PROVINCIAL COURT PROCEDURES (FAMILY LAW) REGULATION

Transcription

1 Province of Alberta FAMILY LAW ACT PROVINCIAL COURT PROCEDURES (FAMILY LAW) REGULATION Alberta Regulation 149/2005 With amendments up to and including Alberta Regulation 85/2016 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s Printer 7 th Floor, Park Plaza Avenue Edmonton, AB T5K 2P7 Phone: Fax: qp@gov.ab.ca Shop on-line at

2 Copyright and Permission Statement Alberta Queen's Printer holds copyright on behalf of the Government of Alberta in right of Her Majesty the Queen for all Government of Alberta legislation. Alberta Queen's Printer permits any person to reproduce Alberta s statutes and regulations without seeking permission and without charge, provided due diligence is exercised to ensure the accuracy of the materials produced, and Crown copyright is acknowledged in the following format: Alberta Queen's Printer, 20.* *The year of first publication of the legal materials is to be completed. Note All persons making use of this consolidation are reminded that it has no legislative sanction, that amendments have been embodied for convenience of reference only. The official Statutes and Regulations should be consulted for all purposes of interpreting and applying the law.

3 (Consolidated up to 85/2016) ALBERTA REGULATION 149/2005 Family Law Act PROVINCIAL COURT PROCEDURES (FAMILY LAW) REGULATION Table of Contents 1 Application 2 Initiating a claim 3 Service of claim documents 3.1 Variation of time periods 4 Respondent s response 5 Service of response documents 6 Response to respondent s request for additional order 6.1 New evidence 7 Appearance before the Court 8 Electronic hearings 9 Appeal 10 Costs of action 11 Certificate of lawyer 12 Address for service 13 Manner of service 14 Disclosure of financial information 15 Coming into force Schedule Application 1(1) In this Regulation, (a) Act means the Family Law Act; (b) Court means the Provincial Court; (c) file means to file with the clerk of the Provincial Court. (2) For the purposes of the Act and the regulations made under the Act, party means, in respect of an application under the Act, any one or more of the following:

4 Section 2 (FAMILY LAW) REGULATION (a) a person named as an applicant or a respondent in the application; (b) a person identified in any enactment as a party to the application; (c) a public official, including the Director acting under Part 5 of the Income and Employment Supports Act, who pursuant to any enactment has the right to commence, defend, intervene in or take any step in respect of the application and exercises that right; (d) a person added as a party by the court hearing the application. (3) Except for the form referred to in section 14(2), the forms to be used for the purposes of this Regulation are Forms FL-10 to FL-12, FL-34 to FL-53 and FL-57 to FL-75 as set out in Schedule A, Division 2 of the Alberta Rules of Court (AR 124/2010). (4) Repealed AR 166/2010 s2. s1;166/2010 Initiating a claim 2(1) The applicant for an order described in Parts 1 to 4 of the Act must file a claim in Form FL-10 that sets out the order being applied for. (2) The applicant may ask the Court to grant more than one order, using only one claim form. (3) Evidence in support of the claim may be provided by filing one or more statements in Forms FL-34 to FL-53 or an affidavit, or both. (4) If a statement or affidavit is filed to support a claim, the statement or affidavit must be confined to (a) a statement of facts within the personal knowledge of the person swearing the statement or affidavit, and (b) any other evidence that the person swearing the statement or affidavit could give at trial. s2;166/2010 Service of claim documents 3(1) The applicant must serve each person named in the claim as a respondent, and each person who is required by the Act to be served, with a copy of the documents filed under section 2. 2

