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.