25 Family Law Court
Domestic Violence is classified as abuse that comes in the form of physical, emotional, sexual, financial, or psychological violence. The violence can be carried out via assault, threats, stalking an individual, or in other forms of mistreatment and cruelty. Regardless of what form the abuse is in, it has the same underlying theme of inducing fear within the victims. [1]In some circumstances, domestic violence issues are divided into two separate matters within the court system. One incident may need to be resolved in criminal court, while another may need to be resolved in family court. In this section, we will be analyzing the differences between Family Court and criminal court along with the applicable steps that occur in each system.
Family Court
Family Court is a court of law that oversees matters of domestic issues – for example, child custody, divorce, dividing property and so on. Partners, in a marriage or common-law relationship, who are undergoing a separation or divorce may choose to involve a Family Court to resolve the issues at dispute. A common-law relationship is defined when the partners are living together for years – and who may have children together – but are not legally married. A marriage is legally formed when an individual with the legal power to marry a couple performs a ceremony. Issues that are to be resolved by Family Court are called disputes.
A Family Court is a court of law that falls under the civil law system. Civil law is a branch of the law that is non-criminal in nature and is at times referred to as private law. This form of law is concerned with the rights and responsibilities of private members of the public. It protects the rights of individuals and offers remedies sought in court.[2]
The issues, or disputes, brought before Family Courts involve private members of the public. The cases are heard in the Ontario Court of Justice (OCJ) and/or Superior Court of Justice (SCJ).
Parties
In Family Court, the parties in a proceeding are the partners in the relationship. On some occasions, a third party might be involved – for example, the Family Responsibility Office (FRO) – intervenes during a default hearing. The FRO collects, distributes, and enforces child and spousal support payments. Subsequently, if a child is exposed to domestic violence in a household, the Children’s Aid Society (CAS) may intervene.
Purpose
Family Courts resolve issues in a dispute between partners after a separation. They operate on two separate levels: provincial and federal. While the federal court has exclusive authority over divorces, the provincial courts resolve disputes such as custody and access to children, child support, spousal support, and property division. Where it is held necessary, a Family Court may provide a no-contact order in the interest of the partner and/or children.
Legal Test
During a trial, when determining the method to resolve legal issues, the Courts use legal tests to establish the level of proof required for a matter. Legal tests are applicable in court settings as they resolve disputes in a fair manner. The formula used to determine the level of proof is dependent on whether the matter is civil or criminal in nature. Here, it is important to explain the concepts of burden of proof and standard of proof. The burden of proof indicates who – which party in the proceeding – has the responsibility to prove the matter in court. The party with the responsibility is required to prove their argument based on a standard of proof. In other words, they must meet the standard of proof. The standard of proof is best described as the degree to which a party must prove their point.
In a Family Court, the party making the claim has the responsibility of proving their arguments. The standard of proof in Family Court is based on a balance of probabilities. This is the applicable legal test for civil disputes. The requirement within this legal standard is that the dispute be decided by the judge in favor of the party whose claim is supported through facts and evidence. Therefore, the weight of the argument is more likely to be true than that of the opposing party.
To simplify further, the legal test of a balance of probabilities can be explained through a scale where each side belongs to one of the parties. Each party will have the opportunity to present their facts and the evidence supporting those facts. If the evidence weighs heavier on one of the sides, i.e. the evidence is more convincing, that party is successful. In determining child custody and access, the courts apply a legal test called the “Best Interest of the Child.”
Outcome
Family Court handles matters between individuals; therefore, the court’s authority in terms of the outcome of the case must be based on the remedy that is sought by the parties. Various remedies that may be provided by the court are a division of family property, divorce, and child custody and access.
Getting Help
If the issue in dispute involves domestic violence, a Family Court Support Worker (FCSW) provides assistance to the victims. FCSWs are available in every court jurisdiction in Ontario. These individuals are trained to support the victims through various services in the following aspects of the legal process:
- Providing information about the court process;
- Helping in the preparation for court proceedings;
- Referring victims to available services and supports in the community;
- Helping with safety planning; and
- Where necessary, accompanying the victim to court proceedings.[3]
Steps to a Family Law Case
When considering a separation or a divorce, the two partners need to figure out their legal disputes. These are categorized under the domestic issues they cannot agree upon. Common issues that the majority of partners need to decide include:
- Children – if the partners have children issues regarding custody, access and child support may need to be considered;
- Property, assets, debts – the assets and liabilities may have to be divided;
- Spousal Support – One partner might have to pay money to the other partner after they separate or divorce;
- Divorce – if the partners are married, they might consider getting a divorce which is usually granted by the courts if they have been legally separated for one year. This requires a court order that legally ends a marriage.
