Fortunately, the vast majority of family law matters settle, without the necessity of the spouses having to initiate legal proceedings or step foot into a courtroom.
Occasionally, however, some matters do proceed to court. There are, for example, situations of urgency, where children are at risk, money is being withheld, the situation in the home is very tense and neither spouse will leave, etc. In these types of cases, emotions may be running too high to try to bring about an immediate and rational solution, and a judge’s intervention is necessary to bring resolution and stability to an otherwise chaotic situation.
There are also cases where, in spite of the spouses’ best efforts, they simply cannot bridge the gap between their respective positions, through their settlement negotiations.
Settlement negotiations require good faith, full and frank disclosure. They also require that both spouses proceed with the negotiations along a timeline that is satisfactory to both of them. If one of them significantly delays dealing with the issues, or is not honest in his or her financial disclosure, out of court settlement negotiations are unlikely. In such cases, the initiation of court proceedings results in timelines set by the court and the imposition of full disclosure. Court “deadlines” often times result in an unreasonable spouse all of a sudden becoming cooperative and focused on settlement.
Finally (but rarely), there are unique legal issues on which spouses may remain apart, and they (or their respective lawyers) feel that these issues should be determined by a judge, rather than through settlement discussions.
In my practice I try to exhaust settlement negotiations and, in most cases, I advise the initiation of legal proceedings as a very last resort. As I tell each and every client who is considering going to court, over 95% of cases that proceed to court ultimately settle prior to a trial, after several thousands of dollars are spent in the litigation process. The recovery of legal costs is never guaranteed, as the awarding and amount of legal costs is within a judge’s discretion. Only in the rarest of cases is there full recovery of costs.
As judges will often say, separated spouses have a proverbial pile of assets (some bigger than others). The spouses owe it to themselves and their family to try to preserve this pile as much as possible, and to share it in a fair and reasonable way. The more they litigate, the more that pile shrinks. The pile is passed on to their respective lawyers, as opposed to their children.
In addition to the financial cost of going to court, the emotional cost and toil on a family can be overwhelming for “litigants”, most of whom have never even stepped foot inside of a courthouse. I am in court virtually every week, and I feel comfortable and confident with the process. I constantly remind myself that my clients are not quite as accustomed to the system as I am.
In Ontario, the family court process is governed by legislation called the Family Law Rules.
Unless you are seeking a variation of a final order or a Separation Agreement that has previously been filed with the court, legal proceedings are initiated by way of a court Application. The party initiating the Application is the “Applicant” and the other spouse is the “Respondent”.
Within an Application, the Applicant can claim various relief. For example, if married, you can claim a divorce along with other “corollary” relief, such as custody of children, support (child and spousal), and equalization of property.
Usually, the Applicant will set a court date at the time of issuing the Application at the Family Court counter at the courthouse. This initial court date (called a “hearing”) can either be a first appearance, or a case conference.
The Application must be served personally on the Respondent (the Application is hand-delivered), unless extraordinary circumstances exist, such as extreme urgency or the whereabouts of the other party are unknown.
If the Respondent is served withinCanadaof theUnited States, he/she has 30 days to respond to the Application, by serving an Answer and filing it with the court. Further, the Respondent may wish to make a claim of his/her own, in which case he/she serves and files an Answer and Claim by Respondent.
The first court hearing (either a first appearance or a case conference) is usually set for a date four to six weeks from the date that the Application is issued.
In very urgent circumstances (a situation of urgency or hardship), a judge can allow an early hearing (called a “motion”), in advance of a case conference. Case law has held that the rule allowing an urgent motion contemplates “an abduction, threats of harm, and dire financial circumstances”. Clearly, the test is very high and, in all but very few cases, the initial hearing will be a first appearance or a case conference.
A first appearance is scheduled in order to establish timelines for the service and filing of materials, including responding materials, and the scheduling of further court appearances.
Most commonly, the initial hearing will be a case conference. One of the purposes of the case conference is for the court to make procedural orders, such as the financial disclosure to be exchanged between the parties, in order to move the case forward. Undoubtedly, a judge or Master (a judicial officer) will explore the possibility of settling some or all of the issues, to determine whether the parties can resolve the issues without going into the court process any further and without having to incur more legal costs.
The court cannot make a substantive order (for example, an order for custody or support) at the case conference. Further and with the exception of urgent circumstances, a party can only bring a motion for temporary relief (temporary custody or temporary support) after the case conference has been held.
After a case conference, a party can schedule another hearing, called a “motion”, for temporary relief. If a party cannot wait until trial, for example, for temporary child support, the party can schedule a motion date. At the motion, the court can make temporary orders, which are intended to address certain issues pending the trial. Of note is that the parties need not bring a motion, and can proceed directly to a settlement conference after a case conference.
After a case conference, either party can schedule a settlement conference. The primary purpose of the settlement conference, held before a judge, is to try to settle some or all of the issues. A judge will deal extensively with all of the issues (these conferences are usually set down for an hour or longer). Judges will not only try to assist the parties in settling the matters, but the court will also try to offer an opinion as to the likely outcome, should the matter proceed to trial. Many cases that have made it this far into the process, settle at this stage of the proceeding.
As with a case conference, a judge will not make a substantive order at the settlement conference hearing (except under exceptional circumstances).
If the case is still not settled at the settlement conference stage, the presiding judge can make an order listing the matter for trial. This means that the trial coordinator is directed to place the case on the next available list for trial hearings. Family law trials inOttawaare placed on a “running list”, meaning that there is no specific date set for a trial. Instead, a case is set down on a list of many cases to be heard during a sitting (usually two weeks in duration), and all cases are expected to be ready to proceed when called. For example, there may be sixty cases on a list for a particular trial sitting, with seven judges hearing the cases for that sitting. Even though your case may be #60 on the trial list, the trial coordinator may call your case in for trial within the first few days of the trial sitting.
Prior to proceeding to trial, every case on the trial list is given the opportunity to have a “last minute” settlement conference, in a final attempt to settle the case before proceeding to trial. Many cases that have made it this far in the process, settle at this “eleventh hour”.
If your case has still not settled at this point, you will be called in for trial by the trial coordinator, and the final hearing will be heard by a judge. Trials vary in duration, from one day to several weeks, depending on the number and complexity of the issues, number of witnesses, etc.
Following the trial, judges will generally “reserve”, meaning that he/she will review all of the evidence, submissions and case law, before rendering a decision. Judges have six months from the close of a case, before rendering judgment.
After rendering a decision, a judge will invite the parties to give submissions as to costs. The successful party is presumed entitled to his or her costs, which presumption can be rebutted. Again, costs are discretionary, involving a consideration of a number of factors. There are different “scales” of costs (from partial, substantial, or full recovery).
Full recovery of costs (recovering all of your legal costs) is very rarely awarded. The court must find “bad faith” on behalf of a party, not just unreasonableness.
The court process, from start to finish, is an expensive and lengthy one. It can take about one and a half years from the initiation of the proceedings to the conclusion of a trial, and then you may have to wait several months for the judge to render a decision.