Lawsuits involving persons under 19 years of age
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The purpose of this Factsheet is to acquaint you with some of the procedures that apply when someone under 19 years of age is a party to a lawsuit in Small Claims Court.
In British Columbia many laws refer to “infants.” An “infant” is a person who has not reached the age of nineteen years. The Small Claims Rules refer to people under 19 as “young persons.”
A Claimant is the person who is suing in a lawsuit in Small Claims Court.
A Defendant is the person who is being sued in a lawsuit in Small Claims Court.
WHAT LAW APPLIES TO YOUNG PERSONS
The law which controls lawsuits by young persons in Small Claims Court is found in:
- The Infants Act (which is a British Columbia Statute);
- Rules 1, 11, 17 and 18 of the Small Claims Court Rules; and
- Rule 20-2 of the Supreme Court Rules.
STARTING A LAWSUIT WHEN THE CLAIMANT IS A YOUNG PERSON
The Need For a Litigation Guardian (also called a Guardian Ad Litem)
A young person cannot begin a lawsuit without the assistance of an adult person. The adult who helps the young person is called a Litigation Guardian in the Supreme Court and Small Claims Court Rules.
A Litigation Guardian must be over the age of nineteen, and must live in British Columbia. A mother, father or legal guardian of the young person or an adult willing to act as a Litigation Guardian can be a Litigation Guardian.
APPOINTING A LAWYER
A Litigation Guardian who makes a claim for personal injuries for a young person must use a lawyer in dealing with a suit in Small Claims Court.
A lawyer does not have to be used in any other case.
So, for example, if the suit is for a debt or the return of an item like a guitar, neither the Claimant nor the Defendant need be represented by a lawyer. Of course, legal advice and representation may still be a good idea.
FILING A CONSENT OF THE LITIGATION GUARDIAN
Before a lawsuit can begin, the consent of the Litigation Guardian must be filed at the Small Claims Court Registry. The consent form is called a “Consent to Act as Litigation Guardian and Certificate of Fitness.”
Click here to obtain a copy of a Consent form which you can use.
The Consent form must be sworn or affirmed by the Litigation Guardian. A lawyer, notary public or an authorized person at the Small Claims Court Registry can swear the Consent form. There will be a fee charged for swearing the Consent. Lawyers and notaries are listed on-line in the YellowPages: Canada Business Directory Listings. Telephone first to find out the fee for this service. Some lawyers and notaries charge much more than others.
THE NOTICE OF CLAIM
How to Fill in the Name of the Claimant on the Notice of Claim
When a lawsuit is started by a young person, the Small Claims Notice of Claim must show the name of the person suing and must also show the name of the Litigation Guardian.
SERVING A NOTICE OF CLAIM ON A YOUNG PERSON
Rule 18(2) of the Small Claims Rules tells us what must be done to serve a young person with a Notice of Claim. It says that the Notice of Claim must be served on a mother, father or guardian residing in British Columbia.
Where it is not possible to leave a copy of the Notice of Claim with a parent or guardian an application can be made to a Judge for an Order allowing a different method of service. This procedure is called Obtaining an Order for Substitutional Service. For information about Substitutional Service, see Factsheet 6, called “Serving a Notice Claim.” If service is incorrectly done, any Default Order obtained will be invalid and the Defendant may be entitled to set it aside. For information about Default Orders, see Factsheet 7, called “Obtaining a Default Order.”
DEFENDING A LAWSUIT
THE NEED FOR A LITIGATION GUARDIAN
Young persons who are sued in Small Claims Court also need an adult person to assist them. Again, the adult person is called a Litigation Guardian.
WHO MUST ACT AS LITIGATION GUARDIAN?
If a parent or guardian is served with a Notice of Claim, the parent or guardian must act as a Litigation Guardian. The Litigation Guardian is required to promptly attend to the young person’s interests and do the things necessary to protect the young person’s interests.
ACTION TO BE TAKEN BY THE LITIGATION GUARDIAN
The Litigation Guardian should file a Reply on behalf of the young person. A Reply tells the Court that the lawsuit will be defended and also tells the Court what the legal and factual basis of the defence is. For more information about a Reply see Factsheet 8, called “What to Do If You are Sued in Small Claims Court.”
An example of how to sign the Reply by the Litigation Guardian in the box called signature of Defendant is as follows:
“GORDON READY, Litigation Guardian of the Defendant, Geoffrey Ready.”
WHAT HAPPENS IF A PARENT OR GUARDIAN FAILS TO FILE A REPLY?
If a parent or guardian fails to file a Reply on behalf of a young person, the Claimant cannot Obtain a Default Order. Rather, the Claimant must obtain an Order from a Judge appointing a Litigation Guardian. To do this the following steps must be taken:
- Prepare an Application to a Judge Form (Form 17) to appoint a Litigation Guardian. Click here to obtain a blank copy of an Application to a Judge Form which you can use. Click here to see a completed example.
- File the Application at the Small Claims Court Registry. At the time of filing, the Court Clerk will insert the date on which the Application to appoint a Litigation Guardian will be heard by a Judge.
- Serve the parent or guardian of the young person who is being sued and the Public Guardian and Trustee at least 10 days before the hearing.
- Appear in Court and ask the Judge to appoint a Litigation Guardian.
WHAT HAPPENS IF A LITIGATION GUARDIAN FAILS TO FILE A REPLY?
If for some reason a Litigation Guardian still fails to file a Reply, an Application must be made to a Judge for a Default Order. Again an Application to a Judge Form (Form 17) must be used. After completing the form it must be filed at the Small Claims Court Registry and then served on the Litigation Guardian and Public Guardian and Trustee. The Form 17 must be served on the Litigation Guardian and Public Guardian and Trustee at least 10 days before the hearing of the application for a Default Order.
WHAT HAPPENS IF A YOUNG PERSON BECOMES NINETEEN AFTER THE LAWSUIT BEGINS?
If a young person turns nineteen after the lawsuit begins, that person should prepare an Affidavit of Attainment of Majority.
The affidavit must be sworn or affirmed. After the affidavit is sworn or affirmed it should be filed at the Small Claims Registry. Once it is filed, the lawsuit can be conducted by the former young person without the assistance of the Litigation Guardian.
Before some lawsuits involving young persons can be settled by agreement (rather than going to trial) the Litigation Guardian must obtain the consent of the Public Guardian and Trustee.
When a lawsuit is for personal injury or involves a claim for compensation in an amount which must be determined by a Judge, the consent of the Public Guardian and Trustee must be obtained. The Public Guardian and Trustee’s consent is not required if the lawsuit is for a debt.
In addition, to settle any claim involving a young person, the approval of a Judge may be required.
To apply to a Judge to approve a settlement, an Application to a Judge Form (Form 17) must be completed and filed at the Small Claims Court Registry. An appearance in Court will also be required.
A Litigation Guardian must appear at the trial.