Family Law Rule 8: Starting a case

Angela Princewill

June 28, 2023

Starting a case

Filing an application

8. (1) To start a case, a person shall file an application (Form 8, 8A, 8B, 8B.1, 8B.2, 8C, 8D, 8D.1, 34L or 34N).  O. Reg. 519/06, s. 2.

Enforcement of family arbitration award

(1.1) Despite subrule (1), a person who is entitled to the enforcement of a family arbitration award and who wants to ask the court to enforce the award under section 59.8 of the Family Law Act may do so by filing a request to enforce a family arbitration award (Form 32.1) under rule 32.1. O. Reg. 388/12, s. 3.

When required to proceed by motion

(1.2) Despite subrules (1) and (1.1), if there is already a family law case to which these rules apply between the parties to the family arbitration agreement in the Superior Court of Justice or the Family Court of the Superior Court of Justice, the party entitled to enforcement shall make a motion in that case rather than an application under this rule or a request under rule 32.1, and subrule 14 (24) applies in respect of the motion. O. Reg. 388/12, s. 3.

Change to final order or agreement

(2) Subject to subrule 25 (19) (changing order — fraud, mistake, lack of notice), a party who wants to ask the court to change a final order or an agreement for support filed under section 35 of the Family Law Act may do so only by a motion under rule 15 (if permitted to do so by that rule).  O. Reg. 151/08, s. 1.

Exception

(2.1) Despite subrule (2), if a party who wants to ask the court to change a final order or agreement to which rule 15 applies also wants to make one or more related claims to which rule 15 does not apply, the party may file an application under subrule (1) to deal with the request for a change together with the related claim or claims and, in that case, subrules 15 (11) to (13) apply with necessary changes to the request.  O. Reg. 151/08, s. 1; O. Reg. 142/14, s. 4.

Claims in application

(3) An application may contain,

(a) a claim against more than one person; and

(b) more than one claim against the same person.  O. Reg. 114/99, r. 8 (3).

Claim relating to decision-making responsibility, parenting time or contact

(3.1) An application containing a claim respecting decision-making responsibility, parenting time or contact with respect to a child shall be accompanied by the applicable documents referred to in rule 35.1. O. Reg. 42/21, s. 4.

Claim relating to family arbitration

(3.2) An application containing a claim under the Arbitration Act, 1991 or the Family Law Act relating to a family arbitration, family arbitration agreement or family arbitration award shall be accompanied by,

(a) copies of the certificates of independent legal advice required by the Family Law Act for the parties;

(b) a copy of the family arbitration agreement; and

(c) if an award has been made, the original award or a certified copy. O. Reg. 388/12, s. 3.

Court date set when application filed

(4) When an application is filed, the clerk shall,

(a) set a court date, except as provided by subrule 39 (7) (case management, standard track) and subrule 41 (4) (case management, clerk’s role); and

(b) seal the application with the court seal.  O. Reg. 114/99, r. 8 (4); O. Reg. 89/04, s. 2.

Service of application

(5) The application shall be served immediately on every other party, and special service shall be used unless the party is listed in subrule (6). O. Reg. 114/99, r. 8 (5).

Service on officials, agencies, etc.

(6) The application may be served, subject to subrule (8.1),

(a) on a foster parent, at the foster parent’s residence;

(b) on a representative of a band or First Nations, Inuit or Métis community, by serving the chief or other person who appears to be in charge of its management;

(c) on any of the following persons, at their place of business:

1. A Director appointed under section 53 of the Child, Youth and Family Services Act, 2017.

2. A local director appointed under section 38 of the Child, Youth and Family Services Act, 2017.

3. An administrator in charge of a secure treatment program under Part VII of the Child, Youth and Family Services Act, 2017.

4. A children’s aid society.

5. The Minister of Community and Social Services.

6. An agency referred to in subsection 33 (3) of the Family Law Act or subsection 20.1 (1) of the Divorce Act (Canada).

7. The Director of the Family Responsibility Office.

8. The Children’s Lawyer.

9. The Public Guardian and Trustee.

10. The Registrar General.  O. Reg. 114/99, r. 8 (6); O. Reg. 140/15, s. 5; O. Reg. 298/18, s. 8 (1-5); O. Reg. 535/18, s. 2.

Serving protection application on child

(7) In a child protection case in which the child is entitled to notice, the application shall be served on the child by special service.  O. Reg. 114/99, r. 8 (7).

Serving secure treatment application on child

(8) An application for secure treatment (Part VII of the Child, Youth and Family Services Act, 2017) shall be served on the child by special service.  O. Reg. 114/99, r. 8 (8); O. Reg. 298/18, s. 8 (6).

Serving openness applications

(8.1) An application for an openness order or an application to change or terminate an openness order (Part VIII of the Child, Youth and Family Services Act, 2017) shall be served by special service on,

(a) the child, if he or she is 12 years of age or older;

(b) the child’s lawyer, if any; and

(c) the Children’s Lawyer. O. Reg. 298/18, s. 8 (7).

Serving application on child’s lawyer

(9) If an order has been made for legal representation of a child under section 78 or subsection 161 (6) of the Child, Youth and Family Services Act, 2017 or under subrule 4 (7), the applicant, or another party directed by the court, shall serve all documents in the continuing record and any status review application on the child’s lawyer.  O. Reg. 114/99, r. 8 (9); O. Reg. 140/15, s. 5; O. Reg. 298/18, s. 8 (8).

Serving protection application before start of case

(10) If a child is brought to a place of safety (section 81, 82, 84 or 85 of the Child, Youth and Family Services Act, 2017), an application may be served without being sealed by the clerk, if it is filed on or before the court date.  O. Reg. 114/99, r. 8 (10); O. Reg. 298/18, s. 8 (9).

Application not served on or before court date

(11) If an application is not served on a respondent on or before the court date, at the applicant’s request the clerk shall set a new court date for that respondent and the applicant shall make the necessary change to the application and serve it immediately on that respondent.  O. Reg. 114/99, r. 8 (11).

International child abduction cases

(12) The clerk shall send a copy of an application in an international child abduction case to the Office of the Children’s Lawyer. O. Reg. 320/22, s. 4.

Same, Central Authority

(13) If the Office of the Children’s Lawyer receives a copy of an application under subrule (12) respecting an international child abduction case under the Convention on the Civil Aspects of International Child Abduction, the Children’s Lawyer shall send a copy of the application to the Central Authority for Ontario for the Convention set out in subsection 46 (4) of the Children’s Law Reform Act. O. Reg. 320/22, s. 4.