Sometimes, you really have no choice except to start an action. But, please think twice before you do, and make certain that ligitation is your only choice.

The end of a relationship, especially a long relationship, is a highly emotionally charged moment. Ligitation is not the only way there is to solve a problem, although it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. A couple of things you might want to think about are...

1. Your future relationship with your ex: Right now you might hate your ex and want to rip his or her eyes out. You might not feel that way a in a year or two. If you don't have children, it might be entirely possible for you to simple walk out of each other's lives and into the sunset. If you do have children, you do not have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.
2. Your children, and your relationship with your children: Your children will be aware that there is a conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in litigation, it can be tremendously difficult to shield the children from the litigation and shield the children from your emotional reaction to the litigation. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely and often in ways you don't expect.
3. Your own worries and anxieties: Litigation is almost always an uncertain affair. No one, not even your lawyer, will guarantee that you will be successful about any issue. At the end of the day, fundamental decisions will be made by a complete stranger — the judge — about the things that matter the most to you, and his or her decision is not something you can predict with absolute certainty. On top of that, litigation, especially when you're doing it yourself, is stressful. The documents and processes will be new to you, and each application will be a fresh cause of anxiety and uncertainty.
4. Your bill: The only time litigation isn't expensive is when you do it yourself. If you opt to hire a lawyer, be prepared to pay and pay a lot. Sometimes a lawyer can help you get things done quickly and with a minimum of fuss and bother, but if emotions are running high, you stand to pay a whopping legal bill, espcially if you go all the way through to trial.

Speaking of your lawyer's bill, click here to use a trial fees guesstimator that will give you a rough idea of the potential legal fees involved in going to trial.

There are other ways of solving your problem than litigation. Going to court is only one of the ways to bring your dispute to an end. Other, less confrontational and less adversarial approaches include: negotiation, mediation, arbitration and collaborative law. All of these other approaches generally cost a lot less, and, because they are co-operative in nature, will leave you the best chance of maintaining a working relationship with your ex. These alternatives are discussed in the Alternatives to Court section of this website.

Now, there are times when litigation is your only choice. It may be critical to start an action when:

1. there is a threat or a risk of child abduction;
2. there has been physical, verbal or sexual abuse in the relationship, whether to you or to your children;
3. threats to your physical safety, or the safety of your children, have been made;
4. there is a threat or a risk that your ex will damage, hide or dispose of property;
5. it is urgent to immediately secure some financial support and your ex is adamant about not providing it but can provide it; or,
6. negotiations have failed and you can't agree on how to solve your differences.

Absent these important factors, your dispute, no matter how ugly it might seem to you, can always be resolved by negotiation or mediation rather than litigation. Even an action for a divorce order, which is the only other time when litigation is required, can be done in a co-operative, non-confrontational manner.

In the author's experience, the only time when an action goes all the way to trial is when one or both parties has adopted an inflexible and objectively unreasonable position. Think twice before deciding that litigation is your only option.

For more information about the emotions that surround the end of a long-term relationship, and how these emotions can affect the course of litigation, read the chapter Marriage & Divorce > Separating Emotionally.

The two principle documents you will have to prepare are a Writ of Summons and a Statement of Claim. (These documents are called "pleadings" or "originating documents.") In family law matters, special versions of these forms are used that are much different than the usual pleadings. The primary Rules of Court which relate to these documents and the orginating process are:

• Rule 2: the effect of non-compliance with the Rules of Court
• Rule 3: time
• Rule 8: form and commencement of proceedings
• Rule 19: the form and content of pleadings
• Rule 20: statement of claim
• Rule 25: default of pleading
• Rule 60: divorce and family law proceedings

A link to the Supreme Court Rules of Court is provided in the section Resources & Links.

Writ of Summons

The Writ of Summons sets out: the name and address for service of the person bringing the claim, the Plaintiff; the name and address of the person against whom the claim is made, the Defendant; and, the bare essentials of the Plaintiff's claim. The purpose of the Writ is to notify the Defendant that an action has been started against him or her and to "summon" them to court to answer the claim.

The form which must be used is Form 127, set out in Appendix A of the Supreme Court Rules of Court. This is a special form of Writ used only in family law actions.

The Writ must be filed, along with a Statement of Claim in Form 128, in the court registry and both documents must be served on the Defendant. The Defendant normally has seven days from the date he or she was served to file a document called an "Appearance," although this deadline will be extended if the Defendant lives outside of British Columbia:

• A Defendant who lives elsewhere in Canada than British Columbia has 21 days to file an Appearance.
• A Defendant living in the United States has 28 days.
• A Defendant living anywhere other than in Canada or the United States has 42 days.

