Difference between revisions of "Starting a Court Proceeding in a Family Matter"

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(42 intermediate revisions by 7 users not shown)
Line 1: Line 1:
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = incourt}}{{JPBOFL Editor Badge
|ChapterEditors = [[Shannon Aldinger]] and [[Andrea Glen]]
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
}}
}}


If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of property, you must begin a court proceeding. 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 claim. Although the staff at the court registries are friendly and very helpful, it is your job to prepare these materials, gather your evidence, and take the steps necessary to bring your case before a judge.  
If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of property, or even just an order for your divorce, you must start a court proceeding. Your court proceeding will end with a trial, if you can't settle your legal problem first, after which the judge will make an order... hopefully the order you want the judge to make. There are certain steps you must take, certain fees you must pay, and certain forms you must fill out before you get to your trial. Although the staff at the court registries are friendly and do their best to be helpful, they cannot provide legal advice, fill out forms for you or tell you how to manage your court proceeding. It is ''your'' job to prepare these materials, gather the evidence you need, and take the other steps necessary to bring your proceeding to a judge at trial.


This section reviews the processes for starting a 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 [[Replying_to_a_Court_Proceeding_in_a_Family_Matter|Replying to a Court Proceeding]].
This section describes basic elements of the Provincial Court process, but please refer to the resources on Legal Aid BC's Family Law website and the links posted at the end of this section. This section deals with the processes for starting a proceeding in the Supreme Court. For a more complete picture of the court process, you should read this section together with the section on [[Responding to a Court Proceeding in a Family Matter]].  


==The Supreme Court==


To start a proceeding in the Supreme Court, the main document you will have to prepare is a Notice of Family Claim in Form F3, a special form prescribed by the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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.
==The Provincial Court==
The BC Provincial Court operates in approximately 84 locations around the province. Half of these locations operate part-time only, and are unstaffed the rest of the time. The other half operate in courthouses that are staffed and have their own court registries. (Registry staff are the people who deal with the paperwork, scheduling, etc.)
 
Before you start a proceeding in Provincial Court, you have to determine which registry to use. If an existing case has already been started involving the same parties, then you have to use the registry where that case is located. If there’s no existing case and kids are involved, then you have to use the registry closest to where the kids live most of the time; if no kids are involved, then you use the registry closest to the residence of the person who first files a court document under the Provincial Court Rules.


Family law proceedings are governed by the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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, disclosure, interim applications, and trials.
After you’ve determined which registry to use, find out what kind of registry it is. In BC, we have three types of registries:
#The “Early Resolution” registries;
#*Surrey 
#*Victoria 
#“Family Justice” registries 
#*Kelowna 
#*Nanaimo
#*Vancouver (Robson Square) 
# All other BC Provincial Court registries are “Parenting Program” registries 


The primary rules about Notices of Family Claim and the management of court proceedings are:
There are different steps involved in starting a Provincial Court proceeding depending on the registry. We’ll go through those now.


*Rule 1-1: definitions
{{Template:BCPCJPBOFL2022}}
*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 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
*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 Notice of Family Claim and other court forms can be found in [[Supreme Court Forms (Family Law)|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.
===Early Resolution Registries===


===Quick Tips: Starting an action in the Supreme Court===
''Early Resolution Registries'' offer a new process for handling family law disputes. These registries require different steps compared to traditional registries. So far, Surrey and Victoria are the only Early Resolution Registries, although the BC government has indicated they may add more locations.


The following tips are located in the section ''Starting an Action'' in the ''[[JP_Boyd_on_Family_Law_—_How_Do_I%3F|How Do I?]]'' part of this resource:
The Early Resolution process, sometimes referred to as the ''Early Resolution and Case Management process'', is intended to encourage parties to resolve family disputes by agreement, or if that's not possible, to help them obtain fair decisions in Provincial Court in a timely manner. 


* '''Can't pay your court fees:'''  can't afford pay court fees, you can apply for indigent 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?]]  
The Early Resolution process is unique in British Columbia, and different from the traditional approach laid out in the Provincial Court Family Rules. That said, the forms used in these registries are all from the same source. As of May 17, 2021, all Provincial Court Locations, including the Early Resolution Registries, use the [[Provincial Court Forms (Family Law)|forms listed in the Provincial Court Family Rules]]. 


* '''Guide to personal service:''' For a quick summary of what's involved in personal service, see [[How Do I Personally Serve Someone with Legal Documents?]]
'''Use the Early Resolution registries in Victoria or Surrey if:'''
* there is already a case started at that registry involving the same parties, 
* your family law case involves a child-related issue, and the child lives closest to the Victoria or Surrey registry most of the time, or 
* your family law case does not involve a child-related issue, and you live closest to the Victoria or Surrey registry most of the time. 


* '''Can't personally serve the respondent:''' 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?]]
The Early Resolution process is only for claims under the ''[[Family Law Act]]''. It is not for child protection matters, and it is not used for claims brought by the Ministry of Children and Family Development or a Delegated Aboriginal Agency.


* '''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?]]
====Starting a case in an Early Resolution Registry====
The Early Resolution process is designed to encourage parties to resolve family disputes by agreement or to help them move their case along to a quicker resolution. 


* '''Need to change something in the Notice of Family Claim''': To find out what happens when you want to change something in your Notice of Family Claim, see [[How Do I Change Something in My Notice of Family Claim?]]
If you have a dispute about a family law matter, including child support, spousal support, parenting arrangements, contact, or guardianship, you will start by filing a form called the [[PCFR Form 1 Notice to Resolve a Family Law Matter|Notice to Resolve a Family Law Matter]] at the Victoria or Surrey registry, and by giving the other party a copy. 


