Represent yourself in family court in Ontario
All cases involving custody, support or property issues resulting from the breakdown of a marital relationship are governed by the Family Law Rules, which we will refer to as the Rules.The Rules set out certain procedures which must be followed and forms which must be used throughout the proceeding. Court staff may refuse to accept documents that do not conform to the Rules and forms.
Proceedings under the Rules can be brought in either the Superior Court of Justice or the Ontario Court of Justice and the Rules and forms apply in both courts. The difference between the two courts is that except in certain circumstances, only the Superior Court of Justice can deal with claims relating to division of property or possession of a matrimonial home. There are minor differences between the way a proceeding is dealt with in the Superior Court of Justice versus a proceeding in the Ontario Court of Justice. We will discuss the differences in more detail later, but the differences are found in the way that the courts operate; the procedures and forms are identical regardless in which court a case is proceeding.
If you are involved in a family law case in a court in Ontario, read the Rules. They are applied throughout the case and they always apply. If you are completing a form, read it carefully and complete it carefully. If you fail to follow the Rules or the forms it could seriously hurt your case or your could be ordered to pay a substantial amount in costs to the other party. It could also significantly delay your case.
Unfortunately, the manner in which the Family Law Rules are interpreted and enforced differs to a certain degree from one municipality to another. Certain aspects of the Rules may be strictly enforced by a court in one location and not enforced at all by a court in another location. Some courts have their own procedures which are not even set out in the rules.
The other thing to keep in mind is that you are far better off being on good terms with court staff rather than alienating them. The amount of co-operation that you get from court staff can make a significant difference in how much difficulty you have in pursuing your case and could ultimately have significant implications to the outcome of your case. Court staff are generally helpful if approached in the right way. Keep in mind that court staff are required to follow the law and are not allowed to give you advice: getting abusive or argumentative will not get you anywhere.
The Family Law Rules can be found at
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm
and the forms required by the Family law Rules can be found at
http://www.ontariocourtforms.on.ca/english/family/
I recommend that you always refer to these particular websites to review the Rules or obtain forms. These are the official government websites and are very current. The rules and forms are amended from time to time and again, you don't want to end up at the court office at 4:30 on the last day for filing a document only to find out that you were reading an outdated version of the Rules or that the form that you are using is out of date.
The Rules set out deadlines for taking any step in the case and they are strictly enforced. There are different deadlines for each step. The Rules state that a step cannot be taken after the deadline unless the other party consents or the judge makes an order. Even if the other party does consent, the court still may not extend the deadline.
At many courts you will find Duty Counsel. Duty Counsel are lawyers who are paid by Legal Aid Ontario to assist individuals who have cases in the court but who do not have a lawyer. You will usually find Duty Counsel at the Ontario Court of Justice, but there are limits on Duty Counsel's ability to assist individuals.
A court proceeding starts by one party filing documents with the court. The documents may be in the form of an Application or a Notice of Motion or a Motion to Change. An Application is generally used when it is the first case between the parties. A Motion is used to start a proceeding when there is already an existing court order or agreement. If the claim is to change the terms of a previous court order or a Separation Agreement then the claim will usually be in the form of a Motion to Change, although it could also be in the form of an Application.
For simplicity, I will use the term "claim" when I refer to the Application or Notice of Motion unless there is a particular situation specific to an Application or Motion which I will clarify. A Notice of Motion and an Application operate in very similar ways throughout the case.
The party filing an Application is referred to as the Applicant and the party filing a Notice of Motion is referred to as the moving party. If there has not been a previous proceeding in the court, the person who files a claim first is the Applicant and the other party is the Respondent. If there has been a previous proceeding, the parties are referred to the same way as in the previous proceeding. So a person filing a Motion which starts a case may actually be the Respondent, if he or she was the Respondent in the previous proceeding.
For discussion purposes I will refer to the parties as Barbie and Ken. Barbie is filing a claim against Ken.
Barbie's claim should set out exactly what she is asking the court to order and should also set out the reasons why she believes she is entitled to receive what she is asking for. Be specific when stating what you are asking for: don't assume the other side or the judge knows what you want. Judges do not like surprises and you may be out of luck if the judge decides that you are not entitled to an order because your didn't specify what you wanted. If you are asking for support, state how much. If you want contribution to children's expenses don't just ask for child support. For more information on what to claim and how to claim it see the chapter entitled "Stake Your Claim". The court can make an order that hasn't been asked for but there are limits.