The Divorce Act says that a Plaintiff in a divorce case cannot serve a Defendant him- or herself. You can pay a process server to do it or enlist the help of a friend.

Statement of Claim

The Statement of Claim sets out, in a prescribed format, the relevant facts which support the Plaintiff's claim as well as a more detailed statement of the claim itself. In this document, the Plaintiff must provide the following information: the details or "particulars" of the marriage; the particulars of each of the parties; the particulars of any children; the present and proposed care of the children; how the Plaintiff wishes the court to deal with family assets and the particulars of any real property at issue; and, the place the Plaintiff has selected for the trial of the action.

The form which must be used is Form 128, set out in Appendix A of the Supreme Court Rules of Court. This is a special form of Statement of Claim used in family law actions.

It used to be the case that the Plaintiff could serve the Writ and Statement of Claim separately. The rules have changed, and now the Plaintiff must file both documents in the court registry at the same time and serve them on the Defendant at the same time. The fee for filing a Writ and Statement of Claim is $208.00; it is $218.00 if you are asking for a divorce.

The Defendant will reply to the Statement of Claim by filing a Statement of Defence. The Statement of Defence is due 14 days after the Defendant's Appearance is due. In most cases, the Defendant must file a Statement of Defence within 21 days of service, although this deadline will be extended if the Defendant lives outside British Columbia.

Default

If the Defendant has failed to file and deliver his or her Statement of Defence within the time limits, the Plaintiff may be able to obtain an order for the relief claimed in the Statement of Claim by way of a default judgment, using the "desk order" process described in Marriage & Divorce > Divorce. The idea here is that the Plaintiff can ask the court for a judgment in default of the Defendant's reply by the due date, by arguing that since the Defendant hasn't filed a defence, he or she either agrees with the Plaintiff's claim or has chosen not to oppose it.

You should be aware that in most cases the courts are fairly lenient towards lay litigants who miss filing deadlines. A Plaintiff should not expect to "win" on a technicality of this nature; if a Defendant files his or her Statement of Defence late, the court will usually — depending on the circumstances — allow the Defendant an extension of time, and overlook the missed due date.

The Next Steps

If the Defendant has chosen to file a Statement of Defence, the Defendant 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 Defendant disagrees with some or all of the relief you're seeking. One of three things are going to happen in your action:

1. you'll settle your disagreement out of court, and come up with either a separation agreement or a court 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 Defendant will take any steps to further the litigation and the matter will languish.

Whether you're off to trial or a settlement can be reached, a few things are likely to happen, which are reviewed in the very first chapter of this section under the heading "The Court Process in a Nutshell." Essentially, the next steps are usually as follows:

• Have a Judicial Case Conference: A JCC is necessary before most applications for temporary relief can be brought. This is an informal, off-the-record meeting between the parties, their lawyers and a judge intended to canvas areas of agreement and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail below.
• 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, matters relating to the care and control of the children, child support and spousal support.
• Exchange Financial Statements: Financial Statements are required whenever the division of property or the payment of support is at issue.
• Document Disclosure and Production: The Rules 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 provide the other with a list of these documents in the shape of a formal List of Documents, a court form designed for this purpose.
• Examinations for Discovery: The parties may, if they wish, conduct a formal cross-examination of the other party, under oath, outside of court. This process is called an "Examination for Discovery," and can be helpful to put on record the other party's views of the evidence and the matters at issue. Discoveries are almost always held after Financial Statements have been prepared and the documents have been exchanged.
• Have a Settlement Conference: The Rules allow a party to set a Settlement Conference before a judge. 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 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.
• Have a Pre-Trial Conference: A Pre-Trial Conference is a formal hearing before a judge designed to fix the schedule of events at the trial. Each side must disclose which witnesses they intend to call to give evidence and how long they think each witness will take, and present their positions on other evidentiary and scheduling issues. A Pre-Trial Conference is generally not an opportunity to settle.
• Your 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 argument and reach a decision in the form of Reasons for Judgment.

This is, of course, just a rough sketch of the lengthy process of bringing an action to an end. Some people may not need to have Examinations for Discovery and others won't see the point of holding a Settlement Conference; further, the action can be settled at any point along the way before trial.

The process for bringing interim applications is discussed in detail in the chapter The Legal System > Interim Applications.