* '''Want the court action to stop:''' To find out if you can stop a family law action in the Supreme Court once you've started it, see [[How Do I Stop a Family Law Action in the Supreme Court?]]
You will then be directed to the [https://www.clicklaw.bc.ca/helpmap/service/1019 Justice Access Centre (JAC)] to make an appointment for your individual needs assessment. 


===Preparing, filing and serving the notice of family claim===
At the needs assessment, a family justice counsellor will provide you with information about your options, about the court process, and about how to access legal advice and other resources. They will make an assessment about whether consensual dispute resolution is appropriate for you. This means they will consider whether there are:
{{LSSbadge
*power imbalances between you and your ex
|resourcetype = further step-by-step information on
*safety or family violence issues, or
|link        = [http://www.familylaw.lss.bc.ca/guides/start/cantAgree/supreme/apply/steps.php How to start a family law case<br/> in Supreme Court]
*language barriers.
}}The claimant, 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 family justice counsellor will also consider the nature of the issues to be resolved, your and your ex's ability to participate, and if accommodations can be made to facilitate participation. 


The court form that must be used use is Form F3, 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 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:
If you have children, you will be required to complete the [https://www.clicklaw.bc.ca/question/commonquestion/1010 Parenting After Separation program], unless you have completed it within the last two years or meet one of the few exemptions. 


*divorce,
If it is appropriate, you and the other party will participate in at least one consensual dispute resolution session to mediate your issues. 
*the care of children and 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 Notice of Family Claim must be filed in the court registry 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 costs $200 to file a Notice of Family Claim, or $210 if the claim includes a claim for a divorce.
When issues are resolved during early resolution, you can formalize your agreements by written agreement or consent order. 


"Personal service" essentially means physically handing the Notice of Family Claim to the respondent. The ''[[Divorce Act]]'' and Rule 6-3(2) of the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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 majority. Although this ought to go without saying, don't use one of your children to serve your ex.
====Replying to a Family Law Matter in an Early Resolution Registry====


===Deadline for reply===
If you are served with a Notice to Resolve a Family Law Matter filed at the Victoria or Surrey registry, you'll have to complete three steps before you can file your Reply to an Application About a Family Law Matter. Those three steps are: 


The respondent has 30 days to file a Response to Family Claim 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 judgment'', a final order made in default of the respondent's reply.
If you are served with a Notice to Resolve a Family Law Matter filed at the Victoria or Surrey registry, you'll have to complete three steps before you can file your reply to an application about a family law matter. Those three steps are: 
# '''Needs Assessment''': You will participate in a needs assessment through the Justice Access Centre where a family justice counsellor will teach you about the court process, and about how to access legal advice and other resources. They will make an assessment about whether consensual dispute resolution is appropriate for you, taking into consideration whether there are power imbalances, issues of safety or family violence, or language barriers, and also taking into consideration the nature of the issues to be resolved and the ability of the parties to participate, or accommodations that can be made to facilitate participation.
# '''Parenting After Separation Course''': If you have children, you will be required to complete the [https://www.clicklaw.bc.ca/question/commonquestion/1010 Parenting After Separation program], unless you have completed it within the last two years or meet one of the few exemptions. 
# '''Consensual Dispute Resolution''': If it is appropriate, you and the other party will participate in at least one consensual dispute resolution session to mediate your issues. 
==== What happens when parties can't resolve issues during Early Resolution?====
If there are still some issues that need to be resolved and you need the Court's help, you then file a form called the [[PCFR Form 3 Application About a Family Law Matter|Application About a Family Law Matter]] with all your supporting documents and serve it on the other party or parties. 


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 his or her 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.
When the other party has replied or the time for reply has passed, you can contact the Judicial Case Manager to schedule a Family Management Conference. At the Family Management Conference, you and the other party (or parties) will meet with a judge. The judge will work with you to see whether agreement can be reached on some or all of the issues. The judge can make an interim order or a final order by consent. 


===The next steps===
If there are still issues to resolve, the judge can make case management orders to ensure the matter is ready for trial if one is needed. The usual process in Provincial Court for case conferences, trial preparation, trials, and enforcement of Family Maintenance matters still applies if your issues have not been fully resolved. 


If the respondent has chosen to file a Response to Family Claim, he or she has 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:
====What else do I need to know about the Early Resolution process?====
The Early Resolution process also includes rules for applications about: 
* protection orders
* enforcement of existing orders
* giving, refusing, or withdrawing consent to medical, dental, or other health-related treatments for a child, if delay will result in risk to the health of the child
* applying for a passport, licence, permit, benefit, privilege, or other thing for the child, if delay will result in risk of harm to the child's physical, psychological, or emotional safety, security, or well-being
* relocation of a child
* preventing the removal of a child from a certain location 
* determining matters relating to interjurisdictional issues 


#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.
Parties involved in these matters will file and serve an application and proceed to a hearing without having to participate in the early resolution processes. If the parties have one of these types of matters and an early resolution family law matter, they can go through court to get the one issue resolved and proceed through early resolution and case management on the other issues. The model recognizes that protection orders and some parenting matters are urgent and need to proceed directly to court. 
#You'll not be able to agree, and the intervention of the court at a trial will be required.
#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:
To read more about the Early Resolution process in Victoria and Surrey see the [https://www.clicklaw.bc.ca/resource/4843 BC Ministry of Attorney General's website], which also makes available a brochure with a simplified process map. 


<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>
===Family Justice Registries===
If your family law dispute is in Kelowna, Nanaimo, or Vancouver (Robson Square), the provincial court registries in those locations fall under the Family Justice registry model.


