Where Do I Start My Court Application? - 'Jurisdiction'

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Where you file your court application will depend on what issue you are applying to deal with, and where you, the other party, and perhaps the children, live. The Supreme Court (Family Divisions) and the Family Courts operate using different sets of court rules, and may view jurisdiction differently.

For contact information for the Nova Scotia courts, click here.

Click here for a guide to making an application. This guide includes information, instruction, and forms links.

 

1. What is ‘jurisdiction’?

When a court has jurisdiction, this means that they have the right to deal with the particular application being filed. There are rules and laws that tell a court which applications they can deal with, and which ones they cannot deal with.

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2. Where do I apply for an Emergency Protection Order (EPO)?

Emergency Protection Orders are temporary orders (put in place for up to 30 days) issued by Justices of the Peace in situations where there has been domestic violence. You can apply for an Emergency Protection Order if you are over 16, and were subjected to domestic violence by a person that you were in a conjugal (romantic) relationship with, or had a child with.

You can apply for an EPO anywhere in Nova Scotia by phoning 1-866-816-6555, any day between 9 am and 9 pm. Some designated people, like police officers, victim services workers, or some transition house staff members, can apply on your behalf at any time.

You do not have to fill out any paperwork for an EPO. You will give all of the information about your situation to a Justice of the Peace over the phone. If possible, it is best that you call from a land-line (as a cell phone can cut out), from a quiet, private place where you can take time to concentrate on the information you are giving, and are not disrupted.

For more information on Emergency Protection Orders, click here.

Please see the section on Urgent/Emergency Applications and Orders for more information.

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3. Where do I apply for a peace bond?

A peace bond is a court order that you may apply for when someone has threatened or harmed you. The party who threatened or harmed you signs the order to agree to stop contacting you, and to be of good behaviour. The peace bond may also include other conditions.

In most cases, you will need to go to Provincial Court to apply for a peace bond, as this is a criminal law process. Family Courts and Supreme Court (Family Divisions) usually do not deal with peace bonds.

Please see the section on Urgent/Emergency Applications and Orders for more information.

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4. Where do I apply for child custody or access issues?

Custody and access issues usually have to be dealt with in the court nearest to where the children are living. These issues are dealt with in Family Court, or in the Supreme Court (Family Divisions) if the children live in Halifax or Cape Breton.

If your children do not live in Nova Scotia, you will probably have to contact the court where they are living to find out how to make an application there.

If you are addressing custody and access as part of an ongoing (not yet final) divorce proceeding, you will deal with this issue wherever the divorce was filed. Once the divorce is finalized, and you apply to change your order for custody or access, you will likely have to make that application wherever the children are living at that time.

For more information about custody and access, click here.

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5. Where do I apply for child or spousal support issues?

Jurisdiction for support or maintenance issues can depend on where you live, where the other party is living, where your child is living, and whether you were ever divorced from the other person. Figuring out jurisdiction for these issues can get tricky, and you should speak with a lawyer or court staff for help.

If both you and the other parent live in Nova Scotia, you can contact the court nearest to you to start the court process, or you may have to contact the court where the other parent is living, if the children also live there.

If you are living in Nova Scotia, and the other person lives outside of Nova Scotia, you may have to use the ISO process. ISO stands for the Nova Scotia Interjurisdictional Support Orders (ISO) Act. This is the law that governs the process used for getting and changing (‘varying’) maintenance orders involving Nova Scotians and parties who live in other jurisdictions, where provincial or territorial laws (not the federal Divorce Act) are being applied. If you are divorced from the other person (or are in the middle of a divorce proceeding), you probably will not use the ISO process.

To start an application under ISO, you must complete and swear a support application before a Commissioner of Oaths or a notary, where required. You may want to consider having your documents notarized in any event, just to be on the safe side. You should use standard ISO forms for your application. ISO forms are available at the court near you, or here.

You may not have to use the ISO process if the other party will consent to deal with the issue in your jurisdiction, or if you are willing to deal with it in theirs, or if both of you reach agreement on the issue, and have the order drafted by a lawyer.

If you are addressing support issues as part of an ongoing (not yet final) divorce proceeding, you will deal with these issues wherever the divorce was filed. Once the divorce is finalized, and you apply to change your order for support, you may have to speak to a court officer or get advice from a lawyer to reassess jurisdiction at that time.

For more information about child support, click here.

For more information about spousal support, click here.

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6. Where do I apply for a divorce?

Generally, if you have been living in Nova Scotia for at least one year, you can apply for divorce at the Supreme Court or Supreme Court (Family Division) nearest you. You can get divorce forms online, or most courts offer a ‘Do-it-yourself Divorce Kit’ for a small fee.

If your spouse lives somewhere else in Canada, and they have been living there for at least one year, they can start the divorce at the court in their area.

For more information about divorce, click here.

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7. Where do I apply for property, pension and debt issues?

If you are applying for a divorce, you will deal with these issues as part of your divorce. Once these issues are dealt with in a divorce, it is not likely that you can go back and change them in the future. For this reason, it is very important that you get legal advice on these types of issues before you sign any legal documents or finalize a divorce. If you make a mistake, for example, signing away your rights to part of your ex-spouse’s pension when you had a claim to it, you will probably not be able to fix that once the divorce is finalized.

