So, you’ve filed your paperwork to start a case in an Ontario Family Court. A whole new world awaits you. What should you expect to experience once you enter the process? 

Court Should Be Your Last Option

First, understand that Court is not the only option to resolve your Family Law issues. It is generally considered to be the last option. This is because it is, typically, the most time-consuming, conflict-generating and costly option to address Family Law concerns. So, if you are at the beginning of your Family Law journey, and have yet to start a Court case, speak to a Family Law lawyer about superior resolution options. At Bair Family Law, we explore all feasible non-Court options with our clients, prior to offering them the option to proceed to Court.

Multiple Court Attendances

The Family Court process will differ somewhat from region to region. This blog will focus on the process in the Central East Region of Ontario, but the general framework is very similar throughout the province, and is grounded by the Ontario Family Law Rules. The Family Law Rules are a set of procedural rules that direct the handling of cases before the Family Courts.

The Family Court process is comprised of various Court attendances, with an emphasis on seeking consensual results, through non-adversarial, non-argued attendances, whenever possible. Actions in the Family Court are governed by the “primary objective” (Rule 2 of the Ontario Family Law Rules), which places a duty on the Court to:

• ensure procedural fairness, 
• save time and expense, 
• ensure proportionality (tailoring procedure, time and expense to the complexity and importance of the issues), and 
• manage resources efficiently. 

However, it’s fair to say that these laudable goals are not always achieved.

Most Family Court cases will require a minimum of 2 to 3 Court attendances. Depending on the complexity of your case and the type of representation that you have, each attendance will, generally, cost no less than $2,000.00, and will often cost significantly more than this. At Bair Family Law, we seek to strategically manage our clients’ files to minimize needless Court steps and related cost. We also offer various cost-management options, to support our clients in achieving their most cost-efficient outcomes.

At the time of writing of this blog, there continue to be lengthy wait times to proceed through each step of the Family Court process. At present, it can take a period of months to move from one step in the process to the next. Thus, the Family Court process can be a long and arduous journey.

Once You Are in Court, There is No Easy Way Out

Once you are in the Court process, you can’t simply choose to withdraw. Unless there is:

• a final decision by the Court on all issues identified in your case,
• a settlement between the parties of all issues identified in your case; or
• an agreement or arrangement to withdraw all claims identified in your case,

your case will continue through the process for as long as it takes to achieve a final resolution, at whatever cost it takes to achieve this resolution. 

If you wish to withdraw your case, you must obtain the consent of all other parties to your case. If other parties have incurred costs because of the filing of your claims, they will, almost always, expect that you pay their Court costs as the price for your withdrawal. If you withdraw your claims, it does not mean that the claims are resolved. If you fail to participate in the Court process while the remaining parties to your case continue, the Court may make Orders that relates to your claims, and that affect you, without your input.

The Bottom Line – Get sound advice from a good Family Law lawyer before you pull the trigger on Court action.

You May Surrender Your Right to Self-Determination

Once you have started a Family Court case, you and your partner can, and should, still work toward a settlement. A settlement allows the parties to devise solutions themselves, that are specifically tailored to their family. Settlements achieved by the parties will be generated by the people who know the parties’ needs and interests best – the parties themselves. If you cannot achieve a settlement, a Judge will impose a decision upon you. 

Until people attend before a Court, most do not realize how dehumanizing and belittling it can be to have the right to make decisions about the most important aspects of your life stripped from you.

Basic Steps in the Family Court Process

First Appearance

• The First Appearance will generally take place before a Court Clerk, not a judge.
• The Clerk will confirm that all procedural steps, including filing and serving of Court documents, are completed.
• The Clerk will then schedule the next step in the Court process.
• However, the First Appearance is also an opportunity for the parties and their Family Law lawyers to seek to settle some or all of the parties’ Family Law issues, if they choose to avail themselves of the opportunity. 
• In some Courts, there are Court-supported mediators present. Mediators are neutral third parties who are trained to support the parties in negotiating and resolving issues. This provides another avenue for the parties to try to settle some or all of their issues before proceeding to the next steps in the process.
• Parties should, generally, take all reasonable opportunities to settle issues early and cost-efficiently.

Case Conference

• Generally, the next step in the Family Court process following the First Appearance is a Case Conference.
• At a Case Conference, the parties and their Family Law lawyers attend before a judge. With the judge’s assistance they will:
  • discuss and seek to settle as many issues as possible; 
  • identify remaining disputed issues and brainstorm possible tools to assist in the resolution of these issues; 
  • organize the case procedurally, to ensure that it can flow efficiently to its next steps. [This can include ensuring that required documents are collected or that supporting experts are obtained.]; and
  • set the next step in the process.
• Save in rare circumstances, a Judge will not make an order at a Conference. The purpose of the Conference will be to explore the opportunity for settlement, allowing families before the Court to maintain as much good will and healthy interaction as is possible
• If some or all issues are settled with the support and recommendations of the judge, the parties can arrange to sign Minutes of Settlement, which document their settlement. These Minutes of Settlement will, generally, be filed with the Court and will take the form of a Court Order.
• Motions
• If there are disputed issues that require time-sensitive and temporary resolution before a final decision is made, the parties can request the leave of the Court to proceed to a Motion.  A Motion is an argued step before the Court where there is a claim for temporary relief.
• Save in a situation of urgency, a Motion cannot be argued before there is an opportunity to explore settlement at a Conference.

