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COVID-19 Statement

As Covid-19 continues to affect everyday life in Ontario, our firm remains open for business. In order to combat the spread of this virus, we are working remotely. We are temporarily not meeting with clients in person but our lawyers are working offsite; we are using telephone and other electronic means to work with our clients and to conduct initial consultations. Even though the courts are closed to all but urgent matters, we continue to do everything we can do to advance cases and obtain the best results that we can for our clients.

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There are multiple steps in the court process where you may be required to appear in court.

When you have a court appearance of any kind, it is usually scheduled at a specific time. But your case is not the only one scheduled for that time. In fact, you may be on a docket along with many other cases. This is especially so where court calendars are particularly heavy because there are not enough judges to process all of the cases. Unfortunately, on some days your case may not be called even if it is on the list to be heard.

Step 1: The First Appearance

In some jurisdictions, the court conducts a First Appearance.

At a First Appearance, both spouses and their lawyers meet to schedule the first Case Conference. Most of the time, the first appearance is with a court clerk, and you and your spouse rarely appear before a judge.

Since much of this work can be done outside of court, some jurisdictions allow the parties to mutually waive this step by completing a form. Other jurisdictions require that it be held.

Once the pleadings have been exchanged and submitted to the court, you and your spouse can begin trying to resolve the outstanding issues, via the Court system.

Step 2: The Case Conference

At some point after a First Appearance there will be a Case Conference.

If you are in a jurisdiction that allows parties to waive their First Appearance, the Case Conference will be your first time in court. Before the Case Conference, we and your spouse’s lawyer will prepare a document called the Case Conference Brief. It summarizes the issues in the case and the facts that support your position for each one. The judge prepares for a Case Conference by reading the briefs filed by lawyers for you and your spouse.

A Case Conference is an informal meeting between the spouses, their lawyers and the judge. It has six key purposes:

  1. Exploring the chances of settling the case;
  2. Identifying issues that are still in dispute and explore ways of resolving them;
  3. Ensuring that all relevant documentation has been disclosed and or exchanged between the parties;
  4. Uncovering areas where “expert evidence” or reports are needed;
  5. Stating which issues the spouses agree on that will simplify the case; and
  6. Setting the date for the next step in the case.

In many jurisdictions, this takes place in a courtroom. Lawyers for each spouse present their theory of the case to the judge, who is likely to ask questions to clarify the issues and positions of each party.

Each judge has a different Case Conference style. Most judges give their opinion on the issues and raise options for settlement. The Case Conference is intended to open communication between the spouses in the hope that they come to a settlement.

The Case Conference can also be used to set out timelines and schedules for exchanging documents, and to create a plan to move the case forward.

At the Case Conference, judges will usually not issue any substantive orders in your case. They set timelines and make orders with respect to the production of documents.

In addition to being an integral part of the family court process, Case Conferences must be held prior to bringing a Motion. That is, a judge will not hear a Motion pertaining to an issue that has not been reviewed at a Case Conference. There are some exceptions to this, such as urgent issues.

Step 3: The Settlement Conference

If you and your spouse cannot reach agreement after the Case Conference, another appearance called the Settlement Conference will be scheduled.

Like the Case Conference, the Settlement Conference requires written briefs before appearing in court. They are similar to briefs filed before the Case Conference but must also include a proposal for settling the entire matter.

A Case Conference has six main purposes:

  1. Exploring the chance of settling the dispute or at least narrow the issues involved;
  2. Ensuring that relevant evidence is disclosed to both sides;
  3. Settling or at least narrowing issues around any expert evidence either side intends to introduce at trial;
  4. Obtaining a view of how the court might decide the case, if possible; and
  5. Estimating the time needed for the trial and scheduling the case on the court calendar.

The procedure for the Settlement Conference is the same as that for the Case Conference, the biggest difference being the judge’s role.

At a Settlement Conference, the judge should be much more actively involved in the process. Specifically, the judge will want to know about attempts the couple made to settle the matter. Judges are also far more likely to provide their opinion on the legal and factual issues in the case.

Step 4: The Trial Management Conference

The Trial Management Conference is usually the last stage of the court process before trial.

Through their lawyers the couple is required to submit their respective Trial Management Conference Briefs in advance. The contents of the Trial Management Conference briefs are very different than previous briefs because the goal of the Trial Management Conference is to determine how much time will be needed for the trial. So, the court is told who each side intends to call as witnesses and how much time they anticipate the trial will take.

Since this is the last stage before trial, in some jurisdictions the judge may makes another attempt to get the couple to settle.

Step 5: The Trial

A trial is very rare in family law.

In reality, fewer than 5% of all family court cases ever proceed to trial so the chances of having a trial in your case are slim. This is partially because the Conferences are designed specifically to get you and your spouse to settle. Also, trials usually last several days and involve a lot of preparation time by the lawyers. Frankly, trials are very expensive for each person.

Before the trial, each lawyer may question the other side.

In addition to calling each spouse as a witness, the complexity of a case may require testimony from one or more expert witnesses on their particular area of expertise. The expert provides a written report to the court. The time spent by the expert either testifying or preparing such a report is charged to the client who requested the expert’s involvement.

Your trial will be scheduled based on how courts are managed in the jurisdiction where you will be getting divorced. In some, trial dates are scheduled among other court matters. In others, there are two months each year devoted entirely to family law trials. In these jurisdictions, trials are held once every six months so you may end up waiting a lengthy time for yours.

To help guarantee that a trial judge is unbiased, a judge who presided over any conferences in your case cannot be a trial judge. This also ensures that settlement discussions are confidential and do have effect on the trial.

Lawyers also must collect all the legal sources that relate to your case and prepare submissions they will make before a judge. Lawyers must prepare to question or cross-examine witnesses. There are also several written documents that must be submitted to the Court before a trial.

A trial typically begins with each party’s lawyer making an opening statement in which they outline their arguments, evidence, and position. Then, the applicant spouse will call there witnesses who are questioned under oath. The respondent spouse’s lawyer may then cross-examine each witness, asking questions to point out inconsistencies or errors in their testimony. Next, the responding spouse calls and examines there witnesses, followed by cross-examination by the applicant spouse’s lawyer. At the end of the trial, lawyers for each spouse summarize their position for the court in a closing argument.

In Ontario, the judge alone decides family law cases so, often, there is no decision at the end of a trial. Instead, the judge takes time to determine the appropriate decision and notifies the parties in writing after the trial. Once that decision is made, it must be turned into a Court Order so that it can be enforced.

A Note About Costs

To ensure the court process is not abused, judges can levy sanctions against a litigant. One of the most powerful sanctions available to the court is costs, which is where a judge orders one spouse to pay some or all of the other spouse’s legal fees.

In the family law system, typically, costs are apportioned by a judge at each step of the case based on the relative success of each party.

Although this is the norm for cost allocation, judges also can award costs where a spouse did not follow court instructions or requirements. For example, if a spouse fails to provide their financial disclosure, the court has been known to require them to pay some or all of the other spouse’s costs.

Click here to read about “Questioning”

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