Family Court Process
Are you contemplating using the Family Court process? Perhaps the other party has already commenced a Family Court action, and now you have to defend yourself. If Family Court is necessary for you, we will provide you with the strong advocacy you need to achieve your goals. We believe that in many, but not all, cases Family Court proceedings should be a last resort because the Family Court process is often very adversarial, expensive and drawn out; however, sometimes the Family Court process is necessary. If your case is headed to Family Court, our lawyers can help you.
We represent clients in Family Court all over Ontario. Of course, most of our cases are in Simcoe County and York Region, but we will travel almost anywhere to advocate for your rights.
In Ontario we are fortunate to have many excellent judges who do their best to resolve Family Court cases fairly, efficiently, and effectively. However it is often difficult to determine how a judge will rule on any given issue given the inherent discretion in family law. If we could predict what will happen at Family Court, no one would need to go to Court. The Family Court system is full of litigants because of the uncertainty of the outcome. As a result, your lawyer will attempt to negotiate a resolution throughout the litigation process. A negotiated resolution that is often better than taking the risk that the judge will not rule in your favour. About 93% of cases in Family Court are resolved by negotiation prior to trial.
Your lawyer will explain each step in the process, explain your options, and discuss the various potential consequences of your choices. You will remain in control subject to orders by the judge, the rules of Court, the law and our professional/ethical obligations.
Here are the steps in the litigation process:
Establish Your Goals and Priorities
You and your lawyer will work together to establish your goals and priorities. You have to have a long term perspective and accept that perhaps not every goal will be achievable. Your lawyer will help you craft a set of goals and priorities that are reasonable and achievable;to do otherwise would mean you are wasting your time and energy. Your lawyer will offer her/his objective opinion as to the likely range of results so that you have reasonable expectations as to the results of your case.
Prepare Your Pleadings
Pleadings are the initial Court documents that outline your story and what you want the judge to substantively order. Pleadings are very important as they define your case, and will be read by the judge and everyone involved in your case. Your lawyer will help you articulate all of the facts that support each of your claims so that you put your best foot forward. If the other party has commenced the proceedings by way of his/her Application, then you will have to respond by way of your pleading called an Answer.
You will also have to complete a sworn financial statement. This document sets out your income and expenses, as well as all of your assets and debts and their related values as at the date of marriage (or commencement of common law relationship), date of separation and today. You have to prove every number listed in your financial statement so we will ask you to provide a copy of documentation such as your T1 Income Tax and Benefit Return and related Notices of Assessment for the last 3 years, a current pay statement, bank statements, RRSP statements, property valuations, mortgage statement, credit card and loan statements.
Once you have provided your lawyer with all relevant documents required, the pleadings are drafted and the financial statement is completed, those documents will all be served on the other party and filed at Court.
This is an administrative step in the process. Usually your lawyer’s law clerk will attend at Court to set a date with the other party or their lawyer for the next step in the process. There are mediation services offered at Court on First Appearance dates to help resolve urgent issues. If you have urgent issues, your lawyer may also attend at First Appearance and ask the mediator to help negotiate a resolution. Often, First Appearance is attended by your law clerk only and you do not have to attend. There is no judge available at First Appearance.If both parties have a lawyer, it is possible to skip the First Appearance if both sides are agreeable.
Dispute Resolution Officer
Most cases involving support issues go before a Dispute Resolution Officer who is a senior lawyer volunteering to help resolve cases, if possible, or at least ensure that the parties are ready for the next step in the process. You and your lawyer and the other party and his/her lawyer will have to attend together at Court on a specific day to meet with the DRO. Sometimes resolution is achieved of some or all of the issues, but often it is necessary for another Court date is set. Briefs are exchanged by the parties in advance of the DRO meeting. The brief outlines the issues, main facts, as well as the orders each party is seeking. A judge is not present during DRO meetings.
