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Introduction to Procedure in Family Law Litigation: Part I

Family law cases in the Ontario Superior Court of Justice, Family Branch; the Ontario Superior Court of Justice; and the Ontario Court of Justice are governed by the Family Law Rules (Family Law Rules, Rule 1(2)).

Rule 2(2) of the Family Law Rules outlines that the primary objective of these Rules is to “enable the court to deal with cases justly.” Dealing with a case justly includes:

  • (a) ensuring that the procedure is fair to all of the parties;
  • (b) saving expense and time;
  • (c) dealing with the case in ways appropriate to its importance and complexity; and,
  • (d) giving appropriate court resources to the case while taking account of the need to offer resources to other cases.

Rule 2 continues that judges must “promote the primary objective by active management of cases”, including helping parties identify the issues, encouraging alternative dispute resolution, helping parties to settle, setting timetables and controlling the progress of a case.

Under the Family Law Rules, cases are started by an Application if there has never been an order made on the issues before the court. If a previous court order has been made on the issues before the court, they are started by Notice of Motion to Vary.

According to Rule 8(3) of the Family Law Rules, an Application may contain:

  • 1. A claim against more than one person; and,
  • 2. more than one claim against the same person.

Introduction to Procedure in Family Law Litigation: Part II

The key steps in a typical matrimonial lawsuit under the Family Law Rules are: the application, answer, case conference(s), motion(s), settlement conference, trial management conference, trial and appeal.

In Ontario, three courts deal with family law matters:

  • 1. the Family Court of the Superior Court of Justice or the Superior Court of Justice (Family Court);
  • 2. the Superior Court of Justice; and,
  • 3. the Ontario Court of Justice.

The Family Court of the Superior Court of Justice (also called the Superior Court of Justice (Family Court)) is a specialized court dealing with all aspects of family law. These courts are located throughout Canada and provide specialized judges.

In areas of Ontario that do not have a Family Law Court of the Superior Court of Justice, the Superior Court of Justice is the court of superior jurisdiction. In the realm of family law, this court deals with the following issues: property; divorce, custody and access, and support.

The Ontario Court of Justice deals with custody, access, support, child protection, and adoption. This court does not deal with divorce or property issues.

Starting an Ontario family law Case: The Application

A person starting an Ontario family law case files a document called an Application. The person in an Ontario family law case who is making the claim is, therefore, referred to as the Applicant.

An Application in an Ontario family law case may contain a claim against more than one person and more than one claim against the same person.

The Applicant  in an Ontario family law case seeks relief from the court by checking off one or more boxes under the applicable legislation. The form requires the Applicant to set out the grounds for his/her claim(s).

The Application in an Ontario family law case must be served on every other party by “special service” unless otherwise provided. Special service is carried out by:

  • 1. Leaving a copy with the opposing party, who is called the Respondent.
  • Note: If the person is or appears to be mentally incapable in respect of an issue in the case, then one can leave a copy with the person and with the guardian of the person’s property or, if none, with the Public Guardian and Trustee.
  • If the person is a child, then one can leave a copy with the child and with the child’s lawyer, if any.
  • If the person is a corporation, one can leave a copy with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be managing the place.
  • If the person is a children’s aid society, one can leave a copy with an officer, director or employee of the society
  • 2. Leaving a copy with the Respondent’s lawyer of record or with a lawyer who accepts service in writing on the document;
  • 3. Mailing a copy to the Respondent and him/her send back a signed form entitled “Acknowledgment of service” or
  • 4. Leaving a copy at the Respondent’s residence with anyone who appears to be an adult and mailing another copy to the same address that day or the next day.

If the Respondent  in an Ontario family law case cannot be served by special service (because, for example, the Respondent is evading service or his/her address is unknown), the Applicant may apply for an order for substituted service. In such an Ontario family law case, the court orders that the documents may be served on a person other than the Respondent in the expectation that the person will bring the documents to the Respondent’s attention.

If all efforts to serve the Respondent by special service have been unsuccessful and there is no reasonable expectation that an order for subsituted service would bring the documents to the Respondent’s attention, an order that service is not required may be granted. This is generally referred to as “dispensing with service.”

Lastly, when the documents have been served on the Respondent in a way that was not authorized by the Family Law Rules but the court believes that the documents still came to the attention of the Respondent or would have come to his/her attention has he/she not evaded service, the court can make an order approving of the irregular service.

Family Law: The Continuing Record

The continuing record has all of the documents filed with the court in a case.

