Do you have a hard time keeping track of all the procedural steps in Family Court?
The truth is, family law procedure (and really, all court procedure) is complicated. As a result, this post is not meant to be a comprehensive overview of all steps in the family court process. Rather, it is meant to give readers a cursory outline of the initial steps in the process when two people need the court’s help to determine the terms of their separation, including things like property division and custody issues.
That said, this process does not apply in every circumstance. If you are only seeking an order for divorce, or you want to vary an existing Court Order or Separation Agreement, the process and forms will differ.
STEP 1: Filing and serving of court documents
Application: The person who starts a family court proceeding is called the Applicant. This person begins the process by filing an Application (Form 8), which identifies the issues you are asking the court to decide and outlines the orders you want the court to make. You will also need to file other supporting documents with your Application, which vary depending on what you are asking the court to decide. One of the most important (and burdensome) supporting documents is the sworn financial statement, which must be filed if making a claim for support and/or property division, along with supporting financial documents. If your Application includes a claim for custody and access, you will need an Affidavit in Support of Custody and Access as well. Once the Application and supporting documents are filed with the court, they must be served on your ex-partner by someone other than yourself.
Answer: The party who is served with this Application is called the Respondent. That person will generally have 30 days to complete what is called an Answer (Form 10). The Answer sets out your response to your ex-partner’s claims, and also allows you the opportunity to make claims of your own. An Answer will also include other supporting documents, such as a financial statement.
Reply: If appropriate, the Applicant can serve and file a reply in response to a claim made in their ex-partner’s Answer.
STEP 2: Mandatory Information Program
When the Applicant files their Application, they will get a Mandatory Information Program (“MIP”) form with an assigned date. The Applicant will also receive a second MIP form to serve to their ex-partner with the Application.
You and your ex-partner must both attend this mandatory program (without your lawyers) on your assigned dates, which will be different. The program provides an overview of the legal process, alternatives to going to court, the impact separation has on children, and additional resources to assist in problems that may arise from separation. Once you’ve attended this program, you must file your MIP Certificate at the court.
STEP 3: Exchange of financial information
If your claim is one for support or property division, the Family Law Rules set out additional financial documents and information you and your ex-partner must exchange. The content of what must be provided, and the timing of when they must be provided, varies depending on what is claimed in the Application.
In any case, both parties must serve and file a Certificate of Financial Disclosure (form 13A), swearing they have made the required financial disclosure at the same time they file their case conference materials (if it has not been filed before).
STEP 4: First court date or case conference
First court date: In a proceeding that only makes a claim for custody and access, the Court Clerk will assign a first court date on your Application at the time you issue it. Both parties, and/or their lawyers, appear on this date before a Court Clerk. The Clerk ensures that all necessary documents have been served and filed from both parties. If agreed, you may attend a Case Conference later that afternoon, or the Clerk will schedule a Case Conference.
If the claims made in the Application include a request for divorce or property division, then no court date will be assigned. Once the responding party files their Answer, either party may request a Case Conference date by filing the required forms at the courthouse.
Case Conference: The case conference is generally the first time the parties go before a judge or master to discuss their separation issues and canvass the chances of settlement. The case conference is also a good opportunity to ask for certain procedural orders, such as financial disclosure if your ex-partner has been less than forthcoming, or temporary support orders if appropriate.
The process after the first Case Conference can differ greatly, depending on what’s appropriate in each case given the nature of the issues and the ability of the ex-partners to communicate effectively. The process may include motions, settlement conferences, and even trial if necessary.
Further details on each of these steps, and information on what can occur after the Case Conference, can be found in the Guide to Process for Family Cases at the Superior Court of Justice.
In certain circumstances it may be necessary to skip certain steps or take steps out of order. We recommend you contact our Family Law Group if you wish to commence a court process or must respond to one.