What court will hear my case?
Sometimes it is necessary to have a court decide how to resolve your family law issues. There are three different courts in Ontario that hear family law cases, and you will need to choose which court is the appropriate venue for your application. In this post, University of Ottawa law student and Fresh Legal summer intern, Kayla Sanger, discusses how to determine where your case should be commenced and heard.
You will need to begin your case by filing an application with the Court. Your application provides important details about your situation and the issues you would like the court to consider. There is often confusion about which court is the most appropriate venue for a given case. There are three important things to consider when determining where you should file your application for your case to proceed.
Which municipality should hear your case?
You must start your case in the municipality where either you or the other party resides. If you are asking the court to determine a matter of custody or access, you will need to file your application in the municipality where the child resides. For other factors which determine where a case is commenced and heard, see Rule 5 of the Family Law Rules.
Which court has jurisdiction to hear you case?
The issues you are asking the court to determine will dictate in what court you need to bring your application. Each level of court is only authorized to hear and determine subject matter within its jurisdiction. Divorce and separation in Ontario are governed by both federal and provincial legislation. The law allows some issues to be exclusively decided by the Superior Court of Justice and others to be exclusively decided by the Ontario Court of Justice. Some issues have overlap in jurisdiction and can be determined by either court depending on your circumstance.
Generally speaking, if you are married and applying for a divorce (whether only a divorce or you are asking for other things as well), or you are asking the court to divide property, you will bring your application in the Superior Court of Justice.
You will bring your application in the Ontario Court of Justice if you are married but not asking the court for a divorce or property division at this time, and also if you were in a common-law relationship. This is also the correct venue for applications concerning adoption and child protection.
Both Courts can determine issues of child support, spousal support, custody and access.
Do you live in a municipality with a unified family court?
Unified Family Courts are a branch of the Superior Court of Justice that has jurisdiction to hear ALL family law cases. To find out if you are bringing an application in a municipality with a Superior Court of Justice Family Court Branch, read this article. Ottawa has a Unified Family Court, but not all surrounding jurisdictions have a Unified Family Court (for example, Perth and L'Orignal have a Unified Family Court, but Pembroke and Renfrew do not).
If you need help navigating the system or determining which court is most appropriate for your case, consult a family law lawyer. Additional resources include Family Law Information Centres and the Ministry of the Attorney General’s Guide to Procedures in Family Court.