Discover The Court Process in Ontario
Contested family matters the next step…
A person with a claim to make in a family law proceeding is required to draft a document setting out the claim and the grounds supporting that claim.
Getting a Case to Court
This document is called an Application. The Application could be for a divorce, for custody or access, for property division or support, for a restraining order or for any combination of those claims or other matters in dispute between two people in a family law context. Provided that the document satisfies the rules of the court, the court stamps the document and gives it a file number. At this point the document is said to have been “issued” by the court.
Before a court will consider the document, however, it must be delivered to the person against whom the claim is made. This is called “service.”
Once the document has been “served,” the served party has , 30 days within North America, 60 days outside, in which to respond to the claims and he/she may then make a claim of their own. The response also has to be served. If the party fails to respond within the given period, the party issuing the claim can obtain a default judgment, meaning that the party can ask the court to grant his or her claims without hearing from the other party.
If a response is filed, the original party has the right to reply to the response within 10 days.
MANDATORY INFORMATION PROGRAM (MIP) (OCJ & SCJ)
When the Application is filed the court clerk shall provide a notice setting out the date on which both parties are required to attend a MIP session. All new applicants to Family Court in Ontario must attend the Mandatory Information Program. This is a 2 hour program explaining the Family Court process and alternatives. A party cannot take any steps in the litigation until and unless the certificate of attendance has been filed with the court.
FIRST APPEARANCE (OCJ Brampton)
In most Family Law Rules courts, the first event in a court case is called a “first appearance.” This is an appearance before a court clerk or registrar rather than a judge. The purpose of the first appearance is to ensure that the application has been properly issued and to deal with any preliminary procedural matters such as service. If everything is in order and both parties have served and filed their material, the clerk will schedule a case conference date.
Generally speaking, the case conference is the first court appearance before a judge. It is relatively informal. A special summary of the case called a case conference brief must be prepared, served and filed with the court.
The primary purpose of a case conference is to have a judge review the case and place the case on a schedule, especially with respect to any procedural steps that must be taken to move the case along. Such steps might include appointing the Children’s Lawyer or requiring financial disclosure by a certain date. The judge will also explore whether any issues can be settled, and if so, will make an order in accordance with the settlement. A judge may also give his or her opinion as to the merits of each party’s position.
Following the case conference, either party is entitled to bring a motion. A motion is a court appearance where one side asks the court to make a temporary order such as an order for temporary support, temporary custody or temporary access. Once a temporary order is made, it is meant to last between the date the order is made and some future date.
Under the Family Law Rules no motion (unless it is an emergency) can be brought until after a case conference is held. Whether a particular situation constitutes an emergency varies from court to court and from judge to judge.
Motions can be expensive. They require evidence to be assembled in a motion record, which consists of the notice of motion, an affidavit setting out the facts supporting the motion, and exhibits (documents referred to in the affidavit).
The motion record has to be served and the responding party has the right to file opposing material.
The motion is presented or argued at a hearing, which is a formal court appearance.
SETTLEMENT OR PRE-TRIAL CONFERENCE
There may be out of court examinations or questioning of one of the parties that may be held either before a motion or after a motion. If these examinations are held before a motion and for the purposes of the motion itself, these are called cross-examinations.
The purpose is to narrow the issues between the parties, to test the strength of the other party’s case.
After the case conference, motions and examinations are completed, a pre-trial conference or settlement conference is held. This conference is designed to encourage the settlement of the case.
Once again a special brief must be prepared and once again it is an informal procedure, usually taking place in a judge’s chambers.
The pre-trial judge cannot force settlement of a case although in the Court of Justice and Unified Family Court a judge may order “costs” if he or she feels the other side is unprepared or unreasonable.
TRIAL MANAGEMENT CONFERENCE
If a case was not settled at the pre-trial, a trial management conference is scheduled. Again special briefs are filed, including a written opening trial statement. Procedural matters such as experts’ reports and the number of witnesses to be called are discussed and a final effort is made at settlement. If this last effort fails, the matter is scheduled for a trial.
A trial is a very formal procedure. Rules of evidence and procedure are strictly enforced. Witnesses testify before the judge, documentary evidence is presented and finally each side makes a closing statement.
At the conclusion of the trial the judge may make a decision or may inform the parties that he or she wants more time to consider the ruling. Once the ruling is made, the judge will also make an order regarding court costs.