Starting a Court Proceeding in a Family Matter

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 assets, 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. This page reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court.

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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 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, disclosure, interim applications and trials. The primary rules about Notices of Family Claim and the management of court proceedings 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: chambers procedure
• Rule 11-4: discontinuing an action
• Part 13: expert witnesses
• Rule 11-3: summary trial procedure
• Rule 14-7: trial procedure

A link to the Supreme Court Family Rules is provided in the chapter _____. Sample court forms and blank court forms for download are available in ____.

Preparing, Filing and Serving the Notice of Family Claim

The Notice of Family Claim sets out: the name and address of the person starting the court proceeding, the Claimant; the name and address of the person against whom the claim is made, the Respondent; the basic history of the parties' relationship; and, the bare essentials of the Claimant's claims.

The form which 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 which require more detailed information must be added to the Notice of Family Claim when the Claimant seeks orders about:

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

The 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 Notice of Family Claim, or $210 if the claim includes a claim for a divorce.

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 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 go without saying, don't use one of your children to serve your ex.

Deadline for Reply

The Respondent has 30 days to file a Respondent 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.

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.

The Next Steps

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:

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

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

1. Exchange Financial Statements. Financial Statements are required whenever the division of property or the payment of support is at issue. Financial Statements must be exchanged before the first Judicial Case Conference, and updated statements will be required throughout the case and before trial. These are discussed in a more detail further on in this page.

2. Have a Judicial Case Conference. A JCC is necessary before most interim applications can be brought. JCCs are informal, off-the-record meetings between the parties, their lawyers and a judge intended to talk about areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail further on in this page.

3. Make interim applications as needed. In almost all cases, parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them until the claims at issue in the court proceeding are finally determined. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, and the payment of child support and spousal support. The process for bringing interim applications is discussed in detail in the Interim Applications page.

4. Disclose documents and information. The rules of court require that each party produce to the other all documents in their possession that are relevant to the matters at issue in an action. This can include things like bank statements, report cards, medical records, school reports and so forth. Each party must list these documents in a formal List of Documents, and keep their Lists of Documents updated when new documents are found or become available.

5. Examine each other out of court. The parties may, if they wish, conduct a cross-examination of the other party under oath, outside of court. This is called an Examination for Discovery. Examinations for Discovery are helpful to get the other party's views of the evidence and the matters at issue on the record. Discoveries are almost always held after Financial Statements have been prepared and the documents have been exchanged.

6. Have a Settlement Conference. The rules allow a party to schedule a Settlement Conference before a judge ahead of trial. At this hearing, the parties will explain their positions to the court and their areas of disagreement and hopefully negotiate a settlement. These conferences can be very helpful, as the judge serves as a mediator and helps the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement.

7. Have a Trial Management Conference. A TMC is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes about evidence before trial as possible. Among other things, the judge will ask about the witnesses each party intends to call, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions.

8. Go to trial. At the end of the day, if you can't agree you will wind up at trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to decide the case in their favour. The judge will hear all the evidence and the arguments, and reach a decision in the form of Reasons for Judgment. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the Reasons for Judgment.

This is, of course, just a rough sketch of the lengthy process of bringing an action to a conclusion. Not every case will need to use all of these steps (some people may not need to have Examinations for Discovery and others won't see the point of holding a Settlement Conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process is much, much more complex that my brief description.

Financial Statements

If the court proceeding involves a claim for spousal support, child support or the division of assets, 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, by a lawyer, notary public or registry clerk.

Financial Statements are very important in family law cases. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish amount, the portions about assets and debts will sometimes be used to establish the value of an asset and the outstanding balance of a liability. As well, since Financial Statements are sworn statements, someone making a Financial Statement 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.

Each party must attach to their Financial Statements a number of important documents:

1. the last three years' worth of tax returns (what's required are the complete T1 income tax and benefit returns, not tax return "summaries" or "informations");
2. all Notices of Assessment and Reassessment received in connection with the last three tax years;
3. 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;
4. business and/or corporate records such as financial statements and corporate income tax returns, if the party has an incorporated or unincorporated business; and,
5. the most recent BC Assessments for all real property.

The form which must be used is Form F8, set out in the Supreme Court Family Rules.

Judicial Case Conferences

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 contested family law proceedings, and, in most cases, they must be held before any interim applications can be heard.

JCCs are discussed in more in _____ .

The Provincial Court

To start a proceeding in the Provincial Court, the main document you will have to prepare is an Application to Obtain an Order in Form 1, a special form prescribed by the Provincial Court Family Rules. (Court proceedings can also be started with an Application to Change an Order where there is already a court order or separation agreement.) 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

STOPPED

• Rule 6-3: personal service
• Rule 7-1: Judicial Case Conferences
• Part 9: disclosure and discovery of documents
• Part 10: chambers procedure
• Rule 11-4: discontinuing an action
• Part 13: expert witnesses
• Rule 11-3: summary trial procedure
• Rule 14-7: trial procedure

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

1. guardianship
2. parental responsibilities and parenting time;
3. contact with a child;
4. child support; and,
5. spousal support.

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.

A link to the Provincial (Family) Court Rules is provided in the ____ section.