<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>
To start a proceeding in a Family Justice registry, you file specific forms based on what you’re asking a judge to ultimately decide. Some of the most common things people ask for are:
*guardianship
*parenting responsibilities
*decision-making authority
*parenting time (sometimes called ''custody'', though Canadian courts don’t use that word anymore)
*contact (visitation rights of a person who is not a child's guardian)
*child support and special expenses, and
*spousal support
There are also conduct orders which can help parties set boundaries to assist them in working towards resolution, and there are protection orders, which follow a different process due to their often-urgent nature.  


<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>
====What form do I file?====
=====Family Law Matters=====
If you're using a Family Justice Registry, the next step is to determine what you're asking a judge to decide, and see if it qualifies as a ''Family Law Matter''. The following are considered Family Law Matters:
*parenting arrangements
*child support
*contact with a child
*guardianship of a child, or
*spousal support
In these cases you will start by filing an [[PCFR Form 3 Application About a Family Law Matter|Application About a Family Law Matter]] in Form 3 and delivering it by ''personal service'' to the other party. This means that someone other than you who is over 19 years old must serve the other party in person with a copy of the application and instructions from the registry on how to reply.  


<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>
=====Applying for other orders=====
Start by figuring out what kind of order you need. That will determine the form you’ll have to file with the court. If your matter isn't captured by the definition of a "Family Law Matter", then you’ll have to file another type of form for orders other than family law matters. These include applications for:
*a case management order
*a protection order
*an order about a priority parenting matter
*an order about relocation, or
*a consent order.  
The rules for these kinds of orders are the same no matter what kind of registry you are in.


<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>
:'''Case Management Orders''': Case management orders are orders about a range of issues to help manage a case. The list is set out at section 62 of the ''Provincial Court Family Rules'', but a few examples include:
:*transferring a court file to another registry
:*accessing a court file
:*correcting or amending a filed document
:*waiving or changing requirements about serving someone with court documents you filed
:*applying to attend court by phone or video
:*adjourning court appearances, or
:*correcting an order made under the Provincial Court Family Rules.  


<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>
:To apply for a case management order, file an [[PCFR Form 10 Application for Case Management Order|Application for Case Management Order]] in Form 10, along with any supporting evidence or documents you have. You can also file an [[PCFR Form 11 Application for Case Management Order Without Notice or Attendance|Application for Case Management Order Without Notice or Attendance]] in Form 11 if no appearance before a judge is required. Check the instructions located in each of the forms, or see Provincial Court Family Rule 65 to determine whether an appearance is required, and which form you'll have to file. If a case management order is made without notice, you'll have to serve a copy of the order, the application, and any supporting evidence or documents, on the other party.


<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>
:'''Protection Orders''': If you’re applying for a protection order and an order about a family law matter, you don’t have to follow the special steps set out for the Early Resolution Registries, the Family Justice Registries, or the Parenting Education Program Registries.


<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>
:No matter the court registry you are in, if you have protection or safety concerns, you can apply to the court to go before a judge without letting the other party know first. It's up to the judge whether to hear your ''without notice'' application. Any without notice application will have to include reasons why the application should be heard without notice to the other side. File an [[PCFR Form 12 Application about a Protection Order|Application about a Protection Order]] in Form 12 to apply for a protection order along with an [[PCFR Form 11 Application for Case Management Order Without Notice or Attendance|Application for Case Management Order Without Notice or Attendance]] in Form 11 to apply without notice to the other party.
:Once you speak to the judge about the protection order you’ve asked for and if the order is made, remember that a protection order expires either on the date the judge orders for it to end, or one year after the date it is made. You can apply for another protection order if you need to.


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.
:If you have safety concerns about family violence, you may want to talk to a support worker. [https://www.clicklaw.bc.ca/helpmap/service/1055 VictimLinkBC] is a confidential, multilingual telephone service available 24 hours a day, 7 days a week at 1-800-563-0808. Victim services workers can provide crisis support, information and referrals to supports including safety planning, victim services, transition houses and counselling services.


===Financial statements===
:'''Priority Parenting Matter''': Orders about priority parenting matters are decisions where a delay in obtaining a court’s decision would pose a risk to a child. These applications should be filed in rare circumstances, and only in situations listed in Form 15, [[PCFR Form 15 Application About a Priority Parenting Matter|Application About a Priority Parenting Matter]]. 


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.
:In addition to Form 15 you’ll also have to file a Form 11 if you’re applying to waive or change the requirement to give seven days’ notice of the application to the other party.  


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.
:'''Relocation''': If you have a written and signed agreement or a court order about parenting time or contact and you receive written notice from the other parent saying the plan to relocate with the child, then you can apply to the court for an order prohibiting the relocation of the child using Form 16, [[PCFR Form 16 Application for Order Prohibiting the Relocation of a Child|Application for Order Prohibiting the Relocation of a Child]]. At least seven days before the court date listed on the application form, you’ll have to serve the Form 16 on the other party, along with a copy of the written agreement or court order about parenting time, and a copy of (or details about) the notice of relocation that you received.


Each party must attach to their Financial Statements a number of important documents:
:If the other parent plans to relocate with your child and you do not have a written and signed agreement about parenting time or contact, you can apply for an order prohibiting relocation using the Application About a Priority Parenting Matter form, in Form 15, and you’ll have to serve that Form on the other parent at least seven days before the court date listed on the application form. 


#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"),
:'''Consent Orders''': If you and the other party in your Family Law Matter have reached an agreement, you can ask the court to make an order, usually without going to court and arguing before a judge. A judge will still have to review the draft consent order that you file and, as long as they don’t have any questions or concerns about the orders you're asking for, they can make the order.
#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].
:To obtain a consent order about a Family Law Matter, you’ll have to file an [[PCFR Form 17 Application for a Family Law Matter Consent Order|Application for a Family Law Matter Consent Order]] in Form 17, as well as a draft of the [[PCFR Form 18 Consent Order|Consent Order]] in Form 18 setting out what you have agreed on and the orders you’re asking the court to make. The draft Consent Order in Form 18 will have to be signed by all parties or their lawyers.


