The Family Law Court Process

Pleadings

The Application: This is an originating process and the first step in your Family Law court proceeding and is completed by the person who is initiating the process, known as the Applicant. The Application is where the applicant is seeking some kind of relief, and is asking the court to grant such relief based on a set of facts. This is the Applicant’s opportunity to tell his or her side of the story and to outline the circumstances about why this application is being commenced. Due to the fact that an Application is the start of a proceeding, it must be served on the opposing side, meaning that the intended recipient of the application must be notified and given a copy of the document before anything can proceed any further. After service has been effected, the intended recipient, known as the Respondent, must then respond back. The Application must be filed with the court.

The Answer: This is the document that responds to the application. Any and all claims made by the Applicant in the Application should be dealt with in the Answer, whether it be to affirm or to deny them. The Answer is the Respondent’s opportunity to tell his or her version of the story and to raise issues that were not originally in the Application. The Answer must be served on the Applicant within 30 days of receiving the initial Application. The Answer must also be filed with the court.

The Reply: Once the Applicant receives the Answer, he or she then has to opportunity to respond to claims made. The Applicant must do this within 10 days of receiving the Answer. Unlike the Application and the Answer, the Reply does not allow for new facts or claims to be made. It must simply deal with the claims made in the Answer. This document must be filed with the court, and served on the other party.

Conferences

Case Conference: A case conference is a meeting that happens before trial is contemplated. It is presided over by a judge who is sitting and acting in the capacity of a mediator. The judge’s role is to listen to issues at hand brought forth by both each respective party, try to narrow down the issues and to assist the parties into reaching a settlement. The judge canvasses the issues so as to get a better understanding of each side’s position.  A case conference is rather informal and can take place in the courtroom or in the judge’s chambers. When there are no complex issues or when there is no intention of going to trial, then it is not uncommon for the parties to reach a settlement.

Settlement Conference: This is the next step following a case conference. Here, both parties should have offers to settle regarding the issues that are in contention. A settlement conference usually occurs after the parties have exchanged financial disclosure and have had time to base any offers to settle on the financial circumstances of parties. Much like a case conference, a settlement conference is an informal, confidential meeting in front of a judge who is acting in the role of a mediator. It’s main purpose to resolve some or all of the issues in the proceeding and encourage settlement.

Trial Management Conference: In the event that the parties cannot reach a settlement agreement or if there are any outstanding issues, then it may be necessary to proceed to trial. Again, a judge’s role at a trial management conference is to canvass the issues and direct the parties to try to understand the other’s position in an attempt to get them settle. If this is still not a possibility, then a date will be set for trial. At this point, the parties, counsel and the judge will agree on such issues as timeline for production of documents, affidavit evidence and witnesses.

Motions

A Motion deals with specific issues in a case, such as child support, spousal support, temporary custody and/or access and exclusive possession of the matrimonial home. On a Motion, judges may only make interim, or temporary, decisions. This means that the judge’s decision and order takes effect from the day of the Motion up until the day of Trial, at which point, judgements become final. In preparation for a Motion, counsel for each party prepares a Notice of Motion wherein they set out the relief sought, as well as an Affidavit confirming the facts of the Motion.  It is not uncommon for counsel to provide the judge with relevant case law, namely a Book of Authorities, in which they outline specific cases and decisions which are favourable to the relief they seeking in the Motion.

Trial

Judges alone without juries reside over family law trials. They are usually open to the public, but in certain circumstances sometimes warrant a close door trial, but that is at the judge’s discretion. At trial, each party will have the opportunity to give the judge an overview of the case and what they are asking for. Once each party has finished their opening statements, then the parties will start calling their respective witnesses to help them make their case. Witnesses present viva voce evidence, which means that the witnesses must be in court and present their evidence in person. Following the questioning of witnesses, the parties have the opportunity to summarize the facts before the judge makes a final decision. Once a decision is final, then any temporary or interim order becomes void, because it has likely been dealt with in finality by the judge in his or her decision.