Every one of us who has watched TV or seen movies has seen the inside of a courtroom. On one side sits the jury. The witness sits in the witness box. Each lawyer sits at a desk with his or her client while there is a large area where the audience or gallery sits. Of course, the judge sits in the highest chair with gavel in hand, presiding over the proceedings.
What most family law litigants do not know is that there are many different types of court appearances, and most of them do not play out like the scenes you see on TV. For most people who have never set foot in a courtroom, the images that are most familiar are those of trials. But most family law matters do not make it to trial, and it is therefore quite likely that your courtroom appearance will be somewhat different than what you may have seen on TV.
Before we discuss the various types of family court appearances you may encounter during your separation or divorce, let us briefly discuss the differences between the various Toronto courthouses themselves.
The Toronto Courthouses
There are two levels of family court in Toronto. The high court, known as the Ontario Superior Court of Justice, deals with all matters arising from separation or divorce including custody, support, division of property, and divorce. The lower court, known as the Ontario Court of Justice, deals with custody, access, child support, and spousal support, but not division of property or divorce. If you expect to have a dispute regarding the disposition of a house or other assets, or if you want to get divorced, your matter can only be heard in the Superior Court of Justice.
There is one Superior Court of Justice in Toronto. It is located at 393 University Avenue. Currently, there are two Ontario Courts of Justice in Toronto. One is located at 311 Jarvis Street while the other is located at 47 Sheppard Avenue East. A few years ago, there were four Ontario Courts of Justice. However, both the Etobicoke court and the Scarborough court have since amalgamated into the court at 47 Sheppard Avenue East. As the population of Toronto is most certainly not shrinking, it is certainly frustrating that the number of family courthouses in Toronto is shrinking rather than expanding; the scarcity of resources often leads to unfortunate delay.
There are several other courthouses located within driving distance of Toronto. The Brampton courthouse serves all of Peel Region, the Newmarket courthouse serves all of York Region (including Thornhill, Richmond Hill, and Woodbridge), and the Oshawa and Whitby courthouses serve all of Durham Region. If you live in Toronto and your children live elsewhere, and if you are involved in a custody or access dispute, you must go to court in the region where the children reside.
It should also be noted that the Ontario Court of Appeal hears appeals of family law cases as well as well as every other type of case. The Ontario Court of Appeal is located at Osgoode Hall, the majestic building located at 130 Queen Street West in Toronto.
Unlike the Court of Appeal, the courthouses referred to above do not look the way one might think a courthouse should look from the outside. The Toronto Superior Court of Justice, for example, is actually an 18-storey office building that looks like any other downtown building. Of the 18 floors, only some of them contain court rooms and court offices. The other floors contain a variety of different business offices. This building is also home to courtrooms and court offices that deal with civil cases.
The First Court Appearance – The Case Conference
In the majority of family law cases, one’s first court appearance will be for a case conference, which is an informal but important meeting with a judge. In the Ontario Court of Justice, a case conference occurs in the courtroom. At the Superior Court of Justice, a case conference occurs in the judge’s private office (“chambers”). The only time it will not occur in chambers is if one or both of the spouses do not have a lawyer . In that case, the case conference is held in open court in the presence of a court reporter.
The purpose of a case conference is to explore the possibility of settling the case without having a formal hearing. Although a case conference is informal, parties are expected to come well prepared and fully informed about the case. The judge hearing the case conference will have read the case conference briefs filed by both parties in the case, and will be expecting the parties to work hard to try to settle on that day.
Each person’s case conference brief is prepared in a specific format. The parties’ lawyers exchange the briefs with each other, and also file them in court, prior to the case conference, so that the lawyers and the judge will be prepared.
A case conference brief sets out the following information:
- Family history
- Information about the children
- List of the issues in dispute
- The person’s version of the facts pertaining to the issues in dispute
- The person’s proposal for settling the issues in dispute
In addition, each person will have filed a sworn financial statement listing all assets and liabilities, income tax returns, and other financial documents which may assist the judge in recommending a settlement.
During the case conference, you can expect the following:
- The judge may ask the lawyers for more information about one or more of the issues in dispute.
- The judge will usually give a preliminary assessment of what would probably happen if the case went on to the formal hearing stage.
- The judge will emphasize that although his or her opinion is non-binding, the parties should take this opinion into consideration in trying to settle the case.
- If the judge thinks one or both spouses are being unreasonable, the judge will usually point this out and ask the unreasonable spouse to seriously reconsider his or her position.
- If one or both spouses has failed to disclose all the relevant facts or produce all the relevant documents, the judge will order that this information be produced and that another case conference subsequently be held.
- The judge will make sure that the parties understand that if the case is not settled at the case conference, the case will go on to a motion or trial and there will be a clear winner and a clear loser, and the loser will have to pay the winner’s legal costs. In this way, the judge will try to deter the spouses from continuing the dispute.
If the parties seem willing to explore the possibility of settlement, the case conference judge will provide guidance and suggestions. The judge may encourage the parties to go outside in the hall with their lawyers and try to negotiate a settlement. Sometimes the negotiation process goes on for hours, and the parties go back and forth to speak with the judge for additional guidance throughout the day.
If a settlement is reached, the lawyers will prepare a handwritten document called Minutes of Settlement. The Minutes of Settlement will list all the points the spouses have agreed on, and the spouses will sign it in the presence of their lawyers. The court will then provide photocopies to the spouses and their lawyers, and keep a copy in the court file. Minutes of Settlement are legally binding, just like a court order, and the lawyers usually prepare a formal court order reflecting the terms of the settlement.
