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Difference between revisions of "Starting a Court Proceeding in a Family Matter"

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Starting a Court Proceeding in a Family Matter (view source)

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If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of assets, you must begin a court proceeding. There are certain steps you must take, certain fees you must pay and certain forms you must fill out before the court will hear your claim. Although the staff at the court registries are friendly and very helpful, it is your job to prepare these materials, gather your evidence and take the steps necessary to bring your case before a judge. This page reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court.
If you need the court to make an order about anything, from the care of children to the payment of spousal support to the division of assets, you must begin a court proceeding. There are certain steps you must take, certain fees you must pay and certain forms you must fill out before the court will hear your claim. Although the staff at the court registries are friendly and very helpful, it is your job to prepare these materials, gather your evidence and take the steps necessary to bring your case before a judge. This page reviews the processes for starting a proceeding in the Supreme Court and the Provincial Court.


'''JP NOT finished. Downloads section needs to be cleaned up. No glossary tags to be added. Links to be added, including to other pages in wiki. Downloadable documents to be added.'''
'''JP done. Downloads section needs to be addressed. No glossary tags to be added. Links to be added, including to other pages in wiki. Downloadable documents to be added.'''


==The Supreme Court==
==The Supreme Court==
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*Rule 7-1: Judicial Case Conferences
*Rule 7-1: Judicial Case Conferences
*Part 9: disclosure and discovery of documents
*Part 9: disclosure and discovery of documents
*Part 10: chambers procedure
*Part 10: interim applications and chambers procedure
*Rule 11-4: discontinuing an action
*Rule 11-4: discontinuing an action
*Part 13: expert witnesses
*Part 13: expert witnesses
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*Rule 14-7: trial procedure
*Rule 14-7: trial procedure


A link to the Supreme Court Family Rules is provided in the chapter _____. Sample court forms and blank court forms for download are available in ____.
Sample court forms and blank court forms for download are available in ____.


===Preparing, Filing and Serving the Notice of Family Claim===
===Preparing, Filing and Serving the Notice of Family Claim===
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===Deadline for Reply===
===Deadline for Reply===


The Respondent has 30 days to file a ''Respondent to Family Claim'' after being served with the Claimant's Notice of Family Claim. If the Respondent doesn't do this, the Claimant may be able to apply for the orders asked for in the Notice of Family Claim as a ''default judgment'', a final order made in default of the Respondent's reply.
The Respondent has 30 days to file a ''Response to Family Claim'' after being served with the Claimant's Notice of Family Claim. If the Respondent doesn't do this, the Claimant may be able to apply for the orders asked for in the Notice of Family Claim as a ''default judgment'', a final order made in default of the Respondent's reply.


You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. A Claimant should not expect to win on a technicality like this. If a Respondent files his or her Response to Family Claim late, the court will usually give the Respondent an extension of time and overlook the missed due date. However, if the Respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.
You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. A Claimant should not expect to win on a technicality like this. If a Respondent files his or her Response to Family Claim late, the court will usually give the Respondent an extension of time and overlook the missed due date. However, if the Respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.
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*Rule 18.1: guardianship orders
*Rule 18.1: guardianship orders
*Rule 21: Parenting After Separation program
*Rule 21: Parenting After Separation program
Sample court forms and blank court forms for download are available in ____.


===Limitations of the Provincial Court===
===Limitations of the Provincial Court===


The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court; the forms are a lot easier to prepare; the rules of court are simpler; and, the court registry takes care of things like drafting court orders. The only downside of bringing your case to the Provincial Court is that the court has a limited jurisdiction and can only hear applications under the ''Family Law Act'' dealing with certain issues, including:
The Provincial Court is designed for people who are not represented by a lawyer. There are no filing fees in this court, the forms are a lot easier to prepare, the rules of court are simpler, and the court registry will sometimes care of things like drafting court orders. The main disadvantage of bringing your case to the Provincial Court is that the authority of the court is limited. The Provincial Court can only hear applications under the ''Family Law Act'' on certain subjects, including:


#guardianship
#guardianship
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===Preparing, Filing and Serving the Application to Obtain an Order===
===Preparing, Filing and Serving the Application to Obtain an Order===


Most court proceedings are started in the Provincial Court by filing an ''Application to Obtain an Order''. (Court proceedings can also be started with an Application to Change an Order where there is already a court order or separation agreement.) The person beginning the action, the Applicant, fills out the Application to Obtain and Order, providing: the Applicant's name and address for service; the name and address of the person against whom the application is being made, the Respondent; a list of the orders the Applicant is asking the court to make; and, a brief statement of the relevant facts. The Applicant then files the form in the court registry.
Most court proceedings are started in the Provincial Court by filing an ''Application to Obtain an Order'' in Form 1. (Court proceedings can also be started with an Application to Change or Cancel an Order in Form 2 where there is already a court order or separation agreement in place.) The person beginning the action, the Applicant, fills out the Application to Obtain an Order and provides certain information, including: the Applicant's name and address; the name and address of the person against whom the application is being made, the Respondent; a list of the orders the Applicant is asking the court to make; and, a very brief statement of the relevant facts.  