Settlement Conference

• Generally, the next step after a Case Conference will be a Settlement Conference. 
• At this Conference, the parties and their counsel will once again attend before a judge, with a view to exploring the opportunity for settlement.
• It is expected that, by the Settlement Conference stage, the parties will have gathered sufficient information and documentation to support the Court is assisting them in arriving at a final resolution of their issues through their settlement discussions before the judge.
• Delays by either party in providing required documentation and information will generally increase the number of Court attendances that they must complete, as well as increase ill-will between the parties and the cost of the process. 
• It should be noted that, at any Conference, a Court can order that a party pay some or all of the costs of the other party if the first party is unprepared, has failed to complete required procedural steps or has acted unreasonably, thereby making the Conference unproductive.
• If all issues are settled at the Settlement Conference, the parties will arrange to sign Minutes of Settlement to document their settlement, which will, generally, be filed with the Court and take the form of a Court Order. 
• If issues remain unresolved, the parties will generally begin to prepare for a trial to achieve a resolution of these issues.

Trial Management Conference

• At the Trial Management Conference, the parties and their counsel will once again attend before a judge. This time, the judge will assist the parties in organizing for a Trial. This will include identifying the time required for a trial, the witnesses to be called by each party, the nature and scope of documentary evidence to be entered at trial, and a host of other procedural steps necessary for the Trial to unfold as required.
• At this stage, the judge will also, generally, entertain further efforts at settling outstanding issues.
• By the time a case has advanced to a Trial Management Conference, the parties will have expended a good deal of emotional, time and financial resources on their Family Court case. If they are reasonable, they will be working very hard to resolve remaining issues and avoid the cost and complexity of a trial.
•  With a combination of focused commitment and good luck, the parties will achieve final Minutes of Settlement at, or shortly after, their Trial Management Conference. If not, the heavy burden and cost of Trial preparation will begin.

Trial

• Family Law Trials are rare. Statistics Canada research indicates that only about 5% of Family Court cases in Canada proceed to a full family trial. For more details, visit Statistics Canada’s Report on Family Law Cases in Civil courts.
• This is because of the huge emotional and financial toll of a trial. The participants must consider their likelihood of success and the cost of proceeding to the trial versus the benefit that they will potentially obtain at trial, among other key factors.
• There is extensive and time-consuming preparation that is invested in a Trial. The parties should be prepared to carve out substantial blocks of time to work with their Family Law lawyers on trial preparation.
• Trial is an argued step in the Court process, in which each party submits their evidence and makes arguments. A final Order is made by the Court in relation to all outstanding issues.
• Each party should expect to give sworn, generally oral, evidence, and to be cross-examined by the other side. Often, parties will have witnesses who provide evidence in support of their respective positions. Documentary evidence will be filed with the Court in support of their respective positions. Their family law lawyers will make oral or written arguments, with supporting case law, in support of their respective positions.
• Once a final Order is made, the Court will generally order that the losing party pay to the winning party some or all of the winning party’s legal costs of the Trial. The amount payable will, generally, depend on the extent of success of the winning party, and the parties’ conduct in preparing for and participating in the Trial. The cost impact to the losing party can be crushing.
• However, at the close of the trial the parties will obtain a final resolution of all claims raised in the Trial.

The scenario, above, represents a brief description of the most typical presentation of a Family Court case. Some cases, unfold in a different way, for example:

• Urgent Motion – Some cases, involving urgent claims, are commenced with an urgent Motion and then proceed by way of a traditional Court Application.
• Variation – Some cases involve a claim to vary an existing final Order and will proceed by way of a Variation Motion, not a traditional Court Application.
• Interim Motion – Within a traditional Court Application, there can be one or more claims for a temporary Order, by way of an Interim Motion, as referenced above,

If you are faced with one of these alternative scenarios, stay tuned for our blog regarding what to expect when walking through these processes.

If you have learned anything from this blog, it is that the Family Court process is complex, time-consuming, emotionally consuming and costly. There are times when the process is unavoidable. In these circumstances, it is a tremendous benefit to have a skilled Family Law lawyer to guide you through the process, with compassion and with a view to minimizing the harm that the process can wreak.

If you have other questions about the process, don’t hesitate to contact the skilled Family Law lawyers at Bair Family Law Professional Corporation. 

Tessa M. Bair, Senior Lawyer Tessa M. Bair, Senior Lawyer

Read More

The information contained in this blog is provided solely for general interest; may not reflect current legal developments and should not be relied upon or construed as legal advice. Online readers should not act upon any information in this blog without first seeking professional advice. The sending or receipt of this information does not create a solicitor-client relationship between the reader and the content creator. For specific, comprehensive and up-to-date information, or for help with a particular factual situation, you should seek the advice of a family law lawyer.

The information contained in this blog is provided solely for general interest; may not reflect current legal developments and should not be relied upon or construed as legal advice. Online readers should not act upon any information in this blog without first seeking professional advice. The sending or receipt of this information does not create a solicitor-client relationship between the reader and the content creator. For specific, comprehensive and up-to-date information, or for help with a particular factual situation, you should seek the advice of a family law lawyer.