Outline of the Court Process
1 - Starting the Case (Also known as Pleadings)
A court application starts a new case where someone seeks to obtain a court order for matters like child custody, support, or property division. It is used when no prior court order or formal agreement exists. In contrast, a motion to change is used when a someone wants to modify an existing final court order or written agreement, typically due to a significant change in circumstances that impacts the terms of that order. For a detailed overview of the Motion to Change court process, refer to the related article on this topic.
1. Application: The applicant (the person initiating the case) files a court document called an “Application” (Form 8) at court. This document lists the specific family law issues (such as custody, child/spousal support, and property division) that the applicant wants the court to resolve.
Supporting Documents: The Application may require additional documents, including a Financial Statement (Form 13 or Form 13.1), if financial matters like support or property division are involved. In child custody cases, a Parenting Affidavit may also be necessary (Form 35.1 and 35.1A).
Service of Documents: The applicant must serve the Application and supporting documents on the respondent (the other party). This step is essential for ensuring that the respondent has a chance to participate in the case. Documents are typically served personally through a process server. The applicant must complete an Affidavit of Service (Form 6B).
Filing Proof of Service: After serving the documents, the applicant files the Affidavit of Service (Form 6B) with the Application (Form 8) and supporting documents (if applicable) with the court to confirm the documents were served.
2. Response from the Respondent: The respondent has 30 days (or 60 days if they live outside of Canada) to file an “Answer” (Form 10) at court. This document allows the respondent to respond to the issues raised in the Application, agree or disagree with the claims, and set out their own claims (counterclaims) if needed.
Supporting Documents: If the respondent makes financial claims, they also need to submit a Financial Statement (Form 13 or Form 13.1). In child custody cases, a Parenting Affidavit may also be necessary (Form 35.1 and 35.1A).
Service of Documents: The respondent must serve the Answer (Form 10) and supporting documents on the applicant. The respondent must complete an Affidavit of Service (Form 6B).
Filing Proof of Service: After serving the documents, the respondent files the Affidavit of Service (Form 6B) with the Answer (Form 10) and supporting documents (if applicable) with the court to confirm the documents were served.
3. Reply: If the applicant wishes to respond to any new claims or counterclaims raised in the Answer, they may file a “Reply” (Form 10A) within 10 days.
Service of Documents: The applicant must serve the Reply (Form 10A) and complete an Affidavit of Service (Form 6B).
Filing Proof of Service: After serving the Reply, the applicant files the Affidavit of Service (Form 6B) with the Reply (Form 10A) with the court to confirm the documents were served.
2 - First Appearance (If Applicable)
This is an administrative checkpoint. In some cases, there’s a “first appearance” where court staff review the case to ensure all required documents are filed. This step is not typically a substantive hearing but ensures the case is procedurally ready to proceed to a judge.
Confirmation of Service and Issues: The parties confirm that they have filed all relevant documents and clearly defined the issues before scheduling further conferences.
If the documents are in order, the case will proceed to the next stage, such as a case conference. The court may schedule your matter for a case conference and may also set timelines for additional filings or procedural requirements if needed.
3 - Case Conference
A case conference is the first opportunity to discuss the case with a judge. It’s a mandatory step where the judge helps identify the main issues, encourage early resolution, and manage the next steps if the case cannot be resolved.The judge may provide a non-binding opinion on likely outcomes or settlement suggestions. This insight can encourage both parties to reconsider their positions and explore compromise. In some cases, Temporary (Interim) Orders may be made at this stage, especially if there’s agreement on certain matters like temporary child support or parenting arrangements.
The applicant must file and serve the Case Conference Brief (Form 17A) and supporting documents at least 7 days before the date of the case conference.The respondent must file and serve their Case Conference Brief (Form 17A) and supporting documents at least 4 days before the case conference. Both parties must File Form 6B (Affidavit of Service) with the court to confirm service has been completed within the required time frame.
Documents Required:
Case Conference Brief (Form 17A): This document outlines each party’s position on the issues and summarizes the relevant facts and evidence.
Updated Financial Statement (Form 13 or Form13.1): If financial matters (e.g., support, property division) are involved, the most recent financial statement must be filed and served along with a Certificate of financial Disclosure (Form 13A).
Updated Supporting Documents: Such as income tax returns, pay stubs, and any other documentation relevant to financial claims or child-related issues.
