The Family Law Process In Ontario

The following is a general overview of the steps in a court process.

1. Prepare the Application for Divorce Lawyer, Financial Statement and (if applicable) Affidavit in Support of Custody – The Application sets out the claims of the initiating party and the materials facts relied in support of the claims.  The Application can contain claims that seek an Order in relation to the following claims: custody/ access , child/ spousal support, property division etc.   If there are financial issues in the proceedings, the Applicant must complete a Financial Statement setting out his/her income, expenses, assets and liabilities.  This is an important step in the proceeding. The Application must be issued in a court in the jurisdiction where one of the parties reside, or if custody/access is at issue, in the jurisdiction where the children reside.
2. Issue, serve and file the Application and Financial Statement – The Application is taken to a court clerk, stamped by the court and given a court file number.   All of the materials are then filed with the court.  Once the Application is issued, it is served on the responding party, along with the Financial Statement.  A process server usually serves the materials on the Respondent.
3. Obtain a Case Conference Date – When the Application is issued, people usually obtain a Case Conference date.  Case Conferences are usually not heard for at least 2-3 months after the Application is issued. The purpose of a Case Conference is for counsel and the parties to meet with the Judge and attempt to narrow or resolve any of the issues, deal with disclosure issues, questioning and map out a plan to move the case forward to a trial or resolution.
4. The responding party then serves and files an Answer, Financial Statement and Affidavit in support of Custody (if applicable) –   Once the Respondent (the person served with the Application) receives the Application, he/she must serve and file an Answer.   The Answer must be served within 30 days of the Respondent’s receipt of the Application.  If the Respondent resides outside of Canada, the Respondent has 60 days to respond to the Application.  The Answer responds to the claims in the Application.  It sets out what facts that are agreed upon by the parties and which facts and claims are in dispute.  If the Respondent has claims, he/she will set out his/her own claims in the Answer.  Once the Answer etc. is served on the Applicant, it is filed with the court.
5. Reply by the Applicant –  When the Applicant receives the Answer, he/she may disagree with some of the facts set out by the Respondent in the Answer, or may need to respond to the claims by the Respondent.  The Applicant will then draft a Reply to the Answer.  This must be served on the Respondent and filed with the court within 10 days of receipt of the Answer.
6. Case Conference is held –  This is a mandatory step in all family law proceedings.   It is an informal meeting between the parties, counsel and the judge.   Each party will be given an opportunity to make submissions to the Judge based on their theory of the case. The purpose of the Case Conference is to assist the parties in resolving any of the outstanding issues and to deal with procedural issues.  Prior to the Case Conference, the parties draft, serve and file Case Conference Briefs.   The Case Conference Brief consists of a summary of the issues in the case and the facts that support the parties position in the case.  A Judge will review the parties Case Conference Briefs.  At this stage, a Judge will unlikely make any Orders of a substantive nature.  It is possible that a Judge can make a procedural Order (ie. timelines and schedules for the exchange of documents and how to move forward with the case).   A Judge may also give his/her opinion about issues in the case.    The assistance of a Judge in discussing the issues in the case may assist the parties in resolving some issues or give some insight on how a court will determine any of the disputed issues.
7. Motions –  Once a Case Conference is held parties can each bring Motions.  A Motion usually will not be heard by a court prior to a Case Conference unless it is urgent.  A Motion consists of a Notice of Motion, Affidavit and Factum (usually – consist statement of the facts, issues, what relief is being claimed and the law in support of the relief claimed).  The parties serve and file their competing Affidavits and other materials with the court.  They then have a formal hearing in front of a judge in order to obtain a temporary Court Order.  The Order sought can deal with a number of claims, including, but not limited to, child support, spousal support, custody/access issues, disclosure issues, and property issues.
8. Disclosure / Questioning – In order to resolve a case, whether the case is litigated or a settlement is negotiated, it is usually necessary for each party to exchange documents in support of their respective incomes, and assets/ debts as of the date of marriage and the date of separation.  The disclosure process can also include questioning the other party about their claims or any issue in the proceeding.  Questioning usually occurs in an Official Examiners Office wherein a lawyer ask questions of the opposing party and a transcript is made of the questioning.
9. Settlement  Conference –   When the parties have completed their disclosure, either of the parties can schedule a Settlement Conference.     Similar to a  Case Conference, the parties serve and file their respective Settlement Conference Briefs.    These Briefs are similar to the Case Conference Briefs, but contains additional information/documentation discovered during the court process and may contain an Offer to Settle the proceedings.   At the Settlement Conference, the parties, their counsel and a Judge then meet to discuss the case in an informal manner.  A Judge then takes a more active role in trying to assist the parties in resolving the outstanding issues.  Parties usually exchange Offers to Settle prior to the Settlement Conference.  A Judge is more likely to give his/ her opinion as to how the matter should be resolved and how he/she would decide the outstanding issues.  This can be very persuasive for the parties in resolving the matter.
10. Trial Management Conference – If the case is not settled amicably as between the parties, the matter is pushed onto trial for a final resolution.  Prior to the TMC, the parties will serve and file Trial Management Conference Briefs. The purpose of the TMC briefs is to determine how much time is needed for a trial.   The parties inform the court how many witnesses they will have and how much time they anticipate it will take to complete each part of the trial.  At a Trial Management Conference at Judge may again try to resolve the outstanding issues .  If the parties are unable to agree on a resolution, the parties agree on a schedule as to the hearing of the trial and the exchange of documents prior to the trial.
11. Trial – If the parties are unable to amicably resolve the proceeding in its entirety, it is necessary for a Judge to decide the outstanding issues at a trial.  A trial is a formal court process where each party must present evidence to support his/her position.  The Judge then makes a final determination of the issues as between the parties based on the evidence presented. Most Family Law Cases settle well before Trial (at least 95% of Family Law cases are settled prior to trial).

Any reputable family law attorney can help you with these matters. Each family lawyer in Toronto here at Fine & Associates is ready to take your case on your behalf.