If you realize that you forgot to ask for something you can add it provided that it is not too late in the case. How late you can change your claim depends on what the change is. You can change your claim any time if the other side agrees to let you do so. The other side doesn't have to agree to let you change your claim and you don't have to agree to let the other side change their claim if they ask.
Once Barbie files her claim with the court, she must then have it served on Ken. Serving a document refers to the process of delivering the document to the person. There are a number of ways to serve a document on a person under the Rules. The manner in which a document can be served depends on what document is being served.
Once the claim has been served, the party who served the document must complete an Affidavit of Service, which contains a statement sworn under oath setting out what document was served, who was served, when it was served and how it was served. Usually documents cannot be filed with the court unless they have been served on the other party and an Affidavit of Service is filed with the document.
Once the claim is served on Ken he must file a response within a specified time. In a proceeding commenced by an Application the response is referred to as an Answer. In a proceeding commenced by a Motion Ken's response may be in the form of an Affidavit or a Response to Motion to Change. If Ken was in Canada when he was served, he must file his response with the court office within 30 days. If he was outside Canada when he was served he has 60 days to file his response.
If Ken wants to seek an order against Barbie, he can do so as part of his response to Barbie's claim. If Barbie's claim is in the form of an Application, Ken makes his claim by completing the part of the Answer entitled Claim by Respondent. If Barbie's claim is in the form of a Motion to Change,, Ken makes his claim by completing the portion of the Response to Motion to Change entitled Claim by Responding Party.
In some municipalities the first court date in the Ontario Court of Justice takes place in front of the Registrar of the court as opposed to a judge and is only for the purpose of scheduling the next court date. In other municipalities the first court date is in front of a judge. If Ken has filed a response, normally a Case Conference would be scheduled. If the first appearance takes place in front of a judge, the judge may conduct a Case Conference at that time. If Ken has not filed an Answer and the time for doing so has expired, an uncontested hearing would be scheduled. If Ken requests, a judge may extend the time for him to file a response.
If an Uncontested Hearing is scheduled, the Applicant is entitled to ask the judge to make an order and the Respondent does not have an opportunity to respond. Barbie is usually required to file an Affidavit for Uncontested Hearing setting out the facts that are needed to establish that she is entitled to the order which is being asked for. An Affidavit is required because the court cannot make an order unless there is evidence to justify it. An Application is not evidence. The Application and Answer (which are often referred to as pleadings) are only intended to provide a general overview of the issues and the facts involved in the case. Although both are signed by the parties filing them, they are not sworn under oath and therefore do not constitute evidence.
If the judge at the Uncontested Hearing makes a final order dealing with all of Barbie's claims, that is the end of the case. If Ken intended to respond to the proceeding but did not, he can ask to have the order set aside. If he is successful, the case would resume.
If Ken files a response, a Case Conference is usually held. The Rules require that a Case Conference must be held once a response is filed. A Case Conference may be scheduled by the court. If not, it is up to one of the parties to arrange a Case Conference by preparing a Notice of Case Conference, filing it with the court and serving it on the other party. The Case Conference is a meeting between the parties, their lawyers and the judge to discuss the case.
The parties must file a Case Conference Brief prior to the Case Conference. A Brief is a summary of the issues in the case, the parties' position regarding those issues and the parties' position regarding any procedural issues.
The case conference is held in the courtroom in front of a judge. The purpose of the Case Conference is to discuss what the issues in the case are, whether any of the issues can be resolved by agreement and what steps need to be taken in order that the case can be resolved as quickly as possible. Matters that are usually dealt with at the Case Conference include whether any other persons need to be involved in the case, whether parties need to provide documents such as medical records or income information and whether children need to be represented by their own lawyer.
It is important to consider prior to the Case Conference what evidence you are going to present at trial to support your case. The Case Conference is the best opportunity to obtain information that you need. For example, if the case is about child support, the judge will certainly make an order that parties whose income is relevant to the determination of the issue of child support produce documentation to show what their income is such as Income Tax Returns, pay stubs, financial statements for businesses and so on. If a party's physical or mental health is in issue the judge will order the party to produce medical records. It is much easier to obtain this information by having the judge at the Case Conference order the party to produce documents. If you don't obtain a court order you have to serve a Summons to Witness on the people who have the records. This is a complicated and difficult process and you won't get the information until the actual trial.
At the Case Conference the judge should not make orders dealing with actual issues in the proceeding, such as custody, access or support, unless the parties agree that an order should be made and agree on the terms of the order to be made. The judge should only make orders dealing with procedural matters, such as requiring parties to provide information or scheduling steps in the proceeding. If one of the parties wants a judge to make an order and the other party does not agree, the party who wants the order must file a Motion. Sometimes judges do make orders dealing with custody, access or support even though the parties do not agree, but such orders are clearly being made improperly. Unfortunately the only recourse if such an order is made is to file an appeal which is a complicated and time consuming process. The appeal process often takes so long that the case could actually be finished before the appeal is completed.