Financial Statements

If the case 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, like an Affidavit, by a lawyer or notary public. Each party must attach to their Financial Statements the following documents:

1. their last three years' worth of tax returns;
2. their last three years' worth of Revenue Canada Notices of Assessment and Reassessment;
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;
4. if the party is involved in a business, certain other business and/or corporate records; and,
5. the most recent BC Assessments for all real property.

The form which must be used is Form 89, set out in Appendix A of the Rules of Court.

Judicial Case Conferences

Judicial Case Conferences, usually referred to as "JCCs," 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 actions, and, in most cases, they must be held before any applications can be heard.

Avoiding a JCC

Rule 60E, the rule that deals with Judicial Case Conferences, states that:

Subrule (2) sets out the exceptions to this requirement:

1. where the parties are married, when an application is being made for a declaration that they have no prospect of reconciling;
2. when an application is being made for an order restraining either or both parties from disposing of family assets;
3. when the order will be made by the consent of both parties; and,
4. when the application is being made without notice being given to the other side (sometimes called an "ex parte" application).

Subrule (3) sets out some further exceptions to the general rule about JCCs and interim applications, however if you seek an exception under Rule 60E(3), you will have to application to a master for an order granting the exception. Subrule (3) provides:

In other words, if your application is urgent you can ask for permission to have your application heard before the JCC. If your application falls into one of the exceptions set out in Rule 60E(2), you don't need the court's permission. If your application doesn't fall into either category, you've got little choice but to schedule a JCC for hearing before you can bring your application.

Scheduling a JCC

To set a date for a JCC, you must first contact the court registry and get their available dates. (JCCs are now being given a lot of priority by the court staff, and you should be able to book one within a month or two.) In most cases, you will want to give these dates to the other side and select a date that you are both available for. It is only common courtesy to select a date that's convenient for everyone.

Once you have that date, call the registry back and tell them which date you've picked. They will then ask you to fill out and file a special Requisition reserving that date. (A sample Requisition can be found in the list of sample documents in the next segment.) Send a copy of the filed Requisition to the other side.

Note that it is now mandatory for both sides to file and exchange completed Financial Statements before the JCC.

The Purpose of JCCs

The whole point of a JCC is to review the claims eash side is making, determine where there are agreements, and see whether there is anything other than a trial which will resolve the claims in dispute. JCCs are relatively informal affairs, and most of the time everyone sits at a large table with the Judge or Master who is hearing the JCC. JCCs are private: only the parties and their lawyers are allowed to be there. They are also held on an off-the-record basis, so that nothing said in the JCC can be used against anyone later on.

Different Judges and Masters will handle JCCs in different ways. Some Judges and Masters are very hands-on; others take a more distant approach. Some are very keen so try and settle a dispute, and will take on almost a mediative function; others are content to let areas of disagreement alone. Some Judges and Masters will provide an informal opinion about the likely result in the case; others won't. There are no guarantees that a JCC will be run in a particular way.

Sometimes cases even settle at a JCC, with no need for further litigation.

At the JCC, each side will have the opportunity to tell their story and explain why they want what they're asking for. Most of the time, the lawyers for each party will state their understanding of the facts and why their clients should have what they're looking for, and the clients will be asked if they have anything to add. Frankly, JCCs usually work best when the parties are able their own views and concerns freely.

It is important to know that while the Judge or Master may push the parties to agree about certain things, they don't have to. The Judge or Master cannot make any orders (except for procedural orders) that the parties don't agree with. If you're not happy with a potential order, say so!

Possible Outcomes

It is possible for some or all issues to be settled at a JCC. Where there are areas of agreement — which could concern anything, from a temporary access schedule, to restraining orders, to the sale of the family home — the Judge or Master will make that order. Areas that can't be agreed upon will be left for further negotiation and further litigation.

Even if nothing can be agreed upon, the Judge or Master will usually make a series of orders about the next procedural steps in the litigation. Typically, these will include:

1. scheduling an application for hearing;
2. setting dates for the exchange of documents and lists of documents;
3. setting dates for Examinations for Discovery;
4. scheduling a Pre-Trial Conference and/or a Settlement Conference;
5. setting the dates for the trial; and,
6. scheduling any further JCCs.

At the end of the conference, the court clerk will print out a Case Management Plan that will show the orders that have been agreed to, the issues still in dispute, and any schedule for the next steps in the litigation. Normally, both parties and their lawyers will sign the Case Management Plan.

Sample Documents

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 at Adobe's website.

