Overview
If you have a problem that cannot be resolved and you have not been able to agree with the other party on how to resolve it, you may have to make an application for an order. An application describes to the judge the issues that you are asking the court to decide.
Applying to the court for orders should be a last resort and only considered after all efforts to resolve your problem have failed. Consider discussing your application with a lawyer. Look at other options such as family mediation.
There are 2 parties involved when filing an application or order:
Applicant
The person who files the application
Respondent
The person who responds to the application
Application guidelines
You can apply to either the Court of Justice or the Court of King’s Bench.
You cannot apply in one court if an application has already been made in the other court.
For the following matters, you must apply to the Court of King’s Bench:
- Exclusive Possession of a Home or Household Goods
- Declaration of Parentage
- Declaration of Irreconcilability
- Financial support orders that deal with property
How to apply
Step 1. Choose the right forms
Family Law Act
If your claim is under the Family Law Act, you must prepare two court forms:
- Claim – Family Law Act
- lets the Court know “what” you want
- explains in one or two pages what kind of Order you are asking for
- Affidavit of Service
- provides evidence that the other party received the application documents
You can use the Family Law Act for:
- guardianship of children
- parenting of children
- contact with children
- child support
- spousal or partner support
- declaration of parentage
- enforcement of time with a child
- other matters found in the Family Law Act
You cannot use the Family Law Act if there is an order or judgment under the Divorce Act addressing the same issue.
Other Acts
If you are making an application that is not under the Family Law Act, you must prepare these court forms:
- Family Application
- lets the Court know 'what' you want
- Affidavit
- provides evidence that the other party received the application documents
Step 2. Complete an affidavit or statement for each order you request
If you are making an application, complete an Affidavit.
If you are making a claim under the Family Law Act, complete a Statement.
Follow these steps for filling out an application:
- Correctly copy the Court File number (if you have one).
- Provide details.
- Attach copies of all documents that you refer to in the Affidavit/Statement.
- Make sure all the forms are complete.
- Number the pages and list the total number of pages, including documents you have attached to the Affidavit/Statement.
- Swear each Affidavit/Statement is true before a Commissioner for Oaths or Notary Public:
- there are serious consequences if you do not tell the truth
- all lawyers, notaries public and some staff at the courthouse may act as Commissioners for Oaths
- no fee is charged, at the courthouse, for this service
- you may be asked for ID
You will need:
- the original application or claim for the court
- a copy for you (and a copy for any other applicants)
- a copy for each respondent
- an extra copy for the judge
If you are filing an application or order relating to Guardianship or a Declaration of Parentage, a copy of the application needs to be served to each child that is 16 years old or over.
Step 3. File the forms with a court clerk
While you are filing your forms:
- select a court date with the help of a court clerk
- the respondent needs at least 20 days to respond
- if financial information is needed the respondent has 1 month to respond
- let the clerk know if a particular judge has already been assigned to your file
- if you are making a Claim under the Family Law Act, complete the “Notice to Respondent” on the Claim
The clerk will stamp and keep the original copies of your Application and Affidavit and return 2 copies to you.
Do not add any other documents or make any changes once the package is sworn.
Step 4. Serve your application or claim
Serve your court materials to all other parties. Court materials must be hand-delivered directly to the respondent by either:
- yourself
- a friend
- a Process Server
A Process Server will:
- help you find the respondent
- serve the court materials
- complete the Affidavit of Service for you
- charge a fee for their services
If you don’t know where the other party is, you will have to try to find them.
Some suggestions are:
- talking to their family members and friends
- contacting former employers
- contacting sport or hobby groups
- searching Canada 411
If it is difficult or impossible to personally serve them, the court may allow you to serve in some other way such as:
- Recorded Mail (registered mail)
- to post the notice on their front door
- through some other person who is in contact with them such as a co-worker or friend
- a Process Server
If you have tried all of the steps listed above and have been unsuccessful, you can ask the court for an Order for Substitutional Service.
In some cases, the court will allow you to go ahead without serving the respondent. But this is only considered after every effort to find them has failed.
Step 5. If you are filing an application, complete an Affidavit of Service for each applicant and respondent
After you have served your court materials to the respondent, you must prepare your Affidavit of Service. This is the court form that proves to the judge that the other party was properly notified of your application.
Your Affidavit of Service must be completed by the person who served the documents.
The person who served the documents must swear the Affidavit of Service is true before a Commissioner for Oaths or Notary Public.
The Affidavit of Service will:
- explain who delivered the documents
- say the date the documents were delivered
- say the address of where the respondent was served
You must file the original Affidavit of Service at the clerk’s office before the court date and bring a copy of it with you to court.
Step 6. Attend court
Bring all of your paperwork and documents with you, including your filed Affidavits of Service.