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. (Court proceedings can also be started with an Application to Change an Order where there is already a court order or separation agreement.) The person beginning the action, the Applicant, fills out the Application to Obtain and Order, providing: the Applicant's name and address for service; the name and address of the person against whom the application is being made, the Respondent; a list of the orders the Applicant is asking the court to make; and, a brief statement of the relevant facts. The Applicant then files the form in the court registry.

The form which must be used is Form 1. Applications to Change an Order are prepared using Form 2.

Once the application has been filed, you must serve a copy on the Respondent. Once the Respondent has been served, he or she must file a Reply within 30 days.

Default

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

At the hearing, the Applicant can ask the court to make a default judgment in the Respondent's absence. You should not assume that you'll necessarily get what you want, especially if the action concerns the care and control of children. In a case like that, the court will also consider what is in the children's best interests, and despite the lack of a Reply from the Respondent, the court may not conclude that the children's best interests are served by allowing your claim.

The Next Steps

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

At court registries that do not have this requirement, an interim application can be brought at any time after the court proceeding has been started.

The steps which follow the commencement of a proceeding in the Provincial Court are a simplified version of the Supreme Court process. There are less hoops to jump through, but also fewer means to extract information and documents from the other side.

Interim Applications. In almost all cases, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them in their conduct towards each other and the children until the issues between them can be finally determined. The most common applications in family law involve restraining orders, issues relating to the care and control of the children, child support and spousal support. The process for bringing interim applications is discussed in detail in the chapter ____.

Exchange Financial Statements. Financial Statements are required whenever the payment of support is at issue. Financial Statements are prepared using Form 4.

Have a Family Case Conference. This is a hearing similar the the Judicial Case Conference required by the Supreme Court. It is an informal, off-the-record meeting between the parties, their lawyers and a judge intended to canvass areas of agreement and set dates and deadlines for the remaining steps in the litigation. Although FCCs are very helpful and often result in settlement, FCCs are not mandatory unless you have been referred to an FCC by a judge. If you think a FCC will help resolve your case, ask for one!

Have a Settlement Conference. The rules allow a party to have a Settlement Conference with a judge. At this hearing, the parties will explain their positions to the court and hopefully negotiate a settlement, with the judge acting as a kind of mediator. These conferences can be very helpful, as the judge will often express his or her opinion about each party's position and what the judge thinks the likely result of a trial will be.

Trial. At the end of the day, if you can't agree on a reasonable settlement, you will wind up at trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to decide the case in their favour. The judge will hear all the evidence and the arguments and reach a decision in the form of Reasons for Judgment. Where neither party is represented by a lawyer, the court clerk will draft a final order based on the judge's Reasons for Judgment.

Financial Statements

If a case involves a claim for spousal support or child support, each party must prepare and file a Financial Statement. A Financial Statement sets out a party's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an Affidavit, by a lawyer, notary public or registry clerk. Each party must attach to their Financial Statements the following documents:

1. their last three years' worth of tax returns;
2. their Notices of Assessment and Reassessment for the last three tax years;
3. their most recent paystub, showing their earnings-to-date, or if the party isn't working, then their most recent WCB statement, social assistance statement or EI statement; and,
4. if the party is involved in a business, certain other business and/or corporate records.

The form which must be used is Form 4, set out in the Provincial Court rules.

Family Case Conferences

Family Case Conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom to explore settlement options. FCCs are not mandatory and there is no requirement that an FCC must be heard before any interim applications.

FCCs are discussed in more detail in _____.

Further Reading in this Chapter

Return to the first page in this chapter.

• Mediation
• Arbitration
• Parenting Coordination

Page Resources, Links and Downloads

Legislation

• bulleted list of legislation referred to in page

Links

• bulleted list of linked external websites referred to in page

Downloads

In this segment you can download blank court forms in Word format, samples of completed forms in PDF format and technical papers about the Supreme Court Family Rules. Additional court form templates can be found in the Resources & Links section of this website.

Supreme Court Forms

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

In this sample, our fictitious Claimant, Jane Doe, is suing her husband, John Doe, for a divorce, orders relating to the care and control of the children, orders for the payment of spousal and child support, orders relating to the division of property, a common financial restraining order, and a declaration that the parties are unable to reconcile. Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.

Also included is a sample of the form required when divorce proceedings are commenced, which notifies the central divorce registry in Ottawa, Ontario, of the commencement of the action for divorce.

Provincial Court Forms

The links below will open a sample Application to Obtain an Order and a sample Application to Change an Order or Agreement in a new window.

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

Form 1: Application to Obtain an Order Form 2: Application to Change an Order or Agreement Form 4: Financial Statement These sample documents are just that: samples. While they represent a more or less accurate picture of how Simon Chang might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

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

Form F3: Notice of Family Claim (PDF) Registration of Divorce Proceeding (PDF) Form F8: Financial Statement (PDF) Form F19: Notice of Judicial Case Conference (PDF) These sample documents are just that: samples. While they represent a more or less accurate picture of how Jane Doe might fill out her forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

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

Form F3: Notice of Family Claim (DOC) Form F8: Financial Statement (DOC) Form F19: Notice of Judicial Case Conference (DOC)