The following is an excerpt from our upcoming book entitled Represent Yourself in Court. For more information on the book email us at gbc@gclawyers.com.
Chapter 1
Family Law Proceedings: An Overview
This chapter provides an overview of a proceeding in a family law matter. It does not provide detailed information or instruction regarding any particular aspect of the proceeding. It explains in a general way the various procedures that are involved from the time that a proceeding is commenced until the trial is concluded. For an in-depth discussion of a particular step in a proceeding, look for the chapter that applies to that particular step. If you don’t find a chapter in the book dealing with a particular step or issue, send us an e-mail. The information you’re looking for may be found in another chapter. Also, we are continually adding new chapters. If we get enough requests on a particular topic we will add another chapter.
All cases involving custody, support or property issues resulting from the breakdown of a marital relationship are governed by the Family Law Rules, which we will refer to as the Rules. The Rules set out certain procedures which must be followed and forms which must be used throughout the proceeding. Court staff may refuse to accept documents that do not conform to the Rules and forms. Certain claims, such as a claim for the return of property in the possession of a person’s spouse or repayment of money (other than support) owed by one spouse to the other, can be brought in the court without proceeding under the Rules. Such claims could be brought in either the Superior Court of Justice or the Small Claims Court, depending on the amount of money or the value of property involved. Those courts have their own rules and forms.
Proceedings under the Rules can be brought in either the Superior Court of Justice or the Ontario Court of Justice and the Rules and forms apply in both courts. The difference between the two courts is that except in certain circumstances, only the Superior Court of Justice can deal with claims relating to division of property or possession of a matrimonial home. There are minor differences between the way a proceeding is dealt with in the Superior Court of Justice versus a proceeding in the Ontario Court of Justice. We will discuss the differences in more detail later, but the differences are found in the way that the courts operate; the procedures and forms are identical regardless in which court a case is proceeding.
If you are involved in a family law case in a court in Ontario, read the Rules. They are applied throughout the case and they always apply. If you are completing a form, read it carefully and complete it carefully. If you fail to follow the Rules or the forms it could seriously hurt your case or your could be ordered to pay a substantial amount in costs to the other party. It could also significantly delay your case.
Unfortunately, the manner in which the Family Law Rules are interpreted and enforced differs to a certain degree from one municipality to another. Certain aspects of the Rules may be strictly enforced by a court in one location and not enforced at all by a court in another location. Some courts have their own procedures which are not even set out in the rules. You should check with the court prior to preparing any documentation and you should leave yourself extra time when filing documents so that you don’t end up at the court office at 4:30 on the last day for filing something, only to find out that you haven’t completed the document correctly: most court offices will not accept documents after the deadline for filing has passed. In certain circumstances you can get around a deadline if you have the consent of the other party but this should only be attempted as a last resort; don`t expect to file documents after the deadline because it is not easy.
The other thing to keep in mind is that you are far better off being on good terms with court staff rather than alienating them. The amount of co-operation that you get from court staff can make a significant difference in how much difficulty you have in pursuing your case and could ultimately have significant implications to the outcome of your case. Court staff are generally helpful if approached in the right way. Keep in mind that court staff are required to follow the law and are not allowed to give you advice: getting abusive or argumentative will not get you anywhere.
The Family Law Rules can be found at
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm and the forms required by the Family law Rules can be found at
http://www.ontariocourtforms.on.ca/english/family/. I recommend that you always refer to these particular websites to review the Rules or obtain forms. These are the official government websites and are very current. The rules and forms are amended from time to time and again, you don’t want to end up at the court office at 4:30 on the last day for filing a document only to find out that you were reading an outdated version of the Rules or that the form that you are using is out of date.
The Rules set out deadlines for taking any step in the case and they are strictly enforced. There are different deadlines for each step. The Rules state that a step cannot be taken after the deadline unless the other party consents or the judge makes an order. Even if the other party does consent, the court still may not extend the deadline.