Confirmation of Conference Form
At least 3 days before your case conference, both parties must tell the court that you want your conference to proceed. You do this by filing a Form 17F: Confirmation of Conference that tells the judge the issues you would like to address and the documents the judge should review. If you or the other party don’t file this form, you will need the judge’s permission to go ahead with the conference.
Next Steps: If issues remain unresolved, the judge may set timelines for further steps, such as disclosure of financial documents or scheduling additional conferences or urgent motions.
4 - Motions (for Temporary Orders)
A motion in family law is a formal request made to the court for it to make a decision or issue an order on specific issues before the final resolution of the case. This can be done at any time after the case conference takes place. Motions are an important tool in family law as they allow parties to seek temporary relief or decisions on urgent matters that cannot wait until the final hearing or trial.
Motions can address a variety of issues that need immediate or interim resolution. They are used when:
A party needs a temporary order for child or spousal support.
Temporary custody or parenting time (access) arrangements need to be established or adjusted.
Exclusive possession of the family home is being requested.
A party is seeking an order for the disclosure of documents or information.
Protective orders or restraining orders are necessary.
When to Use a Motion: Motions are essential when a party needs a decision before the case is finalized, especially if waiting for the full trial or hearing could lead to significant harm or an unfair situation. They can be strategic tools to secure temporary arrangements that can influence negotiations and outcomes as the case progresses
Types of Motions:
1. General Motions:
Contested Motion: This type of motion is used when the parties do not agree on the issue being requested. A court hearing is required where both parties present arguments and evidence.
Uncontested Motion (Motion in Writing): When both parties agree on the relief requested, or the motion is straightforward, it can be decided by a judge without a formal hearing. This type of motion can be brought using Form 14B (Motion Form).
Motions in Writing for Non-Complicated Issues: For less complex or procedural matters, Form 14B can be used to submit a motion to the court without an oral hearing. Examples include requests for extensions of time or procedural orders.
2. Ex Parte Motion (Emergency Motion):
An ex parte motion is an urgent motion brought without notifying the other party. These motions are reserved for situations where immediate action is required, and giving notice would defeat the purpose of the motion or cause significant harm (e.g., to protect a child or prevent the dissipation of assets).
Requirements for Ex Parte Motions: The applicant must provide a compelling reason why the motion is urgent and why the other party was not given notice. The court will only grant such motions in cases of true emergencies.
Outcome of Ex Parte Motions: If the motion is granted, the resulting order is typically temporary and may be subject to review at a subsequent hearing where the other party can respond.
Key Components of a Contested Motion:
Notice of Motion (Form 14): Required for standard motions, this document informs the court and the other party about the nature of the request(s) and the date of the hearing.
Supporting Affidavit (Form 14A): This sworn statement provides facts and evidence supporting the motion.
Draft Order: A proposed version of the order that the applicant is asking the judge to issue.
Financial Statement (Form 13 or 13.1): Necessary when financial issues such as child or spousal support are part of the motion.
Procedure for Bringing a Motion:
Filing & Serving the Motion:
Filing the Motion: The applicant files the Notice of Motion (Form 14) or, for simple/uncontested motions, Form 14B, along with the supporting affidavit and any relevant documents.
Serving the Documents: The documents must be served to the responding party according to court rules (in person or electronically).
Timeline: For motions with notice, the applicant must serve the documents no later than 6 days before the motion date and file them as soon as possible after service, but no later than 4 days before the motion date.
For motions without notice, special rules apply and should be carefully reviewed before proceeding.
Responding to the Motion: The responding party has an opportunity to file their own affidavit and evidence to oppose the motion.
Timeline: For a motion made with Notice of Motion (Form 14), the response must be served and filed no later than 4 days before the motion date (Rule 14(11.3)).
For a motion made with Motion Form (Form 14B), the response must be served and filed no later than 7 days after the motion form is served on them (Rule 14(11.4)).
Replying to the Response: If the applicant receives a response to a Notice of Motion (Form 14), they may file a reply.
Timeline: The reply must be served and filed no later than 2 p.m. three days before the motion date (Rule 14(11.5)).
Note: Replies are not permitted for motions made using Form 14B (Rule 14(11.6)).
Confirmation of Motion: Before the motion date, the applicant must confirm that the motion is proceeding and identify the materials being relied on by filing a Confirmation of Motion (Form 14C).