If a party wants a judge to make an order prior to trial and the other party doesn't agree, the party seeking the order must bring a Motion. A Motion is initiated by filing a Notice of Motion stating what is being asked for along with an Affidavit explaining why the party is entitled to the order. The other party is then entitled to file an Affidavit expIaining why he or she feels the order should not be made and can also file a separate Notice of Motion requesting other orders. There would then be a hearing in front of a judge who will make a decision based on whatever Affidavits are filed. A Motion can be filed at any time during the proceeding except prior to the Case Conference unless there is a matter of urgency or hardship which must be dealt with prior to the Case Conference. Judges are fairly strict in limiting the circumstances where a Motion can be heard prior to the case conference. Generally a party has to show that there would be serious consequences if an order were not made immediately, such as where a child has been removed from his usual home without the consent of the parent he lived with. If a party is in urgent need of support a motion could be brought prior to the case conference.
Motions that are commonly heard during the case deal with support or residence of children pending trial. Because it could take a year or more for a case to get to trial these issues must be dealt with on a temporary basis until they can be decided at trial, and thus orders made at motions are referred to as "Temporary Orders".
I can't emphasize enough the importance of complying with orders. Technically a person who does not comply with a court order is in contempt and can be fined or jailed or his case may be dismissed. These consequences are rare because a contempt proceeding is essentially the same as a proceeding where a person is charged with a crime and is time consuming and difficult to prove. However, even in the absence of a formal contempt proceeding judges will take serious issue with parties who don't comply with orders. They can order that the party pay substantial amounts in costs or that their cases be dismissed.
Whenever a case is dealt with in court there is what we call an endorsement. The endorsement is what is written by the judge in the case file. It is crucial that you obtain and review the endorsement immediately after the court is finished with the case. Before you leave the court ask for a copy of the endorsement. Usually it will be provided to you. Sometimes you can't get a copy of the endorsement until the next day. Either way, get a copy and review it carefully. If you can't read it ask the court staff. Make a note of anything you are required to do and any deadline for doing it. If you have been ordered to do something you have to do it unless it is not possible. And I don't mean it's difficult or it's time consuming or you don't think you should have to. If you've been ordered to do it you have to do it unless a judge subsequently says you don't have to which is unlikely. It is also a good idea to make a note of anything the other party is required to do and send him a reminder if he doesn't comply. That way you can make an issue of the other party's non-compliance next time you are in front of a judge.
After the Case Conference a date is usually scheduled for a Settlement Conference. The Settlement Conference is similar to a Case Conference in that it is also a meeting in the courtroom between the parties and their lawyers and a judge, except that the purpose of the Settlement Conference is to attempt to settle the Case.
Prior to the Settlement Conference the parties are required to file a Settlement Conference Brief, which is very similar to the Case Conference Brief, except that there is more focus on the actual issues themselves and the evidence the parties intend to present to support their positions on those issues. At the Settlement Conference, the judge will give his or her views as to how the case would be decided if it were to go to trial.
If the matter is not resolved at the settlement conference, the next step is to put the case on the trial list. The actual trial may be weeks or many months after the Settlement Conference. There are many cases waiting to go to trial and it is often difficult to schedule trials given the various schedules of the parties, the lawyers and the judges.
At any time during the course of the proceeding, either party may serve the other party with an Offer to Settle. The parties are required to include an Offer to Settle with their Settlement Conference Briefs. An Offer to Settle may have serious consequences because if the matter proceeds to trial, then at the end of the trial when the judge is deciding whether one party should pay the other party's legal costs he will take into account whether the parties made offers to settle and how close those offers were to the result at trial. An Offer to Settle could mean thousands of dollars in costs after the trial. We deal with Offers to Settle in more detail in a later chapter.
As far as setting dates for trial. again there are numerous different ways that different courts handle trial dates. The simplest is a fixed trial date. This means that you are told that your case will go to trial on a certain date and that is when your trial will start. This does not happen very often and the simple reason is that even though cases are actually scheduled for trial, they usually don't actually proceed to trial because of the financial and emotional cost to the parties and the risk involved.
The other common way of scheduling trials is what is known as the running trial list. This system involves a process where any number of cases that are ready for trial are put on one list in numerical order according to the order in which they are placed on the trial list. There may be 50 or 100 cases on the list at any given time. The Trial Co-ordinator will then go through the list and notify parties when their case is going to proceed to trial.
