Debunking the myths and legends that haunt family law.
This article continues our series on debunking the myths and legends that haunt family law. In our last issue, Erika covered myths about lawyers. Today’s topic: the family law process, particularly, filing claims.
Myth: If I file first, I have the upper hand.
To get a divorce or court order for parenting time, support or property division, one party must file a Statement of Claim at their local courthouse. Doing so opens a court file. The first person to file is called the Plaintiff or the Applicant, and the person who responds is the Defendant or Respondent. (I will use the terms Applicant and Respondent in this article for simplicity.) Sometimes, parties feel a rush to be the first to file a claim to achieve an advantage.
First, not all family law disputes need to, or should, start with a court action. One of the best first things anyone involved in a family law dispute can do is talk to a lawyer about their process options. Many families benefit from starting with mediation, engaging in the Collaborative Process, or exploring other options. Often an email to the other party, or their lawyer, starts a productive conversation that leads to everyone agreeing how to resolve the issues.
You should talk to a lawyer about whether filing is necessary in the early stages of a dispute and what strategy is right for you.If the parties settle the issues, they may still need a Divorce Judgement or court order setting out the terms of the agreement. In this case, the parties can decide who will file as the Plaintiff/Applicant and who will be the Defendant/Respondent. It almost always does not matter who wears which label. The Applicant, or their lawyer, will likely do most of the work (for example, drafting and completing necessary paperwork) and pay for filing fees. These costs may affect who wants to take on that roll. In the case of a divorce, the parties can also file jointly using the labels “Spouse 1” and “Spouse 2” instead.
However, there are cases where it is important to file a claim sooner rather than later. One reason is to secure rights or to make sure the matter moves ahead. Filing a claim does not mean a judge will make all the decisions. The parties can still try to settle their issues. If the parties need to go to court at some point, they will use the existing court file.
If you are filing a family law claim, it does not really matter who files first. Each party gets an opportunity to present their evidence to the court. The Respondent responds in a Statement of Defence or Response and can file their own Counterclaim. Either party can apply to court for interim applications, where needed.
There may be some small advantages to filing a claim first, such as:
- Where there is a choice of court, the Applicant chooses where to file. For example, in Alberta, most Family Law Act matters can be started in either the Provincial Court or the Court of Queen’s Bench.
- Where the appropriate judicial centre is uncertain, the Applicant can file in their preferred judicial centre. The Respondent may then not feel it is worthwhile to challenge the location. For example, if you live in Leduc, your “correct” Queen’s Bench judicial centre is Wetaskiwin, however, you may prefer to file in Edmonton.
There may also be some advantages to filing an individual interim court application first, such as:
- The Applicant picks the first court date, keeping in mind timelines set out in the Rules. The Applicant should make sure the Respondent is available and has enough time to file their response.
- The Applicant can file two affidavits (the initial affidavit and a limited reply to the Respondent’s response affidavit). The Respondent can only file one response affidavit, unless there is a cross-application.
Not all family law disputes need to, or should, start with a court action.On the other hand, there may be some advantages to being the Respondent. First, you know what the Applicant is asking for. For example, the Respondent may want to wait to see if the Applicant requests partner support before even broaching the topic. Second, the Respondent may save some fees. The Applicant may incur more legal fees for having the Respondent personally served with the claim and for filing the documents to finalize the matter. This is especially true to get a Divorce Judgement.
There is rarely a need to race to file first. You should talk to a lawyer about whether filing is necessary in the early stages of a dispute and what strategy is right for you.
Myth: If I ignore it, it will go away. Or I cannot get divorced because my former spouse will not sign the paperwork.
In most cases, we hope that both parties to a family dispute are engaged in the process and work toward an agreement. If they cannot reach an agreement, we hope the parties will participate in any court processes.
When a Respondent is served with a claim, they have strict timelines to reply. If they do not file and serve a Defence/Response, the court can note them in default. This means the Applicant can go ahead with their claim without any further notice to the Respondent. It also means the court can grant a judgment or order based on what the Applicant requested, so long as it complies with the law. Ignoring a claim will not make it go away.
Sometimes a Defendant will file the necessary paperwork to avoid being noted in default but will not engage in a meaningful way. Or, they will reach an agreement on the terms but not sign off on a consent order or agreement. In this case, the Applicant can apply to court for a final order. In the case of a divorce, the Applicant is entitled to it after being separated for one year. Yet, a court application may take time to process and may cost legal fees. The Applicant must decide if an application is worth the cost, even though it is possible.
Myth: I have to wait a year following separation to file a court application about parenting, support or property issues.
I covered this myth in more detail in a 2019 LawNow article. Follow the link to learn more!
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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