Making Your Case: The Family Court Process
(Transcript of video)
Scene 2: Getting Help to Change Your Family Court Order
Scene 3: Gathering Information
Scene 4: Filing Your Application
Scene 5: Serving the Respondent
Scene 7: Going to Family Court
Scene 8: The Applicant's Evidence
Scene 9: Questioning or Cross-examining the Applicant
Scene 10: The Respondent's Evidence
Scene 1: Introduction
Captions: Making Your Case: The Family Court Process.
This video is for people going to Family Court without a lawyer. The following scenario is based on a fictional case to show you how the Family Court process works.
Do not rely upon this video for legal advice. Every case is different. For specific legal advice, contact a lawyer or your legal aid office.
[Van pulls up and Barry and Melissa get out. Barry is dropping Melissa off at Pam's house.]
Melissa: Hi, Mom.
Pam: Hi, how was skating?
Melissa: Awesome. I beat Dad around the rink.
Pam: Good.
Melissa: Can I go visit Sherry now?
Pam: Yeah sure, just call and make sure she's there.
Melissa: Ok.
Barry: Here's your bag, Sweetheart.
Melissa: Bye, Dad.
Barry: See you later.
Melissa: See you Tuesday.
[Melissa goes into the house.]
Barry: Okay. You know what she forgot to mention is that when she was skating … she was skating backwards.
Pam: Ha ha ha. Good!
[Barry starts to head back to his van.]
Barry: I'll see ya later.
Pam: Oh, Barry. [She closes the front door of the house.] Look, I've been meaning to talk to you about Melissa's visit to the orthodontist. It looks like she's gonna have to get braces and it's gonna cost over $5,000. We've got to figure out how we're going to pay for them.
Barry: Are you kidding? $5,000? You know I've got a baby at home and Julie's not even working. Oh, there's no way that's going to work, Pam.
Pam: But you just got a new raise! And I think you're just going to have to spend some of that on your daughter.
[Pam and Barry continue arguing, but their voices are muted.]
Narrator: When Pam and Barry split up two years ago, custody of their daughter went to Pam. A Provincial Family Court order granted Barry access to Melissa. Barry also pays monthly child support. Now that financial circumstances have changed, Pam would like Barry to help pay for the special expenses of Melissa's braces. Barry disagrees. So Pam needs to find out what action to take.
Pam: No, no. I can tell we're not going to agree. I'm just going to go talk to the Family Justice Centre. See what they have to say.
Barry: Fine. All right! I'm gonna be late. I'll see you around.
Pam: Ok.
Scene 2: Getting Help to Change Your Family Court Order
Narrator: Family Justice Centres are located throughout British Columbia. Family Justice counsellors can refer you to community resources and programs or provide mediation to help you resolve family issues without going to court. Check to see if this service is available to you in your area.
Caption: Family Justice Centre
[Pam is sitting with a counsellor at a Family Justice Centre.]
Pam: When it comes to money, we can just rarely agree.
Counsellor: Well, applying to court to change your support order certainly is an option for you now. You have to show the judge that you have had a change of circumstances. And as for the orthodontist fees, what you will be doing is you'll be asking the judge to order Barry to pay what's called "Special Health Expenses." Now that's on top of his regular child support obligations. You have to show the judge that you… [Counsellor's voice fades.]
Narrator: Most cases are settled and don't end in court. Barry and Pam tried in mediation but nothing was resolved. So Pam has returned to the Family Justice Centre for help applying to Family Court.
Pam: Okay… Um. I'm sorry. Could you go over that again?
Counsellor: You want Barry to pay his share of Melissa's braces, right?
Pam: Yes.
Counsellor: Well, since Barry's wages have gone up, then you should be receiving more child support. Now we can just check that out here in this child support table of figures. You can see right down here.
Pam: Hmm. Okay. Can you help me with the court application?
Counsellor: Oh, yes. Sure I can. I won't be actually going to court with you, but we have the forms here, and I can help you calculate your claim. And I'll explain the whole court process to you.