===Judicial case conferences===
:If a judge reviews your application and draft consent order and needs more information, they can ask for more evidence or information, which may mean that you must go to court and speak to a judge. It could also mean that a judge might make changes to the draft consent order and, if you and the other party agree to the changes, you can go to the registry at the courthouse and sign the changes. An application for a consent order can also be rejected. If that happens, the judge will provide their reasons for rejection. 


Judicial case conferences 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 court proceedings where the parties can't agree, and, in most cases, they must be held before any interim applications can be heard.
:In addition to applying for consent orders about a Family Law Matter, you can also file for a consent order related to one of the case management issues discussed above. This is done by by filing an [[PCFR Form 10 Application for Case Management Order|Application for Case Management Order]] in Form 10. If you specify in your Form 10 that you do not want a court appearance, you must also submit a draft of the [[PCFR Form 18 Consent Order|Consent Order]] in Form 18, signed by all concerned parties or their lawyers.


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!
===Parenting Education Program Registry===
Starting a Provincial Court action in one of the Parenting Education Program Registries is the same as in a Family Justice Registry, however you do not have to participate in a needs assessment before you can schedule a Family Management Conference.


This chapter has more information about JCCs in the section [[Case Conferences in a Family Law Matter]].
You will still have to complete a parenting education program (such as Parenting After Separation) if children are involved, and you still have the option to participate in a needs assessment and consensual dispute resolution.


==The Provincial Court==
===The Parenting After Separation Program===
{{LSSbadge
|resourcetype = further step-by-step information on
|link        = [http://www.familylaw.lss.bc.ca/guides/final/cantAgree/provincial/apply/steps.php Starting a family law case<br/> in Provincial Court]
}}To start a proceeding in the Provincial Court, the main document you have to prepare is an Application to Obtain an Order in Form 1, a special form prescribed by the [http://canlii.ca/t/85pb 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:
In certain registries of the Provincial Court, the parties to a court proceeding must meet with a family justice counsellor and, if children are involved, attend a [https://www.clicklaw.bc.ca/resource/4884 Parenting After Separation Course] before they can take any further steps in their case. This rule may apply even if you're asking for a default judgment or an order everyone agrees to, called a ''consent order''. The registry will tell you what is needed. If necessary, the registry will refer you to a family justice counsellor and tell you where the Parenting After Separation Course is offered.


*Rule 1: definitions
Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if all of the parties are prepared to try mediation.  
*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 (Family Law)|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.
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 [https://www.clicklaw.bc.ca/resource/4884 online]. The online course does not replace the need to attend an in-person course if that's required. You will have to file a certificate that you've completed the program in court.


===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 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:
The Provincial Court is built for people who are not represented by a lawyer. There are no filing fees in this court, in some ways the forms are easier to prepare, the rules of court are simplified, 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,
#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 until trial or settlement.


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''.
The Provincial Court cannot hear any claims under the federal ''[[Divorce Act]]''. However, it also cannot hear claims for orders relating to the division of property and debt under the provincial ''Family Law Act''.


===Preparing, filing and serving the application to obtain an order===
==The Supreme Court==


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 ''applicant'', 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 <span class="noglossary">brief</span> statement of the relevant facts.  
To start a proceeding in the Supreme Court, the main document you'll have to prepare is a ''Notice of Family Claim'' in Form F3, a special form prescribed by the [http://canlii.ca/t/8mcr Supreme Court Family Rules]. (This document is one of the basic legal documents in a court proceeding known as "pleadings.") This document says who you are suing and what you're suing them for.


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.
Family law proceedings in the Supreme Court are governed by the [http://canlii.ca/t/8mcr 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, disclosure, interim applications, and trials. The main rules about Notices of Family Claim and the management of court proceedings in Supreme Court are:


Personal service means physically handing the Application to Obtain an Order to the respondent. Rule 2(3) of the [http://canlii.ca/t/85pb 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.
*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 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
*Part 13: Expert witnesses
*Rule 11-3: Summary trial procedure
*Rule 14-7: Trial procedure
*Rule 15-2.1: Guardianship orders


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.
Links to and examples of the Notice of Family Claim and other court forms can be found in [[Supreme Court Forms (Family Law)|Supreme Court Forms and 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 Helpful Guides & Common Questions part of this resource.  


===Deadline for reply===
===Quick answers for common questions===


The respondent has 30 days to fill out and file a court form called a Reply 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.
The following issues are addressed in the ''Starting an Action'' section in the Helpful Guides & Common Questions part of this resource:


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 his or her 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.
* '''Can't pay your court fees:''' If you can't afford to pay court fees, you can apply to court to have those fees waived. This used to be called applying for ''indigent status'', but this term is no longer used. To find out more, see [[How Do I Waive Filing Fees in the Supreme Court?]]
* '''Personally serving someone:''' For a quick summary of what's involved in personal service, see [[How Do I Personally Serve Someone with Legal Documents?]]
* '''Can't personally serve the respondent:''' 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?]]
* '''Can't find your ex:''' If you're not sure where your ex lives in order to start a court proceeding, see [[How Do I Find My Ex?]]
* '''Need to change something in your Notice of Family Claim''': To find out what happens when you want to change something in your Notice of Family Claim, see [[How Do I Change Something in My Notice of Family Claim?]]
* '''Want to stop the court proceeding:''' To find out if you can stop a family law court proceeding in the Supreme Court once you've started it, see [[How Do I Stop a Family Law Action in the Supreme Court?]]


