Commencing a Case in Family Law

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Navigating the complex terrain of family law litigation requires a nuanced understanding of its fundamental concepts. In this blog, we will provide a high-level overview of the core principles and processes that underpin the commencement of a legal case in family law. Understanding family law litigation helps inform the dispute resolution process, whether an agreement can be made outside of court, or whether a trial may be required. 

The Jurisdiction of the Courts in Ontario

Not all courts handle family law matters. Broadly, the following three courts handle family law disputes in Ontario: the Family Court of the Superior Court of Justice, the Superior Court of Justice itself, and the Ontario Court of Justice. Each has a specific jurisdiction. 

The Family Court is a branch of the Superior Court that specializes in all aspects of family law, including divorce, parenting orders, child and spousal support, and property division. However, it is not the court with jurisdiction over child protection or adoption proceedings. Not all regions in Ontario have a Family Court, so the Superior Court has jurisdiction where there is no Family Court branch.

The Ontario Court of Justice also has jurisdiction over parenting orders and spousal support, with additional oversight of child protection and adoption. It does not deal with divorce or property issues.

Starting a Court Case 

To start a court case, an individual must file a document called an “application.” An application is not required where a court is asked to change an order for support under the Family Law Act, which requires a notice of motion instead. 

Depending on the facts of the dispute, the application may contain one claim against an individual, multiple claims against one individual, or multiple claims against various individuals. The grounds of relief in the application will also depend on the specific claims, and the applicant will be required to set out the grounds for such claims. There are also essential requirements for filing an application per the Family Law Rules. For example: 

  • If the applicant is seeking property, spousal support, or child support, the application must include a financial statement (a Form 13 or 13.1); and 
  • If the applicant seeks a parenting order, the application must include an affidavit that sets out the parenting care details, such as the people with whom the applicant plans to live. 

It is important to speak to a lawyer before applying to understand the proper procedure for doing so. Otherwise, the application may not be issued by the registrar. 

Service of Legal Documents 

As with any other legal proceeding, there are essential service requirements that applicants must follow for the application to be correctly commenced. The service requirements differ depending on the process stage; the Family Law Rules include special service requirements for the commencement of the proceeding and regular service requirements for all other court documents. Special services include: 

  • Leaving a copy of the application with the respondent (the opposing party) if they are mentally incompetent, a child, a corporation, or a child’s aid society, 
  • Leaving a copy with the lawyer for the respondent who accepts service in writing, 
  • Mailing a copy to the respondent and having them return a signed “acknowledge of service”, or 
  • Leaving a copy at the respondent’s residential address with any individual who appears to be an adult and mailing a copy on the same day. 

Otherwise, regular service is acceptable for documents other than commencement. It is important to follow service requirements; otherwise, the dispute may not be recognized as having been commenced, even if the application has been issued. It also limits the legal steps that can be taken against the respondent until the service requirements are met. 

Proof of Service of Application 

Not only is it important to serve the application, but it is also important to properly follow the proof of service procedure. Proof of service validates that the above procedure was followed and can prevent the respondent from arguing that the service was ineffective. This is effected by the respondent’s acceptance or admission of service or by filing an “affidavit of service.” 

The Automatic Order 

Recent changes to the Family Law Rules also require that for any applications that contain a claim for decision-making responsibility, parenting time, equalization, a matrimonial home, or support, the court issues an “automatic order,” which must be served on the respondent. Among other specifications, the automatic order requires each party to attend a mandatory information program session. This session provides information about separation and the legal process, the options available for resolving differences, including alternatives to court, the impact the separation of parents has on children, and resources available to deal with problems arising from separation.

Contact Johnson Miller Family Lawyers for Trusted Legal Advice and Representation in Separation and Divorce Matters

At Johnson Miller Family Lawyers in Windsor, our dedicated family law lawyers work closely with each client to understand their needs and create tailored, practical legal strategies to resolve their unique needs. We understand the complexities and disputes that may arise due to separation and divorce and will work to help you navigate the process efficiently so that you can move forward. To learn how we can help you, contact us online or call our office at 519.973.1500.

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