8. Starting a Family Court Case

Being involved in a family law case can sometimes be overwhelming. You may be wondering what to expect. Here is a general snapshot of the steps in a legal matter. Each jurisdiction (province or territory) has their own set of rules or procedures. Also, within each jurisdiction there are different levels of court (e.g. provincial / territorial, superior trial court, and appeal) which have their own set of rules and procedures. Some jurisdictions have court rules that are specific to family law. So, a case in Alberta Provincial Court will look different from a case in Ontario Superior Court. You will need to check the rules and procedures for your location and case. In Section 17 Resources, you will find specific help resources for your jurisdiction.

You might be involved in both provincial and superior court processes at the same time (e.g. you bring an application for property division in superior court and an application for parenting time in provincial) or in a separate family court. Because each process is slightly different, it is important to understand the one in which you are involved. Check with your local legal help service providers to learn more.

Regardless of your location, there are some common rules and procedures in all family cases.

Completing Court Forms

You will need to use your legal writing skills when completing court forms. Court forms are the documents that the court needs you to complete and file. These forms require specific information that helps the judge understand your case.

At the start of your case, you will need initiating court forms (sometimes called pleadings). These are the documents that start or respond to an action. Pleadings are important because they set out what is your position and what you want from the court. In your pleadings, you must clearly write what you want the judge to order.

When writing your court forms:

• Know what order you want: Considering what your legal rights and obligations are and what you want, you can figure out what order to ask from the judge.
• Know your legal position: Get familiar with your legal rights and obligations. You will not want to ask for an order to which you do not have a legal right.
• Know the “interests” and legal position of the other person: Try to understand what the other side wants and why.
• Know what to write: Include everything you want the court to order. A judge can only grant you an order that you requested in your initial forms. (e.g. if you only claim child maintenance, the judge is not likely to give you an order for spousal support.)
• Keep it simple: For example: “I have been the principle caregiver of the children since their birth, and I want a parenting schedule that reflects that. I am seeking an order for the following parenting schedule…”

Tips for writing forms:

1. Using names:
   1. Use full legal names, including middle names.
   2. If you or the other party often use a name other than a legal name, include that name by adding “AKA” (also known as) before that name e.g. “John James Doe, AKA JJ Doe”.
   3. You may also define the name at the beginning of the document text, e.g. John Doe (“John”). Then you only have to refer to him as John in the rest of the document.
2. Complete: Be sure to fill in every part of the forms that apply to your situation. In some jurisdictions, there are special requirements about crossing out sections or writing “not applicable” in sections of forms that don’t apply to you. You should check with court staff if you aren’t sure how to fill out a form.
3. Accurate: Be accurate and truthful. Being dishonest in your forms will hurt your case and lying in an affidavit is a crime (perjury).
4. Keep it professional: Remember that a judge and the other party will be reading this.
5. Review: make sure you read through your form before submitting it. Read it to make sure it would make sense to someone who knows nothing about the case. The form should clearly explain the facts and what orders you are asking for. Seek legal help if you want a professional to look over your forms.  

Your family case starts by filing (which means to formally submit) initiating court form(s). These are the documents that start or respond to an action. Pleadings are important because they set out what your position is and what you want from the court. In your pleadings, you must clearly indicate what you want the judge to order.

Different kinds of family cases are started with different initiating forms. The type of form you file will depend on the type of legal issue you are facing and the jurisdiction you are in. The most common forms used to start a family case are a notice of claim, a petition, application, a writ of summons or statement of claim.

This initiating form will say who you are, whom you have a claim against, and why you are bringing a claim against them. It also has important information about when the other party must reply to your family claim.

It is important to prepare the right form to make sure that everyone has all the information they need and can understand what happens next in your family case. Talk to the courthouse staff or seek legal advice on which form to use.

After you have filed your initiating court form, you must deliver the document to the other party in a special way called “service”. There are very specific rules about how you can serve (give / deliver) documents, such as court forms, to other parties. The way you serve a document will depend on the type of document it is. The courts are very concerned about all parties being properly served. In normal cases, you must prove service on the other side (through an Affidavit of Service). You will need to check the court rules on how you are to serve your documents and prove service. If you are unsure ask the court registry or seek legal advice.

Most of the time, service happens when the document is handed to the other party, but it can be easier or more complicated than that. You may be able to send it through registered mail. If you are having difficulty serving the other party, you may need to seek a court order for alternative service.

The other party must then file a replying court form in court within a set number of days after they have been served. If this does not happen, you may be able to apply to get a final order without the other party’s involvement (a default judgment).

To reply to claim, you must file a reply. The most common forms are an Appearance, Statement of Defence, Reply and Response Form. This document tells the person who has a claim against you, which of their claims you agree and which you do not agree.

You have a set number of days to file your reply after you have received the initiating court form. The initiating court form will usually say on it the number of days you have to reply. If you are unsure about the time limit, ask the court registry. If you do not file a reply the person who started the claim may be able to ask for a final order (a Default Judgment).

It is important to reply to the initiating court form using the right reply form. Each type of initiating court form will have a type of reply form. If you are unsure of what form to use you can check the Rules of Court or ask the court registry or a legal help provider in your area.

If you have received a Notice of Family Claim and you want to ask the court for different and / or additional orders, you must file a counterclaim in court. For example, your spouse is seeking an order regarding parenting time, you might want to respond to that claim and also make a counter claim regarding the family home.

Whether you are in provincial / territorial, or superior trial court, you have the option to bring an application for an interim or temporary order. This is often used for urgent or time sensitive matters. For example, if you need child support payments, but do not have a hearing / trial date until next year, you can ask for an order requiring temporary payment until the final judgement can be made after a hearing / trial. It is also used to get orders to move the process along. For example, if the other person is not giving you their financial documents, you can apply to court for an interim order for disclosure.