5 Section 3.1 (FAMILY LAW) REGULATION (2) The documents referred to in subsection (1) (a) must be served by leaving a copy of the documents with the individual being served and not with the individual s lawyer of record, if any, and (b) must be served (i) 20 days or more before the date set out in the claim if service is effected in Alberta, (ii) one month or more before the date set out in the claim if service is effected outside Alberta but within Canada, and (iii) 2 months or more before the date set out in the claim if service is effected outside Canada. s3;166/2010 Variation of time periods 3.1 The Court may extend or shorten a time period specified in this Regulation. AR 166/2010 s5 Respondent s response 4(1) A respondent who wishes to respond to the applicant s claim must file a response in Form FL-11 and may provide evidence in support of the response by filing one or more reply statements in Forms FL-57 to FL-75 or an affidavit, or both. (2) The response may include a request that the Court grant one or more additional orders and, in that event, evidence in support of the request may be provided by filing one or more statements in Forms FL-34 to FL-53 or an affidavit, or both. (3) If a statement, reply statement or affidavit is filed to support a response, the statement, reply statement or affidavit must be confined to (a) a statement of facts within the personal knowledge of the person swearing the statement, reply statement or affidavit, and (b) any other evidence that the person swearing the statement, reply statement or affidavit could give at trial. s4;166/2010 3

6 Section 5 (FAMILY LAW) REGULATION Service of response documents 5(1) The respondent must serve the applicant and any other party with a copy of the documents filed under section 4. (2) The documents referred to in subsection (1) must be served within a reasonable time before the date set out in the claim, but anything less than 10 days notice will be presumed to be prejudicial to any person entitled to be served. s5;166/2010 Response to a respondent s request for additional order 6(1) Any party who wishes to respond to the respondent s request that the Court grant one or more additional orders may file one or more reply statements in Forms FL-57 to FL-75 or an affidavit, or both. (2) If a reply statement or affidavit is filed under subsection (1), the reply statement or affidavit must be confined to (a) a statement of facts within the personal knowledge of the person swearing the reply statement or affidavit, and (b) any other evidence that the person swearing the reply statement or affidavit could give at trial. (3) The documents referred to in subsection (1) must be served within a reasonable time before the date set out in the claim, but anything less than 5 days notice will be presumed to be prejudicial to the person entitled to be served. s6;166/2010 New evidence 6.1(1) In this section, new evidence means evidence that was not available to a party at the time when the party filed and served the party s statement or reply statement, as the case may be. (2) If, subsequent to filing and serving a statement or reply statement, a party wishes to rely on new evidence when the claim is heard or considered, the party must file an update statement in Form FL-79, or an affidavit, containing the new evidence. (3) The party must serve the party s update statement or affidavit, as the case may be, on each person named as an applicant or respondent in the claim, and any other person required by the Family Law Act to be served, within a reasonable time before the date set out in the claim. AR 166/2010 s9 4

7 Section 7 (FAMILY LAW) REGULATION Appearance before the Court 7 Where the respondent attends at the Court for the hearing, the Court may, whether or not the respondent has complied with this Regulation, (a) decide all or part of the matter on an interim or final basis, (b) adjourn all or part of the matter to a later date, or (c) set all or part of the matter down for a short oral hearing or trial, and the Court may give any direction and grant any interim or procedural order that the Court considers appropriate. s7;166/2010 Electronic hearings 8(1) In this section, electronic hearing means an application, proceeding or trial conducted, in whole or in part, by electronic means in which all the participants in a hearing and the Court can hear each other, whether or not all or some of the participants can see each other or are in each other s presence. (2) An electronic hearing may be held if (a) the parties agree and the Court so permits, or (b) on application, the Court orders an electronic hearing. (3) The Court may (a) direct that an application for an electronic hearing be heard by electronic hearing, (b) direct that an application or a trial be heard in whole or in part by electronic hearing, (c) give directions about arrangements for the electronic hearing or delegate that responsibility to another person, (d) give directions about the distribution of documents and the practice and procedure at the electronic hearing, or (e) order that an electronic hearing be completed in person. (4) The clerk must participate in an electronic hearing unless the Court otherwise directs. (5) An oath may be administered by electronic means. s8;166/2010 5

