This blog will help answer some of the following questions asked by clients when they first meet with one of our family law lawyers:
You may find yourself at a crossroads when you are unable to reach terms of settlement with your former spouse/partner. The question that many of our potential clients ask is where do they go from here or how do they move forward. When negotiation between parties (or their lawyers) is not successful, there are many options available to settling/resolving the issues in dispute. These options include: (a) attending mediation; (b) arbitrating the issues in dispute; or (c) commencing an Application in family court (i.e. litigation).
Individuals may be required to commence court proceedings for a number of reasons, including, but not limited to:
(a) the other party is taking an unreasonable position;
(b) the other party is refusing to produce disclosure;
(c) the other party is refusing to “come to the table” or is unreasonably delaying the process; or
(d) an emergency or urgent circumstances require immediate court intervention.
You made the decision to start court proceedings, but you do not know where to start. If you have made the decision to start a Court Application for your family law matter, we recommend that you speak to a lawyer in order to understand the court process and how to initiate/start family court proceedings.
The beginning of the court process entails the completion of “pleadings”. For one party, they will prepare an Application (with accompanying forms) and the other party will respond by completing an Answer (and accompanying forms).
An Application will:
Some may try to start the court process themselves and must figure out what forms they need to complete. Prior to trying it on your own, it is recommended that you speak to a family law lawyer. Why?
Your Court Application is one of the most important forms that you will complete during the court process. It sets out the claims that you are making. In the event that you forget to include an Order you wish for the Court to make, you will likely be required to amend your pleadings at some point down the road and there may be cost consequences (i.e. you may have to pay costs to your former spouse as they will likely need to revise/amend their response to your Application).
The lawyers at Morrison Williams are experienced and knowledgeable as we practice exclusively in the area of family law so they will diligently discuss all aspects of your matter with you and ensure that all issues are addressed within the Application.
In order to commence a Family Court Application, you will need to complete some or all of the following forms:
If there are circumstances surrounding your separation that you believe are an emergency and require a Court to intervene immediately, there are additional forms required. If you are looking for an Emergency Application in Family Court, your search results will likely not provide you with the answers that you need. This is because you will be commencing a regular Application as set out above, but will be bringing an Urgent Motion (i.e. an “emergency motion”) so that a Judge can immediately determine issues on an interim or temporary basis.
Furthermore, what many individuals believe to be an emergency may fall well short of what a Court believes is an emergency. In such cases, a Court will dismiss your Motion and not grant the emergency relief you are seeking. If you are unsuccessful, you may be required to pay for the legal costs incurred by your spouse who opposed such motion. Prior to bringing an urgent motion (i.e. emergency motion) it is critical for you to obtain legal advice on whether the circumstances that you find yourself in will meet the threshold of a “situation of urgency” as defined by the Court.
Information regarding urgent motions will be explained in another blog on our website.
When some individuals commence a Court Application, they may fail to include certain claims that they wish to address. In such circumstances, an individual will need revise their Application to include these claims (this is referred to as amending the Application). The revised Application is then referred to as an “Amended Application”.
If you are seeking to serve and file an Amended Application, you may require either the Court’s permission or the consent of the other party. Furthermore, any revisions included in an Amended Application must be clearly identified in accordance with the Family Law Rules.
FREQUENTLY ASKED QUESTIONS
APPLICATION FOR EQUALIZATION FAMILY COURT ONTARIO
Equalization is one of the claims that can be made by a married spouse in Ontario upon separation. That is, an Order for equalization would be included in your Application (Form 8) as detailed above.
INTERIM APPLICATION FAMILY COURT
If a party is seeking interim relief (i.e. temporary relief), they will be required to bring a Motion. In order to bring a Motion, an Application must already be commenced (or commenced simultaneously).
FAMILY COURT CUSTODY APPLICATION
Custody was the previous terminology referring to the issue of which party has decision-making authority for the children with respect to major decisions. Legislation has now been updated and the term “custody” is now more accurately referred to as “decision-making responsibility”.
A claim for decision-making responsibility will be included in a party’s Application (Form 8).
NOTICE OF APPLICATION FAMILY COURT
Many lawyers forward correspondence to the other party stating that if they do not receive a response (or disclosure) by a certain date that they have instructions to commence an Application. There are no formal notice requirements to start an Application. In some cases, individuals are served an Application and accompanying forms without receiving any notice. If you find yourself in these circumstances, it is important you reach out to a lawyer as there are strict timelines that you must abide by in delivering your response.
If you are considering starting a Court Application or have been served with a Family Court Application, reach out to Morrison Williams to schedule a consultation with one of our knowledgeable and experienced lawyers.