The continuing record is composed of two volumes: an endorsements volume and a documents volume.

The endorsements volume contains a cumulative table of contents, the endorsements in the matter, and the orders in the matter. The documents volume contains all of the documents filed in the case.

There are different continuing records for support enforcement cases, child protection cases, and status review hearings. Parties can no longer simply elect to have separate records for each party. Currently, in cases other than enforcement cases, child protection cases, and status review hearings, in order to have separate records for each party, a court order to this effect is required (Family Law Rules, Rule 9(7)).

If the continuing record has not been separated, the parties are jointly responsible for adding to the record under the court clerk’s supervision. In the case of separated records, each party is responsible, under the clerk’s supervision, for adding the documents the party files to the party’s own record (Family Law Rules, Rule 9(11)).

No party shall serve or file any document that is already in the record, despite any requirement in the Family Law Rules that the document be served and filed (Family Law Rules, Rule 9(13)). Furthermore, no document may be removed from the continuing record, except by court order (Family Law Rules, Rule 9(16)).

A party who is relying on a document in the record is required to refer to that document by its tab in the continuing record, except in a support enforcement continuing record (Family Law Rules, Rule 9(15)).

Jurisdiction over Family Law Matters

Where the Family Court branch of the Superior Court of Justice operates, there is no divided jurisdiction in those family law matters. This is so because the Family Court branch of the Superior Court of Justice exercises a single jurisdiction over all legal disputes in family law. Given that this is a unified family court, it allows family law litigation to be dealt with in an integrated manner.

In Ontario, where the Family Court branch of the Superior Court of Justice does not exist, the jurisdiction over family law matters is divided between the Superior Court of Justice and the Ontario Court of Justice. Cases that involve divorce and/or property claims can only be brought before the Superior Court, whereas child protection and adoption cases must be commenced only in the Ontario Court of Justice. Each of these two courts has jurisdiction to adjudicate over issues of child and support support, as well as claims for custody and access.

First Appearance Court

When an Application is filed in the Superior Court of Justice or the Family Court of the Superior Court of Justice, whether a court date is set depends on whether the case is standard track or fast track. Applications that contain a claim for divorce or property are standard track, whereas all other cases are fast track.

In a case that is standard track, the court clerk does not automatically set a court date when the Application is filed. The Applicant generally waits until the Respondent has been served with an Application and until after he or she has filed an Answer before booking the next step (being a case conference). Generally, an Applicant may obtain a case conference date when the Application is filed by serving and filing a Conference Notice (Form 17).

In the Ontario Court of Justice, the first court date or the First Appearance Court (FAC) is always held before a court clerk who, among other duties:

  • 1. Confirms that all of the required documentation has, in fact, been served and filed;
  • 2. If an Answer has been filed, confirms that the case is ready for a hearing, case conference or settlement conference and thereafter schedules it; and,
  • 3. If an Answer has not been filed, sends the case to a judge for a final decision on the matter based on affidavit evidence. Or, on request, the clerk schedules a case conference.

Mandatory Information Program (MIP) or Family Information Session

In Toronto in the Superior Court of Justice, in a family law case the parties must attend a Mandatory Information Program if there are claims other than for a divorce and costs or the incorporation of terms of an agreement or prior court order (Family Law Rules, Rule 8.1(1)).

The Mandatory Information Program is an in-person session, which may be led by a lawyer, a social worker or some other facilitator. The Mandatory Information Program provides parties with information about separation and the legal process, and may include information on topics such as:

  • 1. The options available for resolving differences, including alternatives to going to court;
  • 2. The impact the separation of parents has on children; and,
  • 3. The resources available to deal with problems that arise from the separation (Family Law Rules, Rule 8.1(3)).

The Applicant(s) and Respondent(s) each attend the Mandatory Information Program separately.

The Applicant must arrange his or her own appointment to attend the Mandatory Information Program, obtain an appointment for the Respondent’s attendance at the Mandatory Information Program and serve the Respondent with notice of the Respondent’s appointment with the Application (Family Law Rules, Rule 8.1(5)). Each party to a case must attend the Mandatory Information Program no later than firty-five days after the case has been started (Family Law Rules, Rule 8.1(4)).

If a party does not attend the Mandatory Information Program, he or she will be unable to take the next step in the litigation process, namely filing materials with the court.

Family Law in Toronto: The Answer

The Respondent in a family law case is the person against whom the Application is made. The Respondent is required to serve an Answer on every party that is named in the Application.

