13 Jan The 13 Steps of Family Litigation
You find yourself separating/separated from your spouse and there are issues to resolve that cant be resolved over a coffee at the kitchen table. Either you need to sue your partner to resolve these issues, or your partner has sued you. Either way, you need to hire a family lawyer. Once it is determined (either by you or your spouse) that litigation is necessary, you find yourself in a new place: stuck in a whirlwind of “legalese” and court papers that are scary and unfamiliar to you. You want to make sense of the legal process you are now mired in. The Family Law Rules govern family law matters in Ontario. What follows is a rough guide to the steps in the family court process, as prescribed by the “Rules”:
- Prepare & issue pleadings: Application, Financial Statement and Affidavit in Support of Custody/Access (if applicable): The Application for Divorce sets out the relief being sought by the Applicant and the reasons why the Applicant is entitled to that relief. For example, you may seek sole decision-making for your child(ren), parenting time, child support, spousal support, and a division of property (if you are married). In most cases, the Applicant will also prepare a “sworn” Financial Statement that sets out their income, expenses, assets and debts. If there are no financial issues at hand, a Financial Statement is NOT required. Bear in mind, that your spouse may “raise” financial issues, and you will then be required to file a Financial Statement.
- Issue the Application, then serve and file it (along with the Financial Statement: The Application is taken to the court, where it is “issued” by the court Registrar. The actual documents will be “stamped” and given a dedicated court file number. Once the Application has been issued, it is served on the Respondent (or their lawyer, if known) along with other applicable documents (depending upon the relief claimed) and filed with the court in the “Continuing Record” bearing that court file number. NOTE: You CANNOT serve your spouse with the Application.
- Respondent serves and files an Answer, and other applicable documents within 30 days: The Answer sets out the Respondent’s position on what the Applicant has asked for. The Respondent can agree with or dispute the Applicant’s claims. Typically, the Respondent makes his/her own claims – this is also included in the Answer. The Respondent serves the Answer and the other relevant documents, and then files it in the court’s Continuing Record bearing that same court file number.
- The Applicant serves and files a Reply (within 10 days after the Answer is served): This is a NOT a mandatory step, but it may be a very important step depending upon the case. In the Reply, the Applicant gets the opportunity to reply to only “new” issues and claims raised by the Respondent in their Answer. Some misuse the Reply to get “two kicks at the can” and say the same things they said in their Application.
- Conferencing: The Family Law Rules include a system of “conferencing” to move the case forward to resolution or trial. A first case conference is a mandatory procedural step in every case, unless there is a dire emergency, such as financial peril or a child/spouse safety issue. The case conference is an informal meeting attended by both parties, both lawyers and a judge (who may become the presiding “conferencing” judge to see the file all the way to the trial, but NOT including the trial). All conferences are “without prejudice”. This allows parties to discuss issues candidly. What is verbalized at conferences by the parties and by judges cannot be “used” at trial or at motion. Both sides file a case conference brief for the Judge to review, and typically the Judge expresses their opinions on “the merits” of the issues during the case conference. This helps focus the parties and counsel on narrowing issues in dispute and coming to some compromises, at least on a temporary basis, until the file moves ahead. The briefs do NOT form part of the Continuing Record. As well, a schedule is set for “next steps” in the case, such as delivery of financial disclosure, questioning, or asking the Office of the Children’s Lawyer to become involved in the case as necessary, and typically, the next conference date is set to move the matter forward. A judge at case conference can only make “consent” or procedural orders.
- Motions: This is NOT a mandatory step. A motion is a formal appearance before a judge (not the case conference judge) seeking temporary relief pending the final resolution of the matter at trial or by settlement. Lawyers are gowned for motions. The motion judge will make a decision on the merits of the motion relief claimed, as opposed to a case conference judge who provides opinions on issues on the case. There is much work that goes into a motion attendance, including preparation of Affidavits, submissions, factum, and casebooks. A motion can be brought to address any of the issues in the file, including temporary custody and access schedules, financial disclosure, child and/or spousal support, etc. Unless a matter is truly urgent, a motion cannot be heard before a case conference has been held. Motions on consent, procedural or uncomplicated matters can be brought in writing (which is far less expensive than by oral argument).
