Friday, April 29, 2005

Ontario Family Court Litigation - what to expect


1. What does “going to court” mean?

It means you are commencing a lawsuit against your spouse. You are asking the court to determine the issues between you, most often because you and your spouse have been unable to solve them yourselves.

The court will make a ruling on all issues if you and your spouse cannot settle them.

2. What is a Case Conference?

The Family Court offers many opportunities for settlement along the route to a trial. A Case Conference is the first such opportunity, and will most likely be the first appearance you have in front of a judge.

You and your spouse must both file a Case Conference Memorandum one week ahead of the Conference. I will help you draft yours, and we will update your financial statement if need be.

The judge will read both memoranda ahead of time. You and your spouse are required to attend the Case Conference, as are both lawyers. The judge may make recommendations at the Conference as to potential settlement. He or she may also make an order requiring disclosure of documents if either one of you has not yet completed disclosing all documents such as tax returns, bank statement and the like. Finally, the Case Conference judge can make consent orders if you and your spouse come to an agreement about part or all of the file.

3. What is a motion?

After the Case Conference, either party is free to bring a motion. A motion is a request for interim relief, which means that the court may make an order “for the time being”. Interim orders are in force unless and until they are amended, or until the completion of the entire file by trial, or by other settlement. You don’t necessarily have to be present at the hearing of the motion, but I advise all of my clients to come to motions if at all possible. It is very important that you hear what I said for you, and what the judge says about your request to the court.

A motion is commenced by a Notice of Motion and supporting evidence. All evidence on motions is almost always in writing, in the form of a sworn affidavit. If you have to bring a motion, you and I will work on the documents together. You do not have to testify at a motion.

Sometimes it is necessary to bring a motion to compel the other party to produce documents, or to pay support, or to change the timesharing arrangement for the children.

If the judge agrees with you, he or she will make an order for the relief you are seeking. If the court does not agree with you, your motion will be dismissed.

If you lose a motion, and the court dismisses it, you are almost always liable for the winning side’s legal fees. This is called “paying costs”. It means that in addition to paying me, you will be required to pay the other party’s lawyer, too. As a result, I will only advise you to bring a motion if it is absolutely necessary, and if the chances of winning are high. I can’t guarantee that you will win your motion, even if in my opinion you should. I can only advise you, based on my experience, what the anticipated outcome will be, and you will have to decide if it is worth the risk.

A court order made after a motion is just as binding as a court order made after a trial.

4. What is a settlement conference?

A settlement conference is the next opportunity you will have to settle the claim. It is similar to a Case Conference, and again, you will have to file a Memorandum, which I will help you complete.

You must also update your financial statement, and you must file an Offer to Settle the matter at that point. The offer is your “best position” on settling all matters with your spouse.

Matters do frequently settle at this stage in the litigation. If you settle at a settlement conference, you do not have to appear at a trial, and you will save yourself considerable legal costs.

5. Why do I have to make an offer?

You must make an offer at the Settlement Conference. You can, and should, make offers to settle at other points in the litigation as well. You and I will decide what goes in your offer, and whether you want to make more than one.

If your matter goes to trial, the offers to settle are very important. Just as in a motion, the losing party must pay a portion of the winning party’s costs. This can be very expensive. Typical costs orders after a trial can be in the range of $10,000 or more for a trial that spans a few days of court time. If you have made an offer to settle the matter that is rejected, and the offer is at least as good as what the court eventually ordered at trial, the other party will most likely be ordered to pay your costs, even if you lose the trial. This is why it is very important that you make reasonable offers to settle at every stage of the proceeding.

6. What is involved in a trial?

Trials can last half a day, or many days. It all depends on the number of issues the court is being asked to resolve. It is possible that you and your spouse will resolve some issues, but not others. This will mean that you have a trial only on the issues you have not resolved.

The Applicant presents his or her case first. The opposing lawyer will cross-examine every witness the Applicant presents. Then the Respondent presents his or her witnesses, and the Applicant’s lawyer will cross-examine each one. You and the other party will both testify, too, and you will each be cross-examined.

Once all of the evidence has been presented, each lawyer summarizes the facts and the law for the judge, and makes argument on behalf of his or her client. The judge then makes a decision.

Sometimes judges don’t make their decisions immediately. They may reserve their decision, and give it to you up to six months after the trial.

Once the decision is made, the winning side is responsible for drafting up the order for the judge to sign. If the order is complicated, I will review it with you first before approving it. If the order is straightforward, I will just compare the draft to the judge’s decision to make sure it is correct, and will approve it for you.

If you were ordered to pay costs, you must do so as soon as possible. If you don’t, the other party can take out a writ of execution, and garnish your wages, or take other steps to enforce payment of costs.

Please let me know if you have any questions regarding family court litigation. If you have received this sheet from me, chances are you have either commenced your own application, or you have been served with one commenced by your spouse. Lawsuits are expensive and time-consuming. If you are going to have to pay a lot of money to be involved in one, you owe it to yourself to stay informed as to how they are conducted. I am pleased to answer your questions as promptly as possible.

Mary-Jo Maur
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)


Terri said...

how long can the opposing counsel take to approve an order? What if they do not like the order ??? What is the point of a final order if it can be appealed? Can it be appealed and what happens to the original order.

Brenda said...

I am at the beginning stages... I find myself having to represent myself (not by choice - I make too much for legal aid, but live paycheck to paycheck). My previous lawyer (whom I had to stop using because funds had completely run out) filed a Notice of Motion. I noticed something was missing from the original documents (a Constuctive Trust Claim). What would be the appropriate way to file the next documents? Settlement Conference??

caroline said...

I have a case conference coming up - I didnt show up for our first court date back in November and now I got this case conference thing in the ex goes on and on - we have been divorced for years and my daughters are 16 and almost 18...the 18 year old lives with me and the 16 year old lives with him... It is quite far for me to travel to Toronto and I really do not wish to attend this conference....what happens if I dont? I really do not want to face him ...he has been emotionally abusive all my life and frankly there is not much to discuss....I make very little income and he has always made more than I but has been unemployed for a while....its all about support (Nil for either parent) and him claiming I owe him back child support and financing my daughters University/college...I just wish this would go away....

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