A person against whom an Application is made should serve an Answer on every other party and file it within 30 days after being served with the Application (Family Law Rules, Rule 10(1)). If an Application is served outside of Canada or the United States, the deadline for serving and filing an answer is 60 days (Family Law Rules, Rule 10(2)). In this context, there is an exception for an Application to dispense with a parent’s consent before an adoption takes place. In such an Application, the time for serving the Answer is,

  • (a) 20 days, if the Application is served in Canada or the United States;
  • (b) 40 days, if the Application is served outside of Canada or the United States (Family Law Rules, Rule 10(2.1)).

In the Answer, the Respondent in a family law case has the opportunity to outline his or her version of events relating to the dispute. Additionally, the Respondent may ask for relief in the Answer. A Respondent may include:

  • (a) a claim against the Applicant;
  • (b) a claim against any other person, who then also becomes a Respondent in the case (Family Law Rules, Rule 10(3)).

There are significant reprecussions for a Respondent in family law in Toronto who does not serve and file an Answer in accordance with the above-noted rules. The following sanctions are also applicable in a case where the Answer is struck out by an order:

  • (a) the Respondent is not entitled to any further notice of steps in the case;
  • (b) the Respondent is not entitled to participate in the case in any way;
  • (c) the court may deal with the case in the Respondent’s absence; and,
  • (d) the court msy set a date for an uncontested trial (Family Law Rules, Rule 10(5)).

Family Law: The Reply

Within 10 days after being served with an Answer in a family law case, the Applicant(s) may serve and file a Reply, responding to claim(s) made in the Answer (Family Law Rules, Rule 10(6)).

The Reply in a family law case should not be a regurgitation of the Application. It is an opportunity for Applicants to respond to any claim(s) in the Answer.

The Applicant in a family law case may need an extension of time for serving and filing the Reply. An extension may be obtained in one of two ways:

  • 1) by acquiring the consent of opposing counsel in writing; or,
  • 2) by requesting this extension from the Court.

Family Law Case Conference

The family law case conference presents litigants with an opportunity (relatively early on in the case) to hear a judge’s perspective on each party’s position in the case.

In family law, motions are generally not heard until a family law case conference dealing with the substantive issues in the case has been completed (Family Law Rules, Rule 14(4)). There are exceptions to this rule. For example, if there is a situation of hardship, a family law case conference is not required (Family Law Rules, Rule 14(4.2)).

The purposes of a family law case conference proceeding include the following (Family Law Rules, Rule 17(4)):

  • (a) Exploring the possibility of settling the family law proceeding (At the family law case conference, the judge will explain how he or she believes that the law relates to the parties’ case),
  • (b) Identifying those issues in dispute and those that are not in dispute,
  • (c) Exploring method to resolves issue that are in dispute,
  • (d) Ensuring that parties are providing the disclosure relevant in the family law case (In other words, the family law case conference judge will ensure that full and complete financial disclosure is exchanged between the parties),
  • (e) Noting admissions in the case which may simplify the proceeding,
  • (f) Scheduling a date for the next step in the proceeding,
  • (g) Setting a timetable by which certain steps in the family law case must be accomplished. Specifically, specific deadlines are provided for disclosure orders; and,
  • (h) Setting a settlement conference.

A party who requests a family law case conference must serve and file a case conference notice (Family Law Rules, Rule 17(4.1)).

Each party in a family law case conference must serve and file a case conference brief. This is true for each family law case conference. Unless the court makes an order to the contrary, family law case conference briefs do not form part of the continuing record. The briefs are either are returned to the lawyers at the conclusion of the case conference or they are destroyed by court staff after the case conference (Family Law Rules, Rule 17(22)).

If it is appropriate to do so, at a family law case conference a judge may make various orders, including the following:

  • An order for disclosure of documents or questioning (Family Law Rules, Rule 17(8)(a))
  • An order relating to the use of expert witness evidence at trial (Family Law Rules, Rule 17(8)(a.0.1))
  • An order relating to the service and filing of expert witness evidence (Family Law Rules, Rule 17(8)(a.0.1))
  • If notice has been served on the other party, a final or temporary order. For example, an order preserving a specific assets or assets generally (Family Law Rules, Rule 17(8)(b.1))
  • An order that all of the parties agree to (also known as an order on consent) (Family Law Rules, Rule 17(8)(c)); and,
  • On consent, the case conference judge may refer any issue for alternative dispute resolution (Family Law Rules, Rule 17(8)(d)).