Filing a Counterclaim in a British Columbia Family Law Case

When you are served with a notice of family claim, you may not just want to defend yourself. You may want the court to make orders of your own, such as parenting arrangements, support or property division. In the Supreme Court of British Columbia, that is done with a counterclaim.

This article explains how a counterclaim relates to your response, the deadlines to watch, and what else comes with it. It is general information, and a lawyer can tell you what to claim in your situation.

This article covers the law of British Columbia.

Response and counterclaim: two different documents

A family case in the Supreme Court starts when the claimant files a notice of family claim in Form F3 and serves each named respondent. If you are the respondent, you must file a response to family claim in Form F4 and serve it on the claimant and the other named respondents within 30 days after being served.

The response is where you say what you agree and disagree with. A counterclaim is where you ask for your own orders. It is filed in Form F5 within 30 days after service of the notice of family claim. The two deadlines run from the same service date, so plan to deal with both together.

When a counterclaim makes sense

A counterclaim is worth considering when you want something the claimant has not asked for, or you want a different outcome. Examples include a different parenting schedule, support for you or the children, or a claim about property and debt.

• The claim is incomplete, and there are issues you want decided in the same case.
• You disagree with what the claimant is asking for and want to propose something else.
• You want to change or ask for support, and the claim does not cover it.
• You want to raise property or debt division, which belongs in the Supreme Court because the Provincial Court cannot make orders under Part 5 of the Family Law Act, except respecting a companion animal.

Parenting claims are decided on the best interests of the child alone, including health and emotional well-being, views, relationships, history of care, need for stability and the effect of family violence. Keep that in mind when deciding what to ask for.

Deadlines and what happens if you do nothing

If you are served and file no response, you are not entitled to notice of later court appearances, hearings, conferences or trial. That means the case can move on without you. The claimant also has time limits of their own. The original notice of family claim does not stay in force for more than 12 months unless renewed.

Some claims have limits too. Spouses have a two-year limit, measured from divorce judgment, nullity order or separation depending on the relationship, to seek property or debt division, pension division or spousal support. Do not assume a late claim will still be heard; a lawyer can confirm how a limit applies to you.

Related requirements: disclosure, service and fees

Filing a counterclaim usually brings financial disclosure duties. Form F8 Part 1 plus income documents are required when child support income information is required, and these include personal tax returns and notices of assessment for the 3 most recent years. Form F8 Parts 1, 2 and 3 plus income documents are required when spousal support is sought, changed or ended. Part 3 is required for each party in a property division claim. Financial disclosure documents must be filed and served within 30 days after service of the claim, or 60 days if the party lives outside Canada and the U.S..

If you and the other party agree on the payor's annual income, you can sign a Form F9 agreement and file it with the referenced documents to meet the child support disclosure rule.

Ordinary service, including mail, fax and email, is available for documents other than a notice of family claim, and each party must have an address for service. For fees, a person filing a notice of family claim or response need not pay the filing fee if they provide a Form F100 certificate of mediation from a qualified mediator and have mediated with the other side, or the mediator found mediation inappropriate. Whether a fee applies to a counterclaim depends on your situation, so it is worth confirming with the court registry or a lawyer.

What to do next

• Write down the date you were served; both 30-day deadlines run from it.
• Read the claim and note what you agree with, what you do not, and what you want.
• Gather your income documents, including tax returns and notices of assessment for the 3 most recent years.
• Consider mediation. Family Justice Centre mediation with a Family Justice Counsellor is free, and virtual services are available at 1-844-747-3963.
• Speak with a lawyer before the deadline about whether to file a counterclaim, what to ask for and how to word it.
• File and serve the Form F4 response and the Form F5 counterclaim on time.

Frequently asked questions