Family law proceedings can present a challenging journey for individuals involved. Given the complexity of ever-changing Rules, Notices and Guidelines, individuals (and particularly those self-representing) will often find themselves uncertain about navigating the process properly.
This article provides a general outline of the procedure involved in the family law process. However, it is important to seek tailored legal advice based on the specific complexities of your circumstances to determine the most appropriate course of action. Depending on your unique situation, this outline may not reflect the most appropriate or likely pathway through the court process.
I have been served with a family court application, what is next?
The party initiating the proceeding by submitting an application is designated as the ‘Applicant’, whereas the opposing party is the ‘Respondent’.
To commence proceedings, the Applicant must file an Application (Form 8) with the court, which outlines all claims they are advancing, the relief sought, and the facts supporting those claims. Oftentimes, additional documentation will be required from the outset to properly initiate the proceeding. For example, if the claim involves children, an Affidavit (decision-making responsibility, parenting time, contact) is required (i.e. Form 35.1/Form 35.1(a)). If the claims include spousal support, child support, or property matters, a Financial Statement will be required (either Form 13 or 13.1), accompanied by documentation substantiating current income, through the last three tax returns and a recent pay stub. Again, which documents are required depends on the circumstances.
Once the initiating party has completed the proper documents, they must be formally issued by the court and then personally served on all Respondents. Documents may be filed electronically or in-person at the courthouse.
Upon being served with court documents, it is incumbent on the Respondent to file an ‘Answer’ (Form 10) within 30 days of service. The ‘Answer’ serves as the Respondent’s opportunity to agree with or dispute the claims (and facts) raised in the Application, as well as the Respondent’s opportunity to advance claims of their own. The Respondent will also typically need to complete, serve, and file the same additional documents as the Applicant, be it a Financial Statement or Affidavit, for example. Both parties are also required to file an Affidavit of Service (Form 6B) with the court, which tells the court you have successfully (and properly) served the other party with your documents. They are specific and fact-dependent rules around service which you should seek legal advice on.
As the court process begins, you must participate in various court sessions and interactions with the other party. Presently, due to the backlog of cases within the family court system, these meetings prioritize settlements wherever feasible. It is important to note that at effectively any juncture during the court proceeding, parties may (and are in fact encouraged) to reach a consensus on the issues themselves, thus averting the necessity of trial and a Judge imposed resolution. Given the distinctiveness of each family’s circumstances, the process will vary depending on the specific issues at hand.
During the initial stages, your first engagement in court will typically be a ‘First Appearance’, which is an opportunity to verify the correct filing of all the necessary documents and confirm readiness to proceed with your case. Subsequently, you will participate in a Case Conference, where a judge will facilitate discussions aimed at reaching mutual agreement on the issues at hand. Should any issues remain unresolved after the Case Conference, both parties will then convene for a Settlement Conference, where judicial guidance will again be provided on the issues in an attempt to facilitate agreements on consent. Through the conferencing phase, judges may recommend different forms of family dispute resolution as an alternative to proceeding to trial. Although, this is not appropriate in all cases.
Where the Conferences do not yield a resolution of the case, the matter will proceed to trial where the judge will make a binding decision on all remaining issues. Before trial commences, a Trial Management Conference will be conducted to finalize logistical details.. Obtaining an Order through trial is a meticulous process that involves several procedural steps leading up to a trial. Currently, due to caseloads, this process of getting to trial can take well over a year, and sometimes multiple years.
Commences or responding to a family court application is no easy task. Barriston can provide you with peace of mind when dealing with your family matters. To book an appointment with one of our family law lawyers, call 705-792-9200 or visit this link.
Written by Maeve Kelly and Tim Gronfors