Through the Family Law Rules, the Ontario Courts have structured court actions to occur in discrete steps. While some steps may need to me repeated from time-to-time for a variety of reasons, most cases follow the structure set out in the Rules. Understanding the structure of a Children’s Law Act, Divorce Act, or Family Law Act action is essential to make you feel knowledgeable and in control of your action. The usual steps in a new Ontario family court action under these Acts are detailed below, in general order of occurrence:
1. Pleadings: The first step in any family case is the filing of the initial pleadings. Where there has been no prior legal involvement, a party would serve an Application on the other party and file it with the Court. The other party would serve and file an Answer within their deadline. The party filing the Application could then file a Reply before a deadline.
2. Mandatory Information Program: Both parties must attend a mandatory court-sponsored information program. Parties do not usually attend together. This program is designed to give you general information about the conduct of a court action.
3. First Appearance: The first appearance generally is set out in the Application, and is usually held some time after the filing date, to give the Parties time to complete their pleadings. At the first appearance, the Parties have an opportunity to deal with any preliminary issues between them. A judge is normally not present. Staff are available to provide general information about court proceedings, and legal aid duty counsel are available for qualified parties. If the Parties do not reach a final resolution at or prior to the first appearance, a case conference date is booked with the clerk.
4. Case Conference: The case conference is the parties’ first real opportunity to deal with the meat of their issues. At the case conference, the parties usually appear before the judge with their lawyers present. Everything that is said in the context of a case conference cannot be raised as evidence. Evidence is not introduced, and the case conference judge usually does not have the power to make substantive orders without an agreement between the Parties. The case conference judge does, however, have the power to set timelines and to set up procedures to ensure the orderly conduct of the action. A case conference judge can, under limited circumstances, order costs against a party if they have not followed the Rules.
5. Settlement Conference: The settlement conference is the parties’ last chance to settle their matter before trial. Like the case conference judge, evidence is not introduced, and the settlement conference judge cannot usually make decisions without the parties’ consent. The settlement conference judge often pushes the parties to settle the matter. The settlement conference judge may also attempt to get admissions, make orders respecting disclosure, and deal with other issues in advance of trial.
6. Trial Management Conference: A trial management conference is the last step before trial. The trial management judge sets dates for trial, receives witness lists, explores whether expert evidence will be needed at trial, sets deadlines and deals with other procedural issues in advance of trial. A trial management judge may also press parties to try and resolve matters to avoid or narrow the scope of issues at a trial.
7. Trial: A trial is the end of the road for a family court action. The trial judge has final say on the outcome of the case (barring an appeal). The trial judge hears oral evidence from the Parties, reviews exhibits, hears legal submissions from the lawyers (and reads applicable factums) and makes a decision respecting the issues of the case. Trial is extremely time-consuming, expensive, and difficult, often requiring weeks of preparation.
Appearance dates are set based on the Court’s availability. It is common for conference dates to be set months ahead of time due to a lack of available dates. It is also common for conference dates to be adjourned (and sometimes multiple times in particularly contentious cases) as the Parties await additional income disclosure, completion of a report from the Office of the Children’s Lawyer, or other actions on the file.
The entire process, from initial pleadings to trial, can take years. Very few cases are ever set down for trial, and even fewer trials are conducted. Most cases are redirected into an alternative dispute resolution (“ADR”) scheme, or reach a negotiated settlement. Trials can be extremely expensive, and require weeks of preparation on the part of the lawyer. Multi-day trials commonly carry substantial legal costs for both parties, and proceeding to trial carries the risk that a party will need to pay some or all of the legal costs of the other party if they lose.
At any time while the case is ongoing, either party can file a motion with the court. A motion is a formal request to the court to do something, whether that be to order interim child or spousal support, to prevent a party from taking some action, or even to dismiss the case in its entirety. Motions can be brought on an emergency basis, or on notice, depending on the facts and the needs of the Parties. Motion evidence is usually submitted through written affidavits (as opposed to oral testimony), and the outcome of a motion can have a profound effect on the action as a whole.
In the family law context, much of the ‘work’ in a contested action is done through conferences and motions. However, Parties cannot bring a motion before a case conference has been conducted unless the Court rules that there is a situation of urgency or hardship, or that a case conference is not required for some other reason. This rule should be kept in mind if a party is thinking about bringing a family action, as this rule can result in some delay in receiving relief from the Court.