Family Law Process

[Please be advised that the information provided is not to be constituted as legal advice]

  • NEGOTIATIONS
  • ALTERNATIVE DISPUTE RESOLUTION
  • LITIGATION
  • PLEADINGS
  • CASE CONFERENCE
  • MOTIONS
  • SETTLEMENT CONFERENCE
  • TRIAL MANAGEMENT CONFERENCE

[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:

  • Negotiation with your partner’s lawyer resulting in a settlement.
  • After some judicial intervention, the parties’ resolve the matter by way of separation agreement or a final consent order.

To maximize your position during the negotiation phase, we take the following steps:

  • Prepare you for negotiations, we work with you to determine what is important to you and what you are willing to give up and what you cannot live without.
  • Objectively determine the strengths and weaknesses of your case.
  • Ensure we enter into all negotiations on a “Without Prejudice” basis so that the opposing party cannot use offers against you.
  • Use the negotiations as a means to better understand the opposing party’s position, perspective, motivations and interests.

[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
  • Arbitration
  • Mediation-arbitration

MEDIATION

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
  • Closed Mediation

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:

  • The goal of family mediation is a fair and workable agreement that meets the participants’ mutual needs and interests (not a settlement at all costs).
  • The primary responsibility for the resolution of the dispute rests with the participants. At no time should the mediator coerce participants into an agreement or make a substantive decision on their behalf.
  • The mediator’s role is that of a facilitator, i.e., to assist the participants to reach an informed and voluntary agreement that meets their mutual needs, interests and concerns, along with those of others affected by the dispute.
  • The mediator has a responsibility to promote the participants’ awareness of the interests of others affected by the dispute and by the proposed agreement and to assist them in considering the separate and individual needs of such other persons.

Although not all mediators employ the same process, the following constitute the typical steps involved in a family mediation:

  • Step #1: You will discuss all aspects of the mediation with your lawyer and your lawyer will advise whether mediation would be feasible.
  • Step #2: You and your partner will decide on a mediation and the sharing of the cost.
  • Step #3: You and your partner sign an agreement with the mediator.
  • Step #4: The mediator conducts one or more meetings with you and your partner, engaging in problem solving, discussion, and negotiation of the issues.
  • Step #5: The mediator assists the you and your partner in reaching an agreement on one or more essential terms. The mediator summarizes the details of the agreement and forwards it to the clients or lawyers for their comment and input.
  • Step #6: You will meet with your lawyer for independent legal advice.
  • Step #7: If necessary, revisions to the agreement are discussed and, if necessary, mediated and resolved.
  • Step #8: Final revisions are made, and the agreement is signed by the parties in the presence of their respective lawyers.

ARBITRATION

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:

  • First, the parties have the ability to decide which steps they will take (examinations, affidavit of documents, conferences, documents they will exchange, and timelines); whereas in court, no such freedom exists.
  • Second, unlike in traditional litigation, parties to an arbitration can not only choose their hearing date but usually have the hearing much earlier than having to wait for a trial.
  • Third, like mediation, arbitration has the advantage of allowing for private resolution, thus minimizing the risk of exposing the parties and their children to public disclosure of intimate and potentially embarrassing matters.

MEDIATION/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:

  • The process is private, confidential, and offers parties the option of selecting an experienced person to help them reach an agreement in a setting and manner entirely of their own choosing
  • The arbitration component is designed to allow for a relatively quick and final decision to be made by the same person in the event an agreement is not achieved, thus saving time.

[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, also called Superior Court of Justice (Family Court).
  • The Superior Court of Justice
  • The Ontario Court of Justice.

The Superior Court of Justice (Family Court)

The Family Court of the Superior Court of Justice is a specialized court that deals with all aspects of family law.

The Superior Court of Justice

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

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.

  • Exploring chances of settling the case, at the case conference the parties will hear from a judge, who is willing to explain how they would apply the facts to the case.
  • Identifying the issues that are in dispute and those that are not in dispute.
  • Exploring ways to resolve the issues that are in dispute. A case conference judge proposes realistic and achievable solutions that are acceptable to both parties and is able to reframe an issue so the parties see it and their role in a new light, paving the way for settlement.
  • Ensuring that the parties exchange the relevant evidence. One of the most crucial functions a case conference judge performs is ensuring that full and complete financial disclosure is exchanged.
  • Identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial.
  • Noting admissions that may simplify the case.
  • Setting the date for the next step in the case.
  • Giving directions with respect to any intended motion.

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:

  • With Notice Motions
  • Without Notice Motions
  • Procedural Motions

With Notice Motion

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 Motion

Without Notice motions in Family law are rare and are only used in the following circumstances:

  • The nature or circumstances make notice unnecessary or not reasonably possible.
  • There is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences.
  • There is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences.
  • Serving the notice of motion would probably have serious consequences.

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.

Form 14B Motions (Procedural Motions)

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:

  • Obtaining an adjournment
  • Any temporary or final orders on consent
  • Changing an FAC into a case conference

[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:

  • exploring the chances of settling the case
  • settling or narrowing the issues in dispute
  • ensuring disclosure of the relevant evidence
  • settling or narrowing any issues relating to any expert evidence or reports on which the parties intend to rely at trial
  • noting admissions that may simplify the case
  • if possible, obtaining a view of how the court might decide the case
  • considering any other matter that may help in a quick and just conclusion of the case
  • if the case is not settled, identifying the witnesses and other evidence to be presented at trial, estimating the time needed for trial and scheduling the case for trial; and
  • organizing a trial management conference or holding one if appropriate

[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:

  • exploring the chances of settling the case
  • arranging to receive evidence by a written report, an agreed statement of facts, an affidavit or another method, if appropriate
  • deciding how the trial will proceed
  • exploring the use of expert evidence or reports at trial, including the timing requirements for service and filing of experts’ reports
  • ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial
  • estimating the time needed for trial; and
  • setting the trial date if this has not already been done