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FAMILY LAW

Family Law Procedures in Court

Family law cases in Newfoundland and Labrador are heard in either Provincial Court or Supreme Court depending on where the parties involved live. It is strongly suggested that individuals speak with a family law lawyer if they are unsure which court should be handling the case. Filing documents with the wrong court can lead to significant delays.

Both the Supreme and Provincial Court of Newfoundland and Labrador hear family matters dealing with custody, access, child support, and spousal support. However, only the Supreme Court has the authority to deal with divorce and division of matrimonial property. It should also be noted that only the Supreme Court can hear applications to vary custody and support orders issued as part of, or after, a divorce proceeding. The Provincial Court cannot vary a custody or support order that was issued in the Supreme Court.

Supreme Court (Family Division)

The Supreme Court (Family Division) (formerly known as the Unified Family Court) has exclusive authority to deal with all family law matters in the geographic areas that it covers (called its “judicial area.”) This means any family law applications in these areas of the province must be made to the Supreme Court of Newfoundland and Labrador Family Division.

The Provincial Court in these areas does not accept family court applications. The geographic region coming under the jurisdiction of the Supreme Court Family Division includes the following:

  • East Coast: The Avalon Peninsula, as far as Holyrood and including the St. John’s metropolitan area and Bell Island.
  • West Coast: The area from Grey River west along the South coast of the island portion of Newfoundland and Labrador to Channel-Port aux Basques, then north to include the whole of the Great Northern Peninsula and west to the turnoff of the Trans-Canada Highway to routes 420 and 421 to Jackson’s Arm and the Beaches respectively, to include all of the communities along both routes 420 and 421.
  • Expanded Service Area:  Communities from Holyrood to Port Blandford, including the Bonavista Peninsula, fall within the “expanded service area” of the Supreme Court family law applications (such as custody, access, child support, and spousal support) with the Supreme Court Family Division or with the Provincial Court since the two Courts have concurrent jurisdiction in these communities. Please note that there is no expanded service area on the West coast of the province.

Areas of Newfoundland and Labrador not covered by Supreme Court Family Division

In all other areas of the province that are not located within the “judicial area” or “expanded service area” of the Supreme Court of Newfoundland and Labrador Family Division, an application for custody of or access to a child and an application for child and/ or spousal or partner support may be filed in either the Provincial Court or the Supreme Court of Newfoundland and Labrador (General Division). However, only the Supreme Court of Newfoundland and Labrador (General Division) has the authority to deal with divorce and the division of matrimonial property. As was stated earlier, only the Supreme Court can hear applications to vary custody and support orders issued as part of, or after, a divorce proceeding.

Provincial Court

Provincial Court has jurisdiction to hear many matters falling outside of the geographic regions of Supreme Court (Family Division). However, there are certain types of applications that cannot be made at Provincial Court. This includes divorce applications and division of matrimonial assets such as the family home. If you are unsure of which court you should apply, it is best to contact either the Provincial Court or Supreme Court (Family Division).

Family Law Legal Proceedings:

Starting a Court Matter in Supreme Court (Family Division)

If you have never been to court for your family matter you must file an “Originating Application”. This application will begin your court matter in the Supreme Court (Family Division).

You can pick up a physical copy at the Supreme Court (Family Division) or find it online here: https://www.court.nl.ca/supreme/files/F4.03A-Originating-Application-2022-07.pdf

You must fill out every section applicable to you before filing your application. Your application will not be accepted for filing if it is incomplete or has errors in it. Be sure to review the application carefully before filing with the court to make sure it is complete. As well, you will need to provide the court with 3 copies of your application (one for you, the court, and the other side).

Starting a Court Matter in Provincial Court

If you have never been to court for your family matter you must file a “Form 1 Application”. This application will begin your matter in Provincial Court. This application be physically picked up at Provincial Court or be found online here: https://court.nl.ca/provincial/forms/family/Com_FORM1.pdf.

