Starting a Court Proceeding in a Family Matter

From Clicklaw Wikibooks

If you need the court to make an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." about anything, from the care of children to the payment of spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship. to the division of propertySomething which can be owned. See "chattels" and "real property." (and even just a divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of."), you must begin a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.. There are certain steps you must take, certain fees you must pay and certain forms you must fill out before the court will hear your claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.. Although the staff at the court registries are friendly and very helpful, they cannot provide legal advice and it is your job to prepare these materials, gather your evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony.", and take the steps necessary to bring your case before a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal..

This section reviews the processes for starting a proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." in the Supreme Court and the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.". For a more complete picture of the court process, read this section together with the section on Replying to a Court Proceeding.

The Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

To start a proceeding in the Supreme Court, the main document you will have to prepare is a Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief." in Form F3, a special form prescribed by the Supreme Court Family Rules. (This document is one of the basic legal documents in a court proceeding known as pleadings.) This is the document that says who you are suing and the orders you want to the court to make.

Family law proceedings are governed by the Supreme Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about judicial case conferences, disclosureA step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial., interim applications, and trials.

The primary rules about Notices of Family Claim and the management of proceedings in Supreme Court are:

  • Rule 1-1: definitions
  • Rule 3-1: starting a court proceeding
  • Rule 4-1: Notices of Family Claim and service requirements
  • Rule 4-3: replying to a Notice of Family Claim
  • Rule 5-1: financial disclosure
  • Rule 6-3: personal serviceIn law, the delivery of a legal document to a party in a court proceeding in a manner which complies with the rules of court, usually by physically handing the document to the party and verifying their identity. Personal service is usually required for the proper delivery of the pleadings that are used to start a proceeding to ensure that the party is given proper notice of the proceeding and the opportunity to mount a defence. See also "ordinary service," "pleadings" and "service, substituted."
  • Rule 7-1: judicial case conferences
  • Part 9: disclosure and discoveryA step in a court proceeding in which a party may demand that the other party produce specific documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be trial. See "examination for discovery." of documents
  • Part 10: interim applications and chambers procedure
  • Rule 11-4: discontinuing a court proceeding
  • Part 13: expert witnesses
  • Rule 11-3: summary trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." procedure
  • Rule 14-7: trial procedure
  • Rule 15-2.1: guardianship orders

Links to and examples of the Notice of Family Claim and other court forms can be found in Supreme Court Forms & Examples. For a quick introduction to how to start a proceeding, see How Do I Start a Family Law Action in the Supreme Court? It's located in the section Starting an Action in the How Do I? part of this resource.

Quick tips: Starting an actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. in the Supreme Court

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

  • Can't pay your court fees: If you can't afford pay court fees, you can apply for indigentBeing flat broke. Persons with limited or no income used to apply to the Supreme Court and Court of Appeal for ''indigent status'', which exempts them from paying the usual court fees for all or a part of a court proceeding. The terms ''indigent'' or ''impoverished'' are no longer used. The Rules for both the Supreme Court and Court of Appeal now refer to applications that fees are waived or not payable. status. If you are granted indigent status the court fees will be waived for all or part of your court proceeding. To find out more, see How Do I Apply for Indigent Status in the Supreme Court?
  • Can't personally serve the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim.": If it is impossible to personally serve the Notice of Family Claim on the respondent, you can ask the court to be allowed to use a substitute form of personal service. To find out what's involved, see How Do I Substitutionally Serve Someone with Legal Documents?
  • Not sure where your ex is: If you're not sure where your ex lives in order to start a court proceeding, see How Do I Find My Ex?

Preparing, filing and serving the Notice of Family Claim

The claimantThe person who starts a court proceeding seeking an order for specific remedy or relief against another person, the respondent. See "action" and "respondent.", the person starting the court proceeding, must fill out a Notice of Family Claim and file the claim in court. The Notice of Family Claim provides: the claimant's name and address; the name and address of the person against whom the claim is made, the respondent; the basic history of the parties' relationship; and, an outline of the orders the claimant would like the court to make.

The court form that must be used is Form F3, set out in the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional pages that require more detailed information must be added to the Notice of Family Claim when the claimant seeks orders about:

  • divorce,
  • the care of children and child supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.,
  • spousal support,
  • the division of property and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed., and
  • other orders, like protection orders or orders for the change of a person's name.

The Notice of Family Claim must be filed in the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. and be personally served on the respondent. If you are asking for a divorce order, you'll have to fill out a Registration of Divorce Proceeding form when you file your Notice of Family Claim. It currently costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees." $200 to file a Notice of Family Claim, or $210 if the claim includes a claim for a divorce. When you file any document in Supreme Court (including the Notice of Family Claim), the registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse. 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 partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant.").

Personal serviceIn law, to formally deliver documents to a person in a manner that complies with the applicable rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person) or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service." means physically handing the Notice of Family Claim to the respondent. The Divorce Act and Rule 6-3(2) of the Supreme Court Family Rules say that a claimant cannot serve a respondent him- or herself. You must either pay a process server to do it or enlist the help of a friend over the age of majorityThe age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant.". Although this ought to go without saying, don't use one of your children to serve your ex.