In this sample, our fictitious Plaintiff, 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.

• Form 127: Writ of Summons
• Form 128: Statement of Claim
• Registration of Divorce Proceeding
• Form 89: Financial Statement
• Requisition and Notice of Judicial Case Conference
• Judicial Case Conference Worksheet

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.

Templates of these documents in Microsoft Word format are available for download in the Resources & Links section of this website.

Back to the top of this chapter.

As discussed in the chapter The Legal Process > The Courts, the Provincial (Family) Court is designed for "lay litigants," 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 down side of bringing your application in the Provincial Court is that the court has a limited jurisdiction and can only hear applications under the Family Relations Act dealing with certain issues, including:

1. child support;
2. spousal support;
3. the variation of previous Provincial Court child or spousal support orders;
4. arrears of child or spousal support;
5. custody and guardianship of children; and,
6. access to children.

As a general rule of thumb, the Provincial Court cannot hear your application if you seek relief under the federal Divorce Act or an order relating to the division of property. That being said, there are a number of different kinds of applications that can be brought before the Provincial (Family) Court:

• Application to Obtain an Order (Form 1, Rule 2(1))
• Application to Change or Cancel an Order (Form 2, Rule 2(2))
• Notice of Motion (Form 16, Rule 12)
• Application to Enforce or Recognize a Custody or Access Order (Form 22, Rule 16)
• Request for Court Enforcement Under the Family Maintenance Enforcement Act (Form 23, Rule 17(2))
• Notice of Motion in Maintenance Enforcement Proceedings (Form 25, Rule 17(3))

A link to the Provincial (Family) Court Rules of Court is provided in the section Resources & Links.

Application to Obtain an Order

Most actions are started in the Provincial (Family) Court by filing an Application to Obtain an Order. The person beginning the action, the Applicant, fills out the form, providing: the Applicant's name and address for service; the name and address of the person against whom the application is being made, the Respondent; the sort of order or orders the Applicant is asking the court for; and, a brief statement of the relevant facts. The Applicant then files the form in the court registry.

The form which must be used is Form 1, set out in the Provincial Court Family Court Manual. There are no filing fees in the Provincial (Family) Court.

Once the application has been filed, the court registry may take care of serving the Respondent with a copy of the materials you filed. Some registries will require you to take care of serving the Respondent. Once served, the Respondent must file a Reply within thirty days.

Default

A Respondent who fails to file and deliver his or her Reply by thirty days is not entitled to be notified of any further steps taken in the action. This will change, of course, if the Respondent files a Reply down the road, but until that happens the Applicant is free to ask the trial co-ordinator to set a date for the hearing of the action, or 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 Reply by the Respondent, the court may not conclude that the children's best interests are served by allowing the Applicant's claim.

The Next Steps

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

At court registries that do not have this requirement, an interim application can be brought at any time after the action has commenced by the filing of an Application to Obtain an Order, or one of the other sorts of actions listed above.

The steps which follow the commencement of an action in Provincial (Family) Court are a watered down version of the Supreme Court process. There are less hoops to jump through, but also less 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, matters relating to the care and control of the children, child support and spousal support.
• Exchange Financial Statements: Financial Statements are required whenever the division of property or the payment of support is at issue.
• Have a Family Case Conference: This is a hearing similar the the Judicial Case Conference offered by the Supreme Court. It is an informal, off-the-record meeting between the parties, their lawyers and a judge intended to canvas areas of agreement and set dates and deadlines for the remaining steps in the litigation. Unlike the JCC, the FCC is not mandatory unless you have been referred to an FCC by a judge. The FCC has goals that are similar to JCCs, but it does have one very significant difference: the judge can make an order without the consent of the parties.
• Have a Settlement Conference: The Rules allow a party to set a Settlement Conference before a judge. 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 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.
• Your 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 argument and reach a decision in the form of Reasons for Judgment.

The process for bringing interim applications is discussed in detail in the chapter The Legal System > Interim Applications.

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, like an Affidavit, by a lawyer or notary public. Each party must attach to their Financial Statements the following documents:

1. their last three years' worth of tax returns;
2. their last three years' worth of Revenue Canada Notices of Assessment and Reassessment;
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 Family Court Manual.

Sample Documents

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

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

• Form 1: Application to Obtain an Order
• Form 2: Application to Change an Order or Agreeement
• Form 4: Financial Statement

These sample documents are just that: samples. While they represent a more or less accurate picture of how Simon Chang might fill out his forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

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

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