When it comes time to discuss trial dates, make sure you know when you and your witnesses will be available. Judges will try to accommodate parties and witnesses when scheduling trials so as to inconvenience them as little as possible but having to go to work or not having a babysitter will generally not fly as excuses. You can force a witness to attend at the trial regardless of when it takes place by serving him with a Summons but you want to avoid this if possible because it is not always easy.
Courts in some areas hear trials all the time, although this generally only happens in Toronto where there are lots of judges and lots of courtrooms. Usually a court will only hear trials during certain periods which are referred to as sittings. Some courts will have trials over three or four days once each month or two. Some courts will hear trials for three or four weeks every month or two.
With the running list system there are two ways that a case can be put on a list. The first is that a judge will make an order that the case proceed to trial during a certain week. If the case does not proceed to trial during that week then it would likely have to come back another day in front of a judge to assign another trial week. The second procedure is that there is one long running list for all the cases that are ready to proceed to trial. During each period when the court is hearing trials, the trial co-ordinator will go through the cases on the list and when one case is completed the next one will start. In some courts there will be what is called an Assignment Court where a judge will review with the lawyers or self- represented parties whether the case is ready to proceed to trial and how long the case will take. The judge and the court staff can then make arrangements to schedule trials during that 4 or 5 week period. The problem with this system is that lawyers and parties who are involved in cases that are on the list are subject to being called for trial with as little as 24 hours notice any time during the period when trials are being heard and then after waiting anxiously for 4 or 5 weeks many times the case is not called at all and the entire process will repeat itself in 4 or 8 weeks.
When a case proceeds to trial, it may continue every day until it is completed or it may be scheduled to proceed only on certain days. Before a trial is scheduled, the parties have to provide the court with an estimate as to how long the case is expected to take to complete. This is a difficult task even for experienced lawyers because one never knows what is going to happen during the trial. For self-represented litigants it will be practically impossible because without having conducted trials, you will have no idea how long it will take deal with the various issues that are involved.
Trials usually start at 9:30 or 10:00 in the morning. Courts usually break for lunch from about 1:00 p.m. to 2:00 p.m. Courts usually stop for the day around 4:30 p.m. Make sure you are at the right courtroom ready to proceed at the appointed time when court starts or resumes. Judges will generally go out of their way to be patient with individuals who are representing themselves and are not familiar court procedures or the law but they will get annoyed very quickly when they are sitting waiting to hear your case and you can't be bothered to show up on time. If your case is important to you, act like it is. If you don't show up at the appointed time, the judge is entitled to proceed without you.
Be organized. The judge may have to sit and listen to your case for days so the last thing you want to do is make a judge wait while you rummage through plastic bags full of loose paper. Go to Staples and buy a bunch of binders and numbered tabs and organize your documents so you can find them in seconds when you need them.
At the beginning of the trial the parties are entitled to make an opening statement. One of the biggest mistakes that even experienced lawyers make and that almost all self-represented parties make is not making an opening statement.
You want to make the judges job easier, not harder. If both parties are unrepresented, the judge will not be expecting opening statements so if the judge does not offer you an opportunity to make an opening statement, politely ask him or her if you would be permitted to do so.
When the trial begins, the Applicant usually presents his or her case first. The Applicant calls a witness who gives evidence and the Respondent is then entitled to cross-examine the witness. This continues until all of the Applicant's witnesses have testified and been cross-examined. The Respondent then calls his or her witness and when the witness is finished testifying, the Applicant is entitled to cross examine. The difficult part about a trial is that it is a one-shot deal. If you forget to call a witness when it is your turn to call witnesses, you may not get another chance so make a list of the witnesses you intend to call and make sure you call them all.
Once all the witnesses have testified, the parties are entitled to make closing arguments. Closing arguments are similar to opening statements except that the emphasis should be on pointing out IMPORTANT evidence that came out during the trial which supports your case.
That's it. It's over and now you have to wait for the judge to make a decision. The judge may make a decision the same day that the trial ends or you may not get a decision for months. Unfortunately, there's nothing you can do but wait.
Once the judge makes a decision, you're pretty much stuck with it. Although you have the right to file an Appeal, many people consider the right to an Appeal to be an opportunity to have another trial which is not the case. If you are really convinced that the trial judge's decision is wrong, you hreally should hire a lawyer. Appeals are so difficult and complicated that most lawyers won't even handle them.
