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How to prepare a Form 35.1 – Affidavit in Support of Claim for Custody or Access

Any time a party is seeking a Court order for custody and/or access, regardless of whether that party is a parent, a grand parent, or a third party, he or she must prepare a Form 35.1 Affidavit in Support of Claim for Custody or Access. This form is available online at: http://ontariocourtforms.on.ca/static/media/uploads/courtforms/family/35-1/flr-35-1-e.pdf .

This form updates the Court on a party’s proposal for how he or she will care for the child(ren) in question, and advises the court of whether he or she has ever had any earlier involvement with child protection proceedings, custody proceedings, and/or criminal proceedings. The form requests specific information of the party as follows:

Paragraph 1 – provide any other names that the party has been known by (whether legally or otherwise);

Paragraph 2 – confirm the names and ages of all the children subject to the legal proceedings, as well as the names of all people the child(ren) lives with currently;

Paragraph 3 – provide the names of any other children for whom the party has acted as parent/guardian;

Paragraph 4 – the party must advise the Court if s/he has been involved in any other court cases dealing with custody/access to any child;

Paragraph 5 – provide the names of any children who have been placed in the party’s care in the context of a child protection proceeding;

Paragraph 6 – confirm the details of any criminal conviction for which the party has not received a pardon;

Paragraph 7 – confirm the details of any criminal charges against the party that are pending as at the date s/he completes the form;

Paragraph 8 – confirm the details of any alleged violence/abuse (whether such conduct was directed at the child(ren) in question, the other party, or any third party);

Paragraph 9 – confirm the names of any and all caregivers with whom the child(ren) in question have lived during his/her lifetime(s);

Paragraph 10 – provide the details of how the party will care for the child(ren) in question, including details of who will live with the child(ren), how decisions for the child(ren) will be made, and how the child(ren) will have regular contact with his/her family members.

Paragraph 11 – this is perhaps the most often overlooked component of the Form 35.1. It requires the party completing the form to confirm that he or she understands the obligation to update the Court if there are any changes to the information set out in the form by swearing and filing an updated/revised form. The party must initial here as well as swearing the form at the end.

 

The party must alert the court to any issues of violence or abuse that he or she believes are relevant to the current proceedings. For example, where one of the parties is alleged to have engaged in abusive behaviour (whether towards the other party or the child in question), this will be relevant to the court’s determination of the issues of custody and/or access.

The party will also have to provide information about who he or she proposes the child(ren) to live with so that the court understands who the child is intended to spend regular and ongoing

About the Author

Michelle has been practicing exclusively in the area of family law since her call to the bar in 2012. She focuses on all areas of family law.

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