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 an emotionally charged, stressful moment. Ligitation is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to court, think about these things first:

• 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.
• 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.
• 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 extremely stressful. The documents and processes will be new to you, and each court appearance will be a fresh cause of anxiety and uncertainty.
• Your pocket book: 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, you may want to try my trial fees guesstimator to get a very rough, and probably low, 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, they'll give you the best chance of maintaining a working relationship with your ex after the dust has settled. (These options are discussed in more detail the Alternatives to Court section of this website.)

Now, in fairness, 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 have been made to your physical safety, or to the safety of your children;
4. there is a threat or a risk that your ex will damage, hide or dispose of property;
5. there is an urgent need to immediately secure some financial support; or,
6. negotiations have failed and, despite your best efforts, 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.

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.

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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 different than the usual pleadings. The primary Rules of Court which relate to these documents and the commencement of a law suit 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
• Rule 60D: financial disclosure in divorce and family law proceedings
• Rule 60E: Judicial Case Conferences

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

Note that the current rules will be replaced with an entirely new set of rules on 1 July 2010; these are discussed in Rules 101 and can be found on line at the website of the Ministry of the Attorney General (PDF).

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" the Defendant 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:

1. a Defendant who lives elsewhere in Canada than British Columbia has 21 days to file an Appearance;
2. a Defendant living in the United States has 28 days; and,
3. 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 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, do not use one of your children to effect service.

Statement of Claim

The Statement of Claim sets out, in a prescribed format, the relevant facts which support the Plaintiff's claim and describe the claim in detail. 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; the particulars of any real property at issue; and, the place the Plaintiff has selected for the trial of the action. Normally the place of the trial is the city in whose registry the action is filed in.

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, or $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 response by arguing that the Defendant either agrees with the Plaintiff's claim or has chosen not to oppose it sinec no response has been filed.

You should be aware that in most cases the courts are fairly lenient towards 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, the steps until trial are usually these:

• 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.
• 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 canvas areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail in the last part of this chapter.
• Interim Applications: 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 in their conduct towards each other and the children until the issues between them can be 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 chapter The Legal System > Interim Applications.
• 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 list these documents in a formal List of Documents, and keep their Lists of Documents updated when new documents are found or become available.
• Discovery: 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.
• Have a Settlement Conference: The Rules allow a party to set 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 will often function as mediator and help the parties work towards setttlement. The judge may also express his or her opinion about the stengths and weaknesses of each party's position, which also encourages settlement.
• Have a Pre-Trial Conference: A Pre-Trial Conference is a formal hearing before a master or 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 dealt with to help make sure the trial will go ahead and be completed within the time available. A Pre-Trial Conference is generally not an opportunity to settle.
• 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 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 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 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 Statment 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 (these 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 incoporated or unincorporated business; 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 interim applications can be heard.

JCCs are discussed in more detail below.

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 from Adobe Software.

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.

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The Provincial (Family) 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 Relations Act dealing with certain issues, including:

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

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 under the Family Relations Act.

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; 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, set out in the Provincial Court Family Court Manual. Applications to Change an Order or Agreement are prepared using Form 2.

Once the application has been filed, the court registry may take care of serving the Respondent with a copy of the materials you filed. Most registries will require that you take care of serving the Respondent. Once the Respondent has been served, he or she 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 set a date for the hearing of the action, 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 (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 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 action has commenced by the filing of an Application to Obtain an Order or an Application to Change an Order or Agreement.

The steps which follow the commencement of an action in Provincial (Family) 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 The Legal System > Interim Applications.
• 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 canvas areas of agreement and set dates and deadlines for the remaining steps in the litigation. All they are very usual 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 an appropriate 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 Family Court Manual.

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 below.

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.

• 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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There are a host of reasons why it is important that family law cases are resolved by agreement. From the court's point of view, settlement frees up valuable resources which can be applied to other cases and lessens the likelihood that judicial intervention will be required in the future. From the parties' point of view, settlement is cheap, protects the children from ongoing conflict, and gives the parties' the best chance of having a tolerable relationship with each other in the future.