If you really feel that an order is wrong and should be appealed, you have to take steps immediately. Again there are time limits which are strictly enforced. Appeal procedures are dealt with in more detail in a later chapter.
For more information on how to represent yourself, contact us at www.gclawyers.com .
Proceedings under the Rules can be brought in either the Superior Court of Justice or the Ontario Court of Justice and the Rules and forms apply in both courts. The difference between the two courts is that except in certain circumstances, only the Superior Court of Justice can deal with claims relating to division of property or possession of a matrimonial home. There are minor differences between the way a proceeding is dealt with in the Superior Court of Justice versus a proceeding in the Ontario Court of Justice. We will discuss the differences in more detail later, but the differences are found in the way that the courts operate; the procedures and forms are identical regardless in which court a case is proceeding.
If you are involved in a family law case in a court in Ontario, read the Rules. They are applied throughout the case and they always apply. If you are completing a form, read it carefully and complete it carefully. If you fail to follow the Rules or the forms it could seriously hurt your case or your could be ordered to pay a substantial amount in costs to the other party. It could also significantly delay your case.
Unfortunately, the manner in which the Family Law Rules are interpreted and enforced differs to a certain degree from one municipality to another. Certain aspects of the Rules may be strictly enforced by a court in one location and not enforced at all by a court in another location. Some courts have their own procedures which are not even set out in the rules.
The other thing to keep in mind is that you are far better off being on good terms with court staff rather than alienating them. The amount of co-operation that you get from court staff can make a significant difference in how much difficulty you have in pursuing your case and could ultimately have significant implications to the outcome of your case. Court staff are generally helpful if approached in the right way. Keep in mind that court staff are required to follow the law and are not allowed to give you advice: getting abusive or argumentative will not get you anywhere.
The Family Law Rules can be found at
http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm
and the forms required by the Family law Rules can be found at
http://www.ontariocourtforms.on.ca/english/family/
I recommend that you always refer to these particular websites to review the Rules or obtain forms. These are the official government websites and are very current. The rules and forms are amended from time to time and again, you don't want to end up at the court office at 4:30 on the last day for filing a document only to find out that you were reading an outdated version of the Rules or that the form that you are using is out of date.
The Rules set out deadlines for taking any step in the case and they are strictly enforced. There are different deadlines for each step. The Rules state that a step cannot be taken after the deadline unless the other party consents or the judge makes an order. Even if the other party does consent, the court still may not extend the deadline.
At many courts you will find Duty Counsel. Duty Counsel are lawyers who are paid by Legal Aid Ontario to assist individuals who have cases in the court but who do not have a lawyer. You will usually find Duty Counsel at the Ontario Court of Justice, but there are limits on Duty Counsel's ability to assist individuals.
A court proceeding starts by one party filing documents with the court. The documents may be in the form of an Application or a Notice of Motion or a Motion to Change. An Application is generally used when it is the first case between the parties. A Motion is used to start a proceeding when there is already an existing court order or agreement. If the claim is to change the terms of a previous court order or a Separation Agreement then the claim will usually be in the form of a Motion to Change, although it could also be in the form of an Application.
For simplicity, I will use the term "claim" when I refer to the Application or Notice of Motion unless there is a particular situation specific to an Application or Motion which I will clarify. A Notice of Motion and an Application operate in very similar ways throughout the case.
The party filing an Application is referred to as the Applicant and the party filing a Notice of Motion is referred to as the moving party. If there has not been a previous proceeding in the court, the person who files a claim first is the Applicant and the other party is the Respondent. If there has been a previous proceeding, the parties are referred to the same way as in the previous proceeding. So a person filing a Motion which starts a case may actually be the Respondent, if he or she was the Respondent in the previous proceeding.
For discussion purposes I will refer to the parties as Barbie and Ken. Barbie is filing a claim against Ken.
Barbie's claim should set out exactly what she is asking the court to order and should also set out the reasons why she believes she is entitled to receive what she is asking for. Be specific when stating what you are asking for: don't assume the other side or the judge knows what you want. Judges do not like surprises and you may be out of luck if the judge decides that you are not entitled to an order because your didn't specify what you wanted. If you are asking for support, state how much. If you want contribution to children's expenses don't just ask for child support. For more information on what to claim and how to claim it see the chapter entitled "Stake Your Claim". The court can make an order that hasn't been asked for but there are limits.
If you realize that you forgot to ask for something you can add it provided that it is not too late in the case. How late you can change your claim depends on what the change is. You can change your claim any time if the other side agrees to let you do so. The other side doesn't have to agree to let you change your claim and you don't have to agree to let the other side change their claim if they ask.
