The Formal Court Process
The Family Law Rules govern family law court applications in Ontario. Although almost all family law cases settle before trial, it does not mean that the parties never see the inside of the courthouse. Rather, litigation will often be commenced and the case settled after a few court appearances.
As a general overview, the following is a list of the steps in the court process:
1. Prepare the Application for Divorce, Financial Statement and Affidavit in Support of Custody (if applicable). The application for divorce sets out what relief is being sought and why the party is entitled to that relief. For instance, we may seek custody, child support, spousal support and a division of property. If there are any financial issues, the party must prepare a financial statement that sets out income, expenses, assets and debts.
2. Issue the Application, then Serve and File the Application and Financial Statement. The application is taken to the court clerk, who gives it a court file number. Once the application has been issued, it is served on the other side along will the other applicable documents and filed with the court.
3. Secure a case conference date. Normally, when the application is issued, we will secure a case conference date as the court is booking these conferences three months out. Obviously, if opposing is not available on the date obtained, it can be changed.
4. Other Party Serves and Files an Answer, Financial Statement and Affidavit in Support of Custody (if applicable) within 30 days. The answer sets out what the other party agrees with in the Application, and what is being disputed. If the other party is making his or her own claims, that is also done in the Answer. The other side’s materials are served and filed.
5. Reply Served and Filed within 10 days. This is an optional step – if there is anything the Applicant disagrees with, or if the other spouse has raised new claims, it can be addressed in the Reply.
6. Case Conference is Held. A case conference is a mandatory procedural step in every case. It is a somewhat informal meeting (i.e. less formal than a motion or trial) where counsel and the parties attend before a judge. A summary of the case (“case conference brief”) must be prepared by each side, served and filed with the court. At the case conference the judge reviews the case and, with counsel, sets a schedule for next steps in the matter, such as requiring financial disclosure, scheduling questioning or appointing the Children’s Lawyer. The judge will canvass whether any of the issues can be settled, and if so, will make an order in accordance with the settlement. A judge on a case conference can only rarely make orders which are not on consent. The judge may give an opinion on the relative merits of each party’s position, which is meant to give counsel and the parties some insight into how the case might be resolved, if litigated.
7. Motion. Unless it is urgent, a motion cannot be argued unless and until a case conference has been held. A motion is a formal appearance before a judge seeking temporary relief pending the final resolution of the matter. A motion can be brought to address a myriad of issues, including but not limited to support, disclosure and custody pending trial.
8. Productions and Discovery. Before a case can be resolved (whether in or out of court), there must be financial discovery. Each side must compile and produce all of the documentation (for example financial documents and valuations) required to prove their case. Discovery is ongoing and there is a continuing obligation on parties to ensure that their material is accurate. This may also include questioning, which is examination of each party under oath about the case.
9. Settlement Conference. Following discovery, a settlement conference is held. This is a further attempt to resolve the case before trial. A judge will set aside time to meet with counsel and the parties to canvass and try to resolve some or all of the issues. It may or may not be the same judge. Parties are required to make an Offer to Settle the case in advance of the settlement conference.
10. Trial. If the parties are unable to resolve the case, a judge must decide it following a trial. The trial is a very formal court process where each party has the opportunity to present their side of the case and to refute the other side’s position. Witnesses are called, to give evidence and are cross-examined, documents are filed as exhibits, and counsel open and close the case with legal arguments. Following the trial, the judge will make a decision or a ruling on all of the issues.
