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Welcome to YouCounsel.

In our previous lectures we had explained that there are multiple ways in which you can resolve a family law dispute but should you need to go to a court in Ontario to have your family law matter resolved, this lecture explains some of the basic steps that you have to undergo to resolve your matter in a court system.

Note that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Family law Rules are Rules that deal with family law matters.  They are quite similar to Rules of Civil Procedure but in many aspects they are different.  What you need to do is go through these family law Rules to understand what is the process; what is the procedure for obtaining/getting relief from the court (from the Family Court). We have provided the link here which takes you to the family court Rules.  (https://www.ontario.ca/laws/regulation/990114 ) They are available for free online.

Here is the process: First of all you will have to bring an application in the court for whatever family law related relief that you’re seeking—whether you’re seeking a divorce or a custody issue or access issues or support issues; whatever the issue maybe you will have to complete an application and then have that application issued at the court. There are different forms for different kinds of applications.  You need to make sure that you are completing the correct form and then you are having that form issued at the court.

You prepare the application (the right application), you take it to the court and you pay the appropriate fee for the issuance of that application.  The court will take that application, keep a copy, put a court file number on it and stamp on it the date of the issuance.  Then you know that you are in the court system and you have a court file number and the application is issued. Once the application is issued you have to serve a copy of that issued application on the respondent.  This could be your ex-partner or the other party who you are taking to court with respect to this application. That application needs to be served on that party.  There are timelines during which you need to serve that application and there are processes by which you are required to serve that application. It is important to understand the Rules—how you are required to serve that application once the application is served.  Then you have to file proof of service with the court.  This confirms to the court by way of an affidavit that you have actually served the application—the application is now served on the respondent.

Now it is the respondent’s job to prepare an answer, serve it on you and file it with the court.  This step is for the respondent – to prepare their answer within the time prescribed in the family law Rules, then serve it on you and then file it with the court.  If the respondent has not filed its answer within the time frame then at this stage you will be able to proceed for a default judgment against the respondent—which is why it is important that the application is served properly—otherwise you won’t be able to get the default relief. 

For default relief, I think, you can look at my lectures which are under Rules of Civil Procedure.  It will give you an understanding of how you obtain and default judgment in the court process. 

If the respondent has indeed filed a response that means it is contested and it is a contested application. Then the court will require both parties you, the applicant and the respondent to attend Mandatory Information Program.  Both parties are required to attend these programs—separately not at the same time and it may not be in the same location but it is it is a requirement of the process that you attend this Mandatory Information Program.

Once that is done, then the next stage in the process, is case conference. This is before the judge.  Both parties will attend with or without counsel.  The judge’s role in that case conference is to figure out and understand what are the issues in that particular application.  Are there things that could be (the issues) be narrowed down? Are there issues that could be resolved? It’s best to get an overall sense of what the case is about and resolve any issues that could be done by way of discussion by way of some sort of order from the Judge.

When the case conference is completed both parties are required to produce certain documents for the other side—could be financial disclosure or other documents that are relevant to that application.  The applicant has to provide its documents (copies of his documents) to the respondent and vice versa the respondent has to do the same.  Those will be the documents that both parties will rely on to pursue whatever remedy that they are seeking in that application.  The production and discovery process does not have to be after the case conference.  It is one of the steps that needs to be taken.  The production can take place shortly after the Answer has been filed.

In the production if you require further discovery of documents and that is the stage that you go through you may have questions about some of the documents from the other side and you will be able to do that process through the discovery process which is very similar to the process in the Rules of Civil Procedure.

If the matter is not settled then there will be a settlement conference—as the name implies this will be a time when the court will try (it will be a judge who will attend the settlement conference) to settle the case.  If the entire case cannot be settled, it can be part of the case that can be settled and the judge will try to do that but whatever could be done in terms of a mutual agreed resolution, the judge will try to do that. 

If it doesn’t result in any settlement of the case, then the next conference that parties will attend is called Trial Management Conference. As the name indicates the conference is designed—is meant to deal with logistics of scheduling a trial.  Even at the Trial Management Conference the judge will once again try to see if the matter could be resolved.

The court’s efforts are always there to see if the parties can come to some sort of mutual resolution—because when the parties come to a resolution then it’s a resolution that has been crafted by the parties themselves.  It is not something that is imposed by the court because that is what will happen if the matter goes to trial. At trial management the court will figure out if the matter could settle or part of the matter can settle and if it doesn’t then the court will figure out when the trial will take place, for how many days, how many witnesses, etc.  All of these things will be determined at the Trial Management Conference so that when the trial takes place it can take place within the time frame effectively and expeditiously. 

