Lorne Fine Professional Corporation—Family Law Lawyers in Toronto

Frequently Asked Questions about FAMILY/DIVORCE LEGAL PROCEEDINGS

Once you have decided to initiate Family/Divorce proceedings, or are responding to a Court Application, you should be aware of the various steps involved in litigation.

Q: How long do Family/Divorce Proceedings Take?

A: Clients frequently ask me “how long with this take” when a proceeding is initiated or when responding to a Court Application. The Answer is “it depends.” Most court proceedings do not proceed to trial. The majority of proceedings are resolved well before the trial of the matter. There are several reasons for same. Firstly, a trial is very expensive and the results are never absolutely certain. Both parties have an incentive to resolve the proceedings. It is usually preferable to have some control of the outcome of a Family Proceeding rather than have a stranger (i.e., a Judge), who does not know either party personally in any meaningful way, decide your future. Secondly, Family Proceedings are governed by special Family Law Rules. The Rules are designed to promote an early resolution of the outstanding issues and prevent parties from proceeding to trial. The primary objective of the Family Law Rules is to enable the court to deal with all cases in a just manner. Rule 2(5) of the Family Law Rules (“FLR”) requires the court to actively involve itself in the management of all family law proceedings. The Rule provides as follows:

“(5) The court shall promote the primary objective by active management of cases, which includes,

(a) At an early stage, indentifying the issues, and separating and disposing of those that do not need full investigation and trial;
(b) Encouraging and facilitating the use of alternatives to the court process;
(c) Helping the parties to settle all or part of the case;
(d) Setting timetables or otherwise controlling the progress of the case;
(e) Considering whether the likely benefits of taking a step justify the cost;
(f) Dealing with as many aspects of the case as possible on the same occasion; and,
(g) If appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference”

Therefore, if both parties cooperate and are prepared to compromise, it is possible to resolve a court proceeding at a very early stage in the Proceedings. In fact, Toronto family lawyers and courts are encouraged to resolve some or all of the issues in a court proceeding as soon as possible.

Q: Do I need a Toronto Family Law Lawyer?

A: The FLR provides that parties can act on their own behalf or may retain lawyers to act on their behalf. It is also possible for a litigant to be represented by a non-lawyer only if the court gives “permission in advance.” It is my experience that courts are often reluctant to permit non-lawyers to act on behalf of litigants.

Q: Can I change Lawyers if I am unhappy?

A: It is possible to change lawyers if you are not happy with the representation you are receiving. Your new Lawyer will have you sign a Document entitled “Notice of Change in Representation” in which the opposing lawyer and the court are advised of your new Lawyer’s name and address. In the alternative, you can dismiss your lawyer and sign a “Notice of Change in Representation” advising the opposing lawyer and the court that you are acting on your own behalf.

In most cases, a court should be commenced in the municipality where one of the parties resides or, if the case involves custody of or access to a child, where the child ordinarily resides. If a proceeding is not commenced in the proper location it is possible that the court may refuse to accept the initial Application.

Q: How do I initiate a court proceeding?

A: In order to initiate a court proceeding, in most cases, you and your lawyer will have to draft an Application and a Financial Statement. The Application sets out the claims of relief (e.g., child custody, child support, property division, etc.) that you are seeking as against the Respondent (i.e., your former spouse or partner) and the material facts that you are relying upon in support of the relief that you are seeking.

Q: What do I need to be aware of if I am claiming Child Custody and Support?

When you are claiming child custody or support, you must also file a sworn Financial Statement. The Financial Statement is a court form that you must complete. It lists your income, expenses, and all assets and liabilities as of the date of marriage, date of the separation and date of the statement. It is important to gather all of the documentation that supports all of the figures listed in your Financial Statement (i.e., bank statements, etc.). In addition, you should also include copies of your Income Tax Returns for the last three years, along with Notices of Assessment.

