Once you have exhausted negotiations (or determined that, for whatever reason, settlement negotiations are not a suitable process to attempt to resolve the outstanding issues arising from your marriage breakdown), you are left with two possible avenues for resolution of the outstanding issues: initiating a court application or proceeding to arbitration.
The following is a brief synopsis of the court process and the steps to be taken from beginning to end.
Ontario’s Family Law Rules is the go-to guide with respect to family law court procedure. The rules were enacted in 1999, and are a reflection of the fact that in family cases, a significant number of litigants appear before the court on their own, without a lawyer or agent. Accordingly and in establishing the rules, an attempt was made to make them more understandable to the layperson. Thus, a court action is called a “case”, interim orders are called “temporary” orders, etc.
The stated primary objective of the Family Law Rules, as set out at Rule 2, is to enable the court to deal with cases justly, which includes “ensuring that the process is fair to all parties, saving expense and time, dealing with case in ways that are appropriate to its importance and complexity, and giving appropriate court resources to the case while taking account of the need to give resources to other cases.”.
Rule 4 allows for a party to appear without a lawyer or other representative, to be represented by a lawyer or, with the permission of the court, to be represented by a person that is not a lawyer. More and more cases before the court are handled by persons without a lawyer, where a party is “self-represented”.
A court case is to be started in the municipality where a party resides, in the municipality where a child ordinarily resides (if the case deals with custody of or access to a child), or in a municipality chosen by all parties (but only with the court’s permission, given in advance in that municipality).
Most cases started by way of filing an Application, in which one can make a claim for various relief, such as a divorce, custody, child and spousal support, and equalization of property. However, if a court order has been previously made or an Agreement between the parties has been filed with the court, a court case is started by way of Motion to Change, as opposed to Application.
The originating process (Application or Motion to Change) must be served by “special service”, meaning that it must be served personally (hand-delivered) on the responding party or, if he or she has a lawyer, by leaving a copy with the person’s lawyer, if that lawyer is prepared to accept service in writing of the document to be served. Service can also be effected by arranging for the recipient to sign an Acknowledgement of Service form acknowledging that he or she has been served with the document, or by leaving a copy of the document with an adult person resident at the same address as the recipient.
At the time of issuing (commencing) an Application, a court date will often be provided to the Applicant, setting out the first court date in the proceeding. This first court date can be before a First Court Date Clerk (FCDC) who deals with procedural-type matters such as the deadline for filing responding materials, financial statements, etc. If, however, the responding party has filed responding materials prior to the first court date, the matter will likely proceed to a case conference, either before a master or a judge.
Upon being served with an Application or Motion to Change, a responding party must file an Answer within thirty days after being served with the Application or Motion to Change (or, if the responding party is served outside Canada or the United States, the time for serving and filing an Answer is sixty days).
If the responding party does not file an Answer within the time-frame permitted by the Rules, the Applicant can request an order that the responding party be noted in default, and can proceed with either an uncontested trial or motion for summary judgement.
If both parties have filed their respective documents (Application and Answer), along with their Case Conference Briefs, the matter can proceed to a case conference before a master or a judge.
The case conference is the first hearing in which a court officer will review the issues with the parties, and provide an opinion, if possible. The purpose of the case conference is, among other things, to explore the chances of settling the case and, if the case cannot be settled at that time, to ensure that disclosure of all relevant evidence is ordered so that the parties are able to move the case forward. A substantive order (such as an order for custody or child support) cannot be made at a case conference, unless it is on the consent of both parties. Furthermore, a case conference must be held before a party can bring a motion for a temporary order, subject to Rule 14.
Rule 14 (4.2) allows for a party to bring a motion in advance of a case conference if the court is of the opinion that there is a situation of urgency or hardship, or that a case conference is not required for some other reason in the interest of justice. Clearly, the threshold for being able to qualify for such an “emergency motion” is very high, in order to discourage parties from proceeding straight to a motion in advance of the case conference, unless there is a true urgency. Essentially, the Rules have been developed with a view to determining whether cases or issues can be settled, even though a court case has been commenced.
Prior to the case conference, both parties have to file Case Conference Briefs, setting out the issues that have been settled between the parties, the issues that remain outstanding, a brief background of facts, and a summary of how the case conference judge can help the parties in dealing with their situation. Depending upon the master’s or judge’s list at the case conference, the parties will have between fifteen and thirty minutes to make submissions to the court and seek the court’s assistance with respect to resolution. In addition to making procedural-type orders, masters and judges will make any other orders that are on consent of the parties, such as orders for temporary custody, child support, etc.