You must fill out every section that applies to your situation before filing your application. You must also file a “Supporting Affidavit”. This document can be physically picked up at Provincial Court or be found online here: https://court.nl.ca/provincial/forms/family/SupportingAFFIDAVIT.pdf

Your application will not be accepted by the court if it is incomplete or has errors in it. Be sure to review the application carefully before filing with the court to make sure it is complete. As well, you will need to provide the court with 3 copies of your application (one for you, the court, and the other side of your legal matter).

Serving Your Documents

Once you have successfully filed your application with the court, you will now have to give a copy of your application to the other side to your legal matter. This is called “service” and is a required process in most legal matters. This provides the other side an opportunity to know why you are taking them to court. Service is a necessary court process that ensures court matters are fair.

Supreme Court (Family Division)

For most new legal applications filed with the Supreme Court of Newfoundland and Labrador (Family Division) you must serve the other side of your matter within 180 days of filing your application with the court. If you need extra time you can file an “Interim Application without Notice for Procedural Orders” form explaining why you need extra time. This must be done before the 180 days have expired. This can be found online here:
https://www.court.nl.ca/supreme/files/F16.03A-Interim-Application-Interim-Application-for-Procedural-Order-2021-03-01.pdf

Provincial Court

For most new matters filed with Provincial Court, you must serve the other side of your matter within 6 months of filing your application with the court. If you need extra time you can file an application with the court for an extension of time to serve the other side to your matter. This can be done before or after 6 months have expired. This application can be found online here:
https://court.nl.ca/provincial/forms/family/Com_FORM1.pdf

Before starting a matter in court, you must determine in which court to file your application. Depending on where you live, you will bring your matter to a Supreme Court (Family Division) or to a Provincial Court. For more information on which court you have to go to, please see the above section on Family Law Courts in Newfoundland and Labrador. If you are unsure whether your matter can be heard at a Provincial Court nearest to you, you may contact either court to get more information.

It depends on what you are filing for your legal matter. For a current list of fees, please visit the Supreme Court (Family Division) website here: https://www.court.nl.ca/supreme/schedule-of-fees/

Every application is fact specific and what you will be required to include in a court file will be different for everyone. For example, if you are filing for a divorce, you will need to include the original marriage certificate in your application. If you are filing an application with the Supreme Court of Newfoundland and Labrador (Family Division) then the required forms will say what you must include in your court application.

If you are uncertain what must be included in your application, then you should contact either the Provincial Court or Supreme Court (Family Division) to ensure your application is complete.

Service is often completed by delivering documents filed with the court to the other side of a legal matter. You may choose to have someone at least 19 years of age serve the other side for you. However, in certain circumstances (parenting/custody/divorce), you cannot serve the other side yourself and must have someone else serve the other side for you.

Service can also be completed if the other side of a legal matter has a lawyer hired. If you decide to serve the other side’s lawyer you can (1) leave a copy with the lawyer, or (2) email a copy of the document to the lawyer. If you decide to serve the other side’s lawyer, service will only be valid if the lawyer acknowledges service by saying “I, [name of lawyer], accept service of this document on behalf of [name of recipient] on [date]”, or something similar to this.

Consider getting someone to serve the other side for you. Many people choose to get help from someone else to serve the other side.

For Supreme Court matters, the person who serves someone for you must then file an “Affidavit of Service” form, swearing that they have personally served the other side. This person must be at least 19 years of age. The “Affidavit of Service” form can be found online here:
https://www.court.nl.ca/supreme/files/F8.03A-Affidavit-of-Service.pdf

i) Mailing Service – Supreme Court (Family Division)

Service can be completed by mailing a copy of the originating application along with an “Acknowledgement of Service” form to the other side. This “Acknowledgement of Service” form can be found online here: https://www.court.nl.ca/supreme/files/F8.04A-Acknowledgement-of-Service.pdf

However, mail will only be considered valid service if the other side returns the completed “Acknowledgement of Service” form to you. This does not have to be registered mail as the “Acknowledgement of Service” form will show that the other side has received the service.

