Difference between revisions of "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.

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 3-1: starting a court proceeding

*Rule 6-2: ordinary service

*Part 10: interim applications and chambers procedure

*Rule 11-4: discontinuing a court proceeding and withdrawing a 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.

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:

#children, including child 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 costs $200.00 to file a Counterclaim.

 

 

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.

 

#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; or,

#after some initial scuffles, neither you nor the Respondent will take any further steps in the court proceeding and the proceeding will languish.

 

<blockquote>'''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.</blockquote>

<blockquote>'''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.</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. The process for bringing interim applications is discussed in detail in the <span style="color: red;">Interim Applications</span> page.</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 Lists 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 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.</blockquote>

<blockquote>'''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.</blockquote>

<blockquote>'''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.</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 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.