Roadmap to Divorce: The Court Process (Part 3) - Interlocutory Steps

Overview

Interlocutory steps are those that can be taken at any point in the court process. While many of these steps can end the action entirely, some of them are only capable of providing interim relief. These steps are optional and, as such, it is entirely possible to have a family law case proceed without including any of these steps.

Settlement Meeting

A settlement meeting, sometimes referred to as a four-way settlement meeting, is a meeting between both parties and both parties’ lawyers during which those involved attempt to settle a file. The meeting may take place at any stage in a family law case. The meetings can last as long as is necessary/the parties choose. Often, counsel will leave time prior to settlement meetings to plan and debrief with clients. Generally speaking, the most important and pressing issues are discussed first; nevertheless, more controversial issues may be set aside if the parties reach a deadlock.

The first opportunity for a settlement meeting is typically after the parties exchange their respective financial statements and supporting materials. While there is no limit to the number of settlement meetings that can take place, it can get costly for parties who schedule multiple meetings. Needless to say, however, settlement is usually preferable and less costly than court action, and in most matters a meeting will be held prior to the initiation of court proceedings.

After all court attendances have been completed and the matter is schedules for trial, a last attempt at settlement can still be beneficial. At this stage, clients may be more inclined to attempt settlement.

Offers to Settle

At any point during the progression of a family law matter, either party may make an Offer to Settle. These are documents that set out a proposal for the resolution of some or all of the issues in the case. Offers to Settle are covered by “Settlement Privilege”, meaning that their contents cannot be put before the court. However, as mentioned above, a court can look at an Offer to Settle at the end of a trial to determine how to allocate cost consequences. That is, if a party rejects an Offer to Settle which would have put them in a position that is equivalent to or better than the award granted at Trial, the party who rejected the Offer may be forced to pay all of the other party’s legal fees. This is a simplified statement of the effect that Offers to Settle can have on cost awards. Your lawyer will be well aware of the additional procedural requirements that must be followed in order to yield this result.

If, on the other hand, one party makes an Offer that the other deems acceptable, the parties have settled their matter and the case is finished. The parties will incorporate the terms of the Offer into a Separation Agreement or Minutes of Settlement, which are described more particularly below.

Motions

A Motion is an abridged version of the Trial that deals with one or two issues in a case. Also, a Judge cannot make a final determination on a Motion and may only make interim, or temporary, decisions. In preparation for a Motion, each lawyer prepares a Notice of Motion wherein they set out the relief that they are seeking, as well as an Affidavit stating the facts that support the Notice of Motion. Additionally, your lawyer may have to provide the Judge with a Brief of Authorities, which sets out the legal sources relied on in arguing your case.

Generally speaking, an issue needs to be discussed at a Case Conference before it can be the subject of a Motion. The court will make an exception, however, if the issue to be canvassed is urgent. This is not an easy threshold to meet and, therefore, it should not be taken lightly. An urgent Motion should only be brought in a true emergency situation.

Regardless of whether your Motion is urgent or not, in the Newmarket Court, there are two types of Motions that can be scheduled. If your matter is urgent or time sensitive, it is likely that you would place your Motion on the “Open Motions List”. This means that all of the Motions scheduled to take place in one day are put on a long list which the Judge reviews and prioritizes. In some jurisdictions, an Open Motion List can hold as many as 40 matters or more for one Motions day. As such, it is not uncommon for matters not to be reached as the Judge runs out of time.

If you have some more time, you may prefer to place your matter on the “Fixed Motions List”. When you schedule this type of Motion, your matter is usually heard at the scheduled time. In most jurisdictions, fixed Motions have a time limit and, any Motion that exceeds the said limit must be scheduled with Trial sittings. Toronto is an exception in that you may schedule a “Long Motion” for matters that will take longer than one hour to deal with.

In other jurisdictions, all long Motions are scheduled in advance unless they are brought on an urgent basis.

As with Trials, your Motions Judge should not be the same Judge who has heard any Conference in your matter. It is possible to have the same Judge, but this requires the consent of both parties.

Regardless of which type of Motion you choose, the procedure is the same. Each party is given an opportunity to present their submissions to the Judge, who will stop the parties and ask questions along the way. In these submissions, the lawyers will draw the court’s attention to the facts, evidence, and law that substantiate their respective positions. Once the parties have finished their submissions, the Judge will make the decision that she deems most appropriate. If the issue at hand is particularly complicated, the Judge may reserve their decision and notify the parties of same in writing at a later date.

At the end of a Motion, the Judge will award costs. They may make this determination, based on the relative success of each party, as discussed above, or based on other factors that the Judge chooses to consider.