At many courts you will find Duty Counsel. Duty Counsel are lawyers who are paid by Legal Aid Ontario to assist individuals who have cases in the court but who do not have a lawyer. Duty Counsel will assist any individual unless Duty Counsel has reason to believe that the individual does not qualify financially for legal aid. You will usually find Duty Counsel at the Ontario Court of Justice, but there are limits on Duty Counsel’s ability to assist individuals. For example, Duty Counsel will not assist you in conducting a trial. Duty counsel will probably not argue a contested motion for you. If you are intending on relying on Duty Counsel to assist you in court, you should confirm ahead of time that Duty Counsel will actually be able to assist you. There is not usually Duty Counsel at the Superior Court of Justice.
A court proceeding starts by one party filing documents with the court. The documents may be in the form of an Application or a Notice of Motion or a Motion to Change. An Application is generally used when it is the first case between the parties. A Motion is used to start a proceeding when there is already an existing court order or agreement. If the claim is to change the terms of a previous court order or a Separation Agreement then the claim will usually be in the form of a Motion to Change, although it could also be in the form of an Application.
For simplicity, I will use the term “claim” when I refer to the Application or Notice of Motion unless there is a particular situation specific to an Application or Motion which I will clarify. A Notice of Motion and an Application operate in very similar ways throughout the case.
The party filing an Application is referred to as the Applicant and the party filing a Notice of Motion is referred to as the moving party. If there has not been a previous proceeding in the court, the person who files a claim first is the Applicant and the other party is the Respondent. If there has been a previous proceeding, the parties are referred to the same way as in the previous proceeding. So a person filing a Motion which starts a case may actually be the Respondent, if he or she was the Respondent in the previous proceeding.
For discussion purposes I will refer to the parties as Barbie and Ken. Barbie is filing a claim against Ken.
Barbie’s claim should set out exactly what she is asking the court to order and should also set out the reasons why she believes she is entitled to receive what she is asking for. Be specific when stating what you are asking for: don’t assume the other side or the judge knows what you want. Judges do not like surprises and you may be out of luck if the judge decides that you are not entitled to an order because your didn’t specify what you wanted. If you are asking for support, state how much. If you want contribution to children’s expenses don’t just ask for child support. For more information on what to claim and how to claim it see the chapter entitled “Stake Your Claim”. The court can make an order that hasn’t been asked for but there are limits.
If you realize that you forgot to ask for something you can add it provided that it is not too late in the case. How late you can change your claim depends on what the change is. You can change your claim any time if the other side agrees to let you do so. The other side doesn’t have to agree to let you change your claim and you don’t have to agree to let the other side change their claim if they ask.
The court may assign a court date when the claim is filed or it may not. This is where courts differ from one another. Some courts will assign a court date when Barbie files her claim. Some courts will only assign a court date if Barbie asks for one. Some courts may require Barbie to wait until Ken files his documents before arranging a court date.
Once Barbie files her claim with the court, she must then have it served on Ken. Serving a document refers to the process of delivering the document to the person. There are a number of ways to serve a document on a person under the Rules. The manner in which a document can be served depends on what document is being served. A document which starts a case must be served by what is known as Special Service. This is often referred to as personal service because the document must be handed to the individual in person. Barbie cannot serve the claim on Ken herself; she must have someone else who is over 18 serve it for her. If for any reason the claim cannot be given to Ken in person, the Rules provide alternatives or Barbie can ask the court to make an order permitting her to serve the documents by other means. Most other documents do not need to be served by Special Service and can be mailed to the address that the person states as his address in his documents.
Once the claim has been served, the party who served the document must complete an Affidavit of Service, which contains a statement sworn under oath setting out what document was served, who was served, when it was served and how it was served. Usually documents cannot be filed with the court unless they have been served on the other party and an Affidavit of Service is filed with the document.
Once the claim is served on Ken he must file a response within a specified time. In a proceeding commenced by an Application the response is referred to as an Answer. In a proceeding commenced by a Motion Ken’s response may be in the form of an Affidavit or a Response to Motion to Change. If Ken was in Canada when he was served, he must file his response with the court office within 30 days. If he was outside Canada when he was served he has 60 days to file his response.
If Barbie’s claim Is in the Form of an Application, Ken must file an Answer. If Barbie’s claim is in the form of a Motion to Change, Ken must file a Response to Motion to Change.
