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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


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.
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.


This page offers a brief caution about starting an action in haste and 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 mostly 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.'''
==The Supreme Court==
 
==Is litigation really necessary?==
 
Sometimes, you really have no choice except to start a court proceeding. But please think twice before you do, and make certain that litigation is your only choice.
 
The end of a relationship, especially a long relationship, is an emotionally charged, stressful moment. Litigation is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to court, think about these things first:
 
<blockquote>'''Your future relationship with your ex.''' Right now you might hate your ex and want to rip his or her eyes out. You might not feel that way in a year or two. If you don't have children, it might be entirely possible for you to simply walk out of each other's lives and into the sunset. If you do have children, you don't have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.</blockquote>
 
<blockquote>'''Your children, and your relationship with your children.''' Your children will be aware that there is a conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in litigation, it can be tremendously difficult to shield the children from the litigation, and from your emotional reactions to the litigation. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely and often in ways you don't expect.</blockquote>
 
<blockquote>'''Your own worries and anxieties.''' Litigation is always an uncertain affair. No one, not even your lawyer, will guarantee that you will be successful about any issue. At the end of the day, fundamental decisions will be made by a complete stranger — the judge — about the things that matter the most to you, and his or her decision is not something you can predict with absolute certainty. On top of that, litigation, especially when you're doing it yourself, is extremely stressful. The documents and processes will be new to you, and each court appearance will be a fresh cause of anxiety and uncertainty.</blockquote>


<blockquote>'''Your pocket book.''' The only time litigation isn't expensive is when you do it yourself. If you opt to hire a lawyer, be prepared to pay and to pay a lot. Sometimes a lawyer can help you get things done quickly and with a minimum of fuss and bother, but if emotions are running high, you stand to pay a whopping legal bill, especially if you go all the way through to trial.</blockquote>
To start a proceeding in the Supreme Court, the main document you will have to prepare is a ''Notice of Family Claim'' in Form F3, a special form prescribed by the Supreme Court Family Rules. (This document is one of the basic legal documents in a court proceeding known as "pleadings".) This is the document that says who you are suing and what you are suing for.


There are other ways of solving your problem than litigation. Going to court is only one of the ways to bring your dispute to an end. Other, less confrontational and less adversarial approaches include: negotiation, mediation and collaborative law. All of these other approaches generally cost a lot less, and, because they are cooperative in nature, they'll give you the best chance of maintaining a working relationship with your ex after the dust has settled. (These options are discussed in more detail in the <span style="color: red;">Resolving Problems out of Court</span> chapter.)
Family law proceedings are governed by the Supreme Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about Judicial Case Conferences, disclosure, interim applications and trials. The primary rules about Notices of Family Claim and the management of court proceedings are:
 
Now, in fairness, there are times when litigation is your only choice. It may be critical to start an action when:
 
#there is a threat or a risk of child abduction;
#there has been physical, verbal or sexual abuse in the relationship, whether to you or to your children;
#threats have been made to your physical safety, or to the safety of your children;
#there is a threat or a risk that your ex will damage, hide or dispose of property;
#there is an urgent need to immediately secure some financial support; or,
#negotiations have failed and, despite your best efforts, you can't agree on how to solve your differences.
 
Absent these important factors, your dispute, no matter how ugly it might seem to you, can always be resolved by negotiation or mediation rather than litigation. Even an action for a divorce order, which is the only other time when litigation is required, can be done in a cooperative, non-confrontational manner.
 
Think twice before deciding that litigation is your only option.
 
For more information about the emotions that surround the end of a long-term relationship, and how these emotions can affect the course of litigation, read the chapter <span style="color: red;">Marriage & Divorce > Separating Emotionally</span>. You should also track down and read a copy of ''Tug of War'' by Mr. Justice Brownstone from the Ontario Court of Justice. He gives a lot of practical advice about the family law court system, when it works best and when it doesn't work at all.
 
