Having to deal with the Court can be quite stressful and overwhelming, so the first recommendation many lawyers give is to try to settle disputes amicably and without the need to involve the Court. There are alternative dispute resolutions at your reach to make it easier for everyone as well as quicker, such as family mediation.
But if you have a problem that could not get resolved amicably for any reason, then you will need to make an application for an order. The application is the piece of document that will explain to the judge what issues you are taking to Court for them to decide.
Applying for an order should be your last resort as it can be costly, time-consuming, and stressful. If all other solutions have failed, then it is recommended that you discuss your application with a family lawyer Calgary to ensure that everything is done correctly and that your rights and best interests are protected. It is easy to make mistakes when you are not trained to deal with those documents.
It is important to differentiate terms and understand guidelines as well. An applicant is a person who is filing the application, while the respondent is the person who will answer it. You can apply to the Provincial Court or the Court of King’s Bench but cannot apply to one court if you already made an application to the other one.
For “Exclusive Possession of a Home or Household Goods”, “Declaration of Parentage”, “Declaration of Irreconcilability”, and “Financial support orders that deal with property” you will apply to the Court of King’s Bench.
How To Apply
Firstly, you will need to choose the correct form you will be using. It is always important to reinforce that having the support of a family lawyer with you is in your best interest. Most claims will be under the Family Law Act, and that will mean you will need to prepare two court forms: the Claim – Family Law Act where the Court will know what exactly is being discussed and what kind of Order you are asking for, and the Affidavit of Service which will provide evidence that the other party has also received the application documents.
The Family Law Act allows for claims such as guardianship or parenting of children, child or spousal support, declaration of parentage, and more. You cannot use the Family Law Act, however, if there is an order or judgement under the Divorce Act about the same issue. Other Acts can also be used if you are making an application that is not under the Family Law Act, you will still need to prepare a Family Application with similar objectives as the Claim – Family Law Act as well as an Affidavit.
Affidavit or Statement
You will need to complete an affidavit if you are making an application, or a statement if you are making a claim under the Family Law Act.
Making those documents is an important step of the process, and will be in your best interest to have a family lawyer with you throughout it. You might have a Court File number and if you do you will include it here. Those documents must be detailed to ensure that there is no room for misunderstandings and for every document referred, a copy of it must be attached.
After making sure the forms are complete, and the pages are numbered including the documents you referenced you will need to swear that each Affidavit or Statement is true before a Commissioner for Oaths or Notary Public.
You will need the original application or claim for the court, a copy for you and any other applicant, a copy for the respondent, and an extra copy for the judge.
File Forms with a Court Clerk
While filing forms you will need to select a court date with the support of a court clerk. The respondent will need at least 20 days to respond, unless financial information is necessary, if that’s the case the respondent needs at least the period of one month to respond.
The Court Clerk will need to know if a specific judge has been assigned to your case. If you are making a claim under the Family Law Act you will need to complete the “Notice to Respondent”. The Clerk will then stamp your documents, keep the original copies, and give you another two. Suffice it to say once the package has been sworn no changes can be done.
Serving Your Application or Claim
You will need to serve your application or claim to all parties involved, and the documents must be delivered by hand to the respondent by you, a friend, or a process server. A process server is a professional that will help you find the respondent, serve the court documents, and complete the Affidavit of Service for you for a fee.
There are instances where finding the respondent can be quite challenging. At first, you can try contacting family members and friends, former employers, groups where the respondent goes to, or Canada 411. If you are still unable to find the respondent, the Court may allow you to serve the documents by registered mail, by posting it on their front door, through someone who can get in contact with them, or through a process server.
If you still fail to serve the documents, you can ask the Court for an Order for Substitutional Service. The Court may allow going ahead without serving the documents to the respondent, but only if every reasonable attempt to contact them has failed.
Final Steps
After successfully serving the documents to the respondent, the person who served the documents will need to complete an Affidavit of Service. An Affidavit of Service will detail who served the documents when it was done, and at which address. The same person must swear that the Affidavit of Service is true before a commissioner for Oaths or Notary Public.
The original Affidavit of Service must be filed at the clerk’s office before the court’s date and a copy must be brought to Court.
After all that, it comes the time to attend Court with all the paperwork you filed. Once again, it is worth reiterating how having a family lawyer from the beginning of the process can save you money, stress, and time. A family lawyer in Calgary will defend you to their best capabilities and will always have your best interests at heart.
