The framework for family law litigation in Ontario is established by the Family Law Rules.
The stated primary purpose of the rules is to deal with cases justly, so as to ensure fairness to all parties, to save expense and time, to deal with a case in ways that are appropriate to its importance and complexity, and to allocate appropriate resources to the case.
I view the litigation process as divided into five phases:
1. Pleadings phase
The parties exchange the documents that disclose what they are asking for, why they are asking for it, and their response to the other side's claim.
2. Disclosure phase
This involves the exchange of all relevant financial documentation and includes a court step (case conference).
3. Motion phase
It is at this phase that a party can proceed to court to seek temporary relief (obtain an order, pending the trial).
4. Settlement phase
Another court step (settlement conference) as well as out of court settlement negotiations, in an attempt to get the case settled before trial.
5. Trial phase
If all efforts to settle the case have been exhausted, the parties proceed to trial in order to have any unresolved issues addressed on a final basis by the trial judge.
Arbitration and the arbitration process are governed by Ontario’s Arbitration Act. Arbitration is a voluntary process, one in which the parties have to agree to the selection of the arbitrator, and to the issues to be arbitrated.
It is generally a less formal process. This does not mean that the rules of evidence are relaxed – I simply suggest, for example, that an arbitrator’s boardroom is a less intimidating and anxiety-provoking setting than a courtroom.
In fact, the same phases set out above for litigation (pleadings, disclosure, motion, settlement and trial) may still apply to an arbitration (as amended) to suit the particular facts and circumstances of the case. The “trial” phase of the arbitration is the arbitration hearing itself. Witnesses are called and evidence is led before the arbitrator, who will render an “award” (the equivalent of a trial judge’s decision).
The arbitration award is deemed to be a court order, and either or both parties can take steps to have the award incorporated into a court order for enforcement.
Not only is arbitration expected to be less formal, but it is also generally more expeditious and, therefore, faster than a court process.