If Ken wants to seek an order against Barbie, he can do so as part of his response to Barbie’s claim. If Barbie’s claim is in the form of an Application, Ken makes his claim by completing the part of the Answer entitled Claim by Respondent. If Barbie’s claim is in the form of a Motion to Change,, Ken makes his claim by completing the portion of the Response to Motion to Change entitled Claim by Responding Party.
In some municipalities the first court date in the Ontario Court of Justice takes place in front of the Registrar of the court as opposed to a judge and is only for the purpose of scheduling the next court date. In other municipalities the first court date is in front of a judge. If Ken has filed a response, normally a Case Conference would be scheduled. If the first appearance takes place in front of a judge, the judge may conduct a Case Conference at that time. If Ken has not filed an Answer and the time for doing so has expired, an uncontested hearing would be scheduled. If Ken requests, a judge may extend the time for him to file a response.
The Rules often require that a Confirmation Form be filed prior to certain court dates. These forms simply state whether the case is proceeding on that day. If a Confirmation Form is not filed the case may not proceed or it may be placed on the bottom of the list, in which case it may not be reached if there is not enough time to hear all the cases so it is important to know whether a Confirmation Form needs to be filed and make sure it is filed on time.
If an Uncontested Hearing is scheduled, the Applicant is entitled to ask the judge to make an order and the Respondent does not have an opportunity to respond. Barbie is usually required to file an Affidavit for Uncontested Hearing setting out the facts that are needed to establish that she is entitled to the order which is being asked for. An Affidavit is required because the court cannot make an order unless there is evidence to justify it. An Application is not evidence. The Application and Answer (which are often referred to as pleadings) are only intended to provide a general overview of the issues and the facts involved in the case. Although both are signed by the parties filing them, they are not sworn under oath and therefore do not constitute evidence.
If the judge at the Uncontested Hearing makes a final order dealing with all of Barbie’s claims, that is the end of the case. If Ken intended to respond to the proceeding but did not, he can ask to have the order set aside. If he is successful, the case would resume.
If Ken files a response, a Case Conference is usually held. The Rules require that a Case Conference must be held once a response is filed. A Case Conference may be scheduled by the court. If not, it is up to one of the parties to arrange a Case Conference by preparing a Notice of Case Conference, filing it with the court and serving it on the other party. The Case Conference is a meeting between the parties, their lawyers and the judge to discuss the case.
The parties must file a Case Conference Brief prior to the Case Conference. A Brief is a summary of the issues in the case, the parties’ position regarding those issues and the parties’ position regarding any procedural issues.
The case conference is held in the courtroom in front of a judge. The purpose of the Case Conference is to discuss what the issues in the case are, whether any of the issues can be resolved by agreement and what steps need to be taken in order that the case can be resolved as quickly as possible. Matters that are usually dealt with at the Case Conference include whether any other persons need to be involved in the case, whether parties need to provide documents such as medical records or income information and whether children need to be represented by their own lawyer.
It is important to consider prior to the Case Conference what evidence you are going to present at trial to support your case. The Case Conference is the best opportunity to obtain information that you need. For example, if the case is about child support, the judge will certainly make an order that parties whose income is relevant to the determination of the issue of child support produce documentation to show what their income is such as Income Tax Returns, pay stubs, financial statements for businesses and so on. If a party’s physical or mental health is in issue the judge will order the party to produce medical records. It is much easier to obtain this information by having the judge at the Case Conference order the party to produce documents. If you don’t obtain a court order you have to serve a Summons to Witness on the people who have the records. This is a complicated and difficult process and you won’t get the information until the actual trial.
At the Case Conference the judge should not make orders dealing with actual issues in the proceeding, such as custody, access or support, unless the parties agree that an order should be made and agree on the terms of the order to be made. The judge should only make orders dealing with procedural matters, such as requiring parties to provide information or scheduling steps in the proceeding. If one of the parties wants a judge to make an order and the other party does not agree, the party who wants the order must file a Motion. Sometimes judges do make orders dealing with custody, access or support even though the parties do not agree, but such orders are clearly being made improperly. Unfortunately the only recourse if such an order is made is to file an appeal which is a complicated and time consuming process. The appeal process often takes so long that the case could actually be finished before the appeal is completed.