8 Section 9 (FAMILY LAW) REGULATION Appeal 9(1) Subject to subsection (2), a party may appeal to the Court of Queen s Bench any decision of the Court. (2) A party must apply to the Provincial Court for permission to appeal under subsection (1) where the decision to be appealed (a) is a consent order or judgment, or (b) is an order or judgment that relates only to costs. s9;85/2016 Costs of action 10(1) Subject to subsection (2) and any other enactment, the Court may at any time in any proceeding before it, on any conditions it considers appropriate, award costs in respect of any matter under the Act. (2) The Court may not award costs under subsection (1) against a director under the Child, Youth and Family Enhancement Act. Certificate of lawyer 11(1) A lawyer who is required to provide a statement that the lawyer has complied with section 5(1) of the Family Law Act must do so by filing a certificate in Form FL-12. (2) Subsection (1) does not apply where the lawyer is legal counsel for a director under an enactment. s11;166/2010 Address for service 12(1) The address for service of a party who is not represented by a lawyer of record and is not required to be served in accordance with section 3(2)(a) is the most recent of (a) an address provided to the Court and all other parties by the individual in writing, (b) an address provided on the record during a Court appearance, and (c) the address provided in the most recently filed document in the proceeding. 6

9 Section 13 (FAMILY LAW) REGULATION (2) Where any party is represented by a lawyer, that party s address for service is the lawyer s address, as provided in the certificate referred to in section 11 or as otherwise provided in writing. s12;166/2010 Manner of service 13(1) In this section, (a) electronic and electronic agent have the same meanings as they have in the Electronic Transactions Act; (b) recorded mail means a form of document delivery by mail or courier in which receipt of the document must be acknowledged in writing. (2) All documents except those required to be served under section 3(2)(a) may be served in accordance with this section. (3) A document may be served by an electronic method on a person who has specifically provided an address to which information or data in respect of an action may be transmitted if the document is sent to the person at the specified address and (a) the electronic agent receiving the document at that address receives the document in a form that is usable for subsequent reference, and (b) the sending electronic agent obtains or receives a confirmation that the transmission to the address of the person to be served was successfully completed. (4) Service is effected under subsection (3) when the sending electronic agent obtains or receives confirmation of the successfully completed transmission. (5) A document may be served on a party in Alberta by being sent by recorded mail, addressed to the party at the address for service provided in the most recently filed document in the action. (6) Service is effected under subsection (5) on the earlier of (a) the date acknowledgment of receipt is signed, and (b) 7 days after the date on which the recorded mail is sent. (7) If, in an agreement that is the subject of an action, the parties agree on (a) a place for service, 7

10 Section 14 (FAMILY LAW) REGULATION (b) a mode of service, or (c) a person on whom service may be effected, service of a document may be made in accordance with the agreement, and service is effected when so made. (8) An agreed method of service described in subsection (7) that applies outside Alberta must comply with rule of the Alberta Rules of Court (AR 124/2010). (9) An agreement about service of documents under subsection (7) does not invalidate the service of a document that otherwise complies with this section. s13;166/2010 Disclosure of financial information 14(1) Where a written request for financial information has been made under section 65(1) or (4) of the Act, that information shall be provided within one month after the request is received. (2) A written request for financial information referred to in subsection (1) may be made in the Form set out in the Schedule to this Regulation. (3) For the purposes of section 65(1) and (4) of the Family Law Act, the following documents may be requested under this section: (a) with respect to an application or order for child support, those documents listed in section 21(1) of the Alberta Child Support Guidelines (AR 147/2005); (b) with respect to an application or order for spousal support or adult interdependent partner support, those documents listed in section 4(1) of the Family Law Act General Regulation (AR 148/2005). s14;166/2010 Coming into force 15 This Regulation comes into force on the date the Family Law Act is proclaimed in force. 8

