There are times when family law problems can only be resolved in court with a judge making an order to settle highly contested issues. Litigation is most appropriate in the following circumstances:
Mobility disputes when one parent wants to move with a child and the other parent is not in agreement
There are issues of domestic violence or child abuse and a restraining order is required for protection
There is a threat or an instance of child abduction
Financial disclosure is not provided on a voluntary basis
Issues of child support or spousal support cannot be resolved through alternative dispute resolution
There are complex property issues that cannot be resolved through alternative dispute resolution
There is a concern about depletion of family assets
One party refuses to participate in the process of negotiations
A divorce order is required
You will need a family law lawyer who is familiar with both the rules and process of litigation and the legislation and case law that determine rights and responsibilities on separation or divorce.
Susan Berry has experience litigating all forms of family law disputes, including but not limited to custody, access, division of family property, exclusive possession of the matrimonial home, child support, spousal support and enforcement of support arrears. She will provide you with clear, strategic advice based on your particular situation. Every effort will be made to settle your case without a trial, but in the event a trial is required, Susan will give you excellent representation and move your case forward as quickly as possible.
If you need to start a court application or defend you if you have been served with court papers, contact Susan for a consultation today.
An Overview of Family Law Litigation in Ontario
The procedural steps in litigation are complex and time-consuming and in Ontario are governed by the Family Law Rules for the most part, and the Rules of Civil Procedure. It is essential to follow these rules for a successful outcome.
In almost all instances, if there is an issue involving a child, then the litigation must proceed in the jurisdiction in which the child lives. Otherwise, the litigation should proceed in the jurisdiction in which one of the parties resides.
In Ontario, there are two levels of court that may hear family law disputes at the first instance: the Superior Court of Justice and the Ontario Court of Justice. If your case involves a property issue, it must be heard at the Superior Court of Justice. The Superior Court can hear all manner of family law disputes, including custody, access, support and property division. The Ontario Court of Justice cannot hear property disputes, but can deal with custody, access, support and property division.
Often the division of the courts is difficult to manage, each level of court having its own procedures and processes. In addition, each particularly courthouse may have its own internal rules and practice directions.
Finally, a third court exists in Hamilton – the Unified Family Court. This court hears all manner of family law disputes and the judges in this court are specialists in the area of family law.
If you reside in Halton, your case should be heard at the Milton Courthouse. If you reside in Brampton or Mississauga, your case should be heard at the Brampton Courthouse. If you reside in the Hamilton area, your case will be heard at the Unified Family Court.
The first step in litigating a family law dispute are pleadings. If the case is being heard by the court for the first time, the person starting the court case, the Applicant, prepares an Application, along with a Financial Statement (if required) and a Parenting Affidavit (if required). If the case involves a review of support pursuant to an existing court order or separation agreement, the initiating documents are a Motion to Change and Motion to Change Information Form and these are prepared by the Moving Party. These documents are brought to court and issued by a court clerk.
The documents must then be served on the Respondent or Responding Party. There are particular rules for service. An Affidavit of Service must be filed with the court. The responding party, if residing in Ontario, has 30 days to serve and file an Answer to the Application or a Response to Motion to Change. Financial Statements and Parenting Affidavits may also be required. The Applicant has 10 days
from receiving the Answer to prepare, serve and file a Reply.
The forms used in the Ontario family law proceedings are prescribed by the Family Law Rules.
In some Ontario courts, the parties must attend a Mandatory Information Session prior to taking any further steps in the litigation.
The Conferencing Process
In the Ontario Court of Justice, the attendance of first instance is a set date, in which a court clerk confirms that the pleadings have been properly served and filed. A date for a case conference is then set. Dates are set by the court.
In the Superior Court of Justice and Unified Family Court, the attendance of first instance is a conference. The parties pick from available court dates. On a Motion to Change, the parties attend a Dispute Resolution Conference led by a senior family law lawyer. On an initial application, the parties attend a Case Conference. The purpose of these conferences is to explore the possibility of settlement of one or more issues, to determine the necessary procedural steps such as disclosure requirements and set dates for the next appearance. In general, parties are encouraged to settle issues, and conferences are without prejudice, meaning not on the record. Briefs must be filed prior to the conference. The judge presiding over a conference cannot, in general, make a substantive order (such as an Order for the matrimonial home to be sold) but can make a number of procedural orders (such as orders for routine disclosure or next steps).
Except in emergency circumstances, parties may not bring motions for substantive relief until a conference has been held.
Following the Case Conference, in most instances, after the parties have made disclosure, the parties proceed to a Settlement Conference and Trial Management Conference. These two formerly distinct steps have been recently merged into one appearance pursuant to changes to the Family Law Rules. Parties must make best offers to settle and come prepared to explore the steps required to move the matter to trial.
Motion and Trials
Motions are instances in which the parties attend court before a judge seeking a temporary order. Most motions are heard by way of Affidavit (written) evidence alone.
Trials are the final step in most family law cases, in which a judge makes a final order resolving all substantive legal issues between the parties. Most cases do not reach a trial, as judges and counsel assist the parties to reach resolutions during the conferecning process.
The above is a very basic overview to the court process.
The key to success in family law litigation are
Knowing the Rules of Family Law and the practise directions and conventions of each particular court
Understanding substantive family law
Property division pursuant to the Family Law Act, and case law
Coming prepared for each step in the case
Having a developed theory of the case that resonates with current developments in family law.
Making reasonable requests for relief
Making reasonable offers to settle at each step in the case
Understanding the laws of evidence
Using expert evidence effectively
Understanding costs and cost consequences
Family litigation is stressful and complex. Susan Berry has the expertise necessary to successfully advance your case in family court. Susan Dryden has the expertise necessary to ensure that all procedural steps are met, efficiently and effectively. If you need to be heard in an Ontario family court, contact Berry Gage LLP today.