If a party wants a judge to make an order prior to trial and the other party doesn’t agree, the party seeking the order must bring a Motion. A Motion is initiated by filing a Notice of Motion stating what is being asked for along with an Affidavit explaining why the party is entitled to the order. The other party is then entitled to file an Affidavit expIaining why he or she feels the order should not be made and can also file a separate Notice of Motion requesting other orders. There would then be a hearing in front of a judge who will make a decision based on whatever Affidavits are filed. A Motion can be filed at any time during the proceeding except prior to the Case Conference unless there is a matter of urgency or hardship which must be dealt with prior to the Case Conference. Judges are fairly strict in limiting the circumstances where a Motion can be heard prior to the case conference. Generally a party has to show that there would be serious consequences if an order were not made immediately, such as where a child has been removed from his usual home without the consent of the parent he lived with. If a party is in urgent need of support a motion could be brought prior to the case conference.
Motions that are commonly heard during the case deal with support or residence of children pending trial. Because it could take a year or more for a case to get to trial these issues must be dealt with on a temporary basis until they can be decided at trial, and thus orders made at motions are referred to as “Temporary Orders”.
I can’t emphasize enough the importance of complying with orders. Technically a person who does not comply with a court order is in contempt and can be fined or jailed or his case may be dismissed. These consequences are rare because a contempt proceeding is essentially the same as a proceeding where a person is charged with a crime and is time consuming and difficult to prove. However, even in the absence of a formal contempt proceeding judges will take serious issue with parties who don’t comply with orders. They can order that the party pay substantial amounts in costs or that their cases be dismissed.
Whenever a case is dealt with in court there is what we call an endorsement. The endorsement is what is written by the judge in the case file. It is crucial that you obtain and review the endorsement immediately after the court is finished with the case. Before you leave the court ask for a copy of the endorsement. Usually it will be provided to you. Sometimes you can’t get a copy of the endorsement until the next day. Either way, get a copy and review it carefully. If you can’t read it ask the court staff. Make a note of anything you are required to do and any deadline for doing it. If you have been ordered to do something you have to do it unless it is not possible. And I don’t mean it’s difficult or it’s time consuming or you don’t think you should have to. If you’ve been ordered to do it you have to do it unless a judge subsequently says you don’t have to which is unlikely. It is also a good idea to make a note of anything the other party is required to do and send him a reminder if he doesn’t comply. That way you can make an issue of the other party’s non-compliance next time you are in front of a judge.
After the Case Conference a date is usually scheduled for a Settlement Conference. The Settlement Conference is similar to a Case Conference in that it is also a meeting in the courtroom between the parties and their lawyers and a judge, except that the purpose of the Settlement Conference is to attempt to settle the Case.
Prior to the Settlement Conference the parties are required to file a Settlement Conference Brief, which is very similar to the Case Conference Brief, except that there is more focus on the actual issues themselves and the evidence the parties intend to present to support their positions on those issues. At the Settlement Conference, the judge will give his or her views as to how the case would be decided if it were to go to trial.
Hopefully by the time of the Settlement Conference the parties will have all of the documentation they need from the other party and from others, will know what witnesses they are going to call and what evidence the witnesses will say and are ready to proceed to trial. A Settlement Conference will not be effective unless you can show that you have a chance of obtaining orders at trial that you want. Only then will a judge recommend to the other party that he or she agree to what you are asking for or at least some of it. If a judge isn’t convinced that your position is the correct one he will not support it.
Be sure to give whatever documents that you intend to use at trial to the other party as early as possible. Contrary to what you might have seen in movies, there is no such thing as trial by ambush. If you haven’t provided a document to the other side before the trial, you probably won’t be able to use it at the trial. You can object if the other party tries to do the same to you.
If the matter is not resolved at the settlement conference, the next step is to put the case on the trial list. The actual trial may be weeks or many months after the Settlement Conference. There are many cases waiting to go to trial and it is often difficult to schedule trials given the various schedules of the parties, the lawyers and the judges.
At any time during the course of the proceeding, either party may serve the other party with an Offer to Settle. The parties are required to include an Offer to Settle with their Settlement Conference Briefs. An Offer to Settle may have serious consequences because if the matter proceeds to trial, then at the end of the trial when the judge is deciding whether one party should pay the other party’s legal costs he will take into account whether the parties made offers to settle and how close those offers were to the result at trial. An Offer to Settle could mean thousands of dollars in costs after the trial.