Once Barbie files her claim with the court, she must then have it served on Ken. Serving a document refers to the process of delivering the document to the person. There are a number of ways to serve a document on a person under the Rules. The manner in which a document can be served depends on what document is being served.
Once the claim has been served, the party who served the document must complete an Affidavit of Service, which contains a statement sworn under oath setting out what document was served, who was served, when it was served and how it was served. Usually documents cannot be filed with the court unless they have been served on the other party and an Affidavit of Service is filed with the document.
Once the claim is served on Ken he must file a response within a specified time. In a proceeding commenced by an Application the response is referred to as an Answer. In a proceeding commenced by a Motion Ken's response may be in the form of an Affidavit or a Response to Motion to Change. If Ken was in Canada when he was served, he must file his response with the court office within 30 days. If he was outside Canada when he was served he has 60 days to file his response.
If Ken wants to seek an order against Barbie, he can do so as part of his response to Barbie's claim. If Barbie's claim is in the form of an Application, Ken makes his claim by completing the part of the Answer entitled Claim by Respondent. If Barbie's claim is in the form of a Motion to Change,, Ken makes his claim by completing the portion of the Response to Motion to Change entitled Claim by Responding Party.
In some municipalities the first court date in the Ontario Court of Justice takes place in front of the Registrar of the court as opposed to a judge and is only for the purpose of scheduling the next court date. In other municipalities the first court date is in front of a judge. If Ken has filed a response, normally a Case Conference would be scheduled. If the first appearance takes place in front of a judge, the judge may conduct a Case Conference at that time. If Ken has not filed an Answer and the time for doing so has expired, an uncontested hearing would be scheduled. If Ken requests, a judge may extend the time for him to file a response.
If an Uncontested Hearing is scheduled, the Applicant is entitled to ask the judge to make an order and the Respondent does not have an opportunity to respond. Barbie is usually required to file an Affidavit for Uncontested Hearing setting out the facts that are needed to establish that she is entitled to the order which is being asked for. An Affidavit is required because the court cannot make an order unless there is evidence to justify it. An Application is not evidence. The Application and Answer (which are often referred to as pleadings) are only intended to provide a general overview of the issues and the facts involved in the case. Although both are signed by the parties filing them, they are not sworn under oath and therefore do not constitute evidence.
If the judge at the Uncontested Hearing makes a final order dealing with all of Barbie's claims, that is the end of the case. If Ken intended to respond to the proceeding but did not, he can ask to have the order set aside. If he is successful, the case would resume.
If Ken files a response, a Case Conference is usually held. The Rules require that a Case Conference must be held once a response is filed. A Case Conference may be scheduled by the court. If not, it is up to one of the parties to arrange a Case Conference by preparing a Notice of Case Conference, filing it with the court and serving it on the other party. The Case Conference is a meeting between the parties, their lawyers and the judge to discuss the case.
The parties must file a Case Conference Brief prior to the Case Conference. A Brief is a summary of the issues in the case, the parties' position regarding those issues and the parties' position regarding any procedural issues.
The case conference is held in the courtroom in front of a judge. The purpose of the Case Conference is to discuss what the issues in the case are, whether any of the issues can be resolved by agreement and what steps need to be taken in order that the case can be resolved as quickly as possible. Matters that are usually dealt with at the Case Conference include whether any other persons need to be involved in the case, whether parties need to provide documents such as medical records or income information and whether children need to be represented by their own lawyer.
It is important to consider prior to the Case Conference what evidence you are going to present at trial to support your case. The Case Conference is the best opportunity to obtain information that you need. For example, if the case is about child support, the judge will certainly make an order that parties whose income is relevant to the determination of the issue of child support produce documentation to show what their income is such as Income Tax Returns, pay stubs, financial statements for businesses and so on. If a party's physical or mental health is in issue the judge will order the party to produce medical records. It is much easier to obtain this information by having the judge at the Case Conference order the party to produce documents. If you don't obtain a court order you have to serve a Summons to Witness on the people who have the records. This is a complicated and difficult process and you won't get the information until the actual trial.
At the Case Conference the judge should not make orders dealing with actual issues in the proceeding, such as custody, access or support, unless the parties agree that an order should be made and agree on the terms of the order to be made. The judge should only make orders dealing with procedural matters, such as requiring parties to provide information or scheduling steps in the proceeding. If one of the parties wants a judge to make an order and the other party does not agree, the party who wants the order must file a Motion. Sometimes judges do make orders dealing with custody, access or support even though the parties do not agree, but such orders are clearly being made improperly. Unfortunately the only recourse if such an order is made is to file an appeal which is a complicated and time consuming process. The appeal process often takes so long that the case could actually be finished before the appeal is completed.
