How Do I Start a Family Law Action in the Supreme Court?

From Clicklaw Wikibooks

The court forms to start your claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.

Most of the time you'll need to fill out a form called a Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief.", Form F3.

In certain, relatively uncommon circumstances a family law proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." is started with a PetitionA court form required by the Supreme Court Family Rules used to commence court proceedings that can be dealt with in the manner of an application, without the need for a protracted process of disclosure and discovery. See "action," "application," "disclosure" and "discovery.", Form F73. (Petitions are used when someone is asking for the return of a child under the Hague Convention on child abductionThe taking of a person by force or fraud. In family law, also the taking of a child contrary to a court order or without the permission of a guardian. In certain circumstances, the abduction of a child by a parent may be a criminal offence., and other orders that can be dealt with in a single hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence.".)

Form F3 is available online. See the Supreme Court Forms section. The court will not provide you with a guide to filling this form out, so you must be as precise and accurate as possible.

There are a lot of free online resources that can help you complete these forms, but if you have any questions, you should really see a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.".

The Notice of Family Claim sets out the basic information about who you are, who the other side is, and describes the sorts of claims you are making.

You have to attach additional schedules to your Notice of Family Claim depending on the orders you are asking for. The schedules require you to provide more detailed information about your marriage, your children, your propertySomething which can be owned. See "chattels" and "real property." and debts, and so forth.

Other forms you might need

If you are married and you are asking that the court make an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." for your divorce, you must file the original copy of your marriage certificate. (This is the government document, not the certificate you received from the person who married you.)

If your claim involves the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property." or other property, you may also want to prepare a certificate of pending litigation (called a CPLThe short form for "Certificate of Pending Legislation." A CPL is a document filed in the office of the Land Title and Survey Authority against the title of real property stating that the property is the subject of a court proceeding and that ownership of the property may change as a result, formerly called a ''lis pendens''. In family law, a CPL is used to protect the interest of a party in a piece of property by notifying potential purchasers or mortgagees about the court proceeding. See "clear title," "encumbrance," and "real property."). (More information about CPLs is available in the section on certificates of pending litigation under the Land Title Act in the chapter Protecting Property & Debt in Family Law Matters.)

If your claim involves support, property or debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed., you'll also wind up filling out a Financial StatementA legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property or the division of debt must describe their income, expenses, assets and liabilities under oath or affirmation. See "affirm," "oath," and "perjury." in Form F8. This isn't due until later on in the court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. but you can and should get started now.

If your claim involves guardianship of a child and you are not already a guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time.", you'll need to fill out a special affidavit in Form F101. You don't have to file this form right away when you're starting a court proceeding, but the form can take some time to fill out and you will need to order records checks from the police and the Ministry of Children and Family Development. You might as well get on this now.

Filing your materials

When you've finished filling out your Notice of Family Claim, make three complete copies and take everything, including your marriage certificate and your CPL (if needed) to the courthouse.

If you are seeking a divorce, you will also be required to fill out a Registration of Divorce Proceeding form. This form must be completed using the online form, printed off (do not complete it by hand), and submitted to the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. with your Notice of Family Claim. The court staff will send this document off to the Central Registry of Divorce Proceedings in Ottawa.

It will cost $200 for you to file your Notice of Family Claim ($210 if you are asking for an order for divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." as part of the Notice of Family Claim) plus another fee to file your CPL, if you need one.

The court will give your actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order. a file number, and stamp all four copies of your materials with the seal of the court, a date stamp and the file number of your action. If you have filed a CPL, the court will stamp that too. Note that you must also file your CPL at the Land Title and Survey AuthorityThe provincial government agency responsible for maintaining written records of the ownership of real property in the province, together with a record of the encumbrances which may be registered against a property. See "Land Title Act" and "real property." for it to take effect; they will charge you another fee.

What happens next?

Once you've filed your Notice of Family Claim, you must arrange to have it served on the other side. You cannot serve the other person yourself, you must get someone else to do that for you, whether that person is a professional process server or a helpful friend.

After the other person has been served, they will have 30 days to file a Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings.". The other side may also file a form called a CounterclaimA legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim.". If this happens, the other side is making a claim of their own against you.

When you have received the other person's Response to Family Claim, you will have to set up a judicial case conference (JCC). You can do this with a special form of Requisition that the registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse. will have on hand.

A JCC is an informal hearing before a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal. or masterA provincially-appointed judicial official with limited jurisdiction usually charged with making decisions before and after final judgment in a court proceeding, including the hearing of interim applications, the assessment of lawyers' bills and the settling of bills of cost. See "interim application," "judge," and "jurisdiction." intended to review the issues between the parties, and see what issues can be agreed on and what can't be. The judge or master will also canvass different ways of settling the action.

It can be very important to have a JCC as soon as possible, as most applications for interim orders can't be made until a JCC happens. There are some exceptions to this rule:

  • if you are making an application for a financial restraining orderAn order which forbids a party from doing or not doing a thing. In family law, common restraining orders include stopping someone from travelling out of an area with the children, stopping someone from disposing of property, and stopping someone from harassing someone else. See "ex parte," "order" and "protection order." against your spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship.",
  • if the other side consents to the order you want, or
  • if there is an emergency and you have to make your application without notice to the other side.

More information about JCCs and the rules that govern them is available in the section Case Conferences in a Family Law Matter in the chapter Resolving Family Law Problems in Court.

More information

You can find more information about starting a family law action in Supreme Court in the chapter Resolving Family Law Problems in Court.

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