All right. Now this is the Application to Change an Order form. We can do that right here in the office. And this one, this is a financial statement. I know it looks a little long and complicated, but it's just like a tax return. In other words, just fill out the actual parts that apply directly to you. You can look over this now and then fill it out at home. Later, bring it to the court registry, or you can bring it back to our office. And we'll have you swear the Affidavit on the front of the form.
Pam: I'm sorry. What's the Affidavit?
Counsellor: Ok. The Affidavit is your sworn statement that the financial statement is true.
Pam: Ok.
Counsellor: When everything is signed and sworn, what you'll do is take the original and three copies and file that with the court registry. And then it's up to you to arrange to have an adult person serve these documents on Barry.
Pam: Okay. Thank you.
Counsellor: You're welcome. Now with this, what you'll need…
Scene 3: Gathering Information
[Pam is sitting at a table in the kitchen and a friend is standing at the counter.]
Friend: You seem pretty organized. Is there anything I can do?
Pam: No, thank you. Um. Yeah, no. I'm getting through it. It's just taking me some time, that's all. I'm more worried about going to court.
Friend: Do you want me to come with you?
Pam: Yeah. That would be so great. Are you sure you can get the time off work?
Friend: Oh. Don't worry about that. I'm the boss. Ha, ha.
Pam: Ha, ha. Thank you. Well I was just subtracting three percent of my medicals…
[Pam is shown going through papers as her voice fades away and the narrator begins speaking.]
Narrator: Getting ready for court involves gathering information to support your case and completing the required forms. Both Pam and Barry need to be well organized and collect all the documents required.
Scene 4: Filing Your Application
[A court clerk is standing at the court registry desk as Pam approaches with her documents.]
Pam: Hello.
Clerk: Hi.
Pam: This is my application to change an order.
Clerk: Okay. I'll just have a look to make sure you have all the papers filled out properly.
Narrator: Once the forms are completed and sworn, Pam files them with the court registry. No fee is charged to file a Family Court application.
Scene 5: Serving the Respondent
[A process server walks towards Barry's house and rings the doorbell. Barry, holding his baby, answers the door and accepts the documents.]
Narrator: A hired process server or one of Pam's friends must deliver a copy of the court application to Barry. This person will swear an Affidavit to prove Barry personally received the documents. This Affidavit proves Barry knows about the court date and what Pam is asking for.
[Barry's friend comes up the walk just as the process server leaves.]
Barry's friend: Hey! What's up?
Barry: Hey, how's it going? That guy just dropped something off.
Oh, man! Pam's taking me to court! She must think I'm made of money. Oh. Let me just change his diaper, and I'll tell you all about it.
Barry's friend: Okay, as long as we don't miss the beginning of the game.
Scene 6: Filing a Reply
[Barry, at the court registry, handing papers to the clerk at the desk.]
Narrator: Barry could consent to Pam's application and pay the additional money. Instead, he disagrees and files a reply. There's no fee charged to file this reply. Like Pam, he collects his tax returns, pay stubs, and other documents, photocopies them, and files a detailed financial statement. It's important to file a reply within 30 days of being served. This ensures Barry will be notified of future court proceedings. Unless Barry and Pam agree to settle, the court will set a date for their trial. A hearing is another name for their trial.
Scene 7: Going to Family Court
Caption: Several Weeks Later…
[Barry is seated in the hall at the courthouse. Pam and her friend arrive.]
Narrator: Pam and Barry received notice and have already attended a first appearance in court to set their trial date. Occasionally, trials can go ahead at the first appearance. But normally a trial will be set for a future date. How long you wait for trial varies from place to place. The trial list shows the cases scheduled that day for a particular court room. Often there are several case names listed. Names aren't always called in the same order as the list.
[Pam and her friend enter the courtroom followed by Barry. The deputy sheriff enters the courtroom and opens the door for the judge.]
Caption: Deputy Sheriff
Deputy sheriff: Order in the court. All rise.
Captions: His Honour, The Provincial Court Judge
Court Clerk
Court Clerk: Calling the Cherties matter.
Narrator: Family court trials are open to the public and you can bring along a friend or a relative for support. But any witnesses must stay outside until they're called to testify. Make sure you bring all the relevant documents and evidence with you. It's important to dress neatly, be on time, and behave in a respectful way.
