How Do I Start a Family Law Action in the Provincial Court?
Due to important changes in family law, some of the information in JP Boyd on Family Law is out-of-date, especially information about Provincial Court (rules, forms, and procedures), parenting after separation and moving away after separation under the Divorce Act. We are working on a new edition. Read more under:
Starting an action in the Provincial Court is fairly straightfoward. Essentially, you have to fill out a document called an Application to Obtain an Order and file it in the registry of the court closest to you. There are no filing fees, and the court will tell you how to go about serving the other side.
You can get a copy of the Application to Obtain an Order from the court registry for free. The forms are also available online; see the link in the Resources & Links section of this website. The version of the form that you can get from the court registry includes lots of information about how to fill it out, and it really is quite straightfoward.
If you are making a claim for spousal support or child support, you will also have to fill out a form called a Financial Statement. The court registry will provide you with this form. Again, the form is fairly easy to fill out, however, there are certain documents you must gather and attach to the form, including your last three years' worth of tax returns, your most recent paystub, and so forth.
When to Use the Provincial Court
You should use the Provincial (Family) Court when the issues involve any of the following:
- custody and guardianship of children;
- access to children;
- child support;
- spousal support; and,
- personal restraining orders against the other party.
When Not to Use the Provincial Court
The Provincial (Family) Court cannot deal with issues involving assets or debts, nor can the court make divorce orders. Remember too that the Provincial (Family) Court can only deal with claims made under the provincial Family Relations Act.
What Happens Next?
Once you've filed your application, you or the court will serve it on the other person. Once the other person has been served, he or she will have 30 days to file a form called a Reply, and, if you are making a claim for spousal support or child support, his or her Financial Statement as well. The court will mail you a copy of these documents.
When the court received the other person's Reply, the court will normally set up an appointment for you to meet with a Family Justice Counsellor or schedule a date for an initial meeting with the court, called a first appearance. The Family Justice Counsellor's job is to see what sort of out-of-court options might be appropriate for you and the other person, like mediation. The Counsellor can also prepare consent orders, that is, an order that you and the other person both agree the court should make.
If you are unable to reach an agreement after seeing the Family Justice Counsellor, you can ask to be referred to a judge for a hearing of the issues. The court registry will book a time for the hearing and send a notice of the hearing to you and the other side.