21 April 2014

How to Fill Out a Notice of Family Claim or Notice of Counterclaim: What Orders Can You Ask For?

I was recently talking to a friend who's going through an unpleasant separation and now finds herself having to start a claim in the British Columbia Supreme Court. She had some questions about the orders she should be asking for in her Form F3 Notice of Family Claim, and I realized that the forms aren't always easy to figure out, particularly when it comes to deciding on the orders you want the court to make.

In this post, I'll review the Form F3 Notice of Family Claim, used to start a claim in the Supreme Court, and the Form F5 Counterclaim, used by someone one the other side of a claim to describe the orders they think the court should make. These forms are pretty much the same; what I say about one will apply to the other, except for the first part of the Notice of Family Claim which is very different from the first part of the Counterclaim. I won't talk much about the fill-in-the-blanks parts except where they might be confusing.

The Form
The style of cause
The style of cause is the top part on the first page of the Notice of Family Claim, where it says the court file number, the name of the court registry, your name and the other party's name, and "In the Supreme Court of British Columbia." This information will be given, in the same order, on all of the court forms you or the other side will use.

You are supposed to type out your full name and your ex's full name, including middle names. But here's a tip. If your names are spelled wrong in your marriage certificate, type out your names exactly as it says on the marriage certificate. Add "also known as" behind the misspelt name, and then type out the property spelling. For example, "John Quentinn Smith also known as John Quentin Smith." Not using the names given on the marriage certificate can cause problems when you're asking for a divorce order.
Paragraph 2: "Spousal Relationship History"
You only need to fill out the parts that apply. If you were never married or never got divorced, for example, leave those check boxes blank and don't add any dates. If you and the other party never married and never lived together, leave the whole paragraph blank.
Paragraph 3: "Prior Court Proceedings and Agreements"
This paragraph is asking you to describe any old order or agreements you and your ex might have, but only the ones that are relevant to your case. Criminal orders or orders about the adoption of a child, for example, are not relevant. However, if you have a marriage agreement or a separation agreement, or an order made between you in the Provincial Court or in another province, those are the things you should be talking about. The orders that you should list are final orders, or if there is no final order, then the last interim orders that were made.
Paragraph 5: "Place of Trial"
If you're starting the claim, the place of trial is the name of the town or city where you'll be filing your claim.

Schedule 1: Divorce

You only need to fill out this schedule if you're asking for a divorce. If you and the other party were never legally married, or if you're married but don't want a divorce for some reason, skip the entire schedule.
Paragraph 1: "Personal Information"
The information required for "ordinarily resident in British Columbia since" is the date when you started to live full-time in the province.
Paragraph 2: "Grounds for the Claimant's Claim for Divorce"
If you're asking for a divorce for a reason other than separation, the information needed for "other grounds" is either "adultery" or "cruelty making continued cohabitation impossible."
Paragraph 5: "Children"
In this paragraph, you are supposed to write out the full names and birth dates your children, which includes adopted children and any children you or your ex brought into your marriage. You don't have to include adult children unless they are still dependent on you or your ex and cannot support themselves.
Orders Available in this Schedule 
· Divorce
Schedule 2: Children

If you don't have children or aren't asking for any orders about the children, including orders for child support, skip the entire schedule.
Paragraph 1: "Identification of Children"
Under "child's relationship to the claimant" and "child's relationship to the respondent," what you're supposed to say is "natural child," "adopted child" or "stepchild."
Paragraph 3: "Current Arrangements for Parenting"
Here you should be describing, as simply as possible, how you and the other side are looking after the children now that you've separated. It can be really tempting to get down into the muck and dish some dirt, but avoid the temptation. If you say something mean and spiteful — even if it's true! — you risk annoying the other side and making your conflict worse than it already is.

Be accurate, be factual and avoid talking about things that aren't really relevant. Don't embellish the truth.
Paragraph 6: "Income of Person Asked to Pay Child Support"
If you're asking for an order that you pay child support to your ex, this paragraph applies to you. If you asking for an order that your ex pay child support to you, fill out the information about your ex's situation.

