A family court action is commenced by filing with the court and serving a document called an Application on the other party. The party commencing the court action is called the Applicant. The other party is called the Respondent. The Application contains the Applicant's claims and the supporting material facts.
The Respondent has 30 days from the date of service of the Application to serve and file an Answer. The Answer contains the Respondent's position with respect to the claims and material facts contained in the Application. The Answer also contains the Respondent's claims against the Applicant and the supporting material facts.
The Applicant may serve and file a reply, if necessary, within 10 days of being served with the Answer to deal with any new issues raised in the Answer.
If the Application is commenced in the Ontario Court of Justice the first court appearance may be what is called a First Appearance. At the First Appearance, the parties attend before a Clerk of the Court to set a date for a Case Conference.
Except in the case of urgency, such as if access to the children is being denied or if there is a danger that one party may leave the jurisdiction with the children, the first Court appearance before a judge is usually the Case Conference.
A Case Conference is an informal meeting at the courthouse between the parties, their lawyers and a judge. The objective of the Case Conference is to encourage the parties to settle all or some of the issues or at least narrow the issues. The discussions at the Case Conference are confidential.
If all or some of the issues are settled at the Case Conference the parties usually sign Minutes of Settlement and a court Order is obtained pursuant to the Minutes of Settlement.
If all the issues are not settled at the Case Conference, then the court action continues to the next stage which is usually the Settlement Conference.
A Settlement Conference is held after a Case Conference in a court action. It is a second informal meeting with a judge. At the Settlement Conference financial disclosure is expected to be completed and the parties should be ready to engage in serious settlement discussions with mutual offers to settle.
During the course of a court case, there are often several issues that must be resolved temporarily prior to the trial such as support and custody. These issues may be dealt with by way of a Motion or they may settle at a Case Conference or Settlement Conference or out of court.
A Motion is a formal request by a party to the court to obtain a Court Order. The party bringing the motion is called the moving party. The party responding to the motion is called the responding party. The moving party serves on the responding party and files with the court a Notice of Motion Form and an Affidavit setting out the facts in support of the Motion. The responding party may file an Affidavit in reply to the moving party's Motion and Affidavit. The responding party may also bring a Motion. Motions can be done on fairly short notice, even within a few days. Generally, no oral evidence is allowed at the hearing of a Motion.
During the proceeding, the parties may ask the court for an Order for questioning, which allows one party to question the other party under oath on any relevant issue in the proceeding. This process was formerly known as Examination for Discovery. Although the name is different, the process is the same. The parties will arrange a mutually convenient date, time and location for the questioning. Once the questioning is complete and all undertakings to provide further information and/or documents are complied with, the case can proceed to the next stage.
Trial Management Conference
Prior to the trial being held, the parties must attend a Trial Management Conference. The parties and each of their lawyers appear before a Judge who will not be the Trial Judge. The Trial Management Conference is a final effort to encourage the parties to settle the issues or at least narrow the issues as much as possible. If the case does not settle, the amount of time required for the trial is discussed and a trial date is set.
If the Application is not settled at the Trial Management Conference, the parties proceed to trial. At trial, witnesses may be called to present oral evidence. Each party has the opportunity to cross-examine all witnesses called by the other party. Once all the evidence is presented and the lawyer for each party has made closing arguments, the Judge will make his or her judgment. Sometimes the judge will make the decision at the end of the trial and sometimes the judge will take some time to consider the matter further and will render a decision later on.
Generally, the winning party in a court action, whether on a motion or at a trial, is awarded Costs. What this means is that the losing side will pay some or all of the winning side's legal fees and disbursements. Which party receives costs and how much are at the discretion of the judge.
Give DAD LAW a call today to find out what the various court procedures in Ontario are and what they mean for your divorce.