Judge: All right, then. This case is adjourned until the 21st — one month from today.
Narrator: Arrange for flexible child care in case your trial takes longer than expected.
Court clerk: Calling the Cook matter.
[Both Pam and Barry get up and approach the judge.]
Pam: Your Honour. My name is Pamela Cook and this is my application.
Judge: And you're Barry Cook, the respondent in this matter?
Barry: Yes, your Honour, that's right.
Judge: And you're both representing yourselves?
Pam: Yes.
Judge: Now you both had a chance to review each other's financial details before coming to court today?
Pam: Yes.
Judge: Have you tried to come to an agreement about these issues?
Pam: Yes, your Honour. We went to the Family Justice Centre and tried mediation but we still can't agree.
Judge: All right, then. Let me begin by just explaining the procedure here. Mrs. Cook, you'll go first. That is, you can tell me what it is that you're asking for, and present your evidence. All without comment from Mr. Cook. And after you're finished, Mr. Cook will have a chance to cross-examine you, to ask you questions. Then, sir, it will be your turn to present your side of the case and after that ma'am, you'll also have a chance to question his evidence. And you'll both get an opportunity to make final statements. Do you understand?
Pam: Yes.
Judge: All right, thank you. Now Mrs. Cook, would you kindly go to the witness box?
Court clerk: Do you swear that the evidence… [Her voice fades.]
Narrator: A witness gives evidence by either swearing or affirming to tell the truth.
Pam: I swear.
Court clerk: Please state your name in full and spell your last name for the record... [Her voice fades.]
Narrator: A witness gives evidence by either swearing or affirming to tell the truth.
Scene 8: The Applicant's Evidence
[Pam sits down in the witness box.]
Pam: Barry and I were married on June 5th, 1986. We have one child; our daughter, Melissa, who's 12. We separated two years ago and I went to Family Court to get custody of Melissa and a support order from Barry.
Judge: Yes, I see there's a copy here of your existing child support order ah requiring Mr. Cook to pay $280 a month.
Pam: Yes, that's right. And I have to say he's been very regular… [Her voice fades out.]
Narrator: The judge may ask questions that lead you through your financial statement and bring out the necessary information.
Judge: What other documents and evidence have you brought with you today?
Pam: Oh, I have the financial statement. I also have my copy of my tax form, my stubs … [Her voice fades.]
Narrator: Let the judge know if you don't understand something or you don't know the answer to a question.
Judge: Can we go through the financial statement then?
Pam: Barry doesn't support me. I work as a cashier, and I earn $24,000 a year. But I don't have a dental plan and it's really hard to pay for extras and unexpected expenses.
Judge: So, just to clarify, you're asking for two things in this application, as I understand it.
Pam: Yes, because Barry's wages have gone up since the last support order. And the family justice counsellor told me that according to the BC child support tables, Barry should be paying more money. And now that Melissa needs braces, I just have to get him to help pay for them. This letter from Dr. Hall says that the braces are essential.
[Pam hands the clerk the letter.]
Court clerk: Exhibit one.
[The clerk hands the letter to the judge.]
Judge: Thank you.
Pam: Otherwise, her jaw, the way she bites down, will be out of alignment. If it's not done soon, it could cause her problems in her 20s. The cost is $5,150. That's with an initial payment of $900 and then monthly payments of $170 for the next 25 months. It sounds reasonable to me.
Barry: Oh yeah, especially for the orthodontist.
Judge: Mr. Cook. This is your wife's turn to present her evidence. You'll have an opportunity to ask questions and to present your own evidence. In the meantime, I'd like you to just sit quietly and listen to what she has to say.
Barry: Yes, your Honour.
Judge: Please continue.
Pam: This quote from another orthodontist would cost $150 more.
[Pam hands the quote to the clerk.]
Court clerk: Exhibit two, your Honour.
[The clerk hands the quote to the judge.]
Judge: Thank you. [Judge turns to Barry.] Mrs. Cook has already given you copies of this information?
Barry: Yes, she has.
Scene 9: Questioning or Cross-examining the Applicant
Judge: Mr. Cook, would you like to ask Mrs. Cook some questions about her evidence?