===The next steps===
===Preparing, filing and serving the Notice of Family Claim===
{{LSSbadge
|resourcetype = guided pathway information on how to
|link        = [https://mylawbc.com/pathways/family-orders Get family orders]
}}The ''claimant'', the person starting the court proceeding, must fill out a ''Notice of Family Claim'' in Form F3 and file the claim in court to start a court proceeding. The Notice of Family Claim provides certain information, including:


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 the 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.
#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;
#the names and birthdates of any children; and,  
#a list of the orders the claimant would like the court to make.


The steps that follow the commencement of a proceeding in the Provincial Court are a shorter, more streamlined 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.
The court form that must be used is 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:


<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>
#divorce;
#the care of children and child support;
#spousal support;
#the division of property and debt; and,
#orders about other subjects, like orders for the protection of people or orders for the change of a person's name.


<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>
The Notice of Family Claim must be filed in the court registry and be personally served on the respondent. If you're 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 costs $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 registry will keep the original of the document. 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.  


<blockquote>'''3. Have a family case conference (FCC).''' An FCC 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>
''Personal 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 themselves. 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.''


<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. This chapter discusses the process for bringing interim applications in the section [[Interim Applications in Family Matters]].</blockquote>
===Deadline for reply===


<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>
The respondent has 30 days to file a ''Response to Family Claim'' after being served with your Notice of Family Claim. If the respondent doesn't do this, you may be able to get the orders you asked for in your Notice of Family Claim as a ''default judgment'', a final order the court makes when the respondent doesn't file a Response to Family Claim.


<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>
You should be aware that judges can be 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.


===Financial Statements===
Sometimes a respondent will not reply to a Notice of Family Claim because they agree to the orders the claimant is asking for. This often happens when the claimant is just asking for a divorce. In a case like this, the court proceeding will qualify as an "undefended family law case" and you can apply for a default judgment under Rule 10-10 of the Supreme Court Rules. For more information about the do-it-yourself divorce process, see the [[Divorce and the Law on Getting Divorced]] section in the [[Separating and Getting Divorced]] chapter.


If a Provincial 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.
===The next steps===


Each party must attach to their Financial Statements the following documents:
If the respondent has chosen to file a Response to Family Claim, they have decided to oppose some or all of the orders you are asking for in 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 at least some of the orders you're asking for. One of three things is going to happen in your court proceeding:


#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"),
#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''.
#all notices of assessment and reassessment received for the last three tax years,
#you'll not be able to agree, and the intervention of the court at a ''trial'' will be required; or,
#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
#after some initial scuffles, neither you nor the respondent will take any further steps in the court proceeding and the proceeding will languish.
#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].
Hopefully, it'll be the first.
 
===Family case conferences===
 
Family case conferences (FCCs) 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 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.
 
This chapter discusses FCCs in more detail in the section [[Case Conferences in a Family Law Matter]].
<!---HIDDEN
==Further Reading in this Chapter==
 
Return to the <span style="color: red;">first page</span> in this chapter.
 
* other chapters
END HIDDEN--->


==Resources and links==
==Resources and links==
Line 225: Line 264:
===Legislation===
===Legislation===


* ''[http://canlii.ca/t/jj7h Provincial Court Act]''
* ''[http://canlii.ca/t/849w Provincial Court Act]''
* [http://canlii.ca/t/85pb Provincial Court Family Rules]
* [http://canlii.ca/t/b8rn Provincial Court Family Rules]
* ''[http://canlii.ca/t/51x8q 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 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.provincialcourt.bc.ca/ Provincial Court website]
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* [https://www.bccourts.ca/supreme_court/ Supreme Court website]
* Legal Services Society Family Law in BC website: [http://www.familylaw.lss.bc.ca/guides/mini/howToStartFamilyCaseSC/apply/index.php 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)]
* [http://www.clicklaw.bc.ca/resource/2268 Justice Education Society website for BC Supreme Court]
* [http://www.supremecourtbc.ca Justice Education Society Website for BC Supreme Court]
* BC Ministry of Attorney General: [https://www.clicklaw.bc.ca/resource/4884 Parenting After Separation Course]
* [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php Parenting After Separation Program]
* [https://www.clicklaw.bc.ca/resource/4640 Legal Aid BC's ''Family Law in BC'' website]
* [http://parenting.familieschange.ca Online Parenting After Separation Course]
 




{{REVIEWED | reviewer = [[JP Boyd]], May 18, 2013}}
{{REVIEWED | reviewer = [[JP Boyd]], 4 April 2020}}


{{JP Boyd on Family Law Navbox|type=chapters}}
{{JP Boyd on Family Law Navbox|type=chapters}}

Latest revision as of 20:31, 6 February 2023

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Resolving Problems in Court
 · The Court System
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
Editorial Manifesto · Rights & Duties of Self-Represented Litigants
v • d • e
Page Editor(s)
Since 2020: JP Boyd, KC
Previously: Shannon Aldinger and Julie Brown
Read: Past contributors

If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of property, or even just an order for your divorce, you must start a court proceeding. Your court proceeding will end with a trial, if you can't settle your legal problem first, after which the judge will make an order... hopefully the order you want the judge to make. There are certain steps you must take, certain fees you must pay, and certain forms you must fill out before you get to your trial. Although the staff at the court registries are friendly and do their best to be helpful, they cannot provide legal advice, fill out forms for you or tell you how to manage your court proceeding. It is your job to prepare these materials, gather the evidence you need, and take the other steps necessary to bring your proceeding to a judge at trial.

This section describes basic elements of the Provincial Court process, but please refer to the resources on Legal Aid BC's Family Law website and the links posted at the end of this section. This section deals with the processes for starting a proceeding in the Supreme Court. For a more complete picture of the court process, you should read this section together with the section on Responding to a Court Proceeding in a Family Matter.


