The information below is a summary discussion of the Mandatory Information Program and the First Appearance Court Date. The information below is intended to serve as a general overview of these steps in a family law case. If you are the Applicant, Respondent or an additional party to a family law case, it is strongly recommended that you retain the services of a family lawyer before completing any court documents.
Form 8: Application
The originating document in a family court file is a Form 8: Application. At the Form 8: Application, the Applicant can ask the court for orders. These include orders for spousal support, child support, decision-making responsibility for children, and parenting time. In divorce matters, parties can also seek a divorce and other orders where there are issues around property. This includes orders for equalization of net family properties, exclusive possession of matrimonial home, exclusive possession of contents of matrimonial home, freezing assets, and sale of family property. Once the Applicant has completed the Application, he or she needs to attend the court. This is in order to have the completed Application “issued” or stamped by the court clerk. At the Ontario Court of Justice, court clerks will confirm the date of the parties’ first appearance on the first page of the Application when issuing the Application.
As per Family Law Rule 8, the Applicant must then serve the issued Application materials on the Respondent. This may include a Form 35.1 Affidavit (decision-making responsibility, parenting time, contact). It may also include Form 35.1A: Affidavit (child protection information), and a Financial Statement (Form 13 or Form 13.1 if there are claims relating to property). Once the Applicant has served the Respondent with the issued Application materials, the Applicant must file a Family Law Rule Form 6B: Affidavit of Service.
Continuing Record
The Applicant must also serve and file a continuing record.
As per Family Law Rule 9:
Continuing record created
“A person starting a case shall, (a) prepare a single continuing record of the case, to be the court’s permanent record of the case; and
(b) serve it on all other parties and file it, along with the affidavits of service or other documents proving that the continuing record was served.”
Mandatory Information Program
When issuing an Application, the court clerk will also provide the Applicant with two “Mandatory Information Program” packages. One package is the “Applicant’s” Mandatory Information package. The second package is the Respondent’s Mandatory Information package. When serving the Respondent with the Application materials, the Applicant must also serve the Respondent with the Respondent’s Mandatory Information Program package.
As per Family Law Rule 8.1:
Mandatory information program
Application of rule
8.1 (1) This rule applies to cases started after August 31, 2011, that deal with any of the following:
- A claim respecting decision-making responsibility, parenting time, or contact with respect to a child under the Divorce Act (Canada) or Part III of the Children’s Law Reform Act.
- A claim respecting net family property under Part I of the Family Law Act.
- A claim respecting a matrimonial home under Part II of the Family Law Act.
- A claim for support under the Divorce Act (Canada) or Part III of the Family Law Act.
- A restraining order under the Family Law Act or the Children’s Law Reform Act.
- A motion to change a final order or agreement under rule 15, except motions that deal only with changing child or spousal support.
The Mandatory Information Program provides parties to a case “with information about separation and the legal process. It may include information on topics such as:
(a) the options available for resolving differences, including alternatives to going to court;
(b) the impact the separation of parents has on children; and
(c) resources available to deal with problems arising from separation.”
Attendance Compulsory
The parties need to attend the Mandatory Information Centre within 45 days of the start of the case.
Certificate
The person who conducts the Mandatory Information Program shall provide for each party who attends a certificate of attendance. This certificate should be filed as soon as possible. Parties should file it no later than 2 p.m. on the second day before the day of the case conference.
No Other Steps
It is important for each party to complete their respective Mandatory Information Program. Neither party may “take any step in the case before his or her certificate of attendance is filed. The exception is that the Respondent may serve and file an Answer. A party may also make an appointment for a case conference.”
Exception
The court may, on motion, order that the parties may proceed in the case, without having filed a certificate of attendance. This can be due to urgency, hardship or for some other reason in the interest of justice.
First Court Appearance
The first court appearance date will have been indicated by the court clerk that issued the Application. The first court appearance date will usually be directed by the court clerk.
The purpose of the first appearance is to ensure that the parties have served and filed their court materials. The Applicant serves his or her Application materials. The Respondent serves his or her responding materials. If the parties have not served and filed their respective court materials, the court clerk may direct them to attend another first court appearance. This provides the parties with additional time to serve and file their court pleadings. It is highly recommended that the parties attend the first appearance court date with their respective family lawyers. Moreover, a lawyer can attend the first appearance court date on their own.
Party Does Not Attend First Appearance Court Date
If the parties do not attend the first appearance court date, the court clerk will reschedule the court date.
If the Respondent attends the first appearance and requests additional time to serve their materials, the clerk will adjourn the date. It will allow the Respondent additional time to serve and file his or her responding documents.
Form 10: Answer
The responding documents in a family court case include a Form 10: Answer. In the Form 10: Answer, the Respondent can ask the court for orders. These include orders for spousal support, child support, decision-making responsibility for children, and parenting time.
In divorce matters, the Respondent can also seek a divorce and other orders where there are issues around property. These include orders for equalization of net family properties. They also include orders for exclusive possession of matrimonial home and exclusive possession of contents of matrimonial home. Similar orders may include freezing assets, and sale of family property. The Form 10: Answer also provides the Respondent an opportunity to set out the facts that form the legal basis for the party’s claims.
The Respondent may also need to serve and file a Form 35.1: Affidavit (decision-making responsibility, parenting time, contact), Form 35.1A: Affidavit (child protection information) and a Financial Statement (Form 13 or Form 13.1 if there are claims relating to property). The Respondent’s Form 10: Answer must be served and filed within 30 days after being served with the Application. In a case where the Application was served outside of Canada or the United States of America, the Answer must be served within 60 days, after being served with the Application. br/p>
Once the Applicant has served the Respondent with the issued Application materials, the Applicant must file Family Law Rule Form 6B: Affidavit of Service.
Reply
When the Applicant is served with an Answer, he or she may file a form 10A: Reply in response to claims being made in the Answer. The Form 10A: Reply needs to be served and filed within ten days of receipt of the Answer.
Uncontested Trial
If the Applicant served and filed their Application materials and the Respondent does not provide his or her responding materials and does not attend the first appearance court date, the court clerk may take action. On the request of the Applicant, the court clerk may schedule a case conference or set a date for an uncontested trial. “A settlement conference or trial management conference shall be conducted only if the court orders it.”
Uncontested Divorce
When the Respondent does not serve and file responding materials in an uncontested divorce case, the court clerk will prepare the documents for a judge. Find out more here.
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Written by: Erick McKinlay