Barry: Yes, your Honour, I would. Look, Melissa doesn't really want braces, does she? I mean she's upset about how are the kids at school going to react. Do you think she's even going to cooperate with you on this, and have you even talked to her about it?
Pam: Well, of course I have. She knows it has to be done. She was kind of hoping that we couldn't afford it and you've been encouraging her to think that way. You know you're just trying to stir things up! Just when I've finally got her around to thinking sensibly about this.
Judge: Mrs. Cook. This is not the time for personal comments. Just answer the question. Has your daughter agreed to the procedure?
Pam: Yes, your Honour. When we talked, she did have some doubts. But now she understands that, in the long run, getting braces is for her own good. She's accepted it.
Barry: Well, uh … if we get her braces, how do you intend to pay for your part?
Pam: I've figured out where I can save some money. I have quit smoking and that saves me over a $100 a month.
Narrator: Whether you're giving evidence or cross-examining, it's important to stick to the facts and avoid getting emotional. Always direct your words to the judge.
Pam: I've figured out where I can do some saving.
Judge: If you have no further questions, sir. Mrs. Cook, you can step down and we'll hear from you now, Mr. Cook.
Scene 10: The Respondent's Evidence
Narrator: Barry testifies that he recently got a full-time position at his warehouse job. His annual income has now increased by $4,000. However, he also supports Julie and their new baby.
Judge: So, your income has increased but according to your financial statement, your expenses have increased even more. You're saying you're no further ahead? Does your partner Julie work outside the home?
Barry: No, not at the moment, your Honour. She's staying home with the baby.
Judge: Julie has no income whatsoever? No personal funds?
Barry: Well, she may make a little bit of money babysitting her nephew, but I mean it's hardly enough to buy milk.
Judge: Well, how much would that be?
Barry: Maybe $20 a week but I mean that's peanuts. Uh, look what I'm already paying. And I'm still paying off the bank loan for the car that she's driving.
Judge: All right, that's not the point sir. I'm asking you about your family income and I want to remind you that you're sworn to tell the truth here in this courtroom. You're obliged to do that and to give me these financial details.
Barry: Yes, your Honour.
Judge: All right, let's look a little more closely at these expenses you've listed.
Scene 11: Questioning or Cross-examining the Respondent
Pam: I see you're driving a new car these days. Why don't I see that here listed as an asset?
Barry: What, the minivan? That's not ours. That belongs to Julie's parents. We're just looking after it while they're in Arizona.
Pam: Mm. So are Julie's parents well off? Do they give you gifts to help out with the new grandchild? Do they give you money?
Barry: No, they don't give us money. Julie's mother bought us a stroller and sometimes they give us stuff from garage sales.
Pam: Under expenses then, I see here that you spend $150 a month on entertainment. That works out to a $1,800 a year. Isn't your daughter's dental health more important?
Barry: Uh, you know I spent some of that on Melissa, skating, uh movies, pizza. You know all that stuff adds up.
Pam: How much of that $150 do you spend on Melissa?
Barry: I don't know, maybe $50 a month.
Pam: So what does the $100 go to?
Scene 12: Summing up
Narrator: When all the evidence has been presented, both sides explain why the judge should decide in their favour. Now is the time to summarize the evidence already presented and ask for a specific order. It is not time to repeat or give new evidence.
Pam: And so, since her father's wages have gone up, I think that Melissa's child support should go up by $31, to be a total monthly payment of $311. The braces are medically necessary and can't be delayed. The orthodontist recommends that we begin next month. So, I'm just asking that Barry pay his share, which is $2642.40 of the total cost.
Judge: Thank you very much. Now, Mr. Cook, would you like to say something?
Barry: Yes, your Honour. I think I've explained that I can't afford to pay more child support. I already paid for a lot of extras and now I've got a new baby at home. As it says on the form, I've got a legal duty to support another person and that's what's causing my undue hardship situation. I want the best for Melissa, but I can't afford braces right now and I don't think Pam can either. So I'm asking the court to leave my child support order as it is, and not order me to pay any extra dental bills.
Judge: All right. Thank you. We'll stand court down now for a few minutes.
Narrator: The judge can make an order right away or at a later date.