Deadline for replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut."

The respondent has 30 days to file a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings." after being served with the claimant's Notice of Family Claim. If the respondent doesn't do this, the claimant may be able to apply for the orders asked for in the Notice of Family Claim as a default judgmentA judgment obtained by a claimant following the respondent's failure to reply to the claimant's claim within the proper time from service. In the Supreme Court, a respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without the response being served on the claimant, the claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See "desk order divorce" and "Response to Family Claim.", a final order made in default of the respondent's reply (and possibly without further notice to the respondent).

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. A claimant should not expect to win on a technicality like this. If a respondent files their Response to Family Claim late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

The next steps

If the respondent has chosen to file a Response to Family Claim, they have decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. 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 agreementA contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." or an order that you both agree the court should make, called a consent orderAn order resolving all or part of a court proceeding, on an interim or final basis, that the parties agree the court should make..
  2. You'll not be able to agree, and the intervention of the court at a trial will be required.
  3. After some initial scuffles, neither you nor the respondent 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

To start a proceeding in the Provincial Court, the main document you have to prepare is an Application to Obtain an OrderA legal document required by the Provincial Court Family Rules to start a court proceeding, which sets out the relief sought by the applicant against the person named as respondent. See "action," "applicant," "pleadings," "relief," and "respondent." in Form 1, a special form prescribed by the Provincial Court Family Rules. This is the document that says who you are suing and what you are suing for.

Family law proceedings are governed by the Provincial Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about Family Case Conferences, disclosure, interim applications, and trials. The primary rules about Applications to Obtain an Order and the management of court proceedings are:

  • Rule 1: definitions
  • Rule 2: Applications to Obtain an Order and service requirements
  • Rule 3: replying to an Application to Obtain an Order
  • 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 Application to Obtain an Order and other court forms can be found in Provincial Court Forms & Examples. For a quick introduction to how to start a proceeding, see How Do I Start a Family Law Action in the Provincial Court? It's located in the section Starting an Action in the How Do I? part of this resource.

Limitations of the Provincial Court

The Provincial Court is designed for people who are not represented by a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.". There are no filing fees in this court, the forms are a lot easier to prepare, the rules of courtThe guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court. are simpler, and the court registry will sometimes take care of things like drafting court orders. The main disadvantage of bringing your case to 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:

  • guardianship,
  • parental responsibilitiesA term under the ''Family Law Act'' which describes the various rights, duties and responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian." and parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian.",
  • contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." with a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.",
  • child support,
  • spousal support
  • protection orders, and
  • payment of household bills such as mortgageThe conditional transfer of the title to real property by an owner to another person in return for money given by that person as a loan, while retaining possession of the property. The party to whom title is given, the "mortgagee," usually a bank, is allowed to register the title of the property in their name if the person taking the loan, the "mortgagor," fails to make the required payments. See "encumbrance" and "real property." and utilities pending trial or settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer.".

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.

Preparing, filing and serving the application to obtain an order

Most court proceedings are started in the Provincial Court by filing an Application to Obtain an Order in Form 1. (Court proceedings can also be started with an Application to Change or Cancel an Order in Form 2 where there is already a court order or separation agreement in place.) The person beginning the action, the applicantA party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application.", fills out the Application to Obtain an Order and provides certain information, including: the applicant's name and address; 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 very brief statement of the relevant facts.

The Application to Obtain an Order must be filed in the court registry and be personally served on the respondent. No fee is charged to file the Application to Obtain an Order.

Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the Provincial Court (Family) Rules says that an applicant cannot personally be the one who serves a respondent. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Don't use one of your children to serve your ex.

If you're not sure where you ex lives, see How Do I Find My Ex? It's located in the section Marriage, Separation & Divorce in the How Do I? part of this resource.

Deadline for reply

The respondent has 30 days to fill out and file a court form called a ReplyA legal document required by the Provincial Court Family Rules to respond to a claim made in an applicant's Application to Obtain an Order. See "applicant," "Application to Obtain an Order," "claim," and "Counterclaim." after being served with the applicant's Application to Obtain an Order. If the respondent doesn't do this, the applicant may be able to apply for the orders asked for in the Application to Obtain an Order as a default judgment, a final order made in default of the respondent's reply.

You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An applicant should not expect to win on a technicality like this. If a respondent files their reply late, the court will usually give the respondent an extension of time and overlook the missed due date. However, if the respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.

The next steps

If the respondent has chosen to file a Reply, they have decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that, at least for now, the respondent disagrees with some or all of the orders you're asking for. 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.
  3. After some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.

Parenting After Separation

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 caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.". 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 mediationA dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.".

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.


Resources and links

Legislation

Resources

Links


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
Personal tools
Namespaces

Variants
Actions
Site
Tools
Contributors
Print/export