Starting a Court Application
Sometimes after a couple separate one of them has to start a court application in order to resolve issues that the parties can’t resolve by themselves, such as a claim for custody child support or the sale of a home.
One issue that has to go to court is a divorce. Even if the couple agrees that they both want a divorce you cannot get a divorce through a separation agreement. You must get a divorce through a court order.
Guy Hunter’s experience shows him that is often better to store to start a court application in order to force matters to be resolved.
While theoretically a separation agreement can be much cheaper, without the parties being forced to come to decisions by certain deadlines parties often never make a final separation agreement. This delay is protracted by lawyers who are duty bound to be advocates. This means they often waste a lot of time fighting for specific wording that might help you in the future but causes agreements to be very hard to achieve.
When you start a court application in a family matter it will make a big difference as to whether there are children under the age of 18 and specially children of the age of 16.
At present the courts in Ontario’s have forms where you tick off the various claims that you’re interested in and then you set out the orders that you want. After that you set out the facts that support you getting those orders.
Typical claims that people make in an application or an answer are:
1. Custody of a child or children.
2. Access to a child or children.
3. Child support.
4. Spousal support.
5. Property claims including a claim for equalization of net family property.
6. A restraining order.
7. Exclusive possession of a home.
8. Sale of a home.
Court Applications are very paper intensive and require very onerous disclosure obligations, particularly if one of the parties runs a small business.
The main documents that you must file are:
- An application;
- A Financial Statement; and
- A form 35.1 regarding Custody and Access if claims are made for custody and access.
Defending or Answering a court application
What to do if you are served with the family Law application by your ex-spouse.
In most cases you will have 30 days to respond.
The courts are extremely ungenerous in allowing you to file an answer if you let the 30 days lapse. If you are not can be able to file your application within 30 days before the 30 days are up you must take immediate steps to tell the court that you can’t and why.
One common problem is that people don’t file their tax returns so they cannot file their answer because they don’t have the three most recent years notices of assessment. If this is the case you must bring a motion right away, which can be by way of 14B, to allow you to file your answer without without your three most recent tax returns or to give you an extension of time.
In most cases if you have been served with a family law application you should get a lawyer right away.
It is not wise to enter into mediation or negotiations once an application is started until after you file your answer.
I highly recommend that you always do an answer within 30 days.
It is much better to file the lousy answer than to just avoid the correspondence or not respond at all.
The Family Law Rules and the courts are much more generous with you amending a poor answer later than not filing any answer in the 30 days normally allotted in.
In ordinary civil law you can easily set aside a judgment that has been gained because you failed to file a defence within time. In family law is much more difficult to set aside a judgment that was God that was obtained on a default basis. Again, the law is not generous and it would be extremely risky not to defend an application.
Having said that, an answer and an application are pleadings. Pleadings are a very special kind of legal writing and I strongly recommend that you find a lawyer to do the pleadings for you as they are trained in the special rules of pleading. Pleading is not like ordinary writing.
When you file your application will, you must usually also file the following things:
- an Affidavit in support of Custody and Access in Form 35.1 (if the children are 16 or younger)
- a Financial Statement. Whether the Financial Statement is in form 13 or 13.1 will depend on many factors. The Financial Statement.
Guy Hunter can assist with a court application.
When every attempt is made to provide helpful information in this website, you may not rely on the information above as legal advice.