If there are issues that are unresolved, the next step in the Court process is a Case Conference where you will be able to hear from a judge on the issues. You, your lawyer, the other party and her/his lawyer will attend Court on a specific date and then you will wait your turn to hear from the judge. Sometimes you will be given the opportunity to speak at the Conference. In advance of the Court date, you and your lawyer will create a case conference brief that lists the issues, outlines the important facts, and what you want the judge to help resolve. Each party serves a brief on the other so as to know the other party’s perspective on the issues.
The case conference is an opportunity to negotiate a settlement, if possible. The purpose of the case conference is to obtain a preliminary opinion from the judge as to how the case might be settled. Often settlement is not achieved and therefore the judge will make sure the case is ready to move forward in the process. The judge does not have the power to impose substantive orders other than those reached on by agreement of the parties, except in exceptional circumstances.
During the litigation process, you may be advised to retain experts who can offer their opinion on a variety of issues. For example, you may hire an assessor who is qualified to offer an expert opinion as to the best interests of the children, and who will provide the judge with her/his recommendations for resolution of the parenting issues. You may hire a certified business valuator to value your business or share interests in a corporation. You may hire someone qualified to value your real estate, stock options or art. You may hire a qualified professional who will offer their opinion as to income for support purposes when there are allegations, for example, of undisclosed income.
If the other side retains an expert who releases an unfavourable report, you may choose to retain your own expert to help your lawyer highlight any weaknesses in the other party’s expert opinion. Your expert may also offer their own opinion on the issue if appropriate.
In some cases, another lawyer may be retained to specifically represent the views of the children regarding custody and access issues. A children’s lawyer is only appropriate for older, mature children.
If the issues have been canvassed with the judge at a case conference and resolution has not been achieved at least on an interim basis, you may need to bring a motion; this is an important step in the process. Often the Court order that is made at the motion forms the basis of a final resolution. A motion is a court appearance where both parties tell the judge their story through affidavit evidence and request the judge to make a particular order. You usually do not go on the stand to testify like you would at a trial. The witnesses complete an affidavit which is a sworn statement of the facts. Your lawyer will advocate on your behalf in Court based on the affidavit evidence and how your lawyer wants the law applied to your case. The judge will make an order based on their application of the law to your case, and their judgement as to what is fair. Orders at a motion are intended to temporarily resolve the issues until they are resolved on a final basis either through settlement or at a trial.
A judge’s order is “the law” and must be respected. You may face serious consequences, perhaps costs or even a jail sentence in severe cases, if you do not comply with aCourt order.
Occasionally, there is a preliminary step before the motion is heard by the judge. Once the affidavits have been exchanged, in some cases, there will be cross-examinations of the witnesses who did an affidavit. This means that the other lawyer will be able to ask questions of the deponent of an affidavit at a Court reporter’s office and those answers are recorded. A transcript is made of the questions and answers,and is filed with the Court so the judge can read it. The purpose of cross-examinations isto highlight any weaknesses in the other party’s affidavits, obtain admissions, and to clarify any ambiguities.
A settlement conference is an opportunity to hear from the judge as to what s/he would likely order if the matter was heard by them at a trial. The purpose of the settlement conference is to try to settle your case so that a trial is avoided. Both sides will exchange settlement conference briefs in advance of the Court date so that everyone understands each other’s perspective on the issues. The settlement conference brief outlines the important facts and how you and your lawyer want the law applied to the facts. At the conference your lawyer will advocate on your behalf, but you will have input too. Negotiations at conferences often result in an agreement which is then turned into a final consent order by the judge. Unless on consent of the parties, the judge does not have the power to make substantive orders at a conference, but typically will make orders regarding procedural matters.
Trial Scheduling Court
At this step, you will consider the number of days of trial you will need and any urgencies. Your trial may be put on a list of trials that will be heard during a particular trial blitz. If it is anticipated to be a short trial, it may be scheduled at a specific time. The setting of the trial date is determined by the judge after consultation with the lawyers and parties.
