Most of the information people have around the family court process is based on what they see on television, which often portrays family litigation running its full course in a single episode. In light of how court is shown on television, it is not surprising that many clients expect their case to get before a judge quickly and for the first judge they see to make decisions resolving the disputed issues. The reality of Family Court in Ontario is very different.
The following are a number of steps that your case will likely go through before a final decision is made by a judge. It is important to know that at any step along the way, parties are free to reach their own agreement with respect to some or all of the issues.
- Commencing a Court Application: If your case requires court, the first step is to start a court Application. It is generally in your interests to have an experienced family lawyer assist you with this step. Your Court Application will have to be served on the other party, who will then have 30 days to file responding materials (an “Answer”) with the court. It is not unusual for a responding party to request an extension of time to file their Answer, and such requests are often granted either on Consent or by a family court judge.
- Scheduling and attending the first Case Conference: In all but the most urgent cases, a Case Conference is the parties’ first opportunity to appear before a judge in a Family Court case. In our local court, which services Cobourg, Port Hope, Hamilton Township, Brighton, Campbellford and all of Northumberland County, court dates are often booked months in advance. It is not unusual for a first Case Conference to be at least two months, if not more, after issuing a Court Application. Importantly, the judge that you appear before at the Case Conference does not generally have the authority to make substantive decisions in your case. Instead the Case Conference judge will provide you with recommendations as to how to resolve the issues, and their opinion of the issues in your case including child support, spousal support, custody and access, property division or any other issue. If you don’t reach an agreement at the Case Conference, it is likely that no Court Orders will be made on that day.
- Interim Motions: For parties who can’t resolve any of the issues at the first Case Conference, it is possible to appear before a different judge on a “Motion”, where the judge is asked to make temporary Orders. The types of Orders made on Motion generally include things such as temporary parenting arrangements, child support, spousal support, etc. At a motion, each party will be required to file affidavit evidence and make arguments to the judge, after which the judge will make Orders dealing with the issues on a temporary basis. There are specific timelines that have to be followed when bringing a motion to the court, and in most circumstances a Case Conference must be held before a motion can be heard. It could easily be one to two months following a Case Conference before a motion can be scheduled.
- Settlement Conferences, Trial Scheduling Conferences, etc.: You might think that once you’ve made it through the Case Conference and any interim motions have been brought that your case will be on track for trial. However, most of the time, your case will need at least three more court attendances before a trial can be heard, which includes the Settlement Conference, a Trial Scheduling Conference and an Exit Pre-Trial.
- Trial: If your case is not resolved by the Exit Pre-Trial, it will proceed to a trial. In Northumberland County, Family Court trials are only heard in May and November each year. It is very rare for a Family Court matter to be resolved by way of a trial, and in most cases, it is in the parties’ interests to negotiate a fair settlement with the assistance of experienced counsel.
The entire process from issuing the initial Court Application to Trial can easily take one year or more. Oftentimes there are delays in the process that are unavoidable (lack of available court dates, conflicting schedules, etc) and delays that are caused by one or both of the parties (failure to file required documents, failure to comply with disclosure obligations, etc.).
It can be invaluable to have experienced counsel representing you at the outset of a court proceeding as this will likely result in your case moving more smoothly through the court process and may even help to facilitate an early resolution of your family court case. To schedule an appointment to meet with one of our family lawyers contact Kay and McCourt.