Initiating a family law case involves a series of critical steps to ensure that your case is properly presented and heard in the appropriate court. This guide provides an in-depth overview of the process from determining the right court for your case to filing and serving your application, including the preparation of vital documents.
Determining the Correct Court and Jurisdiction
Before issuing your application, it’s imperative to ascertain that you’re filing in the correct court and location:
- Superior Court of Justice: Cases involving divorce or property issues must be initiated in the Superior Court of Justice, which includes the Family Court branch.
- Ontario Court of Justice: If your case solely pertains to parenting claims or support matters, you may opt for the Ontario Court of Justice, provided it’s available in your community.
- Municipal Jurisdiction for Parenting Claims: Parenting claims should be filed in the municipality where the child principally resides.
For detailed guidance, refer to Rule 5 of the Family Law Rules.
The Application Process: Initiating Your Case
The commencement of your court case involves issuing, serving, and filing an application. This application delineates the issues for the court’s consideration, the orders you seek, and the supporting facts.
Step 1: Choosing the Right Application
- Form 8A – Simple Application (Divorce Only): Utilize this form if your sole claim is for a divorce, without any additional claims.
- Form 8A – Joint Application: Opt for this when you and the other party have consensus on all claims, including divorce, parenting issues, and support.
- Form 8 – General Application: This is appropriate when there is disagreement on resolving certain issues.
Forms are accessible at the Family Law Rules Forms website.
Step 2: Preparing Your Application
Ensure your application is comprehensive, incorporating all required information and accompanying documents. CLEO’s free online tool can assist in preparing court forms, including applications.
Step 3: Compiling Necessary Documents
The documents accompanying your application vary based on the claims made:
- Divorce Claims: Attach your original marriage certificate. If unavailable, provide a replacement or detailed affidavit regarding the marriage.
- Parenting Claims: Prepare and file Form 35.1 Affidavit (decision-making responsibility, parenting time, contact) and, if relevant, Form 35.1A Affidavit (child protection information).
- Support Claims: Complete a Form 13 Financial Statement (Support Claims), attaching proof of income and tax assessments. For property division claims, use Form 13.1 Financial Statement (Property and Support Claims).
Step 4: Issuing Your Application
Once your application and documents are in order, the court clerk will issue your application, assigning a court file number. Electronic filing is encouraged where possible.
Step 5: Serving Your Application
Serve your application and documents personally to all parties involved. A third party must conduct this service, and a Form 6B: Affidavit of Service must be completed and filed as proof of service.
Step 6: Filing Your Application with the Court
After serving the documents, file them with the court to include them in the official case file, known as the continuing record. This ensures that all case-related documents are properly documented and accessible within the court system.
Addressing Uncontested Cases
If the other party fails to respond within the stipulated time frame, steps can be taken to proceed with an uncontested trial. This involves preparing a Form 23C: Affidavit for Uncontested Trial and drafting the required court orders.
Starting a family law case is a multifaceted process that demands meticulous attention to detail and a clear understanding of legal procedures. We hope this guide aims to demystify the process and provide a structured pathway for individuals navigating the complexities of family law.
Cindy Vergara, Associate Lawyer
It’s imperative to engage with the process diligently, ensuring that all legal requirements are met and that your case is presented comprehensively and cogently in the appropriate court.
*this article was based, in part, on A Guide to Process for Family Cases at the Superior Court of Justice Ontario Superior Court of Justice (October 2023)