Trial Management Meeting
At the Trial Management Conference, once again, the judge will offer advice as to how settlement might be achieved so that a trial may be avoidable. Failing settlement, the judge will ensure that both parties are ready for trial. During the trial management conference, everyone will commit to time frames for the trial, as well as list of who will be called as witnesses by each side, and the general evidence that will be presented. You will then be put on a list of cases heading toward a trial. Most trials are conducted during two trial sittings each year. You and your lawyer will be called upon a day or two before the commencement of your trial so you need to be ready to go.
A trial is the final step in the process. The lawyers will start with their opening statements which is a description of the evidence they intend to introduce to the judge during the trial and the result they are seeking at the end of the trial. The lawyers will be able to call witnesses who will testify in Family Court. The lawyers will cross-examine (ask questions) of the other party’s witness (and vice versa) to highlight any weakness or inconsistencies. You will present your evidence, including documentary evidence, as to the facts. You may call experts to testify in support of your case. In most cases, you are given an opportunity to tell your own story to the judge. You will testify on the stand and then the other lawyer will be given an opportunity to cross-examine you on your testimony.
The length of a trial depends on the complexity of your case . It could be as short as a half-day or it may last as long as a few weeks.
Your lawyer will have a lot of preparations to do in advance of the trial. S/he will have prepare a list of questions for each witness and consider what documents they need to submit to the Family Court. Your lawyer will research the law and how previous judges faced with similar cases have ruled. A legal memorandum as to the law may be prepared so that it can be presented to the judge during the trial. The Trial Record has to be created. This is a collection of documents and contains all of the pleadings and other relevant documents that the judge will need for the trial. Binders of documents that need to be submitted will be collected and exchanged the lawyers. For every day of trial, your lawyer will probably spend 2 to 5 days preparing for it.
At the end of the trial, the judge may make their decision known to everyone. Sometimes the judge will reserve their judgement meaning s/he won’t tell you their decision immediately. The judge’s decision might be released weeks or even months after the trial has been completed.
A judge’s decision at the end of the trial is final and must be respected. It is a final resolution of all the issues that were brought before the Family Court and ends the process.
Costs and Offers to Settle
After each stage of litigation, particularly motions and trial, the judge may order costs against the unsuccessful party. That means that the losing party would not only have to pay their own legal costs but they may be ordered to pay some or all of the other party’s legal costs in relation to that specific stage.
When the judge is considering whether or not to order costs, they consider whether there were any offers to settle made during the process. If you make a written offer to settle an issue and the judge resolves the issue in a way less favourably to the other party then the judge will likely order the other party to pay your costs. This rule is intended to encourage the parties to make offers to settle and to carefully consider the offers to settle they receive during the process.
If you do not like an order that a judge made at a motion or at a trial, it may be possible to appeal it, with the first step being to obtain leave to appeal. That means we would ask the Court to determine if there are sufficient grounds to appeal. If the judge is found to have used his/her discretion appropriately, then your appeal may not be successful, but when the judge has made a serious mistake, pursuing an appeal to a higher Court may be the right course of action.
Your Costs in Litigation
Warning: Litigation is often costly. The total costs will all depend upon how much time is invested in your case during the process. Most clients are unhappy with the amount of money it costs to litigate a case, but as you can see from the above description of the steps, your lawyer may be required to spend many hours on your case. Your lawyer will work hard to protect your rights, and will do their best to obtain a final resolution of the issues as soon as reasonably possible. If your case needs to go all the way to trial, we are ready, able and willing to be your advocate throughout.
Do You Need to go to Family Court?
If you are contemplating starting a case in Family Court or your spouse has commenced one, you would be wise to speak to one of our litigation lawyers immediately. Your lawyer will help explore all of your options and help you develop a roadmap moving forward. We will zealously advocate on your behalf to the end.