If a party wants a judge to make an order prior to trial and the other party doesn't agree, the party seeking the order must bring a Motion. A Motion is initiated by filing a Notice of Motion stating what is being asked for along with an Affidavit explaining why the party is entitled to the order. The other party is then entitled to file an Affidavit expIaining why he or she feels the order should not be made and can also file a separate Notice of Motion requesting other orders. There would then be a hearing in front of a judge who will make a decision based on whatever Affidavits are filed. A Motion can be filed at any time during the proceeding except prior to the Case Conference unless there is a matter of urgency or hardship which must be dealt with prior to the Case Conference. Judges are fairly strict in limiting the circumstances where a Motion can be heard prior to the case conference. Generally a party has to show that there would be serious consequences if an order were not made immediately, such as where a child has been removed from his usual home without the consent of the parent he lived with. If a party is in urgent need of support a motion could be brought prior to the case conference.
Motions that are commonly heard during the case deal with support or residence of children pending trial. Because it could take a year or more for a case to get to trial these issues must be dealt with on a temporary basis until they can be decided at trial, and thus orders made at motions are referred to as "Temporary Orders".
I can't emphasize enough the importance of complying with orders. Technically a person who does not comply with a court order is in contempt and can be fined or jailed or his case may be dismissed. These consequences are rare because a contempt proceeding is essentially the same as a proceeding where a person is charged with a crime and is time consuming and difficult to prove. However, even in the absence of a formal contempt proceeding judges will take serious issue with parties who don't comply with orders. They can order that the party pay substantial amounts in costs or that their cases be dismissed.
Whenever a case is dealt with in court there is what we call an endorsement. The endorsement is what is written by the judge in the case file. It is crucial that you obtain and review the endorsement immediately after the court is finished with the case. Before you leave the court ask for a copy of the endorsement. Usually it will be provided to you. Sometimes you can't get a copy of the endorsement until the next day. Either way, get a copy and review it carefully. If you can't read it ask the court staff. Make a note of anything you are required to do and any deadline for doing it. If you have been ordered to do something you have to do it unless it is not possible. And I don't mean it's difficult or it's time consuming or you don't think you should have to. If you've been ordered to do it you have to do it unless a judge subsequently says you don't have to which is unlikely. It is also a good idea to make a note of anything the other party is required to do and send him a reminder if he doesn't comply. That way you can make an issue of the other party's non-compliance next time you are in front of a judge.
After the Case Conference a date is usually scheduled for a Settlement Conference. The Settlement Conference is similar to a Case Conference in that it is also a meeting in the courtroom between the parties and their lawyers and a judge, except that the purpose of the Settlement Conference is to attempt to settle the Case.
Prior to the Settlement Conference the parties are required to file a Settlement Conference Brief, which is very similar to the Case Conference Brief, except that there is more focus on the actual issues themselves and the evidence the parties intend to present to support their positions on those issues. At the Settlement Conference, the judge will give his or her views as to how the case would be decided if it were to go to trial.
If the matter is not resolved at the settlement conference, the next step is to put the case on the trial list. The actual trial may be weeks or many months after the Settlement Conference. There are many cases waiting to go to trial and it is often difficult to schedule trials given the various schedules of the parties, the lawyers and the judges.
At any time during the course of the proceeding, either party may serve the other party with an Offer to Settle. The parties are required to include an Offer to Settle with their Settlement Conference Briefs. An Offer to Settle may have serious consequences because if the matter proceeds to trial, then at the end of the trial when the judge is deciding whether one party should pay the other party's legal costs he will take into account whether the parties made offers to settle and how close those offers were to the result at trial. An Offer to Settle could mean thousands of dollars in costs after the trial. We deal with Offers to Settle in more detail in a later chapter.
As far as setting dates for trial. again there are numerous different ways that different courts handle trial dates. The simplest is a fixed trial date. This means that you are told that your case will go to trial on a certain date and that is when your trial will start. This does not happen very often and the simple reason is that even though cases are actually scheduled for trial, they usually don't actually proceed to trial because of the financial and emotional cost to the parties and the risk involved.
The other common way of scheduling trials is what is known as the running trial list. This system involves a process where any number of cases that are ready for trial are put on one list in numerical order according to the order in which they are placed on the trial list. There may be 50 or 100 cases on the list at any given time. The Trial Co-ordinator will then go through the list and notify parties when their case is going to proceed to trial.