- Safety – if family violence has been experienced by a partner and their children, there are special plans that have to be considered.
The partners may agree on some parts, and if they do, it is generally advisable to make a separation agreement. A separation agreement is a written contract that specifies the challenges and issues between the partners and how they will be dealt with. A lawyer is not needed to make a separation agreement. It can be made at any time after the partners separate. If a partner would like to enforce their separation agreement, they have the option of filing it with the Court.
Courts in Ontario who handle family law matters
- Family Court Branch of the Superior Court of Justice (FCBSCJ)
This court is the only one that hears all matters of family law cases
- Superior Court of Justice (SCJ)
The following are some of the family law cases this court handles:
- Divorce;
- Division of property;
- Possession and/or sale of matrimonial home;
- Child and spousal support;
- Custody and access; and
- Restraining Orders.
- Ontario Court of Justice (OCJ)
This court hears all of the above-mentioned family law cases except for divorce, dividing property, and matrimonial home. In addition, this court also handles matters of:
- Enforcing support in a separation agreement; and
- Child protection.
What to consider when initiating a Family Court case
- The partner will need to go to a court in their municipality (e.g. Peel Region, Halton Region, Durham Region).
- The partner will also need to go to the right court, as some of them might not handle certain matters.
Note: When it comes to court fees, the OCJ is free of charge, whereas the FCBSCJ and the SCJ have applicable court fees. If a person cannot afford the court fees, there is an option of applying for a fee waiver.
- For more information on the eligibility criteria, please click on this link.
- For more information on what to consider before going to a family court with domestic issues and a detailed description of the steps involved, please visit CLEO.
If a partner is starting a Family Court case, then they are the Applicant in the proceeding. If the other partner started a Family Court case against them, then they are the Respondent. Each role comes with certain responsibilities and procedural steps that need to be followed in the court case. Both roles are explained in this document.
Applicant
There are numerous steps involved when going through with a Family Court case. A brief description follows:
Step 1 – Issue the application: If a partner starts a Family Court case then they are the Applicant. There are specific forms the partner is required to fill out. Once those forms are complete, the application will be issued by the Court. This means that the Applicant needs to take their forms to the Court where the court clerk reviews, signs, dates, and stamps the application. The clerk will then give the Applicant a first court date, informs of applicable fees (if any) and blank documents for their partner to fill out.
Step 2 – Serve the application: Serving the partner with the application means that the Applicant gives their partner the documents that were issued by the court. The partner can respond to the application by filling out the forms. They may agree, disagree, give their version of the issues, and/or make their own claim.
Step 3 – File the documents: The Applicant must file their documents at the court with the court clerk once they have served the documents to their partner.
Step 4 – The partner does not respond, get a court order: If the partner fails to respond to an application, the Applicant may ask the judge to make an order for an undefended claim. This means that the judge will make a final decision on the application based on the Applicant’s documents and evidence.
Step 5 – The partner’s answer: The partner may agree or disagree with some or all of the Applicant‘s claims. The partner may even make claims of their own, which means that the Applicant has the option of filing a response to that claim; however, they are not required to.
Step 6 – Case conference: During the case conference, both partners, as well as their lawyers if they are represented, meet the judge. The reason for a case conference is to discuss their issues with the judge and perhaps reach an agreement on some or all of their issues without going to trial.
Step 7 – Settlement conference: If no resolution was formed, the partners will move forward to the settlement conference. The partners will once again, unless they did not have a case conference, discuss their issues with the judge. The difference between a case conference and a settlement conference is the judge’s role. In a settlement conference, the judge plays an active role in trying to get an agreement between the partners. If an agreement is reached, then the judge can make an order based on what the partners have agreed on. If the agreement is not reached the matter proceeds to the next step of Trial management conference.
Step 8 – Trial management conference: The goals of a trial management conference is to give the partners an additional chance to resolve their issues and to estimate how long the trial will be. The Applicant will need to bring their list of witnesses and all other relevant documents to their case that will be used as evidence.
Step 9 – Trial: At the trial, there will be a judge without a jury. To make a decision, the judge uses a legal test called a “balance of probabilities.” This means that the Applicant‘s side of the story, supported by the evidence, has to be more believable than their partner’s side.
