Family Law FAQ

  1. Can I represent myself in Family Court?
  2. If a family law case is brought against me, what do I do?
  3. What is Mediation?
  4. What is service of a document and how do I serve a document?
  5. My friend says I need a “legal separation”. Is there such a thing?
  6. What is the difference between separation and divorce?
  7. Can I terminate visitation if I am not receiving child support?
  8. How do I know how much support I should be paying or receiving?
  9. I am re-married, and pay support for my child. Will my new spouse’s salary be used to calculate child support?
  10. What is Family Justice Services, and what do they offer?
  11. I do not qualify for Legal Aid but still cannot afford a Lawyer. What do I do now?
  12. I do not know where my ex-partner is and I want to change my child’s name. How can I do this?
  13. What happens if I cannot attend Court?
  14. What is the difference between common law relationship and marriage?
  15. Am I allowed to request a paternity test before paying child support and if so who pays for the testing? Can a mother get child support from the father without a finding of paternity?
  16. Where do I go to obtain a divorce?
  17. Upon separation or divorce at what age can children decide for themselves where they want to live?
  18. What is a Case Management Meeting?
  19. Who pays child support?
  20. Am I entitled to spousal support?
  21. Can one Lawyer represent both parties?
  22. If my spouse wants a divorce and I don't, how can I stop it?
  23. How much does a divorce cost?

 

1. Can I represent myself in Family Court?

Yes, you may represent yourself. However, some cases are complex and require extensive legal knowledge. People are always encouraged to seek the advice of a lawyer.

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2. If a family law case is brought against me, what do I do?

If you are served with an Originating Application you should file a Response with the Court within 30 days. If you do not file a Response, an order may be made against you in your absence. A Response is a form you complete to reply to an Originating Application and should address the claims made against you and state clearly the reason you are defending the action.

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3. What is Mediation?

Mediation involves a neutral third party (a mediator) who assists the parties in reaching an agreement. It is a process that gives both parties the power to make their own decisions and settle their matters out of court. Mediation services are provided by Family Justice Services (FJS). You can access these services voluntarily by completing a Request for Service (http://www.hrle.gov.nl.ca/hrle/forms/RequestforFamilyJusticeServices.pdf) Additionally, when you make an application to court, your matter will be forwarded to FJS to begin the mediation process.

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4. What is service of a document and how do I serve a document?

Service is the formal delivery of a legal document to the required person in accordance with the rules of court.

Applications for divorce, custody or access must be personally served on the respondent. Personal service means leaving a copy of the document with the person to be served. The document must be served by a person other than the applicant and that person must be over the age of 18 years. Unless a judge specifically authorizes you to do so, you cannot serve these documents by sending them through ordinary mail, certified mail or registered mail or by leaving them with another adult.

Rule 56A.10 and Rule 6 of the court rules deal with service.

To prove that you filed a document, you may file an affidavit of service.

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5. My friend says I need a “legal separation”. Is there such a thing?

No, there is no such thing as a ‘legal separation’. Separation occurs when a couple, married or common law, no longer lives together as a couple. You become legally separated as soon as you and spouse/partner start living “separate and apart” from each other with the intention of separating.

However, you can obtain a separation agreement, with the aid of a lawyer.

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6. What is the difference between separation and divorce?

Separation occurs when a couple, married or common-law, no longer lives together as a couple. You do not have to see a lawyer, go to court, or have a ‘legal separation’ to be legally separated. You do not need the consent of your spouse or partner to start living separately. You are considered legally separated as soon as you and your spouse/partner start living ‘separate and apart’ from each other with the intention of separating.

Divorce is the legal end of a marriage. It does not end all of the obligations between spouses. It simply ends the legal relationship that was created when two people were married.

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7. Can I terminate visitation if I am not receiving child support?

Access is a separate issue from child support. You cannot deny access to a parent that fails to pay support; similarly, you cannot stop support payments if you are denied access.

A parent who denies access or support may be seen as acting against the best interests of the child

If you are not receiving your child support payments, you can contact the Support Enforcement Division at (709) 637-2608. For information on the Support Enforcement Program, visit http://www.justice.gov.nl.ca/just/childsupport/support_enforcement.html 

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8. How do I know how much support I should be paying or receiving?

The amount of child support is determined by the federal Child Support Guidelines for each province. These are set amounts based on the payor’s income, province where the payor lives, the number of children, and the residency of the children.

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9. I am re-married, and pay support for my child. Will my new spouse’s salary be used to calculate child support?

It normally will not be considered unless you are making a claim for undue hardship.

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10. What is Family Justice Services, and what do they offer?

Family Justice Services (FJS) is a division of the Department of Justice. FJS offers services that assist families in resolving custody, access and/or child support issues outside of court.

Family Justice Services (FJS) offers free services to residents of Newfoundland and Labrador that are involved in family law matters. Some of their services include:

i. Parent education;
ii. Dispute resolution;
iii. Counselling services for families going through the processes of custody, access and child support
iv. Help with applying for child and spousal support

For more information about FJS, visit: http://www.justice.gov.nl.ca/just/department/branches/division/division_family_justice_services.html 

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11. I do not qualify for Legal Aid but still cannot afford a Lawyer. What do I do now?