Where it asks you for the facts which explain why you believe your ex's income is a certain amount, you might say something like "because I prepared his income tax return for last year," "because he told me this was his income," "because her boss told me that this is what she makes" or "because this is the average wage of junior carpenters according to Statistics Canada."
Paragraph 7: "Proposed Child Support Arrangements"
"Special expenses" are the children's expenses for big-ticket items like daycare, music lessons, summer camp, school trips, tutoring, sports teams and so forth. Although not every expense will qualify as a special expenses, you should probably write them down anyway.
Orders Available in this Schedule
· Custody and access under the Divorce Act
· Parental responsibilities, parenting time and contact under the Family Law Act 
· Child support and the payment of special expenses
Schedule 3: Spousal Support

If you're not asking for spousal support, or if you're not married or don't qualify as a "spouse" under the Family Law Act, skip this schedule.
Paragraph 2: "Proposed Spousal Support Arrangements"
Describe how much support you'd like to get, or to pay, how often it should be paid and the length of time it should be paid for. The length of time for a spousal support order can be tricky. You might be specific, and say something like "for five years," or you might link the end of support to "when the claimant obtains full-time employment" or "two years after the claimant finishes job training," or you might just say "indefinitely."
Orders Available in this Schedule
· Spousal support
Schedule 4: Property

If you're not asking for orders about property (including family property, family debt or excluded property), skip this schedule.
Paragraph 1A: "Property and Debt Claims under the Family Law Act"
This part is only for claims to split family property and family debt; read the definition of these terms at ss. 84 and 86 of the Family Law Act.

If you are asking for anything other than an equal split, you have to explain why and it'll help if you read the reasons why the court can make such orders at s. 95(2) of the Family Law Act. You don't get to ask for more of the property because your ex cheated on you, or was unpleasant or lazy. You should limit your explanation to the one or more of the reasons set out in s. 95(2).

The "legal description" of property is the long description you'll find in your Notice of Assessment, property tax levy or the contract for the purchase of the property, that talks about lot numbers, blocks and parcel identifier numbers and looks like this:
PID: 123-456-789
Lot 12, District Lot 34, Block 56, Plan 789, New Westminster Land District
You need to include all of this information in the form.
Paragraph 1B: "Other Property Claims"
This part is where you can ask for:
  1. a share of excluded property; 
  2. an interest in property under the principles of unjust enrichment and trusts; 
  3. an interest in property resulting from a contract; or,
  4. an interest in property under any law other than the Family Law Act or common law principles.
An "order for compensation instead of an interest in the property" means that you want to get cash for your interest in the property rather than to become a legal co-owner of the property in which you have the interest.
Orders Available in this Schedule
· Equal or unequal division of family property and family debt under the Family Law Act 
· Division of excluded property under the Family Law Act 
· An interest, or compensation for an interest, in other property based on other legal principles 
· The registration of a Certificate of Pending Litigation (a kind of lien) against the title of real property under the Land Title Act
Schedule 5: Other Orders

This is where the form gets interesting, because this is where you can ask for the orders that weren't listed in the other schedules. Orders you could ask for under the Family Law Act include:
Married Relationships
· An declaration that a marriage is annulled or is void. 
Children
· A declaration about who are the parents of a child, or an order that a parentage test be performed 
· A declaration about who are the guardians of a child 
· An order that somebody be appointed or removed as the guardian of a child 
· An order that someone's parenting time or contact be on conditions, like not smoking or not drinking when with the child, or be supervised 
· An order that a guardian must not relocate with the child without the court's permission or your agreement 
· An order enforcing an agreement on parental responsibilities, parenting time or contact 
· An order changing an agreement on parental responsibilities, parenting time or contact 
· An order recognizing or superseding an order on parental responsibilities, parenting time or contact made outside British Columbia 
· An order for the appointment of a mental health professional to prepare a needs of the child assessment 
· An order for the appointment of a mental health professional or anther person to prepare a views of the child report 
· An order for the appointment of a parenting coordinator when the final order or a final agreement is made
Child Support and Spousal Support
· An order that income be imputed to someone, usually for the calculation of that person's child support obligation or share of the children's special expenses 
· An order for the payment of the mother's prenatal and birth expenses 
· An order that support be paid wholly or partially as a lump sum 
· An order that an obligation to pay child support or spousal support be retroactive, that is, that it start at an earlier point in time 
· An order that an obligation to pay child support or spousal support must be paid by the payor's estate after his or her death 
· An order changing an agreement for child support or spousal support 
· An order for the payment of arrears of child support or spousal support 
· An order for the cancellation or reduction of arrears of child support or spousal support
Property
· An order for the interim division or sale of family property, including to pay for out-of-court dispute resolution 
· An order that only you have the right to live in the house, called an order for "exclusive occupancy" 
· An order that someone pay the rent, taxes, utilities and other costs of the family home, or that someone be prevented from cancelling the utilities for the family home 
· An order that someone be prevented from selling property or using it as collateral for a loan 
· An order for the appointment of a joint expert to value property or a business
Safety
· An order restricting communication and contact between you and the other party 
· An order that someone not go to a certain place or places 
· An order that someone be prevented from carrying weapons 
· An order that the police must remove someone from the family home
Court and Other Processes
· An order cancelling or discontinuing someone's claim 
· A declaration that the British Columbia court doesn't have jurisdiction to hear a claim 
· An order that someone must give you certain documents in his or her possession 
· An order that you and the other party must try dispute resolution like mediation, collaborative settlement processes or arbitration 
· An order that you, the other party and/or the child must attend counselling
Orders available under other laws and legal principles include injunctions, declarations about the status of contracts, orders about real property under the Land Title Act, orders about property under the law of trusts and unjust enrichment, changes of name and so on.

