Family Law Process
[Please be advised that the information provided is not to be constituted as legal advice]
[Please be advised that the information provided is not to be constituted as legal advice]
[Please be advised that the information provided is not to be constituted as legal advice]
The best way to resolve any matter is by way of settlement. You will always be happier with the decisions that you made than a decision that is made for you.
During a family law matter, settlement can arise in the following ways:
To maximize your position during the negotiation phase, we take the following steps:
[Please be advised that the information provided is not to be constituted as legal advice]
Alternative dispute resolution (ADR) is the resolution of disputes by means other than traditional litigation. In family law, ADR generally involves participation in one or more of the following:
Mediation is a method of dispute resolution whereby the parties retain a third-party professional to assist them in reaching an agreement. The mediator’s role is to listen to both parties and try to help them reach their own agreement.
The purpose of mediation is to assist the parties to accept the realities of their respective situations, understand the underlying interests of the opposing party, and try to reach agreement about how to settle outstanding differences.
There are two types of mediation in family law:
Open mediation means that at the conclusion of the mediation, the mediator files or prepares a full report and is free to include anything relevant to the matter. Evidence of anything said or of any admission or communication made in the course of the sessions is admissible in a proceeding whether the clients consent or not.
Closed mediation means that at the conclusion of the mediation, the mediator files or prepares a report that either sets out the agreement reached by the clients or states only that they did not reach agreement on the matter. Here, evidence of anything said or any admission or communication made in the course of the mediation is not admissible in any proceeding except with the consent of both parties.
Family Mediation Canada’s “Code of Professional Conduct” outlines the following goals:
Although not all mediators employ the same process, the following constitute the typical steps involved in a family mediation:
Arbitration is a legal procedure where the parties agree to appoint a person, who becomes the arbitrator, to review the evidence and arguments of the parties and render a decision, called an award, which is binding.
The Benefits of Arbitration:
The two-step process described above, whereby the parties retain one person to assist them in reaching a negotiated agreement, failing which they confer on that person the right to make a binding decision.
The Benefits:
[Please be advised that the information provided is not to be constituted as legal advice]
In Ontario, we have three courts that deal with Family Law Matters.
The Family Court of the Superior Court of Justice is a specialized court that deals with all aspects of family law.
In the family law context, this court deals with the issues of property, divorce, custody and access, and support. It does not deal with child protection or adoption proceedings.
The Ontario Court of Justice deals with the issues of custody, access, support, child protection, and adoption. It does not deal with divorce or property issues.
[Please be advised that the information provided is not to be constituted as legal advice]
Application: A person starting a case files a document called an application.” An application may contain a claim against more than one person and more than one claim against the same person. It allows the claimant, called the applicant, to seek relief by checking off one or more boxes under various applicable legislation and requires him or her to set out the grounds for such claims.
Financial Statement: In the event an applicant seeks property, spousal support, or child support involving a s. 7 expense or where one parent has 40% of the child’s time throughout the year, the application must be accompanied by a financial statement (R. 13). In the event the parties are married, and the case involves a claim for property, the proper form is Form 13.1. In the event the parties are not married, the proper form is Form 13.
Form 35: In the event an applicant seeks custody of or access to a child, the application must be accompanied by an affidavit pursuant to R. 35.1. In this affidavit, the applicant must set out his or her detailed plan for caring for the child as well as provide the names of the people with whom the applicant plans to live, whether the applicant has ever been criminally charged, and whether he or she has been involved in any other family law litigation, including child protection litigation.
Answer: The person against whom an application is made is called the respondent. The answer allows the respondent to set out his or her version of the dispute and ask for relief. The answer should contain sufficient clarity about the respondent’s position to allow the applicant to be aware of the case that has to be met and for the court to understand the issues in dispute.
Reply: After the respondent serves an answer, the applicant has 10 days in which to serve and file a response, called a reply.
[Please be advised that the information provided is not to be constituted as legal advice]
The Case Conference is the most important step in Family Law Litigation. A Case conference allows you and your lawyer to hear the judge’s perspective on your case at an early stage.
The primary goal at the case conference is to reach an agreement on the outstanding issues. By reaching an agreement, you may be able to avoid expensive motions and move directly to a settlement conference.
The purpose of a case conference is set out in the Family Law Rules.
At a case conference, there will also be frank discussions regarding the costs and benefits of settling or proceeding forward.
[Please be advised that the information provided is not to be constituted as legal advice]
There are three types of motions that can be commenced by one party:
In the event that parties cannot come to temporary agreement at a case conference; one party may commence a motion for temporary relief.
To move by way of a motion, the parties must file a notice of motion and a supporting affidavit. It is important for parties to look at the practice direction for the region that the proceedings have commenced in so that the parties can satisfy any other requirement necessary for the motion.
Without Notice motions in Family law are rare and are only used in the following circumstances:
A party seeking a without notice order has an obligation to make full and frank disclosure of all material facts, even where some of those facts may not be helpful to his or her position. Having regard to this very high standard, it should not be surprising that failure to provide a salient fact to the court will constitute grounds for setting aside the order.
A without-notice order must be served immediately on all parties affected, together with all documents used to obtain it. All without-notice orders shall require the matter to return to court, if possible, to the same judge, within 14 days or on a date chosen by the court.
A party may move by way of Form 14B motion form, if a motion is limited to procedural, uncomplicated, or unopposed matters. A procedural motion is typically used in the following circumstances:
[Please be advised that the information provided is not to be constituted as legal advice]
After the parties have completed a case conference, the next step is usually a settlement conference. The purpose of a settlement conference is the following:
[Please be advised that the information provided is not to be constituted as legal advice]
A trial management conference is usually held a month or less before the trial starts.
The main purpose of the Trial Management Conference is to ensure that the trial runs efficiently with as few surprises as purposes can be described as: