There are eight main steps in a family lawsuit in Ontario under the the Family Law Rules (O. Reg. 114/99):
- Case conference
- Settlement conference
- Trial management conference
The following webinar discusses what it’s like to go to Family Court. From the Family Law Education for Women (FLEW) campaign, this webinar presents an easy-to-follow guide of the steps leading up to trial, working with your lawyer, as well as some commonly used court terms.
This easy-to-follow webinar is information-packed and a great way to review the basic process of a day in Family Court.
Geoffrey Wells, a lawyer at MacDonald & Partners, spent the morning talking about Family Law, Divorce and Custody payments on 102.1 the Edge. While talking with a man confused about how child support was calculated, Geoffrey mentioned MySupportCalculator as a resource to use to help understand the amount of child support expected to be paid.
You can listen to the interview here.
Barbara Kay calls for significant family law reforms in an article in the National Post, Real family-law reform must start with shared parenting.
She refers to several of the access to justice initiatives currently under way by the profession, but notes,
None of the reports examine the most measurable outputs of Canadian family courts: child support, custody and access orders.
The solution is a default presumption of equal shared parenting (rebuttable where there is demonstrable abuse). This was the recommendation put forward 15 years ago by the Special Joint Committee of the Senate and the House of Commons on Child Custody and Access, whose exhaustively researched report promptly was routed to a political oubliette where, shamefully, it still languishes.
Andrew Feldstein, who practices family law with the Feldstein Family Law Group Professional Corp. has made a strong call for reform in family law.
Feldstein covers the initiative in the Law Times:
I cannot effect change by myself. I am looking for comments and constructive ideas from anyone who wants to help. Please don’t stand back. Get involved.
The Canadian Bar Association’s Access to Justice Committee is identifying solutions for the problems in our court systems, and have released a summary report, Reaching equal justice: An invitation to envision and act.
Going to family court can be a long and confusing process. This article is the first in a series that will take you through what to expect at each stage, and will help provide you with links to places where you can learn more about each step.
The first step when taking a matter to family court is an exchange of documents. In general the people involved take turns preparing an application, then a response and finally a reply to the response. Each document has to be filed with the court, as well as being ‘served’. Serving is a formal process where the person who created the document gives it to the other person involved in the case.
The very beginning of taking a matter to court is to have one person file an application. In Ontario, the form to file is Form 8 which has many options for the claims a person can make. The person who fills out that form is know as the Applicant, and they are responsible for filling out the form, as well as ‘serving’ the other people involved in the claim, known as the respondent.
The respondent needs to file a response and serve it to the applicant. The response gives the respondent a chance to address to the facts and claims made by the Applicant, as well as make new claims. Claims by the respondent are known as ‘counter claims’. The respondent has a deadline for filing his response, which, like the forms, can vary by province. In Ontario, the deadline is 30 days, and the form required is form 10 (link).
After receiving the response, the applicant has an opportunity to file and serve a ‘reply’. The reply is meant to address new facts and claims presented by the respondent. You can learn more about how to file a reply, and the timelines involved here.
During this initial period of exchanging documents (known as pleadings), both parties will be normally be required to share their financial information with each other. Depending on the court in which the application was filed, there may be a ‘first appearance’ scheduled, where the applicant and respondent meet with a court official to make sure they have filed the proper paperwork and disclosures finances appropriately.
Conferences and Motions
After the pleadings have been filed, the next step is a case conference. This is an informal meeting between a Judge, the applicant and the respondent. In general, the judge will go over the details of the pleadings, and will make orders for disclosure and questioning as needed. The judge might also make some ‘uncontested orders’ (ones where both parties agree).
After a case conference, the applicant and respondent are able to make motions to the court. This ability allows them to request smaller matters be handled until the trial is resolved. Motions often include establishing or varying support or custody arrangements, but all sorts of motions are possible.
A case conference marks the start of when parties can submit motions, but if a motion is urgent, it is possible to file an ‘ex parte’ motion earlier than a case conference.
Before an actual trial can be occur, a settlement conference needs to be scheduled. It is another informal meeting between judge, applicant and respondent, but unlike the case conference, it’s focus is on resolving issues between the parties. The judge will go over each part of the case, and try to narrow the scope of disagreement between the parties so that if a trial can’t be avoided, it can at least be focused on as few issues as possible.
Once a settlement conference has occurred, its’ possible to schedule a court date, although sometimes the parties will schedule additional settlement conferences after the first in the hopes of avoiding a trial.
Family courts are often overburdened, and it can take some time before the parties can schedule a trial date. As the date approaches, one final conference, called a trial management conference, occurs.
Unlike a settlement conference, a trial management conference is focused on the logistics of how the trial will proceed. Both parties will be required to outline who their witnesses will be, and how long they will need to examine them. A judge will make any last minute orders for disclosure or questioning, and both parties will give notice as to what issues they will hope to have the court address. The purpose of the trial management conference is to create a timeline for the trial, and handle the logistical needs of the court.
The structure of the trial itself can vary greatly depending on the issues at hand, and what is decided during the trial management conference.
Canada’s Chief Justice, Beverly McLachlin spoke out on the barrier high legal fees create, and the resulting lack representation among nearly half of Canadians who end up representing themselves at trial.
McLachlin bemoaned the absence of the right to a fair trial for most Canadians, caused by high legal fees at the Canadian Bar Associations annual conference.
The numerous Canadians choosing to self-represent are also straining the judicial system, as the courts are now acting as both lawyer and judge. People are coming to court without legal representation and without legal advice. McLachlin stated that the judge are “faced with telling them what the law is, telling them what procedures are available to them, and trying to help that person while remaining as an impartial arbiter”.
Read more of McLachlin comments on the courts, and access to justice from CBC’s coverage of her appearance at the Canadian Bar Associations Annual Convention.
My Support Calculator was covered by Luigi Benetton in The Lawyers Weekly:
…Toronto lawyer Omar Ha-Redeye is general manager of My Support Calculator, which offers a free spousal support calculation.
“Before this website was launched, there was no way for the public to do this,” Ha-Redeye says. “The spousal support advisory guidelines are so complex that there’s no way a self-represented litigant could get it calculated.”
The Law Commission of Ontario has released a new report looking at how to make the family law system in Ontario more inclusive and affordable.
The challenges created by unrepresented litigants are a particular focus in the report. The report states,
Although family law disputants keep being told to “get a lawyer”, many cannot afford to do so, are too “dispirited” or they do not know what lawyers do.
The report cautiously recognizes the use of unbundled services as part of the solution, and even indicates that expanding the scope of paralegals may be part of the solution.