Table of Contents

1. Introduction
2. Pre-Litigation Considerations
3. Initiating the Litigation Process
4. Case Management and Settlement Conferences
5. Preparing for Trial
6. The Trial Process
7. Post-Trial Matters
8. Conclusion

Introduction

Family Law Litigation in Ontario can be a complex and emotionally challenging process. This guide aims to provide a detailed understanding of the procedures involved in family law litigation, making it easier for parties to navigate the legal system and achieve a favorable outcome.

Pre-Litigation Considerations

Before initiating the litigation process, parties should explore alternative dispute resolution (ADR) options such as mediation, collaborative law, or arbitration. ADR can save time, reduce costs, and minimize the emotional stress associated with litigation.

• Mediation involves a neutral third party, the mediator, who facilitates communication between the parties and helps them reach a mutually agreeable resolution.
• Collaborative Law involves both parties and their lawyers working together to negotiate a settlement agreement, while committing not to go to court.
• Arbitration is a private process where parties present their case to an arbitrator who makes a binding decision.

Initiating the Litigation Process

If ADR is unsuccessful or not appropriate, the litigation process begins with the filing of an Application. This document outlines the claims and relief sought by the applicant. The respondent then files an Answer, addressing the claims and presenting their position. A Reply may be filed by the applicant to address any new issues raised in the Answer.

Key Steps in the Litigation Process:

1. Drafting and Filing the Application: The applicant must draft a clear and concise Application that outlines the issues and the relief sought. This document must be filed with the court and served on the respondent.
2. Drafting and Filing the Answer: The respondent has 30 days to file an Answer after being served with the Application. The Answer should respond to each issue raised and present the respondent’s position.
3. Financial Disclosure: Both parties must exchange financial information, including income, assets, and debts, to ensure a fair resolution of financial issues.
4. Drafting and Filing the Reply: If the applicant wishes to address new issues raised in the Answer, they may file a Reply within 10 days of receiving the Answer.

Case Management and Settlement Conferences

In Ontario, family law cases are subject to case management, which aims to facilitate timely resolution and minimize costs. A case conference, settlement conference, or trial management conference may be scheduled by the court.

• Case Conference: A case conference is an informal meeting between the parties, their lawyers, and a judge. The purpose is to identify and narrow the issues, explore settlement possibilities, and set timelines for the case.
• Settlement Conference: A settlement conference is a more formal meeting focused on resolving the issues without proceeding to trial. The judge may provide an opinion on the likely outcome if the matter goes to trial, encouraging the parties to reach a settlement.

Preparing for Trial

If a settlement is not reached, the matter proceeds to trial. Prior to trial, parties must complete a number of steps, including:

1. Preparing and Exchanging Affidavits of Documents: Each party must list and exchange all relevant documents they intend to rely on at trial.
2. Examinations for Discovery: This is an opportunity for each party’s lawyer to question the other party under oath about the issues in the case.
3. Preparing and Serving Trial Records: The trial record, which includes key documents and a list of witnesses, must be prepared and served on the other party and filed with the court.
4. Preparing and Serving Expert Reports: If expert witnesses will be called to testify, their written reports must be prepared and served on the other party in advance of the trial.
5. Preparing for Cross-Examination: Parties should work with their lawyers to prepare for cross-examination, including reviewing the evidence, documents, and expert reports.

The Trial Process

The trial is a formal court proceeding where each party presents their evidence and arguments before a judge. The trial process in Ontario typically follows these steps:

1. Opening Statements: Both parties, or their lawyers, present an overview of their case and the issues to be resolved.
2. Examination-in-Chief: Each party’s lawyer questions their own witnesses, including the parties themselves, to present their evidence.
3. Cross-Examination: The opposing lawyer questions each witness to challenge their credibility and the strength of their evidence.
4. Re-examination: The witness may be questioned again by their own lawyer to clarify any issues raised during cross-examination.
5. Closing Arguments: Both parties, or their lawyers, summarize their case and present their final arguments to the judge.
6. Judgment: The judge will either provide a decision immediately or reserve judgment and provide a written decision at a later date.

Post-Trial Matters

After the trial, there may be additional steps required to finalize the matter:

1. Enforcing Orders: If a party fails to comply with a court order, enforcement measures may be necessary, such as garnishing wages or seizing assets.
2. Appeals: If a party believes the judge made an error in law or fact, they may appeal the decision to a higher court. Appeals must be filed within 30 days of the judgment.
3. Variation and Review: If there is a material change in circumstances, a party may apply to the court to vary or review an order related to support, custody, or access.

Conclusion

Navigating the Family Law Litigation Procedure in Ontario can be a complex and challenging journey. Understanding the process and working with experienced legal counsel can help parties achieve a fair and equitable resolution to their family law disputes.