If you are being sued in the Supreme Court, you are the Defendant in the Plaintiff's action. The two court forms you must prepare are an Appearance and a Statement of Defence. You may also prepare a form called a Counterclaim if you believe you have a claim against the Plaintiff. These documents are called "pleadings."

The primary Rules of Court about these court forms and defending 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 14: appearance
• Rule 19: the form and content of pleadings
• Rule 21: statement of defence and counterclaim
• 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).

Appearance

This document is prepared in response to the Plaintiff's Writ of Summons. The Writ is a "summons" to court, and an Appearance is the Defendant's answer to that summons. An Appearance sets out the name of the Defendant and his or her address for delivery for the purposes of the Plantiff's case.

The form which must be used is Form 7, set out in Appendix A of the Supreme Court Rules of Court. You must file your Appearance at the court registry within seven days of being served with the Writ and the deliver the stamped document to the Plaintiff's address for service. The seven-day deadline to file an Appearance is extended for Defendants who live outside of British Columbia:

1. if you live in another province, you have 21 days to file your Appearance;
2. if you live in the United States, you have 28 days; and,
3. if you live anywhere else in the world, you have 42 days.

There is no fee to file an Appearance.

Note that there are rules governing what a proper address for delivery is. For example, it must be a proper street address within British Columbia — even if you live outside of BC — and a postal box number or a rural route address will not do.

Statement of Defence

This document contains your reply, or defence, to the Plaintiff's Statement of Claim. A Statement of Defence sets out: which of the Plaintiff's claims you agree with; which of the claims you disagree with; which of the facts the Plaintiff has stated that you admit are true; which of the facts you think are untrue, false or incorrect; and, a brief statement of the facts you will rely on in opposing the Plaintiff's claim.

The form which must be used is Form 129, set out in Appendix A of the Supreme Court Rules of Court. This is a special form of Statement of Defence used in family law actions.

You must file your Statement of Defence at the court registry within twenty-one days of the date your Appearance was due. You must then deliver the Statement of Defence to the Plaintiff's address for delivery.

It costs $26.00 to file a Statement of Defence alone, or a total of $208.00 if you file a Counterclaim with your Statement of Defence.

Counterclaim

A Counterclaim sets out the Defendant's claims against the Plaintiff. It can be very important to file a Counterclaim if you want the court to make an order on different terms or on a different subject than the claims made in the Statement of Claim.

Think of it like this. Your Statement of Defence is your defence to the claims made the Plaintiff in his or her Statement of Claim. Your Statement of Defence doesn't ask for anything, it just says what you do and what you don't agree with. Unless a Counterclaim is filed, however, the only person asking for anything is the Plaintiff. If you are successful in your defence, there may be no claims left for the court to make an order about. Say the Plaintiff wants you to have the children on one weekend a month, but you would prefer a shared-parenting arrangement and have them every other week. It isn't enough just to say "I don't want to see the children just once each month" (which is what you'll say in your Statement of Defence), you also need to say "I want them for half the time" (which is what you'll do in your Counterclaim).

A Counterclaim is a mirror of the form used for the Statement of Claim. A Counterclaim sets out your version of the facts and the relief you seek against the Plaintiff.

The form which must be used is Form 130, set out in Appendix A of the Supreme Court Rules of Court. This is a special form of Counterclaim used in family law actions.

You can file your Counterclaim with your Statement of Defence or at a later date. However, as it costs $208.00 to file a Counterclaim alone, and $208.00 to file a Counterclaim with a Statement of Defence, the cheapest thing to do is to file them at the same time to avoid the extra fee for filing your Statement of Defence first.

You can deliver a Counterclaim to the Plaintiff's address for delivery by courier or regular mail; it doesn't need to be personally served on the Plaintiff the way the Writ of Summons and Statement of Claim must be served on a Defendant.

The Next Steps

Just because the Plaintiff has started an action and you disagree with his or her claims, you are not necessarily doomed to a trial. 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 on;
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.
• 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 disagreement, and set dates and deadlines for the remaining steps in the litigation. Believe it or not, cases will occasionally settle at JCCs. JCCs are discussed in detail in the previous chapter The Legal System > Starting an Action.
• 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 cases involve personal and financial restraining orders, the care and control of the children, child support and spousal support. The process for bringing interim applications is discussed in detail in the next 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 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.
• 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.

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 Defendant, John Doe, is defending a suit brought by his wife, Jane Doe. Jane is seeking 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. John agrees with some of her claims, but he opposes her claims for sole custody and the payment of spousal support. He also seeks the same Declaration and financial restraining order that Jane does, and also asks for an order that he have exclusive occupancy of the family home.

Areas where the court form offers a choice or where you must supply information are indicated in burgundy text.

• Form 7: Appearance
• Form 129: Statement of Defence
• Form 130: Counterclaim
• 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 John Doe 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.

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

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If you are being sued in the Provincial Court, you are the Respondent to the Applicant's appliction, (which I'll call an action to keep things simple). If you've been served with an Application to Obtain an Order or an Application to Change an Order, you have two choices: do nothing or defend yourself. If you agree with the relief sought, doing nothing is the cheapest and quickest way to handle the matter. On the other hand, if you only partly agree or if you completely disagree with the Applicant's claims you must reply to the Application to Obtain an Order or the Application to Change an Order, or you risk losing by default.

Reply

If you choose to defend yourself, you must complete and file a document called a "Reply" within thirty days of the date you were served with the application. There is no fee to file a Reply.

In your Reply, you can do one or more of the following things:

1. consent to the relief claimed in the application, or consent to only some of the relief claimed by the Applicant;
2. object to all or some of the relief claimed in the application, providing you give reasons as to why you oppose the relief; and,
3. apply for the orders you would like the court to make.

The form which must be used is Form 3, set out in the Provincial Court Family Court Manual. A link to the Provincial (Family) Court Rules of Court is provided in the section Resources & Links.

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, 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 next 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! FCCs are discussed in detail in the previous chapter The Legal System > Starting an Action.
• 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.
• 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 mode detail in the previous chapter The Legal System > Starting an Action..

Sample Documents

The link below will open a sample Reply in a new window.

In the sample Reply, our fictitious respondent, Suzie Schwartz, agrees with the application of her partner, Simon Chang, for an order that she not remove their child from British Columbia, but she disagrees with everything else. As well, she seeks a few orders relating to the care and control of the child herself, as well as a restraining Order stopping Simon from harassing her.

• Form 3: Reply
• Form 4: Financial Statement

This sample document is just that: a sample. While it represents a more or less accurate picture of how Suzie Schwartz might fill out this form, it may not be applicable to your situation. Use it as a reference only together with the official court form.

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

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