Timeline: The Confirmation of Motion must be given to the clerk no later than 2 p.m. three days before the motion date.
Hearing the Motion: For contested motions, both parties attend the hearing (in person or virtually). For motions in writing, the judge reviews the materials without an oral hearing.
Decision: The judge issues an interim order based on the motion, which is legally binding until a final order or agreement is reached.
The judge may dismiss or postpone the motion if the evidence or arguments are insufficient.
The judge may also order the unsuccessful party to pay the other’s legal costs for the motion.
5 - Settlement Conference
The settlement conference aims to resolve as many issues as possible without going to trial. It involves a judge who offers an objective perspective on each side’s position and may indicate likely trial outcomes to motivate settlement.
Before the settlement conference, both parties are often required to exchange updated financial documents, parenting plans, and settlement briefs summarizing their proposals. This preparation enables a meaningful discussion about potential compromises. The judge may provide feedback on each party’s case and make recommendations to encourage agreement. If agreements are reached, they can be formalized as binding “Minutes of Settlement” or interim orders.
Next Steps if Unresolved: If unresolved issues remain, the judge may set a timeline for trial preparation or schedule a Trial Management Conference.
6 - Trial Management Conference
The Trial management Conference ensures that both parties are organized and trial-ready. It covers practical aspects, including the number of witnesses, exhibits, and time estimates for presenting each side’s case.
The judge ensures all efforts for settlement have been exhausted and that both parties understand the trial process, including any remaining procedural steps. Sometimes, the judge may make orders to streamline the trial, such as directing the exchange of witness lists, scheduling, or limiting evidence to what’s strictly necessary.
7 - The Trial
The trial process begins with Opening Statements, where each party, or their lawyer, outlines their position and provides a summary of the main issues the court will address. Opening statements help set the stage for the evidence that will follow and highlight the key concerns of each party. To streamline the process, opening statements can sometimes be submitted in writing, depending on what is ordered or agreed upon at the Trial Management Conference.
Once the trial moves into the stage of Presenting Evidence, each party introduces their evidence through documents, affidavits, or live testimony. Evidence presented during examination-in-chief may be given orally in court or submitted in writing, as determined during the Trial Management Conference. This flexibility allows the trial to proceed efficiently while still ensuring that all relevant evidence is properly examined. Witnesses, including the parties themselves, may be called to testify and are subject to cross-examination by the opposing party. In more complex cases, expert witnesses—such as financial experts in property division matters—may also be called to provide specialized knowledge that assists the court in understanding intricate issues.
After the evidence has been presented, both parties have the opportunity to deliver their Legal Arguments. These closing arguments summarize the evidence, highlight key points, and reference relevant family law principles to persuade the judge to decide in their favor. Like opening statements, closing arguments can also be submitted in writing to streamline the process, particularly in cases with substantial documentary evidence or complex issues.
Finally, the trial concludes with the Judge’s Decision. While some decisions may be delivered orally at the end of the trial, it is common for the judge to issue a written judgment after reviewing all the evidence and arguments. This written decision includes the judge’s reasoning on each issue and forms the basis for the final court order, which is binding on the parties. This can take weeks or even months.
8 - the Final Order
The court issues a formal written order based on the judge’s decision. This final order outlines the legal rights and obligations of each party and is enforceable.
If either party fails to comply with the final order (e.g., by not paying support or violating custody terms), the other party may seek enforcement through the court or Family Responsibility Office for financial matters.
10 - Appeal (If Desired)
Appeals are only available in limited circumstances, typically where there has been a significant error in the application of the law or procedural fairness. Appeals do not involve a re-hearing of evidence but a review of whether the judge’s decision was legally correct.
Filing the Appeal: The party appealing (the appellant) must file a Notice of Appeal within the specified time limits, along with any required legal submissions or transcripts. These timelines are both strict and concise, so it’s essential to carefully review the relevant deadlines to ensure you remain well within the required time frame.
Appeal Outcome: The appeal court may uphold the decision, change it, or send it back for a new hearing if significant legal errors are found.
TAKEAWAY …
Navigating the court process can feel overwhelming, especially with the many steps, strict timelines, and nuanced requirements involved at every stage. Each case is unique, and understanding how the rules apply to your specific situation is crucial. To ensure your rights are protected and your case is handled effectively, it’s always best to consult with an experienced family lawyer who can guide you through the process with confidence.
