KPA Lawyers - June 23, 2020
The first step in a court case is to file an Application. The Application tells the Court and your ex-partner the issues that you are asking the Court to decide and the orders you want the Court to make. This can include a divorce order, if you have been married, or other orders that relate to your separation (for example custody and support of your children or a division of your property).
The person who completes the Application is called the Applicant and the other person is called the Respondent.
Step 1: What kind of Application do you need?
To start, you must figure out what kind of Application you need. The three kinds of Applications that you must choose from are:
- Form 8A: Simple Application If the only claim you are making is for a divorce, you should file a Simple Application. You cannot make any other claim in a Simple Application.
- Form 8A: Joint Application If you and your ex-partner agree on all of the claims you are making, which can include a divorce and other issues, for example, custody and support, you should file a Joint Application.
- Form 8: General Application If you and your ex-partner cannot agree on how to resolve some or any of the issues arising out of your separation, you should file a General Application.
Step 2: Preparing your Application
You should prepare your Application completely and include all of the information that is asked for in the form. You will also be given space to provide additional information that is important to support your claims.
To get a divorce, you need to make sure that your name and your ex-partner’s name on the Application match the names that appear on your marriage certificate.
Step 3: What documents do you need to file with your Application?
You need to prepare a number of other documents for the Court to accept your Application depending on the issues you raise in your Application.
The Continuing Record
The documents that are filed by each party in a family case go into a Continuing Record which is stored in your court file and updated every time new documents are filed. Both parties should also keep their own up to date copies of the Continuing Record.
There are specific requirements for your Continuing Record. For example, it must have a cover page and a Table of Contents. You must update the Table of Contents every time you file a document in the Continuing Record.
Information about these requirements is available on the Ministry’s court forms website at: www.ontariocourtforms.on.ca/english/continuing_record.
You may be required to pay filing fees depending on the claims that you have made in your Application. If fees must be paid, you need to bring a cheque or money order payable to the Minister of Finance or cash to court with your Application.
If you’re asking for a divorce
You also need to give the Court your original Marriage Certificate if it is available. If you don’t have it, you can request a replacement copy of an Ontario marriage certificate online through Service Ontario. If you can’t get a copy of your marriage certificate, you will have to provide details regarding the marriage later on in your affidavit for divorce.
If you’re asking for custody of and/or access to a child
You must also prepare and file a Form 35.1: Affidavit in Support of Custody and/or Access.
If you’re asking for support but not making a claim relating to property
You must also prepare:
i. Form 13: Financial Statement (Support Claims) ii. Support Deduction Order Information Form iii. Draft Support Deduction Order iii. Draft Support Deduction Order
The Support Deduction Order Information Form and Support Deduction Order are available on the Family Responsibility Office website.
You must attach a number of documents to your Financial Statement as proof of your income. This includes proof of your year-to-date income and your Notices of Assessment from the Canada Revenue Agency (CRA) for the past 3 years. If you don’t have your Notices of Assessment, you can contact the Canada Review Agency at 1-800-959-8281 to get a summary of those statements.
In Ontario, child support is based on the Child Support Guidelines (“the Guidelines”). The Guidelines calculate the amount of child support that is to be paid based on the income of the parent paying child support and the number of children they have to support. This payment is called the table amount of child support.
In some situations, the Guidelines allow the parent asking for child support to ask for more than the table amount of support. They can do this, for example, to get the other parent to contribute to the child’s daycare or medical needs. These are called special and extraordinary expenses.
If you only want the table amount of child support, you don’t have to prepare a Financial Statement.
If you’re asking to divide property without support
You must also prepare a Form 13.1: Financial Statement (Property and Support Claims).
If you’re asking to divide property and for support
i. Form 13.1: Financial Statement (Property and Support Claims) ii. Support Deduction Order Information Form iii. Draft Support Deduction Order
As noted above, the Support Deduction Order Information Form and Support Deduction Order are available on the Family Responsibility Office website.
Also, if you have made a claim for support, you must attach a number of documents to your Financial Statement as proof of your income. This includes proof of your year-to- date income and your Notices of Assessment from the Canada Revenue Agency for the past 3 years. If your Notices of Assessment are not available, you can contact the Canada Review Agency at 1-800-959-8281 to get a summary of those statements.
Step 4: Issuing your Application
Before you go to issue your Application, make sure you are in the right Court. If you are seeking a divorce or there are property issues, either on their own or with other issues, you must start your case in a Superior Court of Justice (including the Family Court). If you only need to deal with custody and or access to a child or support, you may choose to start your case in the Ontario Court of Justice if there is one in your community. Rule 5 of the Family Law Rules tells you more about where you should start your case.
You should make 3 copies of all your documents: one set for you, one set for the Court, and one set for your ex-partner.
Once you have completed your Application and put together the documents you need, you have to get your Application issued by the Court. This means a court clerk checks your Application and documents. If everything has been properly completed, the clerk gives you a file number and signs and seals the Application. Once this is done, your Application has been issued by the Court and you can now have your documents served on your ex-partner.
Step 5: Serving your Application
Next you need to have your Application and documents served personally upon your ex-partner. This means that someone other than you must give these documents directly to your ex-partner. You may have a friend or family member who is 18 or older serve your documents or you can hire a process server to do this. A process server is an independent person who will serve your documents on your ex-partner for a fee. See rule 6(2) of the Family Law Rules for more information about personal service of your documents.
You must serve your documents within six months of the date your Application was issued. If you don’t serve them within six months, the Court may close your file.
The person who served your ex-partner needs to complete a Form 6B: Affidavit of Service. This document proves to the Court that your documents were served personally upon your ex-partner and they know you have started a case against them. Because it is an affidavit, this document must be sworn or affirmed by the party who served the documents. A document is sworn or affirmed when the person signs it before a lawyer or commissioner of oaths to confirm what it says is true. You can swear or confirm your affidavit at the court office if you do not have a lawyer.
Step 6: Filing your Application
After one copy of your documents has been served on your ex-partner, you need to
bring them and the Affidavit of Service back to Court and file them in the Continuing Record. You also need to update the Table of Contents to show that these documents have been filed. Once your Application has been served, your ex-partner has 30 days to prepare, serve, and file their Answer, which is their response to the claims that you made in your Application. If your ex-partner has not filed their Answer within 30 days of them being properly served and has not asked for more time to do so, you can take steps to have your case heard by the Court on an undefended basis. You normally do this by preparing a Form 23C: Affidavit for Uncontested Trial and, if appropriate, a Form 35.1: Affidavit in Support of Claim for Custody or Access. A lawyer can help you prepare these documents.