Even aside from the costs aspect it is always a good idea to have a current offer to settle “on the table”, meaning that it is open for the other party to accept it, and there are a couple of reasons for this. First, and this may sound a little stupid, it makes you think about exactly what you want the judge to order or what you are prepared to agree to in response to what the other party is asking for. Secondly it lets the other side know what your bottom line is. You will probably say of course I know what I am asking for. But you would be surprised how many times I have had to corner the other party and force them to tell me exactly what they want because I don’t know, and when they do finally have to actually put it in writing it turns out that my client is actually prepared to agree to it or at least something close. One of the problems of the litigation process is that there is not enough resources to allow judges to really nail someone down when they are not stating clearly what they want. And I am the first to admit that there are times when I get caught up in the heat of battle and don’t take the time to actually look at what exactly the other party is asking for and what my client is prepared to agree to and once I do that the case often ends up settling.
As far as setting dates for trial. again there are numerous different ways that different courts handle trial dates. The simplest is a fixed trial date. This means that you are told that your case will go to trial on a certain date and that is when your trial will start. This does not happen very often and the simple reason is that even though cases are actually scheduled for trial, they usually don’t actually proceed to trial because of the financial and emotional cost to the parties and the risk involved. A trial can easily cost thousands of dollars per day in legal fees when you include the cost of preparation and you never know what a judge is going to do after hearing the evidence. Because many cases will be settled close to the trial date, the courts don’t want judges sitting around with nothing to do when the trial the judge was supposed to hear that day settled the morning the trial was to start. Often what courts will do to avoid wasted court days is to schedule several cases for trial on the same date. The case that is scheduled first will have priority. So on the day in question if that case is not settled it will proceed to trial on that day. There may be 2 or 3 or 4 other cases scheduled for trial on the same day in a priority sequence based on which is scheduled for trial earlier. So if case number 1 settles or cannot proceed for any reason, case number 2 would then proceed to trial. If case number 2 also does not proceed, case number 3 would then proceed and so on.
The other common way of scheduling trials is what is known as the running trial list. This system involves a process where any number of cases that are ready for trial are put on one list in numerical order according to the order in which they are placed on the trial list. There may be 50 or 100 cases on the list at any given time. The Trial Co-ordinator will then go through the list and notify parties when their case is going to proceed to trial.
When it comes time to discuss trial dates, make sure you know when you and your witnesses will be available. Judges will try to accommodate parties and witnesses when scheduling trials so as to inconvenience them as little as possible but having to go to work or not having a babysitter will generally not fly as excuses. You can force a witness to attend at the trial regardless of when it takes place by serving him with a Summons but you want to avoid this if possible because it is not always easy. Sometimes a case may be scheduled for trial on a particular date for special reasons. For example, if a witness has to travel a considerable distance or if a witness is a professional who needs to know in advance when he will be required to attend the court may specify a particular date regardless of the customary procedure for trial dates.
Courts in some areas hear trials all the time, although this generally only happens in Toronto where there are lots of judges and lots of courtrooms. Usually a court will only hear trials during certain periods which are referred to as sittings. Some courts will have trials over three or four days once each month or two. Some courts will hear trials for three or four weeks every month or two.
With the running list system there are two ways that a case can be put on a list. The first is that a judge will make an order that the case proceed to trial during a certain week. If the case does not proceed to trial during that week then it would likely have to come back another day in front of a judge to assign another trial week. The second procedure is that there is one long running list for all the cases that are ready to proceed to trial. During each period when the court is hearing trials, the trial co-ordinator will go through the cases on the list and when one case is completed the next one will start. In some courts there will be what is called an Assignment Court where a judge will review with the lawyers or self- represented parties whether the case is ready to proceed to trial and how long the case will take. The judge and the court staff can then make arrangements to schedule trials during that 4 or 5 week period. The problem with this system is that lawyers and parties who are involved in cases that are on the list are subject to being called for trial with as little as 24 hours notice any time during the period when trials are being heard and then after waiting anxiously for 4 or 5 weeks many times the case is not called at all and the entire process will repeat itself in 4 or 8 weeks.
