THE DISPUTE RESOLUTION PROCESS

On Family Law for residents in Canada  

 Upon separation, the parties should retain counsel in order to try and settle issues arising from the separation, such as support (child and spousal), custody and access and property division.   It is important to retain counsel, as some issues can be complicated and without competent counsel, it is likely that all issues would not be properly addressed.

Once you retain a lawyer, he/she would begin by assisting the client with preparing a Financial Statement.  A Financial Statement is a court form.  It is an important part of the financial disclosure necessary to determine the financial issues arising out of the separation.    You will need to provide your lawyer with documentation to substantiate your assets and liabilities as of the date of marriage and the date of separation.   In addition to other documentation, you should also provide your lawyer with copies of your Income Tax Returns, with attachments and Notices of Assessment, for the three years prior to the date of separation.

Once the parties exchange Financial Statements and all necessary disclosure, counsel may either discuss the matter and try to resolve it or attempt to resolve the matter by way of a four way meeting (i.e. both parties and their lawyers are present and try to resolve the matter).

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If a four way meeting is not successful in resolving the outstanding issues (or only resolves some of the issues), the parties may choose to resolve the issues by way of alternate dispute resolution, for example by mediation and arbitration.  This is voluntary and must be consented to by both parties.

Mediation is a method of dispute resolution.  The parties would jointly retain a mutually agreed upon mediator.  The mediator is normally an experienced family law lawyer.   The mediator may wish to have position statements from each party (listing the facts and issues) and then either meet separately with the parties or with their counsel.     The mediator will then try to assist the parties in compromising and reaching a settlement.   If the parties are unable to reach an agreement, the decision of the mediator is not binding on the parties. The parties will then have to decide whether to resolve their dispute through litigation or Arbitration.  It is common for people to retain the mediator to act as a mediator/arbitrator (i.e. if the parties are unable to agree on a resolution, the mediator/arbitrator would ultimately decide how the matter would be resolved).

Arbitration is another method of dispute resolution.  It is similar to mediation in that the parties jointly retain an experienced family law lawyer who acts as a “judge”.   The process is voluntary. If the parties are unable to agree on how to resolve the matter, the arbitrator would conduct a formal hearing (similar to a trial) and make a decision as to how to resolve the matter.  The benefit to an Arbitration is that although you are paying someone to act as a “judge” (whereas if the matter was litigated, the courts do not charge for a Judges services), it is probably more time efficient and may be less costly.  However, if you are not happy with the arbitrator or his decision, an appeal may be difficult.

If all else fails, the parties are left with no alternative but to litigate (i.e. either party would commence a Court proceeding).  The proceeding is commenced with a document called an “Application”.  The person commencing the proceeding is called the Applicant and the other party is called the Respondent. 

Once the Application has been issued by the Court (i.e. stamped and provided a court file number), the Application is personally served on the Respondent.  The Respondent then has thirty days to respond (if served in Ontario) to the Application, and file his “Answer and Claim”.

If the Respondent does not respond within the time period, he/she is noted in default by the Court.  They will then not be entitled to file any materials unless the Applicant consents to allow the Respondent to file his/her Answer or the Court provides the Respondent with permission to file an Answer. 

If the Respondent is noted in default, the Applicant may proceed to obtain all of the relief he/she is seeking at an uncontested Trial.    This is usually done in writing, wherein, a party submits to the Judge all of the necessary materials in order for the Judge to review all of the facts and evidence and make a Final Order.

If the Respondent does prepare an Answer to the Application, the first step in any case is always a Case Conference. Rule 17(4) of the Family Law Rules, states that the purposes of a case conference include the following:

(a)    exploring the chances of settling the case;

(b)   identifying the issues that are in dispute and those that are not in dispute;

(c)    exploring ways to resolve the issues that are in dispute;

(d)   ensuring disclosure of the relevant evidence;

(e)    noting admissions that may simplify the case;

(f)    setting the date for the next step in the case;

(g)   if possible, having the parties agree to a specific timetable for the steps to be taken in the case before it comes to trial;

(h)   organizing a settlement conference, or holding one if appropriate; and

(i)     giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.

Generally, the Family Law Rules dictate that a party cannot bring a Motion prior to a case Conference being held unless the party demonstrates that a Motion is very urgent.    A motion is an interim proceeding in the Litigation, wherein a party seeks an Order from the court for some interim relief (i.e. custody, access, support etc.).

After a Case Conference, either party or the court, may schedule a Settlement Conference.  Rule 17(5) of the Family Law Rules provides that the purpose of a Settlement Conference includes the following:

(a)    exploring the chances of settling the case;

(b)   settling or narrowing the issues in dispute;

(c)    ensuring disclosure of the relevant evidence;

(d)   noting admissions that may simplify the case;

(e)    if possible, obtaining the view of how the court might decide the case;

(f)    considering any other matter that may help in a quick and just conclusion of the case;

(g)   if the case is not settled, identifying the witnesses and other evidence to be presented at trial, estimating the time needed for trial and scheduling the case for trial; and,

(h)   organizing a trial management conference, or holding one if appropriate.

Usually, Case Conferences or Settlement Conferences are very helpful in assisting litigants in trying to resolve their issues.  The parties get an opportunity to present their evidence to a Judge and make their arguments in an informal setting.  If the parties are represented by counsel, it is the usual course in the Ontario Superior Court of Justice in Toronto, for only counsel and the Judge to meet in the Judge’s “chambers” (or office).  At a Case Conference or Settlement Conference, both parties and the Judge can speak frankly without concern about what they say or do may be held against them at a future time.  All discussions are on a “without prejudice” basis.  This allows for a productive forum to conduct settlement discussions.

If the parties are still unable to resolve matters after attending at a Case Conference and a Settlement Conference, the parties then attend at a Trial Management Conference.  Rule 17(6) of the Family Law Rules provides that the purpose of a trial management conference include the following:

(a)    exploring the chances of settling the case;

(b)   arranging to receive evidence by written report, an agreed statement of facts, an affidavit or other method, if appropriate;

(c)    deciding how the trial will proceed;

(d)   ensuring that the parties know what witnesses will testify and what other evidence will be presented at trial;

(e)    estimating the time needed for trial; and,

(f)    setting the trial date, if this has not already been done;

At a Case Conference, Settlement Conference, or Trial Management Conference, Rule 17(8) of the Family Law Rules provides that a Judge may do the following:

(a)    make an Order for document disclosure, questioning or filings of summaries of argument on a motion, set the times for events in the case or give directions for the next step or steps in the case;

(b)   order that evidence of a witness at trial be given by affidavit;

(c)    if notice is served, make a temporary or final order;

(d)   make an unopposed order or an order on consent; and

(e)    on consent, refer any issue for alternative dispute resolution.

Therefore, in most cases, a Judge at a Conference cannot make an interim order with respect to any substantiate issues in the case (i.e. custody, access, child and spousal support etc.). A Judge would usually insist that the parties file Affidavit evidence and argue the issue at trial.   

After a Trial Management Conference, if the parties are still unable to resolve their dispute the matter proceeds to trial. A trial is always the last resort.  The court makes every possible effort to try to resolve matters. As a result, very few court proceedings actually proceed to trial.

Litigation can become very expensive and can be emotionally and financially draining. It should be used as the last resort to resolve any issues arising out of a separation.

Article by

Lorne J. Fine

Lorne J. Fine Professional Corporation

885 Progress UP#2
Scarborough, Ontario
Phone: (416) 661-2066
Fax: (416) 661-2116

For more information on Lorne J. Fine and Lorne J. Fine Professional Corporation, visit www.lornefinefamilylaw.com