Starting a Court Proceeding in a Family Matter: Difference between revisions

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Starting a Court Proceeding in a Family Matter (view source)

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==The Provincial Court==
==The Provincial Court==


The Provincial (Family) 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 takes care of things like drafting court orders. The only downside of bringing your case to the Provincial Court is that the court has a limited jurisdiction and can only hear applications under the Family Relations Act dealing with certain issues, 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 takes care of things like drafting court orders. The only downside of bringing your case to the Provincial Court is that the court has a limited jurisdiction and can only hear applications under the ''Family Law Act'' dealing with certain issues, including:


child support;
#guardianship
spousal support;
#parental responsibilities and parenting time;
the variation of previous Provincial Court orders about child and spousal support;
#contact with a child;
arrears of child support or spousal support;
#child support; and,
custody and guardianship of children; and,
#spousal support.
access to children.
The Provincial Court cannot hear your application if you are applying for orders under the federal Divorce Act or for orders relating to the division of property under the Family Relations Act.


A link to the Provincial (Family) Court Rules of Court is provided in the Resources & Links section.
The Provincial Court cannot hear your application if you are applying for orders under the federal ''Divorce Act'' or for orders relating to the division of property and debt under the ''Family Law Act''.


===Application to Obtain an Order===
A link to the Provincial (Family) Court Rules is provided in the ____ section.
Most actions are started in the Provincial (Family) Court by filing an Application to Obtain an Order. (Actions can also be started with an Application to Change an Order or Agreement where there is already a court order or separation agreement.) The person beginning the action, the Applicant, fills out the form, providing: the Applicant's name and address for service; the name and address of the person against whom the application is being made, the Respondent; a list of the orders the Applicant is asking the court to make; and, a brief statement of the relevant facts. The Applicant then files the form in the court registry.


The form which must be used is Form 1, set out in the Provincial Court Family Court Manual. Applications to Change an Order or Agreement are prepared using Form 2.
===Preparing, Filing and Serving the Application to Obtain an Order===


Once the application has been filed, the court registry may take care of serving the Respondent with a copy of the materials you filed. Most registries will require that you take care of serving the Respondent. Once the Respondent has been served, he or she must file a Reply within 30 days.
Most court proceedings are started in the Provincial Court by filing an ''Application to Obtain an Order''. (Court proceedings can also be started with an Application to Change an Order where there is already a court order or separation agreement.) The person beginning the action, the Applicant, fills out the Application to Obtain and Order, providing: the Applicant's name and address for service; the name and address of the person against whom the application is being made, the Respondent; a list of the orders the Applicant is asking the court to make; and, a brief statement of the relevant facts. The Applicant then files the form in the court registry.
 
The form which must be used is Form 1. Applications to Change an Order are prepared using Form 2.
 
Once the application has been filed, you must serve a copy on the Respondent. Once the Respondent has been served, he or she must file a Reply within 30 days.


===Default===
===Default===


A Respondent who fails to file and deliver his or her Reply by 30 days is not entitled to be notified of any further steps taken in the action. This will change, of course, if the Respondent files a Reply down the road, but until that happens the Applicant is free to set a date for the hearing of the action, or for the hearing of an interim application, with no notice to the Respondent.
A Respondent who fails to file and deliver his or her ''Reply'' within 30 days is not entitled to be notified of any further steps taken in the court proceeding. This will change, of course, if the Respondent files a Reply down the road, but until that happens the Applicant is free to set a date for the hearing of the court proceeding, or for the hearing of an interim application, with no notice to the Respondent.


At the hearing, the Applicant can ask the court to make a default judgment in the Respondent's absence. You should not assume that you'll necessarily get what you want, especially if the action concerns the care and control of children. In a case like that, the court will also consider what is in the children's best interests, and despite the lack of a Reply from the Respondent, the court may not conclude that the children's best interests are served by allowing your claim.
At the hearing, the Applicant can ask the court to make a default judgment in the Respondent's absence. You should not assume that you'll necessarily get what you want, especially if the action concerns the care and control of children. In a case like that, the court will also consider what is in the children's best interests, and despite the lack of a Reply from the Respondent, the court may not conclude that the children's best interests are served by allowing your claim.
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===The Next Steps===
===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 further steps can be taken in your case.
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 any further steps can be taken in a court proceeding. This may 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 further steps 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 an Application to Change an Order or Agreement.
At court registries that do not have this requirement, an interim application can be brought at any time after the court proceeding has been started.


The steps which follow the commencement of an action in Provincial (Family) Court are a simplified version of the Supreme Court process. There are less hoops to jump through, but also fewer means to extract information and documents from the other side.
The steps which follow the commencement of a proceeding in the Provincial Court are a simplified version of the Supreme Court process. There are less hoops to jump through, but also fewer 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 chapter The Legal System > Interim Applications.
<blockquote>'''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 chapter ____.</blockquote>
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. Although FCCs are very helpful 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!
Have a Settlement Conference: The Rules allow a party to have a Settlement Conference with a judge. At this hearing, the parties will explain their positions to the court and hopefully negotiate a settlement, with the judge acting as a kind of mediator. 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===
<blockquote>'''Exchange Financial Statements.''' ''Financial Statements'' are required whenever the payment of support is at issue. Financial Statements are prepared using Form 4.</blockquote>
 
<blockquote>'''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 canvass areas of agreement and set dates and deadlines for the remaining steps in the litigation. Although FCCs are very helpful 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!</blockquote>


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:
<blockquote>'''Have a Settlement Conference.''' The rules allow a party to have a Settlement Conference with a judge. At this hearing, the parties will explain their positions to the court and hopefully negotiate a settlement, with the judge acting as a kind of mediator. 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.</blockquote>


their last three years' worth of tax returns;
<blockquote>'''Trial.''' At the end of the day, if you can't agree on a reasonable 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.</blockquote>
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===
===Financial Statements===


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.
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:


FCCs are discussed in more detail below.
#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.


F. Downloads
The form which must be used is Form 4, set out in the Provincial Court rules.
The links below will open a sample Application to Obtain an Order and a sample Application to Change an Order or Agreeement in a new window.


In the sample Application to Obtain an Order, our fictitious applicant, Simon Chang, is suing his common-law partner, Suzie Schwartz, for orders relating to the care and control of the children, an order for the payment child support, and a common restraining order stopping Suzie from removing the children from British Columbia. In the sample Application to Change an Order or Agreement, Simon is asking for an order that Suzie's child support obligation be increased because her income has increased.
===Family Case Conferences===


Form 1: Application to Obtain an Order
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.
Form 2: Application to Change an Order or Agreeement
Form 4: Financial Statement
These sample documents are just that: samples. While they represent a more or less accurate picture of how Simon Chang 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.


Areas where you must supply information are indicated in handwritten script.
FCCs are discussed in more detail in _____.


==Further Reading in this Chapter==
==Further Reading in this Chapter==
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