If a settlement is not reached, the next step is usually a motion. If there is no settlement, the case conference briefs are removed from the court file and the judge who heard the case conference is ineligible to hear a motion in the same case.
The case conference judge cannot make an order, other than procedural orders (for example, that one spouse produce documents). Because of this, parties are free to speak more openly during the case conference and it is hoped that they will make a sincere effort to settle.
It is possible, and not unusual, to have more than one case conference.
What is a motion? What happens at a motion?
A motion is a hearing, or a mini-trial, where a person may ask the judge to make an interim (temporary) ruling on matters that are very important and cannot wait to be resolved by way of further negotiation or a trial. Examples of issues which may require a temporary ruling are:
- Custody of children
- Access to children
- Possession of the family home
- Sale of the family home
- Child support
- Spousal support
- Restraining order
If a temporary order is made following a motion, that order will generally remain in force, and establish a status quo, until a final order can be made at trial or following a settlement.
Generally, you are not allowed to make motions until you have already had a case conference. While there are exceptions to this rule, the exceptions are rare. For a judge to agree to hear a motion prior to a case conference, it must be a legal emergency, which has a very strict definition. The reason for this is that motions are by nature adversarial, and can cause lasting damage to families, and particularly children. It is therefore best to avoid a motion if there is any possibility of settling a case at the case conference stage.
In addition, motions are expensive, and the loser generally has to pay a portion of the winner’s legal costs. It can also be humiliating to lose a motion. It is far preferable for spouses to try to solve their own problems at the case conference, and to feel they have an outcome they can live with, than for one spouse to be resentful because he or she has “lost” a motion, and take this resentment out on his or her “ex”, or worse, the children. It is better for spouses not to become entrenched in conflict, and it is better for them to avoid depleting their savings on legal fees.
If a motion is absolutely necessary, this is what you can expect:
- In advance of the motion, each lawyer will have filed extensive written materials, including a notice of motion, a sworn affidavit, and a factum. These documents describe the order(s) each party wants the judge to make, sworn evidence in support of the person’s position, and a statement of the law relating to the issues in dispute.
- The night before the motion, the judge will have read each party’s written materials and will have formed a preliminary opinion as to what his or her decision will be.
- The day of the motion, each spouse’s lawyer will make an oral argument in support of his or her case. It is often the case that a key fact was not contained in the legal brief, and a judge may change his or her preliminary opinion after having heard the arguments.
- The lawyers will do virtually all the talking. Very rarely is a party expected to get up on the witness stand. You will sit at the table beside your lawyer and listen to the arguments. It is important not to interrupt, no matter how angry your spouse’s lawyer may make you feel. Your lawyer will have a chance to respond.
- Once the lawyers have completed their arguments, the judge will arrive at a decision. If the motion involves matters that were quite complex requiring detailed argument, the judge will likely defer (“reserve”) his or her decision until later on that day or maybe even that week. The decision will be typed up and faxed to your lawyer. If the motion is less complicated, the judge will render a decision immediately following the completion of the arguments.
- The judge will also decide how much the unsuccessful party has to pay the successful party to compensate the successful party for his or her legal costs.
- Once the lawyers have each received a photocopy of the decision, the lawyer for the successful party will return to his or her office and type up the decision in the form of a formal court order. A draft of the order is shown to the other side’s lawyer and once there is approval, the order is filed with the court so that the judge can sign it. Copies of the signed orders are given to you, your spouse, and the two lawyers. It can take anywhere from one to four weeks after the date of the motion before the court returns the signed order back to the parties.
It is possible to have more than one motion in a case.
Settlement Conferences and Trial Management Conferences
If case conferences and motions have been held and the conflict is still unresolved, the case will be listed for trial. The court will schedule a settlement conference to make one final attempt at assisting the spouses in settling their case before trial. The settlement conference is similar to a case conference, in that it follows a similar format and the goals are similar. The difference is that the next step following a settlement conference is not a motion but a trial management conference.
At a trial management conference, the judge attempts to narrow the issues in dispute and acquire a sense of how long the trial will take, how many witnesses each side intends to call, and other procedural matters.
It is extremely rare for a case to end up at trial. Most cases are resolved at the case conference, motion, or settlement conference stage.
Trials are extremely expensive, and most people cannot afford to have lawyers representing them at trial. The main reasons trials are so expensive are:
- They require extensive preparation by the lawyers, and lawyers bill by the hour.
- Your lawyer may need to file one or more expert reports, which can be quite costly.
- You will need to take time off work and may lose pay.
- Your lawyer will need to be in court for several days, and, once again, is billing by the hour. In addition, your lawyer may need to work on your case during the evenings to respond to new issues that may arise during the trial.
- If you lose, you will have to pay a portion of your spouse’s legal costs, on top of your own fees.
As well, there is a significant emotional cost to going to trial. It is a very draining experience, and the stress builds up for months beforehand.
For these reasons, most people are motivated to settle prior to going to trial. It is estimated that only 2% of family law cases ever go to trial.
If you are one of the unlucky few, speak with your lawyer about what to expect.
It is hoped that you now have a better understanding of the various types of court appearances you may encounter in Toronto courtrooms during the course of your family litigation. It is important to note that, while procedures are generally uniform across Ontario, slight regional differences may be encountered. If you are filing documents or appearing in court outside of Toronto, efforts should be made to become aware of any of these differences. Finally, it must be remembered that the foregoing is meant as a general summary only and should not be relied upon as a substitute for individualized legal advice.