The form which must be used is Form 1. Applications to Change an Order are prepared using Form 2.
The Application to Obtain an Order must be filed in the court registry and be personally served on the Respondent. No fee is charged to file the Application to Obtain an Order.


Once the application has been filed, you must serve a copy on the Respondent. Once the Respondent has been served, he or she must file a Reply within 30 days.
Personal service means physically handing the Application to Obtain an Order to the Respondent. Rule 2(3) of the Provincial Court Family Rules say that an Applicant cannot serve a Respondent him- or herself. You must either pay a process server to do it or enlist the help of a friend over the age of majority. Although this ought go without saying, don't use one of your children to serve your ex.


===Default===
===Deadline for Reply===


A Respondent who fails to file and deliver his or her ''Reply'' within 30 days is not entitled to be notified of any further steps taken in the court proceeding. This will change, of course, if the Respondent files a Reply down the road, but until that happens the Applicant is free to set a date for the hearing of the court proceeding, or for the hearing of an interim application, with no notice to the Respondent.
The Respondent has 30 days to file a ''Reply'' after being served with the Applicant's Application to Obtain an Order. If the Respondent doesn't do this, the Applicant may be able to apply for the orders asked for in the Application to Obtain an Order as a ''default judgment'', a final order made in default of the Respondent's reply.


At the hearing, the Applicant can ask the court to make a default judgment in the Respondent's absence. You should not assume that you'll necessarily get what you want, especially if the action concerns the care and control of children. In a case like that, the court will also consider what is in the children's best interests, and despite the lack of a Reply from the Respondent, the court may not conclude that the children's best interests are served by allowing your claim.
You should be aware that in most cases the courts are fairly lenient towards people who miss filing deadlines. An Applicant should not expect to win on a technicality like this. If a Respondent files his or her Reply late, the court will usually give the Respondent an extension of time and overlook the missed due date. However, if the Respondent just ignores you and ignores your claim, at some point the court will make the order you're asking for.


===The Next Steps===
===The Next Steps===


In certain registries of the Provincial Court, the parties must meet with a Family Justice Counsellor, and, if children are involved, attend a Parenting After Separation program before any further steps can be taken in a court proceeding. This may apply even if you are seeking a default judgment. The court clerk will refer you to the Family Justice Counsellor and tell you where the Parenting After Separation is offered. You will have to file a certificate that you've completed the program before any further steps can be taken in your case.
In certain registries of the Provincial Court, the parties must meet with a Family Justice Counsellor, and, if children are involved, attend a Parenting After Separation program before any further steps can be taken in a court proceeding. This may apply even if you are seeking a default judgment. The court clerk will tell you what is needed at your court registry and, if necessary, will refer you to the Family Justice Counsellor and tell you where the Parenting After Separation is offered. You will have to file a certificate that you've completed the program before any further steps can be taken in your case.


At court registries that do not have this requirement, an interim application can be brought at any time after the court proceeding has been started.
At court registries that do not have this requirement, an interim application can be brought at any time after the court proceeding has been started.
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The steps which follow the commencement of a proceeding in the Provincial Court are a simplified version of the Supreme Court process. There are less hoops to jump through, but also fewer means to extract information and documents from the other side.
The steps which follow the commencement of a proceeding in the Provincial Court are a simplified version of the Supreme Court process. There are less hoops to jump through, but also fewer means to extract information and documents from the other side.


<blockquote>'''Interim Applications.''' In almost all cases, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them in their conduct towards each other and the children until the issues between them can be finally determined. The most common applications in family law involve restraining orders, issues relating to the care and control of the children, child support and spousal support. The process for bringing interim applications is discussed in detail in the chapter ____.</blockquote>
<blockquote>'''1. Meet with a Family Justice Counsellor and take the Parenting After Separation Program.''' Family Justice Counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try mediation. The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available online at ______.</blockquote>


<blockquote>'''Exchange Financial Statements.''' ''Financial Statements'' are required whenever the payment of support is at issue. Financial Statements are prepared using Form 4.</blockquote>
<blockquote>'''2. Exchange Financial Statements.''' Financial Statements are required whenever the payment of child support or spousal support is an issue. Financial Statements are prepared in Form 4.</blockquote>


