If you are going through a separation or divorce, going to court is not the only option. There are several ways to resolving family disputes, including negotiating an agreement, mediation, arbitration, and collaborative family law. Not all of these options are appropriate in every circumstance and there are pros and cons of each. Depending on factors such as the history of the relationship and the issues that are at stake, the best option in some family law disputes is to go to court to have a judge make final decisions. Read on for our Niagara family lawyer’s overview of Ontario court procedures in family
disputes, so that you have some idea of what to expect should court proceedings be necessary in your case. If you would like to know more about the court process or have questions about the best option to resolve your family law dispute, contact J. Leigh Daboll Law Office to get advice from a trustworthy, knowledgeable family lawyer in Niagara.
Family lawyer explains procedures for starting a family court case
Ontario’s Family Law Rules set out the process for each step of a family law case. There are specific requirements and strict timelines that apply at each step. Here are some of the key basics for starting a family court case:
The person who starts family court proceedings is called the “applicant” and the other person is called the “respondent.” Both are referred to as “parties” in the court case.
Before starting family court proceedings, the applicant must determine which court has jurisdiction to decide the matters at hand. There are three courts that deal with family law issues in Ontario: the Ontario Court of Justice, the Superior Court of Justice, and the Family Court branch of the Superior Court of Justice. Choosing the right court depends on where the parties’ and their children live and what issues are at stake (for example, whether division of property is at issue, or whether a divorce order is required).
Family court proceedings are started by the applicant serving the respondent with an Application, which must set out the issues and contain the important facts to support the claim. The Application must also be filed with the court, along with the Continuing Record.
Depending on the issues to be decided, it will also be necessary to serve the Respondent with other documents, which must also be filed with the court and form part of the Continuing Record. For example:
An Affidavit in Support of Claim for Custody or Access is needed if the matter involves a claim for custody or access of a child.
A Financial Statement is needed if there is a claim for child support or spousal support, or if the dispute involves the division of property and debts.
Once the Respondent has been served with the Application materials, he or she has 30 days (or 60 days if they live outside of Canada or the United States) to complete, serve, and file their Answer and any other required documents in response to the Application.
Niagara family lawyer explains what happens after proceedings have been started Once family court proceedings have been started, the flow of the case will depend on factors such as whether the respondent filed an Answer or asked for more time to do so. If the respondent fails to respond within the timelines, the applicant can ask the court to an order on an undefended basis. It should be noted that even after court proceedings have been commenced, the parties can continue to negotiate or try other options such as mediation. At any stage of the proceedings, the applicant and the respondent can settle some or all of the issues outside of court by way of a separation agreement or by filing minutes of settlement (or a consent order). Overview of court appearances in family law matters Here is the general overview of court attendances that take place in a typical action once the family court proceedings have been started: A First Appearance is typically the first court date, and the purpose is to ensure that the proper parties have been served and that the required materials have been filed with the court. After the First Appearance come the court conferences, each of which is held before a judge:
Settlement conference; and
Trial management conference.
Each party must prepare a Brief in advance of each of these conferences that discuss the issues, provides information or sets out procedural orders needed at that stage of the case. The ultimate goal of each of these conferences is to narrow the issues and, whenever possible, get the parties to agree on some or all of the issues without the necessity of a trial. If temporary orders about some of the issues are needed, either party can bring a motion. The procedure for the motion will depend on whether the matter is urgent or not. If the parties are not able to work out the issues on their own or if the issues are too complicated, the matter will proceed to trial for a judge to decide the case and make a final order. Going through a separation or divorce? Contact an experienced Niagara family lawyer In some cases, negotiated agreement is achievable and spouses can get a divorce without ever setting foot in a courtroom. In other cases, agreement is not possible, and the best option is to start court proceedings to resolve family law matters. If you and your ex cannot agree on serious issues such as child custody and access, division of family property (for example, who will live in the family home, whether to sell it, or how much it is worth), or who will be responsible for debt incurred in your relationship, going to court may be necessary. How you deal with these issues can have significant implications for you and your family, both now and in the future. Regardless of the way you achieve a resolution of your family dispute, you should have trustworthy advice and confidential, professional legal assistance throughout the process. At J. Leigh Daboll's Law Office, that's exactly what you get. We deal with all aspects of family law and divorce law. Please contact us for more information about how we can help you or to schedule a consultation with our Niagara gamily lawyer.