.

At court registries that do not have this requirement, an interim application can be brought at any time after the action has commenced by the filing of an Application to Obtain an Order, or one of the other sorts of actions listed above.

The steps which follow the commencement of an action in Provincial (Family) Court are a watered down version of the Supreme Court process. There are less hoops to jump through, but also less means to extract information and documents from the other side.

Interim Applications: In almost all cases, the 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 in their conduct towards each other and the children until the issues between them can be finally determined. The most common applications in family law involve restraining orders, issues relating to the care and control of the children, child support and spousal support. The process for bringing interim applications is discussed in detail in the next chapter The Legal System > Interim Applications. Exchange Financial Statements: Financial Statements are required whenever the payment of support is at issue. Financial Statements are prepared using Form 4. Have a Family Case Conference: This is a hearing similar the 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 intended to canvas areas of agreement and set dates and deadlines for the remaining steps in the litigation. All they are very usual and often result in settlement, FCCs are not mandatory unless you have been referred to an FCC by a judge. If you think a FCC will help resolve your case, ask for one! FCCs are discussed in detail in the previous chapter The Legal System > Starting an Action. Have a Settlement Conference: The Rules allow a party to set a Settlement Conference before a judge. At this hearing, the parties will explain their positions to the court and their areas of disagreement and hopefully negotiate a settlement. These conferences can be very helpful, as the judge will often express his or her opinion about each party's position and what the judge thinks the likely result of a trial will be. Trial: At the end of the day, if you can't agree on an appropriate settlement, 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. Where neither party is represented by a lawyer, the court clerk will draft a final order based on the judge's Reasons for Judgment.

Financial Statements

If a case involves a claim for 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, by a lawyer, notary public or registry clerk. Each party must attach to their Financial Statements the following documents:

their last three years' worth of tax returns; their Notices of Assessment and Reassessment for the last three tax years; their most recent paystub, showing their earnings-to-date, or if the party isn't working, then their most recent WCB statement, social assistance statement or EI statement; and, if the party is involved in a business, certain other business and/or corporate records. The form which must be used is Form 4, set out in the provincial court Family Court Manual.

Family Case Conferences

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.

FCCs are discussed in mode detail in the previous chapter The Legal System > Starting an Action.

E. Downloads

1. Sample Documents The links below will open sample court documents in a new window. You will require Adobe Acrobat Reader to view these files, a free program available for download from Adobe Software.

In this sample, our fictitious Respondent, John Doe, is defending a suit brought by his wife, Jane Doe. Jane is seeking orders relating to the care and control of the children, orders for the payment of spousal and child support, orders relating to the division of property, a common financial restraining order, and a declaration that the parties are unable to reconcile. John agrees with some of her claims, but he opposes her claims about the care of the children and the payment of spousal support. John is seeking orders about the care of the children and the division property, a declaration that the parties cannot reconcile and a certificate of pending litigation against the title of the family home.

Form F4: Response to Family Claim (PDF) Form F5: Counterclaim (PDF) These related materials have already been filed by Jane:

Form F8: Financial Statement (PDF) Form F19: Notice of Judicial Case Conference (PDF) These sample documents are just that: samples. While they represent a more or less accurate picture of how John Doe might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

2. Court Forms Click the links below to open templates in Word format. Areas where you must supply information are indicated in green text.

Form F4: Response to Family Claim (DOC) Form F5: Counterclaim (DOC) Form F8: Financial Statement (DOC) Form F19: Notice of Judicial Case Conference (DOC)

The link below will open a sample Reply in a new window.

In the sample Reply, our fictitious respondent, Suzie Schwartz, agrees with the application of her partner, Simon Chang, for an order that she not remove their child from British Columbia, but she disagrees with everything else. As well, she seeks a few orders relating to the care and control of the child herself, as well as a restraining Order stopping Simon from harassing her.

Form 3: Reply Form 4: Financial Statement This sample document is just that: a sample. While it represents a more or less accurate picture of how Suzie Schwartz might fill out this form, it may not be applicable to your situation. Use it as a reference only together with the official court form.

Areas where you must supply information are indicated in black script.