Dispute Resolution Officer (DRO) on Motions to Change

Motions to change are on the rise in family law proceedings. The increase in these motions has made it a challenge to ensure timely and effective first case conferences for parties. In order to address this issue, senior family lawyers have agreed to assist the Superior Court of Justice by volunteering as Dispute Resolution Officers (DROs).

Accordingly, first case conferences for all motions to change filed pursuant to Rule 15 of the Family Law Rules in the Superior Court of Justice in Brampton, Milton, Newmarket and Oshawa are now heard before the Dispute Resolution Officer (DRO). The DROs are authorized to hear first case conferences for motions to change pursuant to Rule 17(9) of the Family Law Rules.

The DRO is permitted to:

  • hear all first case conferences for motions to change and other conferences specifically referred to a DRO by the Superior Court Justice;
  • attempt to identify and resolve the outstanding issues on a consent basis; assist parties in organizing their issues and disclosure documents;
  • assist parties in obtaining a signed consent order from a judge, where the parties have consented in writing at the DRO case conference; and, complete a “Screening Report” which will be included as part of the court file, indicating the issues resolved, outstanding issues, and whether the conduct of either party has frustrated the objectives of the DRO case conference.

A judge presiding at a subsequent conference or motion may rely on the notations in the Screening Report, after hearing submissions to the issues, in determining if costs are appropriate.

However, the DRO is not permitted to write consents for parties; make orders, on consent or otherwise; or award costs.
Upon completion of a DRO case conference, parties in are permitted to schedule a case conference, settlement conference, or motion in front of a judge as the next step.

In Newmarket, parties are permitted to schedule a case conference, or a settlement conference in front of a judge as the next step; a case conference before a judge is required prior to scheduling a motion in front of a judge.

Questioning

At any point in the family law process, one or both of the lawyers may wish to question the opposing party about any number of issues in the case. If the questioning is related to a Financial Statement, the opposing party has a right to conduct such questioning as long as they have served a “Request for Information” Form. Questioning in any other capacity can only be conducted with the consent of both parties or if the court orders that one take place. In order to proceed with a questioning, the requesting party must serve the other with a Notice of Questioning setting out where and when the questioning will take place. Typically, a questioning is conducted at a Court Reporter’s Office and is transcribed as it proceeds. Once the questioning is complete, either party may request a copy of the transcript from the Reporter. You should note that there are fees associated with both the use of the Court Reporter’s Office and ordering the transcript.

Typically, each lawyer gets an opportunity to question the party; they are examined by their own lawyer and cross-examined by opposing counsel. Once the parties have the transcript, it can be filed with the court so that portions of same can be read into the file as evidence.

Questioning can be a helpful tool in terms of settling contentious issues in a case. Once the lawyer’s have some of the evidence that would be introduced at Trial, it gives them a better idea of how a Judge would decide the facts in their case and this often brings parties closer to a resolution. Furthermore, questioning sessions often result in one party undertaking, or agreeing, to provide further information and/or disclosure. These undertakings are on the record and, as such, can be enforced by the opposing party.

Assessments

In family law cases where there are children involved it may be necessary to conduct a custody and access assessment. Such assessments are usually conducted by social workers or psychologists who specialize in this field of practice. The assessor spends time with each parent and the child(ren) in an effort to determine the custody and access arrangement that would be in the best interests of the child. The assessor then makes recommendations to the parents based on their findings. If the parents’ are pleased with the recommendations, they will choose to adopt them and will incorporate them into their final Court Order or Separation Agreement. If one or both parents disagree with the recommendations, however, then the assessor will prepare a report of their findings which will be put before a Judge at Trial. While an assessment is not binding on a Judge, the court often finds such reports extremely persuasive. The assessor themselves may also be called to testify as a witness if your case proceeds to Trial.

There are two ways in which litigants can obtain a custody and access assessment. Any parent is free to arrange for a private assessment to be conducted by hiring a social worker or psychologist in this regard. It is important to note, however, that such assessments can be very expensive. You should discuss assessments with your lawyer before hiring a private assessor.

If a Judge deems it appropriate to do so, the court will order the Office of the Children’s Lawyer to become involved. The Office of the Children’s Lawyer is a creature of the provincial Government which provides services and representation for children engaged in a variety of legal proceedings. Where a court orders their involvement for the purposes of conducting an assessment, the Office of the Children’s Lawyer will appoint a social worker as the assessor. If the assessment is conducted through the Office of the Children’s Lawyer, there is not charge to the litigants in this regard.

Legal Representation for the Children

In certain circumstances, the court may order that the Office of the Children’s Lawyer become involved in a case in a different capacity. The court may find it appropriate for a lawyer from the Office of the Children’s Lawyer to represent the children in the legal proceeding and represent their interests and wishes. If this is the case, the children’s lawyer is involved in every step of the legal proceeding in order to represent the children.

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