Once you have filled out all of the necessary paperwork, your Toronto family law lawyer will then put the Application and Financial Statement, along with an index, endorsement record, etc. in a “Continuing Record” (“CR”). The CR is then filed with the court and served on the other party. The majority of all future court documents, with the exception of documents in which there are settlement discussion, will form part of the CR. It is the intention of the court for there to be a record that is easy to access and refer to in the future.

Q: How do Divorce Proceedings Progress?

A: Once a proceeding is commenced, you must serve the opposing party with the necessary documents. This is usually done by personal service of the documents (i.e., usually the Application and the Financial Statement). A process server will personally deliver the CR to the Respondent. The process server will then execute and file with the court, an Affidavit of Service.

Once you are served with an Application, you must serve and file with the court an “Answer” and a Financial Statement. The Answer usually has to be served and filed within 20-30 days. If the Respondent does not file an Answer the Applicant can apply to the court for an Order in accordance with the relief sought in the Application. The clerk may then set a date for an uncontested trial. It is important to file an Answer within the appropriate time if you intend to defend the proceeding.

The Answer will include your claims as against the Respondent and the material facts which support your claims. It does not matter which party initiates proceedings. Contrary to the beliefs of many individuals, the Applicant does not have an “advantage” in the proceedings.

Unless it is urgent, the courts will usually require that a Case Conference is held prior to any Motions (i.e., a court hearing in which interim relief is being sought) being heard by a Court. At a Case Conference, the parties serve and file their respective Case Conference Briefs, in which they set out their respective theories of the case, settlement proposals, and disclosure requested from the opposing party. The Case Conference is usually conducted in “chambers” (i.e., the Judge’s office) and is a casual, “off the record” discussion of the case. A Judge tries to resolve some or all of the issues in the proceedings. However, a Judge usually will not make an Order unless it is on consent of the parties. Some Judges will order disclosure of documents even if it is not on consent.

The court case then proceeds by way of additional court appearances, if necessary, including Settlement Conferences (in which a Judge has frank settlement discussion with the parties and their counsel) in order to try to resolve the proceeding.

If the matter is not resolved, either party may bring Motions during the proceeding for interim relief (i.e., custody, access, child and spousal support, sale of the Matrimonial Home, etc.). It is possible for a Court to award “costs” in favour of the party that wins the motion. Therefore, if you oppose the relief sought on a motion or bring an improper motion, there is a risk that you will have to pay some or all of the other party’s legal fees.

The Case then proceeds to a Trial Management Conference in which the parties serve and file briefs in which they put forth their theory of the Case and relief they are seeking, including the duration of the trial and the witnesses that will be called at trial.

Once you obtain an Order on a motion or at trial, you must enforce the terms of the Order. All child support or spousal support Orders are usually enforced by the Family Responsibility Office (the “FRO”). FRO is a government agency that enforces support orders at no charge to the recipient. FRO usually garnishes the payor’s income from his/her employer and pays the support owing to the support recipient. FRO has numerous other means to enforce support orders as against payors including, but not limited to, taking away a defaulting payor’s driver’s license. If you have failed to pay support as Ordered by the court, you will have to bring an Application to the court to vary or set aside the ongoing support or arrears of support, or FRO will continue to enforce the Order unless it is varied.

As stated previously, it is in all parties interests to try to resolve any issues arising from his/her separation as quickly as possible. The longer the litigation continues, the more the costs mount and the harder it is to resolve the matter. Many individuals become entrenched in their positions and fail to recognize that it may be possible to address the interests of both parties so that they can both have closure and move on with their lives.

THE INFORMATION HEREIN IS FOR INFORMATION PURPOSES ONLY, IS NOT INTENDED AS LEGAL ADVICE, AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE. IF YOU WITH HAVE ANY QUESTIONS REGARDING FAMILY / DIVORCE LAW, PLEASE CALL LORNE FINE AT 416-661-2066 OR EMAIL HIM AT LFINE @ TORONTODIVORCELAW . COM.

Content on this page requires a newer version of Adobe Flash Player.