==The Supreme Court==
 
The main document you will have to prepare is a ''Notice of Family Claim'' in Form F3, a special form prescribed by the Supreme Court Family Rules. (This document is one of the basic legal documents in a court proceeding known as "pleadings".) The primary rules about Notices of Family Claim and the commencement of a court proceeding are:


*Rule 1-1: definitions
*Rule 1-1: definitions
*Rule 3-1: commencing an action
*Rule 3-1: starting a court proceeding
*Rule 4-1: Notices of Family Claim and service requirements
*Rule 4-1: Notices of Family Claim and service requirements
*Rule 4-3: replying to an action
*Rule 4-3: replying to a Notice of Family Claim
*Rule 5-1: financial disclosure
*Rule 5-1: financial disclosure
*Rule 6-3: personal service
*Rule 6-3: personal service
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The ''Divorce Act'' and Rule 6-3(2) of the Supreme Court Family Rules say that a Claimant 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, do not use one of your children to serve your ex.
The ''Divorce Act'' and Rule 6-3(2) of the Supreme Court Family Rules say that a Claimant 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, do not use one of your children to serve your ex.


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


If the Respondent fails to file and deliver his or her ''Response to Family Claim'' within 30 days, the Claimant may be able to apply for the orders asked for in the Notice of Family Claim by way of a default judgment, using the desk order process described in the _____ chapter.
If the Respondent fails to file and deliver his or her ''Response to Family Claim'' within 30 days, the Claimant may be able to apply for the orders you've asked for in the Notice of Family Claim by way of a ''default judgment'', using the desk order process described in the _____ chapter.


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 of this nature; 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.
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 of this nature; 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, at some point the court will make the order you're asking for.


===The Next Steps===
===The Next Steps===
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===Financial Statements===
===Financial Statements===


If the case involves a claim for spousal support, child support or the division of assets, each party must prepare and file a ''Financial Statement''. A Financial Statement sets out a person'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.
If the court proceeding involves a claim for spousal support, child support or the division of assets, each party must prepare and file a ''Financial Statement''. A Financial Statement sets out a person'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.


Financial Statements are very important in family law cases. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish amount, the portions about assets and debts will sometimes be used to establish the value of an asset and the outstanding balance of a liability. As well, since Financial Statements are sworn statements, someone making a Financial Statement can find his or her credibility being challenged if the numbers don't make sense, if they are overblown or understated, if they omit critical information, or if they are outright fabrications.
Financial Statements are very important in family law cases. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish amount, the portions about assets and debts will sometimes be used to establish the value of an asset and the outstanding balance of a liability. As well, since Financial Statements are sworn statements, someone making a Financial Statement can find his or her credibility being challenged if the numbers don't make sense, if they are overblown or understated, if they omit critical information, or if they are outright fabrications.
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===Judicial Case Conferences===
===Judicial Case Conferences===


Judicial Case Conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom. JCCs must be held in all contested family law actions, and, in most cases, they must be held before any interim applications can be heard.
Judicial Case Conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom. JCCs must be held in all contested family law proceedings, and, in most cases, they must be held before any interim applications can be heard.


JCCs are discussed in more in _____ .
JCCs are discussed in more in _____ .


==The Provincial Court==
==The Provincial Court==
To start a proceeding in the Provincial Court, the main document you will have to prepare is an ''Application to Obtain an Order'' in Form 1, a special form prescribed by the Provincial Court Family Rules. (Court proceedings can also be started with an Application to Change an Order where there is already a court order or separation agreement.) This is the document that says who you are suing and what you are suing for.
Family law proceedings are governed by the Provincial Court Family Rules. It's important that you have a working knowledge of the rules about how court proceedings are started; as your proceeding progresses, you'll also need to learn the rules about Family Case Conferences, disclosure, interim applications and trials. The primary rules about Applications to Obtain an Order and the management of court proceedings are:
*Rule 1: definitions
*Rule 2: Applications to Obtain an Order and service requirements
*Rule 3: replying to an Application to Obtain an Order
*Rule 4: financial disclosure
STOPPED
*Rule 6-3: personal service
*Rule 7-1: Judicial Case Conferences
*Part 9: disclosure and discovery of documents
*Part 10: chambers procedure
*Rule 11-4: discontinuing an action
*Part 13: expert witnesses
*Rule 11-3: summary trial procedure
*Rule 14-7: trial procedure
===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 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:
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