Roadmap to Divorce: The Court Process (Part 2) - Appearances
A Note about our Court System
Once all of the pleadings have been exchanged and submitted to the Court, the parties can proceed with the requisite court appearances in order to resolve their matter. When you have a court appearance, it is usually scheduled at a specific time. This does not mean, however, that your matter is the only one scheduled for that particular time. In fact, you may be on a Judge’s docket along with anywhere between one and forty other matters. This is especially so in those jurisdictions that are particularly overloaded, meaning that there are not enough Judges to process all of the cases. This means that, on some days, your matter may not be reached even if it is on the list to be heard on a particular day and time.
Step 1: The First Appearance (Optional)
In some jurisdictions, the court conducts a First Appearance. This is a very short court attendance wherein the parties and their lawyers meet to schedule the first Case Conference. Most of the time, the first appearance is with a court clerk and the parties rarely go before a Judge at this juncture. Since much of this work can be done among the parties outside of court, some jurisdictions allow the parties to mutually waive the necessity for such an appearance by simply filling out a specific form. Other jurisdictions require that it be held, but the attendance of one of the lawyers is sufficient.
Step 2: The Case Conference
The next step after a First Appearance is a Case Conference. If you are in a jurisdiction that allows parties to waive their First Appearance, the Case Conference will be the parties’ first time in court. In advance of the Case Conference, each party’s lawyer will prepare a document called the Case Conference Brief. The Brief constitutes a summary of the issues in the case and the facts that support each issue. Before the Case Conference, the Judge prepares himself/herself by reading each party’s Brief.
A Case Conference is an informal meeting between the parties, their lawyers, and the Judge. In many jurisdictions, this meeting takes place in a courtroom. In others, the Judge prefers to meet with counsel in their Chambers and, once these discussions are complete, will invite the parties into the courtroom to canvass the issues further. Each party has the opportunity to make submissions to the Judge based on their theory of the case. The Judge will likely ask questions during these submissions to get clarification on the issues and positions of each party. Each Judge has a different Case Conference style. Some Judges will be very forward and will give the parties their opinion on the issues. Other Judges will simply make suggestions in terms of options and ideas that may assist the parties in settling the matter. The Case Conference is intended to open the lines of communication between the parties in the hopes that they may come to a settlement among themselves.
The Case Conference can also be used to set out timelines and schedules for the exchange of documents and to devise a plan for the progression of the case.
At the Case Conference, the Judge is not allowed to make any substantive Court Orders in your case. They are, however, allowed to make procedural Orders, like timelines for production of documents. In addition to being an integral part of the family court process, Case Conferences are a prerequisite to bringing a Motion. That is, a Judge will not hear a Motion that pertains to an issue that has not been canvassed at a Case Conference. Motions are discussed in more detail in section IV.
Step 3: The Settlement Conference
If the parties are unable to come to a settlement after the Case Conference, they will schedule another appearance called the Settlement Conference. Like the Case Conference, the Settlement Conference requires the parties to submit Settlement Conference Briefs in advance of their attendance in court. These Briefs are substantially similar to the Case Conference Brief but must include a proposal for settling the matter in its entirety.
The procedure for the Settlement Conference is the same as that for the Case Conference. The notable differences are in the role of the Judge. At a Settlement Conference, the Judge will be interested in hearing about any attempts that the parties have made at settling the matter. They are also far more likely to provide their parties with their opinion on the legal and factual issues at hand. In short, the Judge plays a much more active role in attempting to bring the parties to a resolution that they can both live with.
Step 4: The Trial Management Conference
The Trial Management Conference is the last stage of the court process before Trial. Like the previous Conferences, the parties are required to submit Trial Management Conference Briefs in advance of the Trial Management Conference. The contents of these Briefs, however, are quite different. This is because the goal of the Trial Management Conference is to determine how much time will be needed for the trial. As such, the parties inform the court of who they intend to call as witnesses and how much time they anticipate spending on each part of the Trial. Since this is the last stage before Trial, the Judge will typically make further efforts to elicit a settlement between the parties.
