Written by Allison R. McAlpine
Being involved in a family law court case is overwhelming for most clients. The process involves numerous court dates which are not self-explanatory processes. Those include the pleadings stage, first appearances, urgent motions as opposed to motions after a case conferences, case conferences/DRO conferences, settlement conferences, trial scheduling and trial management conferences and trials.
The vast majority of cases settle prior to, or during, one of these steps in the court process. So not every case will reach every stage. Given the confusion of these steps we are going to provide a series of blogs to describe each step in the process. In this article we explain the pleadings stage and the first appearance. Please note that this applies to the court process in the Barrie Superior Court of Justice, Family Branch. It is not meant to apply province-wide as each jurisdiction in Ontario can have slightly different processes for each stage.
To start a Court case in a family court, you need to bring either:
- An Application – applies to all cases where there is no prior final order dealing with the issues in dispute and/or changes to separation agreements where a motion to change does not apply.
- A Motion to Change – applies to all cases where someone is seeking to change a term in a prior final court order and/or change support in a separation agreement that has been filed with the Court/Family Responsibility Office to enforce that support.
All of the forms that we list can be found at http://ontariocourtforms.on.ca/en/family-law-rules-forms/.
To start a Court Case with an Application, a party needs to serve on the other party and file with the court (see the Family Law Rules regarding service) an Application (Form 8). If the Case also involves support and property claims you need a financial statement (a Financial Statement Form 13.1) or if just support claims and no property (Financial Statement Form 13). If the case involves claims for custody/access of a child you also need to serve and file a Form 35.1 Affidavit in Support of Claim for Custody or Access. The person starting the case is the Applicant and the other party is the Respondent.
Once the Respondent is served, he or she has 30 days to serve/file an Answer (Form 10), their Financial Statement (13 or 13.1 depending if there are support claims and/or property claims) and a Form 35.1 if there are custody/access claims. In the Answer, the Respondent responds to the Applicant’s claims and makes his/her own claims.
Once the Applicant is served with the Answer, the Applicant has 10 days to serve/file a Reply (Form 10A).
Motions to Change
The same rules apply to motions to change except the forms are slightly different. Forms 35.1 and financial statements are still required. However, there are no Applications, Answers or Replies.
Instead, rather than serving and filing an Application, the party bringing the motion to change serves/files a Form 15 (Motion to Change) and Form 15A (Change Information Form). The party responding to the motion to change serves/files a Form 15B (Response to Motion to Change).
In the Barrie Court, on the Application or the Motion to Change, the Court sets a First Appearance date if requested by the person starting the case. There is no Judge at the First Appearance (at least in the Barrie, Ontario court). A court registrar is present. The basic premise of a First Appearance is for the registrar to ensure that all paperwork has been filed and to book the next step in the case (in an Application the next step is a Case Conference, while in a Motion to Change the next step is a DRO Conference – we will discuss these in a later blog).
A mediator is also available at the First Appearance in Barrie and can help the parties try to resolve their case through mediation if both parties agree. The First Appearance can sometimes be a good first step to try to resolve a case if both parties are ready to negotiate and any required financial disclosure has been exchanged. If the case settles, minutes of settlement are signed by both parties and are submitted to a Judge (the parties do not need to see the Judge) by the registrar for review and an endorsement will be provided at some point in the future if the Judge agrees. If there is no settlement, the case moves on to the next step: case conference or DRO Conference (subject to an urgent motion being brought which will be discussed in a future post).