Please note that this cannot be done without court approval if it involves a divorce or application involving a child. If you wish to serve via mail for either a divorce or application involving a child, then you must first ask the court for permission to serve via mail through an Interim Application for Procedural Orders, found online here:
https://www.court.nl.ca/supreme/files/F16.03A-Interim-Application-Interim-Application-for-Procedural-Order-2021-03-01.pdf

ii) Substituted Service: Supreme Court (Family Division)

If you have tried to serve someone personally at their home but have not been successful you may serve your documents by leaving them with an adult at their home. If you do this, you must also mail a copy of the documents by ordinary mail on the same day or following day that you tried to serve them personally. You do not need the court’s permission to do this method of service.

As well, if it is not practical to serve an Originating Application for any reason, you may ask the court for an order for substituted service. You must provide the court with an affidavit stating why you cannot practically serve your documents. If you get an order for substituted service, the court will specify what you must do to properly serve your documents. The application for a procedural order for substituted service can be found online here:
https://www.court.nl.ca/supreme/files/F16.03A-Interim-Application-Interim-Application-for-Procedural-Order-2021-03-01.pdf

If you are granted a procedural order you must immediately serve the other side with the order, or however the court directs you to serve the other side with the procedural order. 

Additionally, the court may make an order that you do not need to serve the other side (however, it is very unlikely that the court will order that you do not need to serve the other side).

iii) Substituted Service: Provincial Court

Where it is impractical to personally serve an application or another document that must be served to the other side, the Provincial Court can make an order for substituted service per the Provincial Court Family Rules. The court may order that substituted service has to proceed under certain conditions, but this will be determined by the judge at the time of your application for substituted service. This may include:

  • serving a representative of the person you are trying to serve;
  • serving their guardian (if applicable);
  • serving them by certified mail with a receipt or proof of delivery signed by the recipient that is forwarded to the last known address of the person served;  • by placing an ad in a newspaper where the person is believed to live;
  • or another matter that the court believes is appropriate.

For an application for substituted service you will need to complete and file Form 1 with the Provincial Court registry and include any necessary support affidavits or other documents.

You are allowed to change your court application once without permission from the court as long as your change is not the addition, deletion, substitution, or correction of a name in the family matter (yours or the other side). This must be done at least 20 days before the date the pleadings (filing of court materials, documents, etc.) are deemed closed by a judge in Supreme Court (Family Division), or at least 5 day before your court hearing under your originating application in both Supreme Court (Family Division) and Provincial Court.

If you do change your application you must reprint your application, refile it with the court, and then serve the other side again with the amended application which states “amended” next to the names of the parties to the court application.

If you have already changed your pleadings, or if you want to change them within 20 days before the pleadings are deemed closed at Supreme Court (Family Division), or within 5 days of your court hearing at either Supreme Court (Family Division) or Provincial Court, you can do so provided:

  • You have written consent of the other parties to your matter; OR
  • You have leave (permission) from the court to change your application.

Responding to Family Law Applications

If you have been served with court documents from either the Supreme Court (Family Division) or Provincial Court, then you have been served by the “Applicant” who is starting a matter against you in court. If you have been served, then you are called the “Respondent”. Respondents must reply to service. Even if you do not intend to dispute what is being submitted to the court you must still reply to the forms. If you do not reply to the documents, then the court may make an order against you without hearing from you.

