The Best Option for You
If You Go to Supreme Court
How do I obtain a Supreme Court order?
To obtain a Supreme Court order for divorce, custody, guardianship, access, support or the division of property you will need to start a "family law proceeding", the Supreme Court's term for a legal action to settle issues covered under the Family Relations Act or the Divorce Act.
Please note:
The following is a general overview. The Legal Services Society's family law web site offers step-by-step instructions - plus all required forms mentioned here - for starting a family law proceeding in Supreme Court. Click on "Online Self-Help Kits," then "How do I get an initial family order?," choose the self-help kit for Supreme Court, and see Steps 1 - 8.
To Start the Family Law Proceeding
Fill out a Writ of Summons - Family Law Proceeding (Form 127) and a Statement of Claim - Family Law Proceeding (Form 128).
The Writ of Summons is the official notice you will give later to the Defendant, stating that you have started a family law proceeding in the Supreme Court. The writ also tells the Defendant what he or she needs to do next to reply to your action. (As the person applying to the court, you are the "Plaintiff" and your spouse is the "Defendant").
The Statement of Claim is where you provide background information about who you are, your relationship to the Defendant and what you are asking the court to decide - for example, child custody, support or how to divide property (also known as "the family assets").
If you are applying for spousal support and/or an order determining the division of property - and in most cases if you are applying for child support - you will also need to fill out a Financial Statement (Form 89) and a Notice to File a Form 89 Financial Statement (Form 91). Form 89 provides details about your current financial situation, including your income, your expenses, your assets (what you own) and your liabilities (what you owe); Form 91 asks for the Defendant to provide the same kind of financial information.
Important!
You will need to attach a "backing sheet" to all of your court documents. This is a piece of paper, stapled to the back of a document and facing outwards, that lists essential information such as what the document is, the name of the court registry you are filing the document in, and your name and mailing address. The Legal Services Society's on-line self-help kit includes a blank backing sheet (under Blank Forms), and instructions for how to complete it (in the Instructions for Forms section).
File Your Documents with the Court
Make three copies of all your court forms. Staple the Writ of Summons on top of the Statement of Claim in each set, then take your original Writ of Summons, Statement of Claim, and (if required) your Financial Statement and Notice to File a Form 89 Financial Statement and all three sets of copies to the nearest Supreme Court registry. This is called "filing" your documents.
If you are asking for a divorce, you will also need to take your Marriage Certificate or Registration of Marriage. This must be an official government document. The certificate you received at the church (or any other place you were married) is not acceptable. A photocopy is not acceptable. (Step 1 of the Legal Services Society's on-line divorce self-help kit (Step 1 of the Legal Services Society's on-line divorce self-help kit explains how to obtain a copy of your marriage certificate or registration of marriage from the provincial government's Vital Statistics office.)
The filing fee in the Supreme Court is $208.00, payable either in cash or by certified cheque or money order made out to the Minister of Finance.
The court registry will date-stamp your documents, keep the originals, and return the others to you.
Serve the Documents
Serve one copy of all your documents on the Defendant.
To "serve" a document simply means having the document delivered according to certain rules. First, you cannot deliver the documents yourself. Instead, you can either ask an adult friend or hire a professional process server (see the yellow pages of your local phone book) to serve the documents. If the person does not know your spouse, provide a recent photograph or written physical description to help make sure the documents go to the right person.
- If you hire a professional process server, make sure he or she will provide you with a sworn Affidavit of Service (a document that proves to the court that the documents were served) as part of their service.
- If you ask a friend to serve the documents on the Defendant, ask him or her to fill out and sign an Affidavit of Service. This is a written statement, sworn under oath in front of a lawyer, notary public or court clerk (for a fee), that states the person swearing the affidavit served the Defendant with the required documents. If you do not know where your spouse is living now, you can also ask the court to allow you to use another method of service, such as leaving the documents with a relative or placing a newspaper ad. This is called "substituted service."
Wait for the Reply
The Defendant has a certain number of days (the time limits are listed in the Writ of Summons) from when he or she is served with the documents to file a reply to your Statement of Claim, if he or she disagrees with what you have asked for or wants to make a counterclaim.
- Defendant agrees with your Statement of Claim (or does not reply)
If the Defendant agrees with what you have asked for in your Statement of Claim (or simply does not reply), your claim is called "undefended" or "uncontested."
That means you will be able to ask the court registry for a desk order. This is a process where you compile all the necessary forms and information, then submit your documents to the court registry and pay the $62.00 filing fee. Registry staff will review your documents and, if they are in order, send them on to a judge to read.
