Starting a Case in Court

Sometimes out-of-court methods do not work or are not appropriate for your situation. If this is your case, you will have to go to court to settle your family law matters. To start a case in court, you have to fill out some forms. This is called starting an action in court. You or your lawyer file the forms in the court registry and they are personally served on (delivered to) your spouse. It usually takes a long time to get a problem solved by the court. Before the judge makes a final decision, you can ask the judge to make an “interim order”. This means that until a final decision is made, you have to do what the judge decided.

It is important for the children to settle into a new routine after their parents separate. So, for example, if you and your spouse cannot agree where the children should live, you can go to court right away and ask the judge to make an interim order that the children live with you. Later, you can go to court and discuss it more. Then the judge will make a “final order” about where the children will live.

The Family Law in BC website has do-it-yourself guides for people who have to go to court but do not have a lawyer.

When you go to trial

A trial is when you both go to court and ask the judge to make final decisions on everything you cannot agree on. You can hire a lawyer or you can go to court alone, but it is a good idea to have a lawyer if possible.

The trial will be scheduled for a particular day. You must go to court on that day or decisions will be made without the judge having heard what you have to say. Both of you will have a chance to present your case to the judge. You must tell the judge everything about your case (from the time you lived together, had children, bought property, separated, and so on). You must also tell the judge about how the law supports your case.

After hearing from both you and your spouse, the judge will make a decision. This is called an order. You must follow what the judge writes in the order. For example, if the judge has ordered you to pay $2,500 to your spouse to settle a disagreement about property you own, you must pay that money to your spouse.

You can read more about what happens when you go to court by reading Canada's Justice System.

Can you change a court order?

You can change a court order sometimes. You can go back to court and ask the judge to change an order that he or she made if the situation has changed. For example, the judge ordered that you pay $500 a month to support the children. Then you lost your job. You can go back to court and ask the judge to “vary” (change) the order.  The judge might order that you pay $200 a month until you find a new job.

If you do not agree with the final decision the judge made at the trial, you can ask another court to review the decision. This is called “appealing” the decision. Provincial (Family) Court orders are usually appealed to the BC Supreme Court. Supreme Court orders are usually appealed to the BC Court of Appeal. You should talk to a lawyer before making a decision to appeal your case.  Do that quickly, because the deadline to start an appeal can be short.

How do you enforce a court order for support?

What happens if someone does not follow the judge’s order? It is sometimes difficult to get a person to pay you money, even if the judge has ordered that it be paid. If money is not being paid for child or spousal support, you can sign up with the Family Maintenance Enforcement Program for free. This program helps you get money that is owed to you for child or spousal support. The staff can work out a payment plan with the person who owes you money, or take other steps like taking part of his or her wages, taking his or her driver’s licence, and so on.

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