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Going to Trial in Ontario

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Preparing for Trial

The applicant must serve and file a trial record at least 30 days before a trial in Ontario. The trial record must include:

1. The application, answer and reply, if any.
2. Any agreed statement of facts.
3. If relevant to an issue at trial, financial statements and net family property statements by all parties, completed not more than 30 days before the record is served.
3.1 If the trial involves a claim for custody of or access to a child, the applicable documents referred to in rule 35.1.
4. Any assessment report ordered by the court or obtained by consent of the parties.
5. Any temporary order relating to a matter still in dispute.
6. Any order relating to the trial.
7. The relevant parts of any transcript on which the party intends to rely at trial.

The respondent can then add to these documents by serving and filing them at least seven days before trial. Signed expert reports must be served at least 90 days before trial (unless it is a child protection case), and must contain:

1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The substance of the expert’s proposed evidence.

Witnesses can be summoned using a Form 23 (Form 23A if the witness is outside of Ontario), and must be paid set amounts for their time, travel, and stay. A court may issue a warrant for arrest (Form 32B) if a person fails to respond to a summons and it is necessary to have them present.

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Bringing a Motion in Ontario

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After a case conference is concluded, a family law litigant may choose to seek an order on motion. A motion can be brought to:

  1. obtain a temporary order
  2. seek direction in the case
  3. obtain a change in a temporary order

There are two documents required to bring a motion:

  1. notice of motion
  2. an affidavit

The notice of motion cannot be served until the case conference is completed, or a case conference is not required, which includes emergencies or special hardship. The affidavit should only contain information that the person signing it knows from first-hand knowledge, or information they received from another identifiable source that the person believes is true. Evidence can also include transcripts from a questioning, or oral evidence if the court allows.

In addition to these two documents, the party bringing the motion may also include evidence in support of the motion. The responding party serves their evidence in response, and the moving party can then serve evidence in reply for any new matters raised in the responding materials. Unless a court indicates otherwise, no other evidence may be used in a motion.

A motion with notice must be filed at least 4 days before the motion date, file the materials at the court at least 2 days before the motion, and file a confirmation (Form 14C) at least 2 days before the motion. The Form 14C will also update the court about the status of the motion.

Motions without Notice

Motions can be filed without notice, as mentioned above, or held before a case conference in emergencies or where it causes special hardship. The moving party is required to provide full and frank disclosure for these motions, even if these facts hurt their case. Courts are usually reluctant to grant these because of the interest in having both parties being able to respond completely, and to promote settlement wherever possible.

The Family Law Rules provide for specific circumstances where a motion can be held without notice:

MOTION WITHOUT NOTICE

(12)  A motion may be made without notice if,

(a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible;

(b) there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;

(c) there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or

(d) service of a notice of motion would probably have serious consequences.

Ontario courts are unlikely to grant this urgent relief unless the moving party establishes two things:

  1. the case conference coordinator could not provide an early or urgent case conference
  2. the supposedly critical situation has been attempted to be resolved by the moving party

Justice Wildman of the Ontario Superior Court of Justice highlighted this in Rosen v. Rosen, noting that the exceptions above do apply,

[8]          The availability of case conference dates is important in assessing urgency. Obviously, if a date was not available for several months, a situation that would not otherwise seem urgent might become more critical.

[9]          The next step prior to bringing a motion should be to engage in settlement discussions to try to obtain a resolution of the pressing matters until the case conference date. The focus is on achieving a short-term agreement to get the parties through to the case conference date without a motion, rather than necessarily achieving a final resolution on all issues in the case. While the court will not want to hear about the content of offers that have been exchanged, due to the confidentiality provisions of Rule 18(8) it is important to know whether the parties have made some attempt to negotiate and, if not, why not.

[10]        …In assessing whether this motion is urgent or not, it will make a difference to know whether the other side is completely refusing to pay any funds or is prepared to pay enough money to address immediate needs but not necessarily the amount requested by the moving party.  …It is generally difficult to establish that a motion is urgently needed, absent any attempt to resolve the issues by negotiation prior to bringing the motion.

[11]      …Absent evidence that other alternatives have been considered and are not suitable, it is hard to accept that it is urgent…

[12]      Absent canvassing case conference dates and showing attempts to resolve matters until the available case conference date, it is difficult to understand how urgency can be established.  However, it is possible that the situation could still be so extreme that the court must intervene immediately,

Other Motions without Notice

Another circumstance where a motion may be brought without notice is where it is limited to procedural, uncomplicated or unopposed matters. Examples of these motions include:

If used for situations other than these, the court is likely to adjourn the matter to allow the other party to file material.

Instead of a notice of motion and affidavit, the moving party files a Form 14B motion form. The filing party indicates on the form whether it is on consent or unopposed.

