The table below lists the claims (or issues) that parties commonly raise in family law cases that begin with Form 8 Applications. There are other types of family law claims that are pursued in cases that start with other types of Applications (such as child protection cases involving a Children’s Aid Society or spousal and child support collections cases involving the Family Responsiblity Office) that are not covered in this “Starting a Case” section of this website.
Obviously it’s important to know the “substantive law” on these issues which means the law governing what decisions the court makes about them. But family law cases also need to be classified according to the issues they raise in order to know what procedures will be used in the case. If a particular issue is included in a case, it may affect the level or location of the court that will hear the case; the forms that need to be filed in the case; and some of the procedures the court will follow in moving the case through the system. This two-part page of the website is limited to the procedural effect of different family law issues. It starts with two definitions and then a list of the main issues before inviting you to click through to Part Two.
Property Issue includes issues about financial assets like bank accounts, mutual funds, RRSPs, RESPs, vehicles, jewelry and furniture. It includes part or whole ownership of a small business. It also includes the right to receive a pension in the future even if it is not being paid now. Of course property also includes all types of real estate including houses, condos, cottages, farms, vacant land and investment properties. Property located in a foreign country is included in Property Issues. If something would be considered an asset, if it can be bought or sold or valued, then it is probably property.
Form 35.1 Issue refers to the court “Form 35.1 Affidavit in Support of Claim for Custody or Access.” Just as its name indicates, this is a form that both parties must file if either one makes a claim touching on custody of or access to a child.
|Claim||Custody / Access Issue?||Property Issue||Description||Comment|
|Divorce||No||No||A court order dissolving the marriage||Divorce lets either party get get married again|
|Custody||Yes||No||Custody can refer to either (1) whether one or both parents make the important decisions about a child; or (2) with which parent the child will live||Primary Residence is a better term for the decision about in whose home a child will live|
|Access||Yes||No||Access refers to the schedule and arrangements for the child to spend time with the parent with whom he or she does not ordinarily live|
|Child Support||No||No||Child support is the monthly amount received by the parent who provides a child with primary residence from the other parent to help pay child raising costs||The child support monthly amount is (1) Basic or Table Support; plus (2) a contribution to Section 7 Special or Extraordinary expenses|
|Spousal Support||No||No||A payment (usually monthly) from the higher-earning to the lower-earning spouse for a fixed or indefinite period||Sometimes neither spouse has an entitlement to spousal support|
|Equalization Payment||No||Yes||A payment by one spouse to the other to ensure that each one had an equal increase in net worth over the years of the marriage||For married couples only. Property includes bank accounts, RRSPs, businesses and pensions, not just real estate.|
|(Constructive) Trust Claim||No||Yes||A claim that certain property although held in the name of just one spouse belongs in whole or part to the other spouse||Common law spouses are usually the ones raising trust claims|
|Claim related to Matrimonial Home||No||Yes||A claim about what should happen to the home where the parties lived before separation||Often for temporary relief like exclusive possesion until the case is resolved|
|Restraining Order||Maybe||No||A request for a court order prohibiting the other party from doing something like coming near the home of the other||It might be an access issue if the court is asked to protect a child by restricting access|