When financial issues are in dispute between the parties, the case conference is a useful hearing to seek an order for financial disclosure, so that any and all required information and/or documentation required to advance one’s case, is ordered to be provided. Usually, the court will order that such disclosure will be exchanged between the parties within thirty days.
After the case conference has been held and disclosure has been exchanged, one or both of the parties can either bring a motion to deal with any issues on a temporary basis, or the parties can proceed to a settlement conference.
A motion is a hearing where the parties ask the court for a temporary order for various relief, such as custody, access, child support and spousal support, pending the trial of the matter. In essence, a temporary order is an order that enables a party to obtain interim relief pending the final hearing. Occasionally, a motion can be brought to obtain a final order, such as a motion for summary judgment (for example, where a Respondent has not filed responding materials). As it is a contested hearing, parties are required to serve and file sworn materials, such as affidavits and financial statements, in support of or in response to a motion. Depending upon the length and complexity of the motion, a Factum (statement of fact and law) may also be required to be served and filed in advance of the motion. A Factum summarizes the facts and the relevant law for the judge; it points the judge to the order that you are asking for, and why you feel that the order is appropriate.
Prior to a motion, a party may decide to proceed to “questioning”, in addition to requesting an order for disclosure. Questioning is an out of court process, wherein the opposing party’s lawyer will ask questions of the other party, in order to obtain information, documentation, etc., which the questioning party feels will be helpful to his or her case.
Unless they agree to do so or are ordered to do so by the court, parties do not have to proceed either with questioning, or with a motion. However, and in the event that they wish to proceed to trial, parties do have to proceed with a settlement conference, in advance of their trial.
A settlement conference is a last-ditch comprehensive effort to settle the outstanding issues, prior to the matter being set down for trial. The case conference has been heard, disclosure has been exchanged, perhaps a custody and access assessment has been completed, and all of the evidence has been gathered by the parties in support of their respective positions; yet, they remain unable to settle. All of this evidence – along with the parties’ respective positions – is put in front of a settlement conference judge by way of a Settlement Conference Brief. Settlement conferences are usually set down for one to two hours, in order to allow the settlement conference judge sufficient time to thoroughly explore the outstanding issues with the parties, in an attempt to settle some or all of the issues.
If the parties are still unable to settle the issues at the conclusion of the settlement conference, the judge will most often provide his or her opinion of the likely outcome of the case, if that judge were sitting as the trial judge. Of note is that a settlement conference judge cannot sit as a trial judge.
At the conclusion of the settlement conference and if all of the issues are not resolved on a final basis, the settlement conference judge can, at the request of either party, set the matter down for trial. Alternatively, the settlement conference judge can recommend to the parties that the settlement conference be continued at a later date, upon the happening of a subsequent event. For instance, if a party has just started to exercise unsupervised access to the children, the judge may want to allow for some time to pass in order to see how that access is proceeding, and then resume the settlement conference after a period of time has passed.
If the settlement conference judge sets the matter down for trial, the matter will be placed on a running list of cases that have already been set down for trial. There is no set or scheduled trial date. However, the parties are able to find out what list they are on, and what date that list is to proceed to trial. Usually and at the time a matter is set down for trial, parties can expect that the trial will be heard in approximately six months from the date of the settlement conference.
The trial represents the final, and most costly, hearing of the court proceedings. Both parties present evidence to the court by way of their respective witnesses. Multiple day trials are the norm, often exceeding three days in duration. I usually estimate that, for each day of trial, I require one day of preparation. Therefore, a five day trial requires approximately five days of preparation. Doing a quick calculation, it is easy to see why trials are so expensive and why most litigants often settle their matters in advance of their trial. In fact, it is a stunning statistic that over 90% of cases that proceed to court, ultimately settle in advance of the trial. It begs the questions as to why matters that ultimately settle immediately before trial are not settled in advance of the commencement of a costly legal proceeding.
Upon completion of a trial, the presiding trial judge will often reserve his or her decision until a later date, giving the judge an opportunity to review all of the evidence and consider submissions of the parties, prior to making his or her decision on the issues before the court.
Once a decision has been rendered, the trial judge will usually invite the parties to make submissions as to costs. It is at this point that the parties will advise the judge of any Offers to Settle that have been made in advance of the trial in an effort to settle the outstanding issues without the necessity of proceeding to trial. Although Offers are not required, it is incumbent upon both parties to make Offers to Settle in advance of trial, both in an effort to settle the issues in advance of the trial, and to support his or her claim for costs in the event that he or she receives a result at trial which is as or more favourable than his or her Offer to Settle. Once the judge has rendered his or her decision and provided his or her Reasons for Judgment, the parties have thirty days to appeal a final order.
I will discuss the appeal process in a subsequent newsletter.