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

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.

The Notice of Family Claim sets out: the name and address for service of the person starting the court proceeding, the Claimant; the name and address of the person against whom the claim is made, the Respondent; the basic history of the parties' relationship; and, the bare essentials of the Claimant's claims.

The form which must be used is Form F3, set out in Appendix A of the Supreme Court Family Rules. This is a special form of claim used only in family law cases. Additional schedules, which require a lot more detailed information, must be added to the Notice of Family Claim when the Claimant seeks orders about:

#the division of property; and,

#other orders, like restraining orders or orders for the change of a person's name.

The Notice of Family Claim must be filed in the court registry and be personally served on the Respondent. (The Respondent has thirty days from the date of service to file a Response to Family Claim.) If you are asking for a divorce order, you'll have to fill out a ''Registration of Divorce Proceeding'' form when you file your Notice of Family Claim.

It costs $200 to file Notice of Family Claim, or $210 if the claim includes a claim for a divorce.

 

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.

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. However, if the Respondent just ignores you, at some point the court will make the order you're asking for.

If the Respondent has chosen to file a Response to Family Claim, he or she has decided to oppose your claim. This doesn't mean that you're necessarily going to wind up in a trial, but it does mean that at least for now the Respondent disagrees with some or all of the relief you're seeking. One of three things is going to happen in your court proceeding:

#you'll settle your disagreement out of court, and come up with either a separation agreement or an order that you both agree the court should make;

#after some initial scuffles, neither you nor the Respondent will take any steps in the court proceeding and the proceeding will languish.

<blockquote>'''Exchange Financial Statements.''' ''Financial Statements'' are required whenever the division of property or the payment of support is at issue. Financial Statements must be exchanged before the first Judicial Case Conference, and updated statements will be required throughout the case and before trial.</blockquote>

<blockquote>'''Have a Judicial Case Conference.''' A JCC is necessary before most interim applications can be brought. JCCs are informal, off-the-record meetings between the parties, their lawyers and a judge intended to canvas areas of agreement and disagreement, and set dates and deadlines for the remaining steps in the litigation. JCCs are discussed in more detail in the last part of this chapter.</blockquote>

<blockquote>'''Interim Applications.''' In almost all cases, 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 until the claims at issue in the court proceeding are finally determined. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, and the payment of child support and spousal support. The process for bringing interim applications is discussed in detail in ______.</blockquote>

<blockquote>'''Document Disclosure and Production.''' The rules of court require that each party produce to the other all documents in their possession that are relevant to the matters at issue in an action. This can include things like bank statements, report cards, medical records, school reports and so forth. Each party must list these documents in a formal ''List of Documents'', and keep their Lists of Documents updated when new documents are found or become available.</blockquote>

<blockquote>'''Discovery.''' The parties may, if they wish, conduct a cross-examination of the other party under oath, outside of court. This is called an Examination for Discovery. Examinations for Discovery are helpful to get the other party's views of the evidence and the matters at issue on the record. Discoveries are almost always held after Financial Statements have been prepared and the documents have been exchanged.</blockquote>

<blockquote>'''Have a Settlement Conference.''' The rules allow a party to schedule a Settlement Conference before a judge ahead of trial. At this hearing, the parties will explain their positions to the court and their areas of disagreement and hopefully negotiate a settlement. These conferences can be very helpful, as the judge serves as a mediator and helps the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement.</blockquote>

<blockquote>'''Have a Trial Management Conference.''' A TMC is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes about evidence before trial as possible. Among other things, the judge will ask about the witnesses each party intends to call, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions.</blockquote>

<blockquote>'''Trial.''' At the end of the day, if you can't agree 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''. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the Reasons for Judgment.</blockquote>