See also the Law Society of Upper Canada’s How to Bring a Family Law Motion for a Temporary Order in the Superior Court of Justice

Orders

There are 3 different types of court orders for family law in Ontario:

  1. temporary order (previously an interim order)
  2. final order (previously a judgment)
  3. contempt order

A temporary order is only effective for a limited period of time, whereas a final order includes a judgment, an order made on a motion that changes a final order, or any order that decides the rights on an issue between the parties or with a non-party.

The types of orders that a judge can make at a case conference or settlement conference include:

  • an order for beneficiaries under a life insurance policy, registered retirement savings plan, trust, pension, annuity or other financial instrument
  • an order to preserve assets
  • an order to prohibit concealment or destruction of documents or property
  • an order for accounting of funds that a party controls
  • an order to preserve health and medical insurance coverage
  • an order to continue payment of periodic amounts in order to preserve an asset or benefit

Contempt orders are issued after a finding of contempt for violating a temporary order or final order.

There are also payment orders in Ontario, which can be either a temporary or a final order, which requires one party to pay money to another.

The effective date of an order is the date it is made, and not the date when it is signed or processed by the court.

If the parties agree to all matters in the order it can save time and money because the parties and their lawyers do not have to come to court. The consent, the agreement between the parties, is sent to the court with the Form 14B, requesting an order that follows the terms of the consent. Some circumstances do not require approval at all.

The terms of an order obtained through a motion is prepared by the successful party within 10 days, otherwise the other party may prepare the draft. The draft must then be served on every party in court or represented for approval of both content and form. An order may be signed by the judge 10 days after the order is served if there is no approval or dispute by any of the parties.

Any disputes over the order must include a draft of proposed changes, and a copy of a Form 25E. Five days after receiving notice of the disputed order, the clerk sets a time and date to hold a teleconference to settle the wording. The disputing party must also indicate the time and date of the settlement teleconference.

 

If the dispute over the order is not resolved by the clerk the dispute is referred to a judge, either by teleconference or through a hearing.

 

Case Conferences in Ontario

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No motion can be heard, and no notice of motion can be served in Ontario until there is a case conference, unless certain exceptions apply. For this reason the case conference is often considered the most important step in family law litigation.

The case conference is intended to promote an early resolution of disputes by allowing the parties to hear a judge’s views on the case, before they spend lots of money on motions and a trial. At least one case conference will be held where an answer is filed, and are required before a motion to change a final order or agreement.

Case conferences can also be held in child protection cases, if one party requests it or the court considers it necessary.

The contents of a case conference are described under the Rules:

PURPOSES OF CASE CONFERENCE

(4)  The purposes of a case conference include,

(a) exploring the chances of settling the case;

(b) identifying the issues that are in dispute and those that are not in dispute;

(c) exploring ways to resolve the issues that are in dispute;

(d) ensuring disclosure of the relevant evidence;

(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;

(e) noting admissions that may simplify the case;

(f) setting the date for the next step in the case;

(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;

(h) organizing a settlement conference, or holding one if appropriate; and

(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.

Before the case conference, each party must serve and file a case conference brief (Form 17A for general case conferences, or Form 17B for protection application or status review). The applicant must file this brief no less than seven days before the conference, and the respondent must file it at least four days before. Unless ordered by the court, this case conference brief does not become part of the continuing record and is returned to the party once the case conference is over.

By exploring the chances of settling, parties can understand how far apart their positions are on major issues. Before anyone can make a proper assessment of a settlement offer, full financial disclosure must be made. After discussing the issues with the judge, many parties discover there are less issues in dispute than they would have thought. Judges will often emphasize the importance of settlement, and the amount of time and expense involved in litigation. Re-framing the issues and noting admissions to discover underlying motivations can help some parties look at things differently, also leading to greater settlement.

When parties at a case conference reach an agreement it is referred to as consent or a minutes of settlement. These can be either temporary or final, or a mix of the two depending on the issues. Any agreement must be signed and witnessed by the parties. Any conference agreement is usually filed as part of the continuing record, with parties receiving copies. Parties may decide to skip motions entirely and move to a settlement conference.

If a party wants an order made at a case conference, they should indicate this at paragraph 13 of general case conference form. Judges will often consider this section of the form to constitute notice on the other side. If notice has been made, a judge can make a temporary or final order at the case conference. A judge can also make an order for documentary disclosure or questioning. If the parties are in agreement over some issues, an unopposed order or order on consent may be possible.

The judge will indicate when the case conference is completed, and may give some directions for any intended motions. The judge will try to get the parties to agree to a specific timetable, with disclosure orders on a specified deadline. The parties may agree to schedule a motion, or if they are willing to  proceed to a settlement conference without a motion it will usually be booked about 4-8 weeks later.

See also the Law Society of Upper Canada’s How to Prepare for a Case Conference in the Superior Court of Justice