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Rule 8: Starting a case

Angela Princewill

November 14, 2015

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 FOR CUSTODY OR ACCESS

(3.1) An application containing a claim for custody of or access to a child shall be accompanied by the applicable documents referred to in rule 35.1.  O. Reg. 6/10, s. 2.

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,

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

(b) on a representative of a band or native 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 5 of the Child and Family Services Act.

2. A local director appointed under section 16 of the Child and Family Services Act.

3. An administrator in charge of a secure treatment program under Part VI of the Child and Family Services Act.

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.

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 VI of the Child and Family Services Act) shall be served on the child by special service.  O. Reg. 114/99, r. 8 (8).

SERVING APPLICATION ON CHILD’S LAWYER

(9) If an order has been made for legal representation of a child under section 38 or subsection 114 (6) of the Child and Family Services Act 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.

SERVING PROTECTION APPLICATION BEFORE START OF CASE

(10) If a child is brought to a place of safety (section 40, 42 or 43 of the Child and Family Services Act) or a homemaker remains or is placed on premises (subsection 78 (2) of that Act), 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).

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).

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