11 Schedule (FAMILY LAW) REGULATION Schedule Form (section 14) COURT FILE NUMBER PROVINCIAL COURT OF ALBERTA COURT LOCATION APPLICANT(S) RESPONDENT(S) Clerk s stamp: DOCUMENT REQUEST FOR FINANCIAL INFORMATION ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT Notice to party requesting disclosure: Carefully review the list of items that may be requested, and only check those items that are relevant to the particular proceedings. You are hereby required to provide the documents checked below to the party requesting disclosure, at the address for service provided above, within one month of receiving this Request for Financial Information. If you do not, the Court may make an order against you, which may include an order for the payment of support in an amount the Court considers appropriate, an order for you to provide the information, or an order for someone else (for example your employer) to provide the information. You may also be ordered to pay costs. 1 2 A copy of every personal income tax return you have filed for each of the 3 most recent taxation years. If you have not filed a tax return, you must provide copies of your T4, T4A and all other relevant tax documents and any other statements or documents that disclose your sources of income for that year. A copy of every Notice of Assessment and Re-assessment issued by the Canada Revenue Agency for each of the 3 most recent taxation years, or a copy of the Canada Revenue Agency printout of your last 3 years income tax returns. 9

12 Schedule (FAMILY LAW) REGULATION If you are an employee, a copy of your 3 most recent statement of earnings indicating your total earnings paid year to date, including overtime, or where such a statement is not provided by your employer, a letter from your employer setting out that information, including your rate of annual salary or remuneration. If you receive income from employment insurance, income assistance, a pension, workers compensation, disability payments, or any other source, the most recent statement of income showing the total income from the applicable source during the current year or, if a statement is not provided, a letter from the appropriate authority giving the required information. If you are a student, a statement indicating the total amount of student funding you have received during the current academic year, including loans, grants, bursaries, scholarships and living allowances. If you are self-employed: (a) the financial statements of your business or professional practice for the 3 most recent taxation years; (b) a statement showing a breakdown of all salaries, wages, management fees, other payments or benefits paid to you or to persons or corporations with whom you do not deal at arm s length for the 3 most recent taxation years; (c) particulars or copies of every cheque issued to you during the last 6 weeks from any business or corporation in which you have an interest or to which you have provided a service. 7 8 If you are a partner in a partnership, confirmation of your income and draws from the partnership and confirmation of the capital in the partnership for its 3 most recent taxation years. If you have a 1% or more interest in a privately held corporation: (a) the financial statements of the corporation and its subsidiaries for its 3 most recent taxation years; 10

13 Schedule (FAMILY LAW) REGULATION (b) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to you or to persons or corporations with whom the corporation, and every related corporation, does not deal at arm s length for the corporation s 3 most recent taxation years; (c) a record showing your shareholder s loan transaction for the past 12 months. 9 If you are a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust s 3 most recent financial statements. 10 Copies of all statements and cancelled cheques for all bank accounts solely or jointly in your name for the most recent 6 months. 11 Copies of credit card statements for all credit cards solely or jointly in your name for the most recent 6 months. 12 Where child support is an issue, a detailed list of any special or extraordinary expenses claimed as well as copies of receipts or other documentation providing the amount of those expenses, namely: (a) child care costs; (b) health care costs and extended medical and dental insurance premiums attributable to the child; (c) uninsured health care and dental expenses; (d) extraordinary educational expenses; (e) post-secondary educational expenses; (f) extraordinary extracurricular expenses; 13 If this is a claim for spousal or adult interdependent partner support, your monthly budget of expenses (form available). 14 A sworn itemized list of all of your sources of income as well as your assets and liabilities. 15 Copies of your most recent statement for all R.R.S.P.s, pensions, term deposit certificates, guaranteed investment certificates and other investments in your name or in which you have an interest. Dated 11

14 Schedule (FAMILY LAW) REGULATION at, Alberta. Signature Applicant/Applicant s Lawyer/Respondent/ Respondent s Lawyer (specify) AR 166/2010 s16 12

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