The Provincial Court

The BC Provincial Court operates in approximately 84 locations around the province. Half of these locations operate part-time only, and are unstaffed the rest of the time. The other half operate in courthouses that are staffed and have their own court registries. (Registry staff are the people who deal with the paperwork, scheduling, etc.)

Before you start a proceeding in Provincial Court, you have to determine which registry to use. If an existing case has already been started involving the same parties, then you have to use the registry where that case is located. If there’s no existing case and kids are involved, then you have to use the registry closest to where the kids live most of the time; if no kids are involved, then you use the registry closest to the residence of the person who first files a court document under the Provincial Court Rules.

After you’ve determined which registry to use, find out what kind of registry it is. In BC, we have three types of registries:

  1. The “Early Resolution” registries;
    • Surrey
    • Victoria
  2. “Family Justice” registries
    • Kelowna
    • Nanaimo
    • Vancouver (Robson Square)
  3. All other BC Provincial Court registries are “Parenting Program” registries

There are different steps involved in starting a Provincial Court proceeding depending on the registry. We’ll go through those now.

Important Note on BC Provincial Court Process: The rules, forms and procedure have changed significantly since 2020. Procedure will depend on where you live. Clicklaw Wikibooks encourages JP Boyd on Family Law readers to check other up-to-date sources of information on Provincial Court process for family law matters. Visit:
  • Legal Aid BC's Family Law in BC website for information about Provincial (Family) Court]
  • The BC Provincial Court's website for a list of resources promoted by the Court itself

Early Resolution Registries

Early Resolution Registries offer a new process for handling family law disputes. These registries require different steps compared to traditional registries. So far, Surrey and Victoria are the only Early Resolution Registries, although the BC government has indicated they may add more locations.

The Early Resolution process, sometimes referred to as the Early Resolution and Case Management process, is intended to encourage parties to resolve family disputes by agreement, or if that's not possible, to help them obtain fair decisions in Provincial Court in a timely manner.

The Early Resolution process is unique in British Columbia, and different from the traditional approach laid out in the Provincial Court Family Rules. That said, the forms used in these registries are all from the same source. As of May 17, 2021, all Provincial Court Locations, including the Early Resolution Registries, use the forms listed in the Provincial Court Family Rules.

Use the Early Resolution registries in Victoria or Surrey if:

  • there is already a case started at that registry involving the same parties,
  • your family law case involves a child-related issue, and the child lives closest to the Victoria or Surrey registry most of the time, or
  • your family law case does not involve a child-related issue, and you live closest to the Victoria or Surrey registry most of the time.

The Early Resolution process is only for claims under the Family Law Act. It is not for child protection matters, and it is not used for claims brought by the Ministry of Children and Family Development or a Delegated Aboriginal Agency.

Starting a case in an Early Resolution Registry

The Early Resolution process is designed to encourage parties to resolve family disputes by agreement or to help them move their case along to a quicker resolution. 

If you have a dispute about a family law matter, including child support, spousal support, parenting arrangements, contact, or guardianship, you will start by filing a form called the Notice to Resolve a Family Law Matter at the Victoria or Surrey registry, and by giving the other party a copy.

You will then be directed to the Justice Access Centre (JAC) to make an appointment for your individual needs assessment.

At the needs assessment, a family justice counsellor will provide you with information about your options, about the court process, and about how to access legal advice and other resources. They will make an assessment about whether consensual dispute resolution is appropriate for you. This means they will consider whether there are:

  • power imbalances between you and your ex
  • safety or family violence issues, or
  • language barriers.

The family justice counsellor will also consider the nature of the issues to be resolved, your and your ex's ability to participate, and if accommodations can be made to facilitate participation. 

If you have children, you will be required to complete the Parenting After Separation program, unless you have completed it within the last two years or meet one of the few exemptions. 

If it is appropriate, you and the other party will participate in at least one consensual dispute resolution session to mediate your issues. 

When issues are resolved during early resolution, you can formalize your agreements by written agreement or consent order. 

Replying to a Family Law Matter in an Early Resolution Registry

If you are served with a Notice to Resolve a Family Law Matter filed at the Victoria or Surrey registry, you'll have to complete three steps before you can file your Reply to an Application About a Family Law Matter. Those three steps are:

If you are served with a Notice to Resolve a Family Law Matter filed at the Victoria or Surrey registry, you'll have to complete three steps before you can file your reply to an application about a family law matter. Those three steps are:

  1. Needs Assessment: You will participate in a needs assessment through the Justice Access Centre where a family justice counsellor will teach you about the court process, and about how to access legal advice and other resources. They will make an assessment about whether consensual dispute resolution is appropriate for you, taking into consideration whether there are power imbalances, issues of safety or family violence, or language barriers, and also taking into consideration the nature of the issues to be resolved and the ability of the parties to participate, or accommodations that can be made to facilitate participation.
  2. Parenting After Separation Course: If you have children, you will be required to complete the Parenting After Separation program, unless you have completed it within the last two years or meet one of the few exemptions. 
  3. Consensual Dispute Resolution: If it is appropriate, you and the other party will participate in at least one consensual dispute resolution session to mediate your issues. 

What happens when parties can't resolve issues during Early Resolution?

If there are still some issues that need to be resolved and you need the Court's help, you then file a form called the Application About a Family Law Matter with all your supporting documents and serve it on the other party or parties. 

When the other party has replied or the time for reply has passed, you can contact the Judicial Case Manager to schedule a Family Management Conference. At the Family Management Conference, you and the other party (or parties) will meet with a judge. The judge will work with you to see whether agreement can be reached on some or all of the issues. The judge can make an interim order or a final order by consent. 