If you are not divorcing, but are married, or are looking to divide common law property, you can probably deal with these issues at the Supreme Court or Supreme Court (Family Division) nearest you.

For more information about property, pension, and debt issues for married couples, click here.

For more information about property, pension, and debt issues for common law couples, click here.

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8. Once I figure out where to file my application, how do I start the process?

You can start your application through a lawyer, either one that you hire privately (retain), or get assigned to you through Legal Aid, if you qualify.

If you do not have a lawyer, you can start most court applications yourself by contacting the appropriate court, and asking what processes they have for starting an application. Many courts, like the Family Courts and Supreme Court (Family Divisions), will have an intake process, where you can get help from a court officer to start your application.

Many forms for starting applications are available online, as well. You should get advice from a lawyer or speak with court staff to make sure you are filing the right documents for your case. You will usually have to file several documents to start an application, not just one or two.

You can also use this guide to help you. The guide includes information, instruction, and forms links.

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9. What are ‘pleadings’?

Pleadings are the claims, and the responses to those claims, made by each of the parties involved in a court matter. Pleadings are found on the document that starts the court matter (for example, a Notice of Application, a Notice of Variation Application, or a Petition for Divorce). Pleadings are also found in the document that sets out the other person's response to that claim, if applicable (for example, a Response to Application, or an Answer filed to contest a divorce). The pleadings must contain enough information about the claims to establish the factual and legal right to go forward with the matter.

For example, Vivian files a Petition for Divorce, checking off the issues of custody, access, child support, spousal support and division of property under the appropriate sections of the Divorce Act and Matrimonial Property Act. These are the things that Vivian wants to 'deal with' as part of the divorce - these issues, and the legal authority she lists for how she is asking to have them resolved, are her pleadings. Her spouse, Robert, files an Answer to show that he is not in agreement with what she is requesting for the parenting arrangements. He outlines in his Answer what he is seeking for the custody and access arrangements under the appropriate section of the Divorce Act. These are his pleadings.

There are a lot of rules about pleadings. People who do not get legal advice often do not know how to complete their application in a way that is legally correct. A lawyer can help you be sure that you are doing it right. Cases can be dismissed because people do not write the proper things in their documents. Clients are expected to know what to do, even if they do not have a lawyer helping them. Court staff are not responsible for the content of the pleadings you file.

When you deal with the court, you may hear staff say that you need to ‘perfect your pleadings’ or ‘the pleadings have closed’ or ‘your pleadings need to be amended.’ See below for details about what these things mean.

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10. What does it mean to ‘perfect a pleading’?

If court staff tell you that you need to perfect a pleading, this means that something in your application or motion or petition needs to be ‘fixed.’ It may be that the mistake makes the document not correct in law or that the proper facts or issues have not been specified in the document to create a proper claim to the court. For example, if you do not state the date of marriage or the date of separation in a Petition for Divorce, then the court will tell you that your pleading has not been perfected and will not accept it.

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11. What does it mean when ‘pleadings have closed’?

Pleadings have closed when specific time limits have passed or certain documents have been filed or not filed during those time limits. The time lines used will depend on the court that you are dealing with, and the type of matter that you are dealing with. The type of documents to file will also depend on the court you are dealing with and the rules of that court. For example, pleadings close in a divorce action (under a Petition for Divorce) when the responding party does not file an Answer by the deadline set out in the Civil Procedure Rules. In that case, the responding person may become disentitled to notice (may not be notified of other steps being taken in the proceeding) and is not allowed to file an Answer after the time limit has gone by (unless given permission to do so by a judge). Pleadings also close when the Respondent has filed an Answer within the time limit. A judge may have the ability to allow pleadings to be filed after the deadline in certain situations, but this is usually done when a motion is filed requesting it, or a judge has otherwise allowed it to happen.

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12. What does it mean to ‘amend pleadings’?

‘Amending’ something means you are changing it, or adding something to it. For example, pleadings will need to be 'amended' if the legal authority (the sections of the law) noted in the document does not match the relief a party is asking for. For example, this happens in cases where someone asks to have custody of a child on a non-divorce file, for example, but does not ask for the relief to be granted under section 18 of the Maintenance and Custody Act. You cannot ask a judge to rule or make a decision about something that is not in your pleadings. If the relief requested and the stated legal authority do not match, then the other party has the right to ask for your case to be dismissed or the judge can dismiss it. These things are technical and that is why having help from a lawyer can be so important. Every court has rules about when and how amendments can be made. These rules may be different depending on which court you are in.

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13. How is a pleading different from evidence?

A pleading is the document that sets out your claim (what you are asking for) and the legal basis (authority) that gives you the right to make the claim. The supporting documents you file are meant to provide the 'evidence' to support what you are asking for and give the judge the basis to make a decision or court order in your case. Your evidence is meant to give the basis for what you are asking for in your pleadings. Evidence may come in a lot of different forms. It may be in the form of:

  • affidavits which set out the facts of the case (based on personal knowledge)
  • other court documents, such as financial statements or parenting statements
  • expert reports or oral evidence (giving testimony in the court room under oath or affirmation).

You may hear court staff, lawyers or judges telling someone that they have not provided the evidence to prove their case or that the evidence does not support the pleadings. This is not a good thing to hear, because it usually means that their case is not going well.

Be sure to get help from a lawyer who can help you write the pleadings properly, and put together the right evidence, or supporting documents, to properly prove the pleadings.

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