- Productions & Disclosure: Where property division has been requested, the parties must produce financial disclosure in a Certificate of Financial Disclosure. Before a case can be resolved (either at trial or by mediation/meetings/exchange of proposal) the exchange of disclosure must be completed so that the parties know what they are “fighting over”. Financial disclosure is an ongoing process, as a person’s financial situation can change quite dramatically from the time they separated, or when the Application was issued. Each party must keep the other party and court apprised of changes to their financial circumstances by filing an updated Financial Statement or an Affidavit.
- Questioning: This step is typically reserved for cases where there are significant issues in dispute, including significant monetary issues, such as a payor’s real income, or the value of assets or a business. Questioning is really a fancy phrase for examination of each party under oath about the issues in the case. The court does NOT order questioning in each case, but rather orders it at the request of a party, and the court uses its discretion to weed out the cases that really call for questioning (because it is so expensive and time-consuming). Questioning almost always involves the questioned party giving “undertakings” (promises to produce a document that has not been produced before) or “refusals” (refusing to answer a question, typically based on lack of relevance to the case). Motions over unfulfilled undertakings or refusals erroneously made can result, resulting in delay and costing big money.
- Settlement Conference (“SC”): Following disclosure (and Questioning if ordered), a Settlement Conference is held. This is another attempt to narrow the issues in dispute and foster settlement before the case makes its way to trial. Like the case conference, a judge (possibly the case conference judge) will meet with both counsel and the parties to discuss the issues and canvass settlement options. Settlement conference brief are required, including an Offer to Settle. Settlement Conference briefs are NOT the same as the Case Conference Brief.
- Trial Management Conference (“TMC”). Before a matter can be set down for trial, the parties must attend a TMC. Each side must file an extensive brief setting out the issues, their position on the issues, the time needed for trial, and a witness and expert list. Each party must also serve and file an Offer to Settle the case (which may be the same as or different from the last Offer to Settle in the SC brief). The job of the TMC judge is to create a game plan for the procedural trial issues. That said, most TMC judges also try very hard to help the parties to resolve the outstanding issues. Often, the TMC judge, like the case conference judge and the SC judge, expresses an opinion on the merits of the issues, in the hopes of bringing about a resolution before it’s too late.
- Exit Pre-Trial: The exit pre-trial is a few days before the trial. It is the court’s “last ditch” effort to narrow the issues in dispute and bring about a settlement before the trial starts. A trial is usually an extremely expensive step for both parties, and if one party is ordered to pay the costs of the other party, the total costs (2 sets of counsel costs: your own and your spouses) can be financially crippling. The court does its best to avoid that outcome, and help the parties reach a settlement. There is much value in settlement, even if it’s not a “perfect” outcome, and you may be entitled to “more”. Remember, you cant chase every dime or every minute of time.
- Trial: If the parties are unable to resolve the case, a judge will hear their evidence and arguments, “find fact” (i.e. determine what happened as far as the court is concerned) and make a decision on the issues in dispute. A trial is a very formal court process where each party presents their case and defends against the other’s party’s case. The parties and their witnesses are called to give evidence and may be cross-examined. Documents are filed as exhibits. The lawyers make their arguments and refer to caselaw. Sometimes the trial judge asks for written arguments. Once the trial is completed, the trial judge will consider everything that has been presented, and issue a written decision, making a ruling on each of the issues in dispute. Costs will also be addressed.
- Costs: Legal costs will be awarded to the party that is successful at trial, and even at interim steps (motions) in the proceeding, if those costs were not decided earlier. Typically, legal costs are paid to the successful party by the party that is NOT successful. The court exercises a lot of discretion in awarding costs, often finding there has been “divided success” which can mean no costs to either side. Some judges don’t like to “punish” a parent who is fighting for time or decision-making rights over their child. It is highly unusual for the court to order costs at a conference, and usually that only happens in extreme situations.
Marlene Kazman of Garfin Zeidenberg LLP has recently changed the law in Ontario to help parents such as those described above. In September, 2016, Marlene won a hearing for REUNIFICATION THERAPY in favour of a father who had been denied access with his 13-year old child for over 1 year. Now, on the strength of this case, under appropriate circumstances, the Court need not rely upon its parens patriae (“parental”) jurisdiction to create an order aimed at quickly rehabilitating a shattered parent/child relationship. Now, the court can rely on the case won by Marlene Kazman to order the needed REUNIFICATION THERAPY and hopefully rebuild the shattered parent/child relationship.
If any of this sounds familiar, you should contact Marlene Kazman at kazman@gzlegal or at 416-642-5416 (direct dial) for more information and an assessment of how she can assist you to obtain an order for REUNIFICATION THERAPY under appropriate circumstances.