Family Law Rules – Rule 35.1: Custody and Access

Angela Princewill

June 28, 2023

Decision-making responsibility, parenting time and contact

Affidavit

35.1 (1) If an application, answer or motion to change a final order contains a claim respecting decision-making responsibility, parenting time or contact with respect to a child, the party making the claim shall serve and file with the document that contains the claim,

(a) an affidavit in Form 35.1 and, if the child or any party to the case has been involved in a child protection case or has received services from a child protection agency, an affidavit in Form 35.1A; and

(b) any other documents required by this rule. O. Reg. 42/21, s. 17.

Continuing record, exception

(2) Form 35.1A shall not be filed in the continuing record. O. Reg. 42/21, s. 17.

Police records check

(3) Every person who makes a claim for decision-making responsibility with respect to a child and who is not a parent of the child shall attach to Form 35.1,

(a) a police records check obtained not more than 60 days before the person starts the claim; or

(b) if the person requested the police records check for the purposes of the claim but has not received it by the time the person starts the claim, proof of the request. O. Reg. 42/21, s. 17.

Same

(4) If clause (3) (b) applies, the person shall serve and file the police records check no later than 10 days after receiving it. O. Reg. 42/21, s. 17.

Request for report from children’s aid society

(5) Every person required to submit a request under subsection 21.2 (2) of the Children’s Law Reform Act for a report from a children’s aid society shall provide to the court a copy of the request together with Form 35.1. O. Reg. 42/21, s. 17.

Documents shall be refused

(6) If these rules require a document to be accompanied by the applicable documents referred to in this rule, the clerk shall not accept the document for filing without,

(a) an affidavit in Form 35.1 and, if applicable, in Form 35.1A; and

(b) the documents referred to in subrules (3) and (5), if applicable. O. Reg. 42/21, s. 17.

Corrections and updates

(7) As soon as a person discovers that information in the person’s affidavit is incorrect or incomplete, or that there has been a change in the information provided in the affidavit, the person shall immediately serve and file,

(a) a new affidavit in Form 35.1 or Form 35.1A, as the case may be, containing the correct or updated information; or

(b) if the correction or change is minor, an affidavit in Form 14A describing the correction or change and indicating any effect it has on the person’s plan for the care and upbringing of the child. O. Reg. 42/21, s. 17.

Associated cases

(8) If the clerk provides to a person making a claim for decision-making responsibility with respect to a child information in writing under subsection 21.3 (1) of the Children’s Law Reform Act respecting any current or previous family proceedings involving the child or any person who is a party to the claim and who is not a parent of the child, the person shall serve a copy of the written information on every other party. O. Reg. 42/21, s. 17.

Same

(9) If the written information provided by the clerk identifies family proceedings in which the person making the claim was not or is not actually involved, the person making the claim may serve with the copy of the information an affidavit in Form 14A identifying those proceedings. O. Reg. 42/21, s. 17.