FAMILY | Myths about Filing Claims.

• Author: Dargatz, Sarah

Reading Time: 4 minutes

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.

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...