Step 5: The Trial
This step is a very rare one in family law. The reality is that less than 5% of all family court cases ever proceed to a Trial and, as such, the likelihood of having a trial in your case is fairly slim. This is partially because the Conferences described above are specifically designed to attempt to bring the parties to a settlement. Also, Trials usually last several days and, as discussed below, involve a great deal of preparation on the parts of the parties’ lawyers. As such, Trials are very expensive endeavors for litigants.
In advance of the Trial, the parties’ lawyer may conduct Questionings so that they can get evidence from the witnesses that can be read into the court record at the Trial. This is a very effective tool as it reduces the amount of time necessary for questioning at the Trial itself. Questionings in and of themselves can be lengthy because they allow each party an opportunity to examine or cross-examine the witnesses. There are few files in which Questioning actually takes place.
In addition to calling each spouse as a witness, the complexity of a case may necessitate the input of an expert witness who will testify about their particular area of expertise. This may require the expert to conduct research and provide a written report to the Court. Any time spent by the expert either testifying or preparing such a report will be charged to the client who requested the expert’s involvement.
The way that your Trial is scheduled depends on which jurisdiction your matter is in. In some jurisdictions, Trial dates are interspersed among other Court appearances. In other jurisdictions, however, there are two months each year that are devoted entirely to Trial sittings. In jurisdictions like the latter, the trial sittings are one in every six months and, as such, you may end up waiting a very long time for your Trial to take place.
In an effort to ensure that your Trial Judge is unbiased, any Judge who has presided over a Conference in your case cannot be the Judge at your Trial. This also ensures that settlement discussions are appropriately protected and do not enter the Trial process.
In addition to Questioning, the parties’ lawyers must pull together all legal sources that relate to their client’s case and prepare submissions that they will make before the Judge. If there are witnesses that were not examined prior to Trial, the lawyers will have to prepare to question and/or cross-examine these witnesses. There are also several written documents that must be submitted to the Court in anticipation of the Trial.
As mentioned above, the Trial itself can last for several days, depending on the complexity and types of issues. The Trial typically begins with each party’s lawyer making an opening statement in which they outline for the court their arguments, evidence and positions. Then, the applicant spouse will call their witnesses, whom their lawyer will examine. The respondent spouse’s lawyer then has an opportunity to cross-examine these witnesses. This involves asking the witness questions in an attempt to point out inconsistencies in their testimony. Next, the parties switch and the responding spouse calls and examines their witnesses, followed by cross-examination by the applicant spouse’s lawyer. At the end of the trial, each party summarizes their position for the court in a closing argument.
In Ontario, the Judge alone makes the decision in a family law case. As such, the parties generally do not receive a decision at the conclusion of the Trial. Instead, the Judge takes their time in determining what the appropriate decision is and notifies the parties in writing at some point after the trial. Once that decision is made, it must be turned into a Court Order so that it can be enforced. This process is discussed in further detail in Section VI, below.
A Note about Costs
In order to ensure compliance with and proper use of the court process, Judges can levy certain sanctions against litigants. One of the most powerful sanctions available to the court is costs. When we refer to “costs”, we are talking about a Judge ordering one party to pay some or all of the other party’s legal fees. In the family law system, Judges have the discretion to award costs where and when they see fit. Typically, costs are apportioned by a Judge at each step of the case based on the relative success of each party. That is, the party that is unsuccessful on most of the issues in the case has to pay for some or all of the other party’s legal fees. Although costs are apportioned in each step of the case, the party who is unsuccessful at trial incurs a large burden in terms of costs in that trials are very expensive. The allocation of costs is affected by Offers to Settle exchanged between the parties. This is discussed in further detail in section IV, below.
Although this is the norm for cost allocation, Judges can award costs where a party has failed to follow court instructions or requirements. For example, if a party fails to provide their financial disclosure, the court has been known to require them to pay some or all of the other party’s costs. For more examples of how Judges use costs sanctions, please refer to our article on costs which can be found on our website.