Important!
If your application for a desk order is incomplete or incorrect - for example, you have forgotten a form or missed a section in a document - court staff will reject your application and you will have to correct and re-submit it.
If the judge decides that what you are asking for in your draft order is appropriate, the judge will formally make the order by initialling your draft order. See How do I apply for a desk order? for more information.
With a desk order, you will not have to attend a Judicial Case Conference (see below) and the court process will end here.
- Defendant disagrees with all or some of your Statement of Claim or counterclaims
If the Defendant disagrees with (opposes) all or part of what you have asked for or files a counterclaim (this is where he or she applies for a different court order - for example, you ask for sole custody, and your spouse counterclaims for joint custody), the Defendant must reply to your Writ of Summons by completing and filing:
- an Appearance (Form 7), which simply says that the Defendant will file a Statement of Defence, and
- a Statement of Defence (Form 129), explaining the Defendant's position.
A Statement of Defence and/or a counterclaim means that you will now have to assess your situation and decide what is best for you to do next. You have a number of choices. (You may want to consult a lawyer for advice about the best course of action for you.)
After the defendant has filed a Statement of Defence, you and the Defendant can, at any time:
Whichever route you choose, you should remember that it may take weeks or months to resolve all your issues (a trial especially may take some time). You may want to consider:
- applying for an interlocutory (also called an interim or pre-trial) order to settle such issues as child custody and support temporarily, until you can come to an agreement with your spouse on all issues or you go to trial and get a final order (see How do I apply for an interlocutory (interim) order? for more information), or
- applying for a final order in a summary trial (see What is a summary trial? for more information). A summary trial - also called a Rule 18A application - is a quicker and less expensive alternative to a full trial. However, because it uses affidavits only instead of witnesses, you must be sure you have all the evidence (in writing) you need to get a final order. A lawyer can advise you on the evidence you will need.
Schedule a Judicial Case Conference
A Judicial Case Conference is a private, informal hearing - usually just you and the Defendant, and your lawyers if you have them, with a judge or master. (A master has the same powers as a judge to make interim - temporary - orders for custody, access, guardianship and support, but cannot make final orders or divorce orders.)
Please note:
The Judicial Case Conference is part of a province-wide pilot project scheduled to end July 1, 2005. When the pilot project ends, the Judicial Case Conference is likely to be made a permanent feature of the Supreme Court Rules of Court, but some details of the process may be changed.
- Currently, all Plaintiffs and Defendants in family law proceedings started after July 1, 2002, must attend a Judicial Case Conference before they can apply for an interlocutory order (see Supreme Court Rule 60E for exceptions).
- Currently, Plaintiffs and Defendants in family law proceedings started before July 1, 2002, may request a Judicial Case Conference, or may be required by a judge or master to attend one.
The Judicial Case Conference is intended to provide you and the Defendant with an opportunity to come to an agreement in a just, timely and cost-efficient manner - without a trial if possible. If you cannot come to an agreement during the conference, the judge or master will take steps to make sure your trial is heard as soon as possible. (See What will happen at my Judicial Case Conference? for more on the judge's options.)
The conference will last about one hour, and will take place in either a courtroom or a conference room at the courthouse.
To schedule a date for your Judicial Case Conference, call the court registry where you filed your original Statement of Claim and other documents.
Once you have a date, complete the form called Requisition and Notice of Judicial Case Conference, then file the original and three copies with the court. Next, serve the Requisition and Notice of Judicial Case Conference, together with a blank copy of the Litigants' Guide and Case Management Worksheet on the Defendant. The documents must be served at least seven days before the date of the Judicial Case Conference, not counting the day the documents are served or the day of the conference.
To help you prepare for the conference, you and the Defendant - with the help of your lawyers, if you have them - should each complete a Case Management Worksheet. The worksheet is confidential; you do not need to show it to the Defendant or the judge or master. (Please see How do I prepare for my Judicial Case Conference? for more on the worksheet.)
Proceed to a Settlement Conference, Mini-Trial, Summary Trial or Trial
If the Judicial Case Conference does not result in a settlement, you may choose to:
At either a settlement conference or a mini-trial, the judge or master will try to help you and the Defendant come to an agreement without a full trial.
At either a summary trial or a trial, the judge will, in most cases, make a final court order to settle your separation or divorce issues. (You will need to return to court to change a final order - see How do I change an existing Supreme Court order?)
|
|
