How to Start a Family Court Case in New Brunswick Without a Lawyer

Starting a family case without a lawyer is possible, and many people do it. The hard part is usually knowing which court, which form and what happens after you file. This article walks through the general path for a divorce, with parenting and support issues that come with it.

Rules, fees and filing steps can change, and your situation may have details that matter. Use this as a map, then confirm specifics with the court registry or a lawyer.

This article covers the law of New Brunswick.

Where your case is filed

In New Brunswick, divorce proceedings are in the Court of King's Bench, Family Division, and they use the Rule 72 forms. The Family Division also handles Family Law Act matters such as parenting and support, along with related family proceedings.

Under the Family Law Act, "Court" means the Court of King's Bench of New Brunswick. A parent or a person standing in a parent's place can apply for a parenting order about parenting time or decision-making responsibility. These terms replace the older words "custody" and "access".

Check that you can file in New Brunswick

For a divorce, a court in a province can hear the case if either spouse has been habitually resident in that province for at least one year immediately before the proceeding starts. The usual ground is breakdown of the marriage, which is established if the spouses have lived separate and apart for at least one year immediately before the divorce is decided.

There are exceptions. Breakdown can also be established without that wait if the other spouse committed adultery or treated you with physical or mental cruelty that makes living together intolerable. Spouses can be treated as living separate and apart even under the same roof, as long as at least one of them intended to live separate and apart, and subject to proof. A short return to living together for reconciliation, not more than ninety days, does not interrupt the separation period.

For a parenting application on its own, the court may make or vary an order if the child is habitually resident in New Brunswick when the application begins.

Choosing and filing the right forms

Which form you start with depends on whether you and your spouse agree. Spouses who agree may file together on Form 72B, the Joint Petition for Divorce, rather than one spouse filing Form 72A and serving the other with a Notice of Petition (72C). The main forms in the Rule 72 set are listed below.

The registry can tell you the current filing steps and any fees. Confirm those before you go, because they are not something to guess at.

Serving the other party and what happens next

When one spouse files alone, the other spouse is served with the Notice of Petition (72C). How service must be done, and by whom, is worth confirming with the registry or a lawyer so your case is not delayed.

If the other spouse disagrees, the forms provide for an Answer (72D), an Answer and Counter-Petition (72F), a Notice of Intent to Defend (72I) and a Reply (72E). A Request for Divorce (72K) and Divorce Judgment (72M or 72N) follow, then a Certificate of Divorce (72O).

A spouse's signature or agreement is not a condition of the one-year separation ground, so a divorce can proceed on one spouse's petition if the other does not cooperate. The court decides after the separation is proved.

• The court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage.
• The court has a duty to consider the possibility of reconciliation.
• Parties are to try to resolve the issues, including through family dispute resolution, to the extent appropriate.
• Parenting orders consider only the best interests of the child, with primary consideration to the child's physical, emotional and psychological safety.

Child support is generally the table amount for the number of children, the paying parent's province and income, plus any special or extraordinary expenses. Income is usually taken from the Total income line of the T1 General tax return, adjusted as the Guidelines set out.

What to do next

• Confirm you meet the residence and separation requirements for a divorce.
• Decide whether you and your spouse can file together or whether you must file alone.
• Gather your tax returns and financial information for the Financial Statement (Form 72J).
• Write down your proposed parenting and support arrangements.
• Ask the Family Division registry about current filing steps, fees and service.
• Consider a one-time lawyer review of your forms before you file, especially if there is family violence, a move or complicated property.

Frequently asked questions