If you don’t qualify for Legal Aid and if you cannot afford to hire a lawyer to act for you, you still might want to consider consulting with one. Public Legal Information Association of NL offers a lawyer referral service from 9:00 am to noon on weekdays. The service can provide you with the name of a lawyer with whom you can consult for up to 30 minutes for a nominal fee. The number in St. John’s is 722-2643 or 1-888-660-7788 (toll free).

Representing yourself can take a considerable amount of time, effort, and patience. You will be responsible for learning about and following the procedures that guide the court process. This is not something that you can learn overnight or by speaking with someone for a few minutes. You will need to take the time to read and research, as well as prepare documents.

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12. I do not know where my ex-partner is and I want to change my child’s name. How can I do this?

If the parents of the child were never married, only the parent with custody needs to apply to change the child’s name. If custody is joint, or if the parents were married, the consent of both parents is needed to change a child’s name. If one parent refuses, the other can go to court to request the judge to authorize the name change without the other parent’s consent.

If you do not know where the other parent is, you can file an Originating Application under the Change of Name Act, which will dispense with the consent of the other parent. You will need to provide evidence to prove why you are unable to locate the parent.

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13. What happens if I cannot attend Court?

If you are not in court on your scheduled date, an order can be made in your absence. If you discover that you cannot attend your court date, you should contact your court well in advance of the scheduled date to request a change (if you have written consent from the other party to do so).

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14. What is the difference between common law relationship and marriage?

A common law relationship is one where two people are living together in a conjugal (married-like) relationship without having been legally married. The two people can be of the same or of the opposite sex. No legal formalities are required. It is not a legal marriage and will not become one if it lasts for a certain number of years. If you are in a common law relationship, separation ends the relationship – you do not need a divorce. Federal and provincial laws, employers, insurance plans, and pension plans may set out different policies for recognizing a common law relationship. The amount of time you must live together before you are entitled to certain rights depends on the situation.

A marriage is a binding legal contract which affects legal rights and responsibilities. In Newfoundland and Labrador, the legal requirements for getting married can be found in the Marriage Act. This Act can be accessed here: http://www.assembly.nl.ca/legislation/sr/annualstatutes/2009/m01-02.c09.htm Divorce is the only way to legally terminate the marriage.

The Family Law Act sets out rules for dividing property and debt for married couples, but not for common law couples (unless the couple has opted into the Act through a contract).

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15. Am I allowed to request a paternity test before paying child support and if so who pays for the testing? Can a mother get child support from the father without a finding of paternity?

If parentage is challenged, a Court can order that a genetic test be done. The Judge will make an order setting out who will pay for the testing.

A claim for child support can be made without getting genetic testing to prove parentage. A mother can get child support without a finding of paternity so long as the paternity has not been denied by the father.

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16. Where do I go to obtain a divorce?

You will need to go to the Supreme Court of Newfoundland and Labrador. Depending on where you live, it will either be General Division or Family Division.

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17. Upon separation or divorce at what age can children decide for themselves where they want to live?

There is no set age at which children can decide which parent they would prefer to live with

It is at the Judge’s discretion whether or not to hear the views of the child during a custody hearing.

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18. What is a Case Management Meeting?

It is the first court appearance scheduled after an Application is filed. The judge, parties and, where applicable, lawyers identify the issues in dispute and explore ways in which these issues might be resolved. There is also a discussion of what information or evidence might need to be exchanged or brought before the court in order to resolve the issues. At a Case Management Meeting a judge can make an order, with the consent of both parties, requiring either or both parties to do something within a set period of time or before returning to court.

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19. Who pays child support?

Usually the parent who does not have custody is required to help pay for the daily needs of the children through child support

Biological parents, adoptive parents, common law spouses and step-parents may all pay child support

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20. Am I entitled to spousal support?

Depending on your circumstances, you may be entitled to spousal support (used to be called alimony). Both married and common law couples can be entitled to spousal support

Spousal support should ensure that after a relationship is over, one spouse does not suffer economic hardship, or should compensate for the financial impact of a relationship (for example, giving up work to care for children).

If you cannot agree on an amount of spousal support, you may apply to Court to ask for an order.

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21. Can one Lawyer represent both parties?

Yes, one lawyer can represent both parties, and it is becoming increasingly common, particularly where there is an amicable separation or divorce. However, some lawyers may choose not to take on both parties, citing conflict of interest.

If there are any conflicts between the parties (custody, access, child or spousal support, division of property, etc.), it is strongly recommended that you seek opposing lawyers.

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22. If my spouse wants a divorce and I don't, how can I stop it?

If you are not in agreement with your spouse in seeking a divorce, you must contest the divorce by responding to the Notice to Respondent that your spouse will serve you with.

If you contest your divorce, your spouse may be asked to prove the grounds of the divorce, or give evidence surrounding particular issues (custody or support, for example). At this point, you will be given an opportunity to put forward your case.

A contested divorce can be a complicated process. It is strongly recommended that you contact a lawyer to represent your best interests.

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23. How much does a divorce cost?

There is no set fee for a divorce. Costs for divorce can include filing fees to file the required court documents, charges for a Commissioner of Oaths (if required), legal fees, etc.

It is strongly suggested you contact a lawyer when considering a divorce – a lawyer will likely be able to give you a better estimation of cost.

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