If there are still issues to resolve, the judge can make case management orders to ensure the matter is ready for trial if one is needed. The usual process in Provincial Court for case conferences, trial preparation, trials, and enforcement of Family Maintenance matters still applies if your issues have not been fully resolved. 

What else do I need to know about the Early Resolution process?

The Early Resolution process also includes rules for applications about: 

  • protection orders
  • enforcement of existing orders
  • giving, refusing, or withdrawing consent to medical, dental, or other health-related treatments for a child, if delay will result in risk to the health of the child
  • applying for a passport, licence, permit, benefit, privilege, or other thing for the child, if delay will result in risk of harm to the child's physical, psychological, or emotional safety, security, or well-being
  • relocation of a child
  • preventing the removal of a child from a certain location 
  • determining matters relating to interjurisdictional issues 

Parties involved in these matters will file and serve an application and proceed to a hearing without having to participate in the early resolution processes. If the parties have one of these types of matters and an early resolution family law matter, they can go through court to get the one issue resolved and proceed through early resolution and case management on the other issues. The model recognizes that protection orders and some parenting matters are urgent and need to proceed directly to court. 

To read more about the Early Resolution process in Victoria and Surrey see the BC Ministry of Attorney General's website, which also makes available a brochure with a simplified process map. 

Family Justice Registries

If your family law dispute is in Kelowna, Nanaimo, or Vancouver (Robson Square), the provincial court registries in those locations fall under the Family Justice registry model.

To start a proceeding in a Family Justice registry, you file specific forms based on what you’re asking a judge to ultimately decide. Some of the most common things people ask for are:

  • guardianship
  • parenting responsibilities
  • decision-making authority
  • parenting time (sometimes called custody, though Canadian courts don’t use that word anymore)
  • contact (visitation rights of a person who is not a child's guardian)
  • child support and special expenses, and
  • spousal support

There are also conduct orders which can help parties set boundaries to assist them in working towards resolution, and there are protection orders, which follow a different process due to their often-urgent nature.  

What form do I file?

Family Law Matters

If you're using a Family Justice Registry, the next step is to determine what you're asking a judge to decide, and see if it qualifies as a Family Law Matter. The following are considered Family Law Matters:

  • parenting arrangements
  • child support
  • contact with a child
  • guardianship of a child, or
  • spousal support

In these cases you will start by filing an Application About a Family Law Matter in Form 3 and delivering it by personal service to the other party. This means that someone other than you who is over 19 years old must serve the other party in person with a copy of the application and instructions from the registry on how to reply.

Applying for other orders

Start by figuring out what kind of order you need. That will determine the form you’ll have to file with the court. If your matter isn't captured by the definition of a "Family Law Matter", then you’ll have to file another type of form for orders other than family law matters. These include applications for:

  • a case management order
  • a protection order
  • an order about a priority parenting matter
  • an order about relocation, or
  • a consent order.

The rules for these kinds of orders are the same no matter what kind of registry you are in.

Case Management Orders: Case management orders are orders about a range of issues to help manage a case. The list is set out at section 62 of the Provincial Court Family Rules, but a few examples include:
  • transferring a court file to another registry
  • accessing a court file
  • correcting or amending a filed document
  • waiving or changing requirements about serving someone with court documents you filed
  • applying to attend court by phone or video
  • adjourning court appearances, or
  • correcting an order made under the Provincial Court Family Rules.
To apply for a case management order, file an Application for Case Management Order in Form 10, along with any supporting evidence or documents you have. You can also file an Application for Case Management Order Without Notice or Attendance in Form 11 if no appearance before a judge is required. Check the instructions located in each of the forms, or see Provincial Court Family Rule 65 to determine whether an appearance is required, and which form you'll have to file. If a case management order is made without notice, you'll have to serve a copy of the order, the application, and any supporting evidence or documents, on the other party.
Protection Orders: If you’re applying for a protection order and an order about a family law matter, you don’t have to follow the special steps set out for the Early Resolution Registries, the Family Justice Registries, or the Parenting Education Program Registries.
No matter the court registry you are in, if you have protection or safety concerns, you can apply to the court to go before a judge without letting the other party know first. It's up to the judge whether to hear your without notice application. Any without notice application will have to include reasons why the application should be heard without notice to the other side. File an Application about a Protection Order in Form 12 to apply for a protection order along with an Application for Case Management Order Without Notice or Attendance in Form 11 to apply without notice to the other party.
Once you speak to the judge about the protection order you’ve asked for and if the order is made, remember that a protection order expires either on the date the judge orders for it to end, or one year after the date it is made. You can apply for another protection order if you need to.
If you have safety concerns about family violence, you may want to talk to a support worker. VictimLinkBC is a confidential, multilingual telephone service available 24 hours a day, 7 days a week at 1-800-563-0808. Victim services workers can provide crisis support, information and referrals to supports including safety planning, victim services, transition houses and counselling services.
Priority Parenting Matter: Orders about priority parenting matters are decisions where a delay in obtaining a court’s decision would pose a risk to a child. These applications should be filed in rare circumstances, and only in situations listed in Form 15, Application About a Priority Parenting Matter.
In addition to Form 15 you’ll also have to file a Form 11 if you’re applying to waive or change the requirement to give seven days’ notice of the application to the other party.
Relocation: If you have a written and signed agreement or a court order about parenting time or contact and you receive written notice from the other parent saying the plan to relocate with the child, then you can apply to the court for an order prohibiting the relocation of the child using Form 16, Application for Order Prohibiting the Relocation of a Child. At least seven days before the court date listed on the application form, you’ll have to serve the Form 16 on the other party, along with a copy of the written agreement or court order about parenting time, and a copy of (or details about) the notice of relocation that you received.
If the other parent plans to relocate with your child and you do not have a written and signed agreement about parenting time or contact, you can apply for an order prohibiting relocation using the Application About a Priority Parenting Matter form, in Form 15, and you’ll have to serve that Form on the other parent at least seven days before the court date listed on the application form.
Consent Orders: If you and the other party in your Family Law Matter have reached an agreement, you can ask the court to make an order, usually without going to court and arguing before a judge. A judge will still have to review the draft consent order that you file and, as long as they don’t have any questions or concerns about the orders you're asking for, they can make the order.
To obtain a consent order about a Family Law Matter, you’ll have to file an Application for a Family Law Matter Consent Order in Form 17, as well as a draft of the Consent Order in Form 18 setting out what you have agreed on and the orders you’re asking the court to make. The draft Consent Order in Form 18 will have to be signed by all parties or their lawyers.
If a judge reviews your application and draft consent order and needs more information, they can ask for more evidence or information, which may mean that you must go to court and speak to a judge. It could also mean that a judge might make changes to the draft consent order and, if you and the other party agree to the changes, you can go to the registry at the courthouse and sign the changes. An application for a consent order can also be rejected. If that happens, the judge will provide their reasons for rejection.
In addition to applying for consent orders about a Family Law Matter, you can also file for a consent order related to one of the case management issues discussed above. This is done by by filing an Application for Case Management Order in Form 10. If you specify in your Form 10 that you do not want a court appearance, you must also submit a draft of the Consent Order in Form 18, signed by all concerned parties or their lawyers.