Step 10 – The order: An order will be made once the trial is finalized.
Respondent
As a respondent, some of the steps required from a partner are the same as the applicant.. However, since the partner is responding to an application rather than starting one, there are a few steps that differ. Once an applicant has served their partner with an application, the respondent is to follow the steps below in response to their partner’s application.
Step 1 – Prepare and serve an answer: This is the part where the respondent fills out necessary forms and responds to their partner’s claims. They may agree, or disagree, with some or all of the claims. A respondent may even make claims of their own.
Step 2 – File the documents in court: The response will be on the documents the Respondent has filled out. Once those documents have been served on the Applicant, the Respondent must file them in court with the court clerk.
Step 3 – The partner’s reply: Both partners may agree with some or all of the claims. If they do, they can enter into a separation agreement and have that enforced by the court. If a Respondent has made claims of their own, the Applicant can reply to their response. If they do not reply, it means that they do not agree with the claims. The case will move forward whether the Applicant replies or not.
The remainder of the steps are the same as described in the Applicant's process. For further details and clarification about the steps involved in responding to an application can be found on CLEO.
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- For more information see: What is abuse ↵
- For more information see: Civil Law ↵
- For more information see: Family Court Support Worker Program ↵
These are the actions and activities which take place during a legal dispute. It is a blanket term that defines the entire legal process from beginning to end. This could also refer to a specific type of hearing or trial (Justice Education Society, 2019).
For over 100 years, the Ontario Association of Children’s Aid Societies (OACAS) has been serving and promoting the welfare and well-being of children, youth and families in Ontario. Their vision is to re-imagine child welfare: to create an effective children’s services system that supports ALL children, youth, families, and communities to thrive. There are 50 Children’s Aid Societies (CASs) and Indigenous Child and Family Well-Being Agencies in Ontario. OACAS is an association representing 49 member organizations. Of these, 47 of 49 are mandated CASs and Indigenous Child and Family Well-Being Agencies; two are pre-mandated Indigenous agencies. More information about the services provided by the OACAS can be found at http://www.oacas.org/
The “best interests of the child” is a principle stated in law that allows decision-making authorities to be child-focussed. The ‘best interest’ test provides discretion to a judge to decide the disputes involving children within the legislative framework, keeping the child’s interest at the heart of the decision. Simply put, the judge will consider the evidence provided by each party but make the decision based on what is best for the child. The examples of family law cases involving best interest of children analysis are as follows: cases involving issues of custody and access or variation thereof, exclusive possession of matrimonial home, or mobility cases. If the parties before the family court are married, they are governed by the federal legislation i.e. the Divorce Act. If they are not married, the provincial Act (In the case of Ontario, the Children’s Law Reform Act) would provide the framework and specified criteria for deciding what is in the best interest of the child. In family cases involving domestic violence, it allows the court to consider past conduct of a parent when it involves violence or abuse against a spouse, a parent of the child to whom the application relates, a member of the person’s household, or any child.
The Immigration and Refugee Protection Act (IRPA) refers to the need to take "into account the best interests of a child directly affected". Thus, the decisions of Immigration, Refugees and Citizenship Canada (IRCC) or Immigration Refugee Board (IRB) must include an assessment of the best interests of a child who would be directly affected in an Humanitarian and Compassionate Application for permanent residence, or Refugee claim or citizenship application involving children.
Canada has signed International human rights instruments which require children's best interests be given priority consideration courts, tribunals or other institutions.
A restraining order can be requested from a family court if there is fear that a former spouse/partner could potentially cause harm to another member of the family. This is completed within a Family Court and must be mandated by a judge to be considered binding. Typically, it lists a number of conditions in which the spouse/partner must adhere to and obey and can either be broad or detailed, depending on the situation. An example of a general restraining order would be the instruction that the partner/spouse “cannot come near you or your children.” Alternatively, a more detailed order would stipulate that a partner/spouse cannot come to a place of employment, must maintain a specific distance, cannot visit children at school, or try to initiate communication at locations often frequented. It is applied for by way of a court application or a court motion (if urgent) (Ministry of Attorney General, 2009).
The individual who initiates legal action (Application) in a Court.
The individual who is responding to the claims made by the applicant (Justice Education Society, 2019).
In Family Court, the judge can make an ‘order’ based on a motion or at trial. Examples are an order for child custody or access based on evidence presented. Essentially, this is the decision that the judge deems most viable and is usually temporary in nature until a final decision can be made (Ministry of the Attorney General, 2019).
