Intro

Before you begin your Provincial Court response

Identify the issues. What do I want to get from the court process?

Before you decide to go ahead with this guide, think about your situation.

Make a list of all the things that the other party wants the court to deal with in his or her application. These will fall into several categories, often called issues by lawyers.

For the purposes of this guide, the issues that you may need to deal with are custody, guardianship, access, child support, and spousal support. Some or all of these issues may be mentioned in the other party's application. The other party may also have left out issues that are important to you. You need to decide which of these issues apply to your situation when you make your list.

For example, if you have preschool children, you'll likely have to deal with all of the above issues. If your children are in their teens, you may only have to deal with custody and child support because it may be better for the children to make their own arrangements to see their other parent.

After you've made a list of the issues, sort them into issues that have already been mentioned in the other party's application and issues that you need to raise and have the court deal with. You also need to consider the sub-issues of each issue to see how detailed you need the court order to be.

For example, can you talk to the other party directly every week to arrange flexible access times, or is it so difficult to talk that you need to have the days and times set out in advance and only talk about them when there's a problem and they need to be changed? Does the other parent share your views about punctuality for pick-up and drop-off times, phoning if he or she will be late, informing you if a visit needs to be cancelled, and being flexible in an emergency?

If you can communicate fairly well with the other parent, you can probably ask for, or agree with, a less-detailed court order that asks for something like "reasonable access" or "access every second weekend and one evening during the week," and doesn't include the day and time of pick up and drop off because that can be talked about on an ongoing basis.

If communication is fairly tense and you have arguments about, for example, the appropriate time to bring the children home on a school night or whether homework is to be brought along and completed on a weekend visit, you may want your Reply (Form 3) to be more specific about days and times for access.

Look carefully at the other party's application and what orders are asked for. Sometimes what you want is only a little bit different from what is asked for in the application. You may be able to come to an agreement about some issues if you talk to the other party, or you both meet with a family justice counsellor.

If you can agree on some or all issues, you can have those issues form part of a consent order and then have the issues that you don't agree on decided at a trial by a judge. The judge doesn't have to make all the decisions — it's not uncommon for everything except for one or two issues to be agreed on before you go to court.

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What is a response to an application?

If the other party applies for an initial family order, you'll be served with a copy of his or her application to Obtain an Order (Form 1) and Financial Statement (Form 4), if applicable, and a blank Reply (Form 3), and a blank Financial Statement (Form 4), if applicable. These documents may be served by a process server, or by someone you or the other party knows. Your response is the documents and forms you prepare and file at the court registry after you receive the application.

Do not ignore the application. There are time limits you must pay attention to if you want to respond. If you don't respond formally as set out in this guide and within the time limits, an initial family order may be made without you being heard or having any input into the decision.

Note: If you deliberately ignore the other party's application, it can be very difficult — and sometimes even impossible — for you to change any order the judge might make without you.

When you're served with the Application to Obtain an Order (Form 1), you have 30 days to complete your Reply (Form 3) and Financial Statement (Form 4), if required, and to file these documents at the registry. Gathering all the documents you need to show your financial situation can take some time.

Read all the documents in the application carefully so that you're very clear about what the application is about and what the court is being asked to do. The process of responding to an application is complex. We suggest you read through all of this guide before you begin so that you understand the information you need to collect, the documents and forms you need to prepare, the time periods you have to work with, and what you can expect in court.

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How do I respond and how long will the process take?

Applications for initial family orders in the Provincial Court are made to a judge in the Provincial Court of British Columbia (Family Court). The application that has been served on you has a court file number and indicates the registry where it was filed and where the trial will take place.

Any court documents that you file will have to be filed in the same registry as the application. If you have to appear in court, it will be in the courthouse where the application was filed.

If you file a Reply, the length of time before your first appearance in front of a judge varies with the location of the Provincial Court. In larger centres like Vancouver, where Family Court sits almost every day, you may get a first appearance date within three weeks. In smaller registries, where Family Court may sit only one day every six weeks, the first appearance date may not be for several months after you file your Reply (Form 3) (unless you have an emergency situation).

A trial or hearing date can take many months to arrange. If a trial is going to take more than one day because there are many witnesses, it's not unusual, even in larger centres, for the trial date to be more than six months after the court appearance to fix the date.

It's also not unusual for two trials to be booked for the same time in the hope that one of them will be settled by agreement before the trial date. If both trials are still scheduled to go forward on the trial date, the judge will have to decide, on the basis of urgency, which trial will proceed and which one will have to be adjourned to another trial date.

At any stage of the proceedings — even during a trial — you can make an agreement and have a judge make a Consent Order covering what you have agreed.

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What are my chances of success?

The court process may seem very complicated, but you can prepare for each step of the process from receiving the initial application to conducting a trial.

There are many stages before going to court and during the court proceedings at which you and the other party can get help to resolve your conflict by making decisions together that you both think you can live with. If you can't resolve your conflict in this way, then a trial will be the only way to resolve the issues. You need to understand at the beginning what that final stage of the process is all about.

There's no reason why you can't effectively present your case or story to a judge at a trial using the information contained in this guide, but it's important to understand that, at that stage, you're giving the power to make decisions about your life and the lives of your children to someone else whose job is very strictly defined by the law. A judge in a custody, guardianship, or access trial has the job of making a decision about what is best for your children, based upon the evidence presented in court. A judge isn't allowed to guess or assume facts that aren't proven.

The law has many strict rules about what is "evidence," which is all that the judge is allowed to consider in deciding major issues like custody and guardianship, access, child support, and spousal support.

Evidence can be physical items such as documents, photographs, and tapes, but the most common form of evidence in family cases comes from witnesses who testify in court at a trial and the information contained in the financial statements and supporting documents.

A decision on one issue is closely tied to the outcome of decisions about other issues. For example, a decision giving joint custody to both parents, sole custody to one parent, or access every week to one parent may affect who pays child support and the amount he or she has to pay. It can also affect spousal support.

If nothing is agreed upon, the judge will make decisions about all of the issues after a trial and then write them into an order which both parties will then have to live with. Sometimes, the fairest decision when parties can't agree is a decision that neither party expects or is happy with.

Following the steps in this guide, spending the time to prepare, understanding what you want the court to do and what it's able to do, and organizing the evidence to support your position will help you present your case effectively to the court.

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What does the law say about support, custody, guardianship, and access?

For more information about what the law says about child or spousal support, custody, guardianship, or access, see our fact sheets (links below). You may want to read all of these fact sheets, or you may only need to look at one or two of them, depending on your situation. Once you have read all you need to, you'll be ready to start the application process.

• Child support
• Spousal support
• Custody
• Guardianship
• Access

How do I find a lawyer or get legal aid?

For information about where to get legal advice or how to contact a lawyer, see Who can help?

For information about legal aid, see Legal aid services on the Legal Services Society website.

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