Scene 13: The Judge's Ruling
[The deputy sheriff enters the courtroom and opens the door for the judge to come into the courtroom.]
Deputy sheriff: Order in the court. All rise.
Judge: Thank you. I've heard what you both have had to say and the questions you've asked. And I'm satisfied, Mr. Cook, that your income has increased. You've argued that the cost of supporting your new baby will cause you undue hardship if your daughter's child support order goes up.
Well, sir, the fact that you have started a new family does not exempt you from your obligation to support your first child. However, having another child to support is one of the grounds for claiming undue hardship. Comparing the standard of living of your two households, I'm satisfied that you are at some disadvantage. Normally, you'd pay $311 indicated by the child support tables. However, in this case, I will order you to pay an increase of $15 per month. That is a total of $295, commencing the first of next month.
Now, as to the matter of braces. I find that this orthodontic procedure is reasonable and necessary under the circumstances and it seems important to avoid delay. I'm ordering you to pay special health expenses to Pamela Cook as follows. Once treatment has begun, you'll pay an initial sum of $512.40 followed by $85.20 to be paid on the 15th of each month until your share of the fee is fully paid.
I want to emphasize that you have a duty to support both children over and above other expenses. If necessary, you may have to arrange your financial affairs to pay these amounts. Now these are court orders and must be paid. If you do not pay, there are procedures to enforce these orders. Do you understand that, sir?
Judge: Yes, I do your Honour. All right.
Pam: Thank you, your Honour.
Scene 14: Conclusion
[Credits start soon after this scene begins and are rolling throughout the scene.]
[Barry is leaning on the back of his car as his daughter comes out of her house.]
Melissa: Hi Dad.
Barry: Hey baby. How you doing? [Barry gives Melissa a hug.]
Melissa: Good.
Barry: Here, let me toss your bag in the back. So now it looks like you're going to get your new braces, after all. Oh, it's okay. They're only going to be on for the next decade or so.
Melissa: Daad! Are you sure you guys don't want to save some money?
Barry: Oh, you mean you want to skip the pizza and movie tonight?
Melissa: Nooo. And one thing's for sure. Before I get my braces, I'm going to eat barrels of popcorn.
Barry: Ha, ha. Well, if you want to marry Ricky Martin, you better go easy on the butter.
[They get into the car and drive away.]
Credits
Principal cast
Elizabeth Smyth
Chuck DePape
Carola Knowlton
Rosenne Chan
Rob Cruse
Judge Tony Palmer
Mike Quale
Susan Wilkey
Anne Wood
Narrator
Joanne Wilson
Advisory group members
Glenn Gallins
Barbara Harrison
Paddy Jones
Carol McEown
Judge Tony Palmer
Pam Rudy
Jane Small
Producers
Judith Blackwell
Michelle Harris
Director
Hilary Jones-Farrow
Writers
Michelle Harris
Judith Blackwell
Production coordinator
Michelle Harris
Director of photography
Dave Malysheff
Sound recordist
Denis Blue
Boom operator
Jessica Farrow
Gaffer
Jesse Pogoler
Make-up
Dominica Wolski
Catering
Calla Catering
Editors
Cherilyn Hawrysh
Hilary Jones-Farrow
Audio post production
Legacy Sound
Special thanks
The Doenecke Family
The Law Centre, Victoria
Separation and Divorce Resource Centre
The Standard Life Assurance Company
Anna Tchernakova
Vancouver Island Orthodontic Study Group
Victoria Family Justice Centre
BC Provincial Court, Western Communities Courthouse
Funding provided by
Legal Services Society, BC
The Law Foundation of BC
Produced by
Educating Toward Change Society
Production facilities provided by
The May Street Group, Film, Video & Animation
For forms and more information, contact:
- Your local Provincial Court Registry
- Family Justice Centres in your area:
Vancouver 604-660-6828
Victoria 250-387-6121
Elsewhere in BC 1-800-663-7867
You can also contact:
- Your family lawyer
- Your local legal aid office
- Dial-A-Law:
(a free legal information service)
1-800-565-5297
Call 1-888-373-2222 (toll free) for information on the Federal Child Support Guidelines
© Legal Services Society, BC, 2000
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