<blockquote>'''Have a Family Case Conference.''' This is a hearing similar the the Judicial Case Conference required by the Supreme Court. It is an informal, off-the-record meeting between the parties, their lawyers and a judge intended to canvass areas of agreement and set dates and deadlines for the remaining steps in the litigation. Although FCCs are very helpful and often result in settlement, FCCs are not mandatory unless you have been referred to an FCC by a judge. If you think a FCC will help resolve your case, ask for one!</blockquote>
<blockquote>'''3. Have a Family Case Conference.''' This is a hearing similar to the Judicial Case Conference required by the Supreme Court. It is an informal, off-the-record meeting between the parties, their lawyers and a judge to talk about the facts and issues, and set dates and deadlines for the remaining steps in the court proceeding. Although FCCs are very helpful and often result in settlement, FCCs only address issues about the care of children and are not mandatory unless you have been referred to an FCC by a judge. If you think an FCC will help resolve your case, ask for one!</blockquote>


<blockquote>'''Have a Settlement Conference.''' The rules allow a party to have a Settlement Conference with a judge. At this hearing, the parties will explain their positions to the court and hopefully negotiate a settlement, with the judge acting as a kind of mediator. These conferences can be very helpful, as the judge will often express his or her opinion about each party's position and what the judge thinks the likely result of a trial will be.</blockquote>
<blockquote>'''4. Make interim applications as needed.''' In almost all family law proceedings, the parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need orders about things like where the children will live and whether should be paid until trial. The most common applications in family law involve restraining orders, orders about the care of children, child support and spousal support. The process for bringing interim applications is discussed in detail in the chapter ____.</blockquote>


<blockquote>'''Trial.''' At the end of the day, if you can't agree on a reasonable settlement, you will wind up at trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to decide the case in their favour. The judge will hear all the evidence and the arguments and reach a decision in the form of ''Reasons for Judgment''. Where neither party is represented by a lawyer, the court clerk will draft a final order based on the judge's Reasons for Judgment.</blockquote>
<blockquote>'''5. Go to trial.''' At the end of the day, if you can't reach a settlement, you will have to have a trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge should make the orders they are asking for. The judge will hear all the evidence and the arguments and reach a decision in the form of ''Reasons for Judgment''. Where neither party is represented by a lawyer, the court clerk will draft a final order based on the judge's Reasons for Judgment.</blockquote>


===Financial Statements===
===Financial Statements===


If a case involves a claim for spousal support or child support, each party must prepare and file a ''Financial Statement''. A Financial Statement sets out a party's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an Affidavit, by a lawyer, notary public or registry clerk. Each party must attach to their Financial Statements the following documents:
If a court proceeding involves spousal support or child support, each party must prepare and file a ''Financial Statement''. A Financial Statement sets out a party's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an Affidavit, by a lawyer, notary public or registry clerk. Each party must attach to their Financial Statements the following documents:


#their last three years' worth of tax returns;
#the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return "summaries" or "informations");
#their Notices of Assessment and Reassessment for the last three tax years;
#all Notices of Assessment and Reassessment received for the last three tax years;
#their most recent paystub, showing their earnings-to-date, or if the party isn't working, then their most recent WCB statement, social assistance statement or EI statement; and,
#the party's most recent paystub, showing his or her earnings to date, or if the party isn't working, then his or her most recent WCB statement, social assistance statement or EI statement; and,
#if the party is involved in a business, certain other business and/or corporate records.
#business records like financial statements and corporate income tax returns, if the party has a company.


The form which must be used is Form 4, set out in the Provincial Court rules.
The form which must be used is Form 4, set out in the Provincial Court rules.
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Family Case Conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom to explore settlement options. FCCs are not mandatory and there is no requirement that an FCC must be heard before any interim applications.
Family Case Conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom to explore settlement options. FCCs are not mandatory and there is no requirement that an FCC must be heard before any interim applications.


FCCs are discussed in more detail in _____.
FCCs can be extraordinarily helpful in helping everyone understand the issues and the dispute. Cases sometimes settle at FCCs, and even if a complete settlement can't be reached, problems about time with the children and support can usually be resolved on a temporary basis. This is a lot less expensive than making an interim application if you have to hire a lawyer.
 
FCCs are discussed in more in the <span style="color: red;">Case Conferences</span> page.


==Further Reading in this Chapter==
==Further Reading in this Chapter==
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Return to the <span style="color: red;">first page</span> in this chapter.
Return to the <span style="color: red;">first page</span> in this chapter.


* <span style="color: red;">Mediation</span>
* other chapters
* <span style="color: red;">Arbitration</span>
* <span style="color: red;">Parenting Coordination</span>


==Page Resources, Links and Downloads==
==Page Resources, Links and Downloads==
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===Legislation===
===Legislation===


* <span style="color: red;">bulleted list of legislation referred to in page</span>
*Supreme Court Act
*SC rules of court
*Provincial Court Act
*PC rules of court


===Links===
===Links===
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===Downloads===
===Downloads===
In this segment you can download blank court forms in Word format, samples of completed forms in PDF format and technical papers about the Supreme Court Family Rules. Additional court form templates can be found in the Resources & Links section of this website.
 
What are our plans for sample documents? Is everything to be on a separate page? If so, the following should be moved there. I haven't edited the following.


====Supreme Court Forms====
====Supreme Court Forms====
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