06 April 2011

Jurisdictional Disputes in the Supreme Court

I was reminded yesterday of the interesting provisions the new Supreme Court Family Rules make for challenging the court's jurisdiction over a claim or a person, or the adequacy of service. Here's a summary.

Under Rule 18-2(1), if you've been served with a Notice of Family Claim or Counterclaim and believe that the British Columbia courts don't have jurisdiction or if you believe you were served improperly, you can file and serve a Jurisdictional Response in Form F78.

A Jurisdictional Response lets everyone know that you have a fundamental problem with the claim that has been brought against you, and allows you take certain steps in the proceeding without being considered to have attorned to the jurisdiction of the court. (To "attorn" means to submit to the court's authority, and once someone is found to have "attorned to the court" they can sometimes be prevented from subsequently disputing the court's jurisdiction. People commonly attorn to the court's jurisdiction by filing a response or claim in a proceeding.) Under Rule 18-2(1) and (3), once you have filed your Jurisdictional Response you can:
  1. apply to have the claim struck or stayed on the basis that the facts alleged in the claim, even if true, would not give the court jurisdiction in the case;
  2. apply to have the claim struck or stayed on the basis that the court doesn't have jurisdiction over you; or,
  3. allege in your response that the court doesn't have jurisdiction.
If you are the respondent, you must still file and serve your Response to Family Claim under Rule 4-3(1) even though you've filed a Jurisdictional Response. Under Rule 18-2(5), as long as you bring an application to strike or stay the claim within 30 days of filing your Jurisdictional Response, you can participate in the proceedings by filing a response (and even by making or defending an interim application) without being considered to have attorned to the court's jurisdiction.

This is a complicated subject and I admit that my explanation is a bit technical. Please feel free to post any questions as comments to this post, bearing in mind that I can't give legal advice about your specific circumstances.

4 comments:

  1. what does it mean by claim struck and stayed ?

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    1. When the court "strikes" a claim, it is dismissing the claim without saying that the claimant has won or lost, just that the claim cannot be brought in British Columbia. When a claim is "stayed", it is put on hold until something else happens, like another court deciding whether it will hear the claim.

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  2. what about provincial court are you taken to have attorned if you file a reply and counterclaim?

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    Replies
    1. Well the Provincial Court does things a bit differently. You won't be prevented from making an application for an order that the court should decline jurisdiction, but if I were the other side, I'd be arguing that by making a counterclaim in your reply, you were content with the court taking jurisdiction. You should speak to a lawyer in your neighbourhood and get some proper legal advice about this; jurisdictional problems can be complex, especially in a court as geared to practical problem-solving as the Provincial Court.

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