Parenting Education Program Registry

Starting a Provincial Court action in one of the Parenting Education Program Registries is the same as in a Family Justice Registry, however you do not have to participate in a needs assessment before you can schedule a Family Management Conference.

You will still have to complete a parenting education program (such as Parenting After Separation) if children are involved, and you still have the option to participate in a needs assessment and consensual dispute resolution.

The Parenting After Separation Program

In certain registries of the Provincial Court, the parties to a court proceeding must meet with a family justice counsellor and, if children are involved, attend a Parenting After Separation Course before they can take any further steps in their case. This rule may apply even if you're asking for a default judgment or an order everyone agrees to, called a consent order. The registry will tell you what is needed. If necessary, the registry will refer you to a family justice counsellor and tell you where the Parenting After Separation Course is offered.

Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if all of the 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's required. You will have to file a certificate that you've completed the program in court.

Limitations of the Provincial Court

The Provincial Court is built for people who are not represented by a lawyer. There are no filing fees in this court, in some ways the forms are easier to prepare, the rules of court are simplified, 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:

  1. guardianship;
  2. parental responsibilities and parenting time;
  3. contact with a child;
  4. child support;
  5. spousal support;
  6. protection orders; and,
  7. payment of household bills such as mortgage and utilities until trial or settlement.

The Provincial Court cannot hear any claims under the federal Divorce Act. However, it also cannot hear claims for orders relating to the division of property and debt under the provincial Family Law Act.

The Supreme Court

To start a proceeding in the Supreme Court, the main document you'll have to prepare is a Notice of Family Claim 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 document says who you are suing and what you're suing them for.

Family law proceedings in the Supreme Court 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, disclosure, interim applications, and trials. The main rules about Notices of Family Claim and the management of court 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 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
  • 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 Notice of Family Claim and other court forms can be found in Supreme Court Forms and 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 Helpful Guides & Common Questions part of this resource.

Quick answers for common questions

The following issues are addressed in the Starting an Action section in the Helpful Guides & Common Questions part of this resource:

Preparing, filing and serving the Notice of Family Claim

LSSbadge.jpg
Legal Aid BC's
Family Law in BC website
has guided pathway information on how to
Get family orders.

The claimant, the person starting the court proceeding, must fill out a Notice of Family Claim in Form F3 and file the claim in court to start a court proceeding. The Notice of Family Claim provides certain information, including:

  1. the claimant's name and address;
  2. the name and address of the person against whom the claim is made, the respondent;
  3. the basic history of the parties' relationship;
  4. the names and birthdates of any children; and,
  5. a list of the orders the claimant would like the court to make.

The court form that must be used is 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:

  1. divorce;
  2. the care of children and child support;
  3. spousal support;
  4. the division of property and debt; and,
  5. orders about other subjects, like orders for the protection of people or orders for the change of a person's name.

The Notice of Family Claim must be filed in the court registry and be personally served on the respondent. If you're 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 costs $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 registry will keep the original of the document. 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.

Personal 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 themselves. 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.

Deadline for reply

The respondent has 30 days to file a Response to Family Claim after being served with your Notice of Family Claim. If the respondent doesn't do this, you may be able to get the orders you asked for in your Notice of Family Claim as a default judgment, a final order the court makes when the respondent doesn't file a Response to Family Claim.

You should be aware that judges can be 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.

Sometimes a respondent will not reply to a Notice of Family Claim because they agree to the orders the claimant is asking for. This often happens when the claimant is just asking for a divorce. In a case like this, the court proceeding will qualify as an "undefended family law case" and you can apply for a default judgment under Rule 10-10 of the Supreme Court Rules. For more information about the do-it-yourself divorce process, see the Divorce and the Law on Getting Divorced section in the Separating and Getting Divorced chapter.

The next steps

If the respondent has chosen to file a Response to Family Claim, they have decided to oppose some or all of the orders you are asking for in 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 at least some 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; 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.

Hopefully, it'll be the first.

Resources and links

Legislation

Resources

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 4 April 2020.


v • d • e
 
Chapters
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.
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Starting_a_Court_Proceeding_in_a_Family_Matter&oldid=55384"