I've provided a long, but incomplete, list of the potential other orders the court could make. However, you must always think of the long- as well as sort-term effects of what you're asking for. Sometimes the anger and hurt feelings caused by just asking for a particular order are way worse that the problem you're trying to address. Sometimes, even though you're right, the effort and cost of getting an order is totally out of proportion to the actual problem.

As a general rule, you don't want to inflame things; you want the claim you're starting or answering to be handled as cooperatively as possible.

Update: 26 April 2014

Blank copies of the Notice of Family Claim and Counterclaim forms are available from my wikibook in PDF and Word formats, along with examples of what the forms look like when they're filled out correctly.

The very excellent people at Courthouse Libraries BC have added various bits and pieces of this post as annotations to the Notice of Family Claim form. Download the annotated form from the wikibook (PDF); you must save the form to your computer to see the annotations. Since the schedules to the Notice of Family Claim form are the same for the Counterclaim form, you can use Notice of Family Claim to fill out the schedules to the Counterclaim.

7 comments:

  1. To see these annotations in context, see here:
    http://wiki.clicklaw.bc.ca/images/a/a0/Form_F3_Notice_of_Family_Claim_annotated.pdf

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  2. Hi, good information and thank you for taking time to do this.

    I do have a question that is not clear in any guides and it is a particular issue i am having.

    Section 3 of the F3 form " prior court proceedings and agreements" / "a written agreement" is checked and date inserted.

    The issue: the respondent claims that after the date of the agreement that the entire separation agreement text should also be included in the notice

    My understanding is that you simply check the box indicating there is an agreement and also include the date of the agreement and that is all as the separation agreement gets included with the final filing once notice of service is received etc..

    Can you shed any light on this please?
    Thanks!

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    Replies
    1. The text of the agreement doesn't need to be inserted into the claim. However, if you're just asking for a divorce, you will need to summarize the arrangements made for the care of any children and for child support in an affidavit you will have to fill out later, and you only need to file the agreement in court if you are going to be asking the court to enforce it.

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  3. Hello,
    Received "Notice of Family Claim" letter from my ex, but the Court File No. On the top is blank. Is this still a legal letter even if it's missing the court file number? How can I know for sure that the case has been started?

    ReplyDelete
  4. You should have received a Notice of Family Claim with the seal of the court and the file number stamped onto it. You should also have been personally served with the Notice; getting it in the mail doesn't count.

    To see if a case has actually been started, go to your local Supreme Court registry and do as search by first and last names on the computer. If there's a family law file between you and your ex, it'll show your names, say it is a family or divorce file, and that access to the file is restricted. The clerk will let you review the file; bring photo ID.

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  5. If the claimant is not claiming child support because he makes enough money and she is on income assistance do you still have to fill something out on the Notice of Family Claim?

    ReplyDelete
    Replies
    1. No one *has* to claim child support, however either party is looking for a divorce, the court will need you to complete a Child Support Affidavit so that it can be satisfied that the children are being provided for adequately. The Divorce Act requires the court to refuse to grant a divorce if the children aren't being provided for adequately, and the yardstick it usually uses to determine this is whether child support is being paid in the amount the Child Support Guidelines require.

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