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No one wants to be involved in litigation. It’s expensive, contentious and highly emotional. Litigation may be necessary, however, if the alternative means that you don’t have any chance of getting what you’re entitled to.
In Ontario, the process whereby family law cases are litigated is governed by the Family Law Rules. Once an Application is started, it has to be served on the other party and they have a certain period of time to respond and file an Answer. After they have filed an Answer, the case will be set down for a case conference with a judge.
In order to start an Application and file an Answer, both parties need to complete a sworn Financial Statement including 3 years worth of income tax returns, notices of assessment, and a recent pay stub. Without this financial information in hand, the court will not accept the pleadings. This is meant to ensure that the court has all of the financial information it needs in order to make decisions once a hearing is scheduled.
You cannot ask the court for any substantive relief until you’ve attended a case conference. The case conference is meant to be an informal meeting between the judge, the lawyers, and the parties themselves in an effort to achieve settlement on some, or all, of the outstanding issues. A case conference can provide the framework for parties to arrive an interim settlement of the issues.
Once the case conference has been completed, either party can then request a motion date for the hearing of any substantive interim issues such as child or spousal support, financial disclosure, or child custody and access. Unlike a case conference, where the case conference brief filed before the hearing date is relatively short, the written materials required for a motion are extensive.
On a motion, all of the evidence needs to be submitted in the form of written affidavits that the judge can review. Without affidavits, there is no evidence on the record upon which the judge can base an order. Because of the time required to assemble affidavit material- both for yourself and the other side- as well as the shortage of court time, it can take several months to schedule and properly prepare for a motion.
If, after a certain number of interim motions, you’re not able to arrive at a settlement with the other side, you will have a settlement conference, questioning, and, eventually, a full trial of the issues.
Even with court dates that are booked months into the future, hearings can always be adjourned or postponed at the request of either party. Unless the request is being made repeatedly, most judges are going to grant reasonable requests for adjournments. This is part of the litigation process and should be expected.
Because of the numerous delays that are inherent in the litigation process, it’s important to consider filing a family law claim as soon as possible, even if you think that there’s still a chance of reaching a settlement. By delaying filing your claim, you risk losing considerable time waiting for the other side to agree to start serious negotiations. Particularly if there are issues that are time-sensitive- such as obtaining consent to get the matrimonial home sold, or child custody and access- it might be wise to file a claim right away. That way, if you’re not successful in achieving a settlement within a reasonable time, you’ve already got a backup plan set in motion.
Results and Costs
Judicial rulings can be unpredictable. Although a lawyer can always give you an opinion based on the existing case law, no one can guarantee a favorable outcome. With this uncertainty always looming on the horizon, both sides are generally highly motivate to discuss settlement, both on the eve of a motion and a trial.
If it does nothing else, litigation can be a great tool in facilitating eventual compromise and agreement. If and when a settlement is reached, minutes of settlement will be entered into the court file and the agreement becomes incorporated into a court order.
When you are the unsuccessful party at any stage of the proceedings- be it a motion or a trial- you can end up having to pay for the legal costs incurred by the other side. Even if you don’t have a lawyer of your own, you can still be liable for legal fees if your ex does have a lawyer. Given this risk, it’s always a good idea to get a legal opinion on your case so you know whether you have at least a reasonable chance of being successful in what you’re seeking from the court. Since litigation is unpredictable, however, you should always be seeking compromise with the other side to minimize the risk of having a significant costs award made against you.
Why use me as your lawyer?
I'm a lawyer representing clients in Kanata, Nepean, and the west-end of Ottawa.
Kerry Fox, LL.B.
Barrister & Solicitor
90 Centrepointe Dr,
Nepean, ON K2G 6B1
Tel: (613) 224-4400
Fax: (613) 226-8767
Hours & Information
There is plenty of free parking located at the back of the building.
Monday to Friday
8:30AM - 5:00PM
I also have Saturday appointments available.