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 the orders you want to the court to make.

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:

Sample court forms and blank court forms for download are available in ____.

===Preparing, Filing and Serving the Notice of Family Claim===

The Notice of Family Claim sets out: the name and address 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, an outline of the orders the Claimant would like the court to make.

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

#divorce;

#children, including child support;

#spousal support;

#the division of property and debt; and,

#other orders, like protection 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. 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 a Notice of Family Claim, or $210 if the claim includes a claim for a divorce.

Personal service means physically handing the Notice of Family Claim to the Respondent. 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, don't use one of your children to serve your ex.

===Deadline for 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.

===The Next Steps===

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 orders you're asking for. 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, called a consent order;

#you'll not be able to agree, and the intervention of the court at a trial will be required; or,

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

===Financial Statements===

#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");

#all Notices of Assessment and Reassessment received for the last three tax years;

#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;

#business records like financial statements and corporate income tax returns, if the party has a company; and,

The form which must be used is Form F8, set out in the Supreme Court Family Rules.

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 family law proceedings where the parties can't agree, and, in most cases, they must be held before any interim applications can be heard.

JCCs are discussed in more in the <span style="color: red;">Case Conferences</span> page.