Henderson Heinrichs LLP

Starting a Family Law Action in Ontario

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio ) Published: November 25, 2014
Categorized: Family Law.

Even for a Toronto family lawyer, dealing with the court registry is often the hardest part of being involved in a family law dispute. This is because the Ontario Family Court Rules are convoluted and often confusing, and because the court registry operates entirely based on those Rules. If you don’t understand the Rules, including what forms they require you to fill out, as well as when, where and how to serve and file them, you could be running around in circles instead of moving toward resolving your family law dispute.

The same situation applies in BC. The BC Supreme Court Family Rules are slightly easier to understand (at least they seemed easier to me, as a lawyer, when I was learning them), but they are also far from crystal clear. In BC, though, there is the added complication that the Provincial Court has its own Provincial Court (Family) Rules. At least a person trying to start a family law action in Toronto only needs to know one set of rules, no matter whether she is in the Court of Justice or the Superior Court of Justice.

Regardless of whether you’re in Ontario or BC, Toronto or Vancouver, the first problem some people face in starting a family law proceeding is trying to figure out where to go to actually start it. You might live in Toronto but your ex-spouse might be in Ottawa. Or maybe you and your child live in London, but your child’s father lives in the GTA. Or maybe you live in Scarborough, but your ex is in Vancouver. Where do you go to start your case?  To answer that question, as a Toronto family lawyer, I turn to the rules:

In Ontario, Rule 5(1) states that:

5.  (1)  Subject to sections 21.8 and 21.11 of the Courts of Justice Act (territorial jurisdiction — Family Court), a case shall be started,

(a) in the municipality where a party resides;

(b) if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,

(i) section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act, and

(ii) subsection 48 (2) (place for child protection hearing) and subsection 150 (1) (place for adoption proceeding) of the Child and Family Services Act; or

(c) in a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality.

So if you are asking for custody or access, you have to start your case in the municipality where the child lives (if she lives in Ontario).

The exceptions to that rule are:

  1. if the child doesn’t live in Ontario, but is in the province, there is evidence available in Ontario about the best interests of the child, the child has a real and substantial connection to Ontario, and the court feels that it is appropriate to start the case in Ontario;
  2. it is a “child protection” case; or
  3. it is an adoption case.

If your case is not about custody or access, then you have to start it in the municipality where either you or your spouse (or the other parent of your child) resides.

Rule 5(2) says that if there is any danger to a child or a party, then a case can be started in any municipality in Ontario. In that case, though, a motion must be heard by a judge right away and, unless the judge is convinced otherwise, the case needs to be transferred immediately afterward to the municipality described in Rule 5(1).

All these rules talk about “municipalities” though. So how do you find out where to go if you reside in Mississauga, or Pickering, or Aurora?

The Ontario government provides a helpful list of court houses in the province. You can select the closest municipality to you (or your spouse or your child’s other parent) from the “Choose a municipality” drop down list and you will see court house locations marked on a map. Make sure you also select “Family” from the “Choose a court office” drop down list to weed out the court houses that do not handle family law cases. This will provide you with a list of courts in that municipality (and, hopefully, near yours). If you click on any of the courts in the list, you will see more details about that court, including whether it is a branch of the Ontario Court of Justice or the Ontario Superior Court of Justice.

The Ontario Superior Court of Justice can handle all family law issues, but the Ontario Court of Justice cannot make orders about property division or divorce. If your case is going to require a judge to make orders about those things you will need to start your case in the nearest Superior Court of Justice.

If you have any questions at all about where to start your family law case, please contact us.

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