When it comes time to discuss trial dates, make sure you know when you and your witnesses will be available. Judges will try to accommodate parties and witnesses when scheduling trials so as to inconvenience them as little as possible but having to go to work or not having a babysitter will generally not fly as excuses. You can force a witness to attend at the trial regardless of when it takes place by serving him with a Summons but you want to avoid this if possible because it is not always easy.
Courts in some areas hear trials all the time, although this generally only happens in Toronto where there are lots of judges and lots of courtrooms. Usually a court will only hear trials during certain periods which are referred to as sittings. Some courts will have trials over three or four days once each month or two. Some courts will hear trials for three or four weeks every month or two.
With the running list system there are two ways that a case can be put on a list. The first is that a judge will make an order that the case proceed to trial during a certain week. If the case does not proceed to trial during that week then it would likely have to come back another day in front of a judge to assign another trial week. The second procedure is that there is one long running list for all the cases that are ready to proceed to trial. During each period when the court is hearing trials, the trial co-ordinator will go through the cases on the list and when one case is completed the next one will start. In some courts there will be what is called an Assignment Court where a judge will review with the lawyers or self- represented parties whether the case is ready to proceed to trial and how long the case will take. The judge and the court staff can then make arrangements to schedule trials during that 4 or 5 week period. The problem with this system is that lawyers and parties who are involved in cases that are on the list are subject to being called for trial with as little as 24 hours notice any time during the period when trials are being heard and then after waiting anxiously for 4 or 5 weeks many times the case is not called at all and the entire process will repeat itself in 4 or 8 weeks.
When a case proceeds to trial, it may continue every day until it is completed or it may be scheduled to proceed only on certain days. Before a trial is scheduled, the parties have to provide the court with an estimate as to how long the case is expected to take to complete. This is a difficult task even for experienced lawyers because one never knows what is going to happen during the trial. For self-represented litigants it will be practically impossible because without having conducted trials, you will have no idea how long it will take deal with the various issues that are involved.
Trials usually start at 9:30 or 10:00 in the morning. Courts usually break for lunch from about 1:00 p.m. to 2:00 p.m. Courts usually stop for the day around 4:30 p.m. Make sure you are at the right courtroom ready to proceed at the appointed time when court starts or resumes. Judges will generally go out of their way to be patient with individuals who are representing themselves and are not familiar court procedures or the law but they will get annoyed very quickly when they are sitting waiting to hear your case and you can't be bothered to show up on time. If your case is important to you, act like it is. If you don't show up at the appointed time, the judge is entitled to proceed without you.
Be organized. The judge may have to sit and listen to your case for days so the last thing you want to do is make a judge wait while you rummage through plastic bags full of loose paper. Go to Staples and buy a bunch of binders and numbered tabs and organize your documents so you can find them in seconds when you need them.
At the beginning of the trial the parties are entitled to make an opening statement. One of the biggest mistakes that even experienced lawyers make and that almost all self-represented parties make is not making an opening statement.
You want to make the judges job easier, not harder. If both parties are unrepresented, the judge will not be expecting opening statements so if the judge does not offer you an opportunity to make an opening statement, politely ask him or her if you would be permitted to do so.
When the trial begins, the Applicant usually presents his or her case first. The Applicant calls a witness who gives evidence and the Respondent is then entitled to cross-examine the witness. This continues until all of the Applicant's witnesses have testified and been cross-examined. The Respondent then calls his or her witness and when the witness is finished testifying, the Applicant is entitled to cross examine. The difficult part about a trial is that it is a one-shot deal. If you forget to call a witness when it is your turn to call witnesses, you may not get another chance so make a list of the witnesses you intend to call and make sure you call them all.
Once all the witnesses have testified, the parties are entitled to make closing arguments. Closing arguments are similar to opening statements except that the emphasis should be on pointing out IMPORTANT evidence that came out during the trial which supports your case.
That's it. It's over and now you have to wait for the judge to make a decision. The judge may make a decision the same day that the trial ends or you may not get a decision for months. Unfortunately, there's nothing you can do but wait.
Once the judge makes a decision, you're pretty much stuck with it. Although you have the right to file an Appeal, many people consider the right to an Appeal to be an opportunity to have another trial which is not the case. If you are really convinced that the trial judge's decision is wrong, you hreally should hire a lawyer. Appeals are so difficult and complicated that most lawyers won't even handle them.
If you really feel that an order is wrong and should be appealed, you have to take steps immediately. Again there are time limits which are strictly enforced. Appeal procedures are dealt with in more detail in a later chapter.
For more information on how to represent yourself, contact us at www.gclawyers.com .
