Litigating Family Law Disputes

Family law disputes are litigated in both the Provincial Court and the Supreme Court. Each court has its own particular rules for family law matters, and you must be mindful of the jurisdictional limitations of the Provincial Court. This section will discuss matters before the Supreme Court.

Pleadings

Various provisions of the Supreme Court Family Rules apply to the procedures required when commencing a legal action in a family matter. The required forms of pleadings are as follows:

The notice of family claim must be personally served under Rule 4-1(2). If personal service cannot be effected, apply an order for substituted service under Rule 6-4. Email is often approved by the court as a method of substituted service where you can prove that the party has made use of the email address recently. A newspaper advertisement, if that is the route you wish to take, must be in Form F11.

Judicial Case Conferences

All parties to contested family law proceedings must attend a judicial case conference (JCC) pursuant to Rule 7-1. Any party to a family law proceeding may request a further JCC at any time.

The purpose of the JCC is to canvass areas of agreement and the unresolved issues between the parties at an early stage and to schedule dates for production of documents, interim applications and trials, and, where practicable, to attempt settlement of the matters in dispute. If your client is anxious to finalize matters, you may want to use the JCC to set a trial date as soon as possible. Be realistic about the time estimate for trial.

Under Rule 7-1 the parties to a proceeding cannot deliver an application for interim relief until the JCC has been conducted, subject to certain exceptions. Under Rule 7-1(3), the following applications can be heard before a JCC:

  1. an application under section 91 of the Family Law Act restraining disposition of any property at issue;
  2. an application for a consent order;
  3. an application without notice;
  4. an application to change suspend or terminate a final order;
  5. an application to set aside or replace the whole or any part of an agreement; and
  6. an application to change or set aside the determination of a parenting coordinator.

A party may on application be relieved of the JCC requirement altogether under Rule 7-1(4) if:

  1. it is premature to require the parties to attend a JCC;
  2. it is impracticable or unfair to require the party to prevent an application from being heard before a JCC;
  3.  a proposed application is urgent;
  4.  delaying the hearing of a proposed application or requiring the party to attend a JCC is or might be dangerous to the health or safety of any person; or
  5.  the court considers it appropriate that the party be relieved from the requirement.

A JCC is set by booking a date with the court registry and by filing a notice of judicial case conference, Form F19, with the booking party’s financial statement, Form F8. Notice of the JCC must be served on all parties at least 30 days before the date of the JCC. In busy registries, it can take a while before a JCC date can be obtained and this may lead to difficult choices being made regarding applications for interim relief.

Do not avoid the JCC unless absolutely necessary. It is an opportunity to sit down with a judge or master to discuss the matters at issue, to identify the real stumbling blocks to settlement, and which issues may be resolved by consent with the assistance of the judge or master. The court offers subsequent JCCs if the first one was useful. A JCC is also a good opportunity to “meet” the other party and to gain a better understanding of their position. At times, the judge or master may opine regarding the likely outcome of the litigation.

Similar to this process, the Provincial Court may require family litigants to participate in as family case conference before proceeding to a hearing where custody, access or guardianship are at issue.

Interim Relief

Chambers applications are fairly common for the following types of relief in family law matters:

  • a financial restraining order;
  • a protection order (a new form of restraining order under the FLA)
  • exclusive possession of the family residence;
  • interim custody and access, or guardianship, parenting time and contact; and
  • interim child support and spousal support.

Refer to the Law Society’s Practice Refresher Course (Supreme Court – Interlocutory Applications) for more information about the types of pleadings that you will be required to prepare.

If you expect to be in chambers frequently, you should consider developing a standard notice of application with a variety of potential requests for relief and an affidavit that can be customized as necessary for individual clients. Your clients’ supporting affidavits will not be as generic. Unless another approach is obvious, it is always a good idea to consider setting out the affidavit by topic and in chronological order within each topic.

Emergency Applications

For urgent matters, applications may be made for relief from Rule 7-1 to allow a hearing prior to the JCC.  The application may be made by filing a requisition, Form F17 supported by a letter signed by counsel or a third party setting out the reasons why the order is sought (Rule 7-1(5)(6)). The requisition requires the applicant to indicate whether leave is sought to deliver a notice of application, affidavits in support, and schedule a hearing of the application. The court may then require further material, require that party or counsel to appear in person to speak to the application, make or refuse the order requested, or make any other order considered appropriate.

In the absence of urgency, the court will not usually deal with matters of custody, guardianship, access or support until a JCC has been held.

If the order for relief from Rule 7-1 is made, the application for urgent relief sought will proceed by notice of application and affidavit in support with an oral hearing in chambers pursuant to Rules 10-2 through 10-6. It is possible to have the urgent application heard at the same time as the application for relief from Rule 7-1. In that case you would be seeking an order for short leave, seeking to have the usual time for delivery of materials and hearing of the matter abridged. Absent compelling and urgent circumstances, the court will be reluctant to grant short leave.

After-hours emergency applications by telephone made personally to a judge or master are also available under Rule 22-6, but they are still subject to Rule 7-1. This may be arranged during business hours by contacting registry staff to schedule the application. A designated on-call registry staff person can be contacted after-hours and on weekends to make arrangements. The procedure may be different in each registry.

Notice to Admit and Examinations for Discovery

The document disclosure and examination for discovery procedures assist counsel in obtaining admissions and facts that have the potential to make or break a claim or defence. Part 9 of the Rules of Court addresses these and other procedures.

As in all civil actions in Supreme Court, parties must produce a list of documents, Form F20, under Rule 9-1. Examinations for discovery are available under Rule 9-2 by delivering an appointment to discover in Form F21. Identify the issues and do your legal research before the discovery to know what facts and admissions are relevant to the issues. You may also wish to refer to the Law Society’s Practice Refresher Course Supreme Court Module.

Admissions may be sought under Rule 9-6 by delivery of a notice to admit in Form F24. Admissions, properly used, can significantly shorten the trial process, and the time required to prepare for trial, by obtaining critical admissions of fact and the authenticity of documents in advance of the trial itself.

 

 

Community Discussion

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It is an often overlooked consideration whether  or not any 3rd parties need to be included within the proceedings such as former  spouses , parents of step-children , corporations or other persons dependent in order to fully address various financial issues such as interest in property and  child and spousal support