Lawyers also have an interest in settling matters, for all of the same reasons why settlement is important to the courts and to the parties. In addition, we also have a professional and ethical duty to foster and promote settlement wherever possible, providing that a proposed settlement is not an unreasonable compromise of our client's interests.

The rules of court have evolved to provide additional opportunities for settlement and steer people toward litigation's off-ramp. In the Supreme Court, we have the Judicial Case Conference under Rule 60E and Settlement Conferences under Rule 35. In the Provincial Court, we have the Family Case Conference under Rule 7. This segment will discuss the two conferences unique to family law matters.

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 master or judge in a courtroom. JCCs must be held in all contested family law actions, and, in most cases, they must be held before any interim applications can be heard.

Financial Statements must be exchanged before the JCC. They must also be filed before the JCC to give the judge the chance to read through them first.

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 an order will be made with 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" or a "without notice 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 make an application to a master for an order granting the exception. Subrule (3) says:

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 given a lot of priority by the court staff, and you should be able to book a hearing date 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 no more than 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.

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, judicial 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 and focus on known areas of agreement instead. 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 will 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 that's being discussed, you must say so!

Potential 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 the dates for 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.

Family Case Conferences

There are two big differences between JCCs in the Supreme Court and FCCs in the Provincial Court. First, FCCs aren't mandatory and you only get to have a FCC if a judge orders that you have one. Second, the judge has the discretion to make orders without the consent of a party. Otherwise FCCs are pretty much just like JCCs.

Applying for a FCC

Under Rule 7(1), a judge may order the parties to attend a FCC where the case involves contested claims for custody, guardianship or access. Applications for a FCC can be made at a first appearance or at any subsequent appearance, or by Notice of Motion like any other interim application.

It is fairly easy to get an order that a FCC be heard. The court will not be interested in granting a FCC if:

1. it's obvious that you've asked for the FCC to obstruct the hearing of trial or an interim application;
2. there's already been an FCC heard in your case; or,
3. there is an urgent reason for the case to head to trial without further delay.

Scheduling a FCC

FCCs are booked by the judicial case manager, and if you get an order for a FCC, the judge will adjourn your case to the JCM to get a date set up. Like JCCs, it is good idea to pick a date on which everyone is available to attend.

The JCM will fix the date for the FCC on the spot and give you a slip with the date and time on it.

The Purpose of FCCs

The purpose of a FCC is to reach a settlement of any disputed parenting issues. Although Rule 7 limits the circumstances in which a FCC can be ordered to parenting issues, it doesn't say that no other issues can be discussed at a FCC, and the judge may be prepared to deal with support issues as well.

FCCs are relatively informal affairs, and most of the time everyone sits at a large table with the judge who is hearing the FCC. FCCs are private; under Rule 7(2) only the parties and their lawyers are allowed to be there. Under Rule 7(3), the judge may give permission for other people, including the parties' child, to attend. FCCs are held on an off-the-record basis, so that nothing said in the FCC can be used against anyone later on.

Although different judges will handle FCCs in different ways, most of the time the judge will act like a mediator. Some judges will handle the FCC in a very proper, judicious manner. Others are more hands-on and will do everything they can to help the parties settle their issues, including:

1. scheduling a series of FCCs;
2. speaking directly to the children;
3. ordering or recommending views of the child reports; and,
4. asking important third-parties, like a new spouse or a half-sibling, to attend a future FCC.

At the FCC, 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, FCCs usually work best when the parties are able their own views and concerns freely.

Cases often settle at FCCs. In order to maximize the chances of settlement, it is critical that you get proper legal advice about your situation and options before you go to the FCC if you don't have a lawyer. If you do have a lawyer, you should speak to him or her about the range of potential results and areas where you might want to compromise your position.

Potential Outcomes

It is possible for some or all issues to be settled at a FCC. Where there are areas of agreement, the judge will make that order. Issues that can't be agreed upon will be left for further negotiation and further litigation.

Rule 7(4) sets out the things a judge can do at a FCC:

Although that last item, "make any other order or give any direction that the judge considers appropriate," sounds pretty all-encompassing and all-powerful, in practice the court rarely makes orders that one or more party opposes.

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