If the matter is not settled at the Trial Management Conference, then of course it will go to trial and after the trial the court (the judge) will give an order with respect to the issues and that is how the matter will resolve in the court system.

Some of the tips that I have for you with respect to the court process:

• If you are filing your application in Ontario Court of Justice or Family Court then the court clerk will provide you a date of 1st appearance.  This is the 1st appearance where both parties will attend and the court, similar to, a case conference—the parties will attend and the court will have a preliminary view of the case and then deal with some of the basic issues that it needs to deal with.
• if your application is filed at the Superior Court of Justice, then there is no 1st appearance but you will have a case conference.  Now for this case conference in Superior Court of Justice, you will have to ask the court to provide you a date—it is not automatically provided by the court clerk.  What you want to do is when you file your application and have it issued at the Superior Court of Justice, that is the time, I suggest, that you should obtain a case conference date (at the time of issuance).  Why?  Because the dates that the court will provide will be further down the line—probably in 3 months to 4 months time, depending upon the court that you’re at.  If you want to expedite your process which I believe will be in your interest, if you are the applicant, then you don’t want to wait until the respondent has filed his or her answer and then you ask for the case conference because then it will take another 3 months or 4 months for you to have the case conference.  It’s a great idea to get the case conference at the outset of the application and for some reason if the respondent is not available on that date you can always mutually agree to have another date scheduled for the case conference.

• The court requires fees for filing of the application and certain other steps. If your personal circumstances are such that you are not able to afford those fees, then remember that there is a process with the Minister of Attorney General—you can fill out a form; you have to provide supporting documents for your income to indicate that you are not able to afford the court fees and then those fees could be waived.  Remember that this option is there and if you need to seek a waiver of the fees, you can apply for it.

• Once your application is issued, I would recommend that you serve it as soon as possible on the respondent. You have a certain time limit to serve the application anyways. I believe that it will help you if you serve the application as soon as possible because once you serve the application that is when the time clock really starts for the respondent. Once you have served the application the respondent if he/she is in Canada or the US then they have 30 days to file their response.  If they are outside of Canada or the US, then they have 60 days to file their response.  If you delay the service of application then this time clock (30 or 60 days) will not start.  If you have a 1st appearance already scheduled or if you have a case conference already scheduled and you delay the service to a point that the respondent does not have sufficient time before attending the case conference or the 1st appearance to prepare and serve their response, then your 1st appearance or case conference is going to get delayed invariably. So, I think, it makes sense for you to serve it as soon as possible.

• With respect to service, I suggest, if you are able to afford it to use a process server for service of your documents, especially, the application because there are specific Rules on how the application needs to be served and process servers are professionals—that is what they do. Their job is to serve various documents / court documents and to various parties.  They know the process, they know what kind of affidavit of service document needs to be prepared and whatnot.  If you’re able to afford it then I recommend that you do so through a process server.  Also they are neutral parties. In some circumstances the relationship may be acrimonious, and you don’t want to be serving it yourself or through your family member so if you are able to use a process server my recommendation is to use a process server. 

Remember that just because you have commenced an application in court does not mean that you have to wait for the court to resolve the entire matter.  You can settle with the respondent or the other party at any stage in the court process.  If you are not able to settle an entire matter you can still agree on some of the issues. For example, you may not agree on how the family property is divided but you can, if you’re able to, agree on access or custody issues then you should do that—and agree on those issues.  You can also obtain consent orders on various matters.  If parties agree on how the children may be accessed and how their custody issues are dealt with and both parties are Ok then they can prepare a consent order and have the court approve that consent order. Also remember that you can bring a motion at any stage in this proceeding with or without notice, depending upon the circumstances of your case.  In fact, you can, if the circumstances are such.  For example, if you’re concerned about safety of children and you can even bring a motion prior to the commencement of application because of the urgency of the issue that is there. Bringing a motion—you have that option at any stage and if you need to bring a motion then you can do so.

What you want to remember is that the process for family  law disputes is designed to be fair and it’s designed to be straightforward—that is why it is slightly different from the Rules of Civil Procedure. The court wants even the self-represented litigant to understand the process easily and to follow it and to seek remedies.  So it’s important to read the family law Rules and then look at the legislation that applies to your case which I provided in previous lectures and see if you can obtain the relief that you are seeking.

Thank you for watching.