I offer representation in court. I have had extensive court experience and have argued successfully in the Superior Court of Justice and the Ontario Court of Appeal. Having said that, court should be avoided at all costs and be utilized only if absolutely necessary. The objective of court is to obtain a decision from a judge when all negotiations have failed and a binding decision is needed to address such issues as: a) custody and access to children; b) child support; c) spousal support; d) division of property and e) divorce.
If the parties can’t agree, the court will hear the facts, either by way of an Affidavit or by hearing oral evidence and supporting documents related to that evidence. While court should not be the starting point for most people, it is sometimes necessary when all other attempts to settle the issues have failed, or the prospect of settlement is frustrated by domestic violence, mental health issues, immaturity and/or impaired judgment by either one or both parties to the court action.
The court process is started by way of Application, which is really another way of saying you are suing your former spouse. In your Application you will set out what you want and the facts that support why you should get it. For example, if you are seeking sole custody of your children, then you should be prepared to tell the court the facts that support that claim. If your spouse was unavailable to the children during your relationship and did not participate in decision making, then the court may find that decision making (custody) continues to be yours to make.
Knowing what the court will do is often complicated as each fact situation will be different. The court will attempt to review decisions of other courts in attempt to applying consistency of the law to each case. But unlike other areas of law, the facts often change quickly in family law. Children change schools, homes get sold, spouses change jobs to name a few. These changes are ongoing, meaning that assessing what the court will do at the start of an Application/Claim is often difficult. Legal advice is frequently modified as the circumstances change.
The court process starts with one party bringing their Application/Claim, which usually requires several other documents to be served and filed as well such as a sworn Financial Statement; an Affidavit of Custody & Access and perhaps other documents. The other party then has 30 days (60 days if outside Canada) to file an Answer, which is a response to the claims being made in the Application. They also may have to file a sworn Financial Statement and Affidavit of Custody & Access, depending on what the issues are. This initial stage is often referred to as the pleadings stage. The pleadings are the documents such as Applications and Answers that get served on the opposing party and then filed with the court. Once this stage is completed, a first court date is usually held and often a Case Conference is set. It follows that the initial process can take some time to get completed. Sound complicated yet?
A Case Conference is frequently the first meaningful court date that is scheduled. The objective is for the parties, counsel and the judge to review the issues of the case, decide whether the children need representation of their own through the Office of the Children’s lawyer, review financial issues and make an order (if necessary) for financial disclosure and in some cases, to canvass settlement with the parties. If further financial disclosure is needed, usually settlement cannot yet be canvassed. If the matter does not settle at this stage, then a Settlement Conference is usually set.
A Settlement Conference is the last real opportunity of settling the issues prior to setting the matter down for trial on all, or perhaps just the unsettled issues. Each party is required to serve and file a Settlement Conference brief setting out their respective positions, along with an offer to settle. The judge will then review the briefs and offers and will usually offer an opinion as to what they would do if the matter were before them at trial. The Settlement Conference judge however is not able to hear they matter if a trial does occur, as they are prejudiced by the settlement process. It follows that a different judge will need to hear a trial.
Prior to trial, a Trial Management Conference is heard identifying what the issues for trial are and also how many witnesses will be called and how long the trial will take. The purpose is to organize the evidence to minimize trial time. After a trial is held, the judge will then make a binding decision on the issues after having heard all of the evidence and law related to the issues. The successful party is usually entitled to their legal costs from the losing party. If success is divided, then each party may be responsible for their respective legal costs.
The time from the pleadings stage to the end of trial can often take years to complete. Most cases however do settle without the necessity of a trial. Consideration should be given to the mediation/arbitration process which can usually be completed within 3-6 months depending on the issues.