Responding to Supreme Court (Family Division) Proceedings

To reply to documents from the Supreme Court (Family Division) you must complete and file Form F6.02A, the “Response” Form with the Supreme Court (Family Division). This form is usually with the documents you have been served with, but you may obtain a copy from the Supreme Court (Family Division). This form can also be found online here: https://www.court.nl.ca/supreme/files/F6.02A-Response-2022-07.pdf

Please note that if you are responding to an application involving child or spousal support in Supreme Court (Family Division) that you must also complete Form 10.02A, the “Financial Statement” form. This form must also be served on the applicant and then filed with the Supreme Court (Family Division). This form is usually with the documents you have been served with, but you may obtain a copy from the Supreme Court (Family Division). This form can also be found online here:  https://www.court.nl.ca/supreme/files/F10.02A-Financial-Statement.pdf 

Responding to Provincial Court Family Proceedings

To reply to documents from the Provincial Court you must complete and file Form 4, the “Response” Form. This form is usually with the documents you have been served with, but you may obtain a copy from the Provincial Court. This form can also be found online here: https://court.nl.ca/provincial/forms/family/Com_FORM4.pdf.

Please note that if you are responding to an application involving child or spousal support in Provincial Court that you must also file various pieces of financial documentation. For more information on what to include for Provincial Court, please see the Provincial Court “Financial Information Sheet”, which can be found online here: https://court.nl.ca/provincial/forms/family/fin-info-sheet.pdf.

Mediation and Case Management

If children are involved in your dispute you must go through mediation through Family Justice Services. This is a free program whereby a mediator will help both parties come to an agreement to resolve their dispute. If parties agree and file a consent order on parenting, then mediation will not be necessary. This will mean that what you agree to will become a court order.

For example, if two parties disagree what a parenting plan for their children will be, Family Justice Services will help discuss possible options so that parties can determine what will work best for them. This may include parenting time and who will be responsible for various activities in a child’s life.

Case management is a pre-trial meeting between parties and a judge to help manage pre-trial matters related to court applications and/or trial. Case management allows parties to better understand what issues must be addressed before or at trial. The goal of case management is to create a smooth court process and handle as many issues before trial as possible. This may include creating a pre-trial plan for handling certain matters.

Although case management is part of a court process, it is less formal than a trial. Judges are still able to make court orders at these hearings. Only parties to a family law matter or their lawyers and a judge can participate in a case management hearing. Case management often saves time and money for parties to a dispute.

Many family matters begin with a case management hearing. Certain matters, such as uncontested divorces, or other matters where parties consent to a court order, may not have a case management hearing. If you have a disagreement over who, how, when, where, or why, someone will parent your child, pay child/spousal support, or divide property you own together, you will likely begin your court matter with a case management hearing.

If your case management hearings concern is about child support or parenting decisions, the court will automatically set a case management hearing date. If your case involves something in addition to child support or parenting (such as property division, spousal support, etc.), you can ask the court registry clerk to schedule a case management hearing for those claims. However, this can only be done after the one of the following:

  1. A response has been filed; OR
  2. The applicant has filed an affidavit of service showing that the Originating Application has been served and the time for filing a response has expired.

Once your case management hearing is scheduled, the court will notify the other side, or their lawyer, about the case management hearing. All parties involved in a matter must be prepared for their matter and must attend case management hearings in person. Although case management is less formal than open court, it is a court date and judges can still make orders with or without you being there.

Normally, parties will have several case management hearings before proceeding to a different court hearing. This is because case management allows parties to handle their matter with less rules and strict procedures.

If you have already served the other side for your upcoming case management hearing but want to show a judge additional documents, you must serve those documents as well. This can be done by filing these documents with the court under your court file number. You must then serve the other side with the updated papers at least seven days prior to the date of your next scheduled case management hearing.

Sometimes parties involved in case management hearings do not participate. If one side has not filed a reply or response to a matter, and/or is refusing to participate, then the other side is able to ask the judge for a default judgment. A default judgment is when a judge signs an order for what the applying party is asking the court to do. The judge may order part or all of what is being asked with or without notice to the other side (depending on the circumstances).

For a default judgment at the Supreme Court (Family Division), you must first file a Notice of Default form (Form F6.06A) with the court. Once this is filed, you may file for default application by filing an Application for Judgment form (Form 26.02A) with the court. You will have to serve your Application for Judgment on the other side, unless they have already filed a Demand for Notice form (F6.04A).

Family Law