What to Expect if Your Family Law Case Goes to Litigation
Before it becomes a reality for couples, they often think of divorce in the relatively simple terms of the litigation process of getting a lawyer and going to court.
The truth is that both divorce lawyers and courts do everything they can to help divorcing couples avoid litigation by settling their differences through alternative dispute resolutions, including mediation, arbitration and collaborative family law.
They do this because there’s nothing ‘simple’ about divorce litigation. If a divorce case goes to litigation, it usually means that the differences between the parties are so significant that they couldn’t come to a resolution otherwise. And those differences are just part of the complexity of litigation, which can be exacerbated by emotional issues, the implications for children and other family members, the intimidation of the court environment and the shear stress of the entire process.
Still, when litigation is unavoidable, it helps every party in a divorce case to learn more about the process so they know more about what to expect before going into it.
Ontario Family Law Litigation Process for Divorce
The litigation process for divorce cases is governed by Ontario’s Family Law Act. To help you have a better understanding, here’s an overview of the process.
It is important keep in mind that, even after the litigation process begins, it may be settled any one of the steps in the process, including before it goes to trial.
Courts that Handle Ontario Family Law Litigation - There are three levels of courts that handle litigation.
Family Court of the Superior Court of Justice - The Family Court hears cases involving all aspects of Family Law, including divorce, property division, child custody and access, and child and spousal support.
Superior Court of Justice - The Superior Court hears cases relating to divorce, division of property, support and custody
Ontario Court of Justice - The Ontario Court hears cases relating to child custody, access and support.
2. Application for Divorce - Litigation begins when one of the parties in a divorce case, known as the ‘Applicant’ or ‘Petitioner’, submits to the appropriate Court an Application for Divorce. The Application includes an outline of the petitioner’s claims and facts that support the claims.
After the Court issues the Application, it is served to the other party (the Respondent) in the case.
3. Filing an Answer - The Respondent has 30 day in which to file an Answer. The Answer outlines what claims in the Application are agreed upon, what claims are disputed, and any additional claims the Respondent may have.
After filing of the Answer, the applicant has 10 days to file a reply.
4. A First Appearance Date - If the case is handled by the Ontario Court of Justice, a First Appearance Date is set when the Application for divorce is issued. The First Appearance helps to determine if all the correct documentation is in place and filed for the case to proceed.
5. Case Conference - If the case can proceed and after both sides have filed their applications, answers and replies, a Case Conference date it set. Held before a judge, the Case Conference is used to ensure that full disclosure has been made by both parties and to issue Orders if it hasn’t.
6. Settlement Conference & Trial Management Conference - After a successful Case Conference, a Settlement Conference is scheduled. The Settlement Conference is followed by a Trial Management Conference. Both conferences are designed to give both parties an opportunity to settle the case before moving on in the litigation. Even if the conferences are unsuccessful at arriving at a settlement, they may at least result in a reduction in the disputed claims that actually proceed to Court.
7. Setting a Trial Date - If the case isn’t settled after the Trial Management Conference, a Trial Date is set. The trial gives the parties the opportunity to offer evidence, introduce witnesses and present documents to support their side of disputed claims. A Judge hears both sides of the case and hands down a decision to settle the claims.
To learn more about the Family Law Litigation process, you are welcome to schedule a consultation with us here at Williams Family Lawyers.