When a case proceeds to trial, it may continue every day until it is completed or it may be scheduled to proceed only on certain days. Before a trial is scheduled, the parties have to provide the court with an estimate as to how long the case is expected to take to complete. This is a difficult task even for experienced lawyers because one never knows what is going to happen during the trial. For self-represented litigants it will be practically impossible because without having conducted trials, you will have no idea how long it will take deal with the various issues that are involved.
Trials usually start at 9:30 or 10:00 in the morning. Courts usually break for lunch from about 1:00 p.m. to 2:00 p.m. Courts usually stop for the day around 4:30 p.m. Make sure you are at the right courtroom ready to proceed at the appointed time when court starts or resumes. Judges will generally go out of their way to be patient with individuals who are representing themselves and are not familiar court procedures or the law but they will get annoyed very quickly when they are sitting waiting to hear your case and you can’t be bothered to show up on time. If your case is important to you, act like it is. If you don’t show up at the appointed time, the judge is entitled to proceed without you.
Be organized. The judge may have to sit and listen to your case for days so the last thing you want to do is make a judge wait while you rummage through plastic bags full of loose paper. Go to Staples and buy a bunch of binders and numbered tabs and organize your documents so you can find them in seconds when you need them.
At the beginning of the trial the parties are entitled to make an opening statement. One of the biggest mistakes that even experienced lawyers make and that almost all self-represented parties make is not making an opening statement. An opening statement should be a brief summary of what you are asking the court to do and why. Keep in mind that although you may have been living your case for the last year or two, the judge may have absolutely no idea what it’s about. So if you simply launch into your evidence, the judge doesn’t know why you are presenting a particular witness or document and he or she may not understand the importance of the evidence the witness is giving.
You want to make the judges job easier, not harder. If both parties are unrepresented, the judge will not be expecting opening statements so if the judge does not offer you an opportunity to make an opening statement, politely ask him or her if you would be permitted to do so. If you get the opportunity, KEEP IT BRIEF. This is not an opportunity for you to read all of your witnesses affidavits. Don’t just read your Application because there is a good chance the judge has already read it.
When the trial begins, the Applicant usually presents his or her case first. The Applicant calls a witness who gives evidence and the Respondent is then entitled to cross-examine the witness. This continues until all of the Applicant’s witnesses have testified and been cross-examined. The Respondent then calls his or her witness and when the witness is finished testifying, the Applicant is entitled to cross examine. Once the Respondent has called all of her witnesses, the Applicant is again entitled to call witnesses but only if it is necessary to respond to evidence that was raised for the first time by the Respondent’s witnesses. The difficult part about a trial is that it is a one-shot deal. If you forget to call a witness when it is your turn to call witnesses, you may not get another chance so make a list of the witnesses you intend to call and make sure you call them all. [If the trial involves a proceeding that has been commenced by a party filing a Motion as opposed to an Application, and the party who filed the Motion is the Respondent, then the procedure will likely be reversed with the Respondent calling his or her witnesses first.]
Once all the witnesses have testified, the parties are entitled to make closing arguments. Closing arguments are similar to opening statements except that the emphasis should be on pointing out IMPORTANT evidence that came out during the trial which supports your case.
That’s it. It’s over and now you have to wait for the judge to make a decision. The judge may make a decision the same day that the trial ends or you may not get a decision for months. Unfortunately, there’s nothing you can do but wait.
Once the judge makes a decision, you’re pretty much stuck with it. Although you have the right to file an Appeal, many people consider the right to an Appeal to be an opportunity to have another trial which is not the case. First, the trial decision will only be set aside after an Appeal in very limited circumstances. It is extremely difficult to succeed on an Appeal from a decision after a trial in a family law matter. Furthermore, even if you can manage to convince an appeal court that the trial judge made a mistake, the best you can hope for is for the appeal court to order that there be another trial. If you are really convinced that the trial judge’s decision is wrong, you have to hire a lawyer. Appeals are so difficult and complicated that most lawyers won’t even handle them.
If you really feel that an order is wrong and should be appealed, you have to take steps immediately. Again there are time limits and once a deadline expires you have to bring a motion for an order extending the time. In certain cases you have to bring a motion for permission to appeal and there are strict deadlines for doing so.
THE END
|
