Litigation is one method available to resolve the issues arising from a separation and may be necessary where immediate action is required due to safety or hardship concerns. It is also used when the parties are unable to reach an agreement through negotiation or other means.
Court proceedings in family law are governed by the Family Law Rules and can be commenced with an Application (for new matters) or a Motion to Change (for matters regarding previously made orders).
The normal course of a court proceeding can be briefly summarized as follows:
- The moving party serves and files an Application or Motion to Change. (Rules 8 and 15)
- The responding party then has 30 days to serve and file an Answer or Response to Motion to Change. (Rule 10)
- The moving party may serve and file a Reply, if necessary, responding to deal with any new issues raised by the responding documentation.
- A First Appearance may be scheduled requiring the parties to attend before the court clerk to ensure that the necessary documents have been served and filed and to schedule a Case Conference.
- A Case Conference is held before a judge with the objectives of exploring possibilities of settlement, identifying and narrowing the issues of dispute, exploring means to resolve those disputes, and ensuring all necessary disclosure is provided to determine the issues. The parties are required to prepare, serve, and file Case Conference Briefs and updated Financial Statements (where applicable). Parties will sometimes settle some or all of the issues at a Case Conference, the terms of which are then incorporated into Minutes of Settlement and/or a court order. If the matter is not settled it will proceed to the next stage, known as a Settlement Conference. (Rule 17)
- Motions for temporary orders may be brought after a Case Conference. In cases where a party can establish urgency or hardship requiring immediate court intervention, a motion may also be brought prior to the Case Conference. There are specific rules regarding the materials, timelines, and other procedures for motions. (Rule 14)
- A Settlement Conference is similar to a Case Conference, however, as disclosure is expected to be completed by that time, more emphasis is placed on settlement. Parties are required to prepare, serve, and file Settlement Conference Briefs, Financial Statements, Net Family Property Statements (where applicable), and Offers to Settle. If the parties reach a settlement, the terms are incorporated into Minutes of Settlement and/or a court order. If the matter is not settled it will likely be set down for trial then or at the Trial Management Conference scheduled to prepare for trial. (Rules 17 and 18)
- A Trial Management Conference is a final effort at settlement or at least at narrowing the issues and procedure for trial. The matter is then set for trial. The case will be set to the next available list, which may be a few weeks to a few months away. The case will be fixed for a trial list, which is normally for two weeks, but parties will not know in advance where their matter sits on the list and will not know until contacted by the trial coordinator what day the trial will start. (Rule 17)
- The rules for trial and evidence are set out in Rule 23. After the trial and hearing of all the evidence and arguments, the presiding judge will make a final determination as to the outcome of the matter in the form of a final order.
In addition to the matters above, the Family Law Rules also provide important information regarding service of legal documents, financial disclosure, questioning, and costs.
Negotiation, Mediation and Arbitration
Negotiation is another means of resolving family law disputes and can involve the exchange of letters or communications between lawyers with client instructions, as well as meetings – often called 4-way meetings – where both clients and lawyers attend.
Mediation is a voluntary process whereby a neutral and impartial mediator meets with the parties, with or without their lawyers, and tries to assist them in resolving pre-specified issues. The mediator does not provide legal advice, although may provide legal information for the parties to consider while discussing this issues. Parties are strongly encouraged to seek legal advice prior to, during, and after mediation to ensure they are knowledgeable about their rights and obligations and that any agreement is in accordance with the law. Mediation is typically a confidential process (closed mediation) and allows parties to communicate openly regarding their concerns with the hope of crafting solutions together that are tailored to meet their specific needs. While the same disclosure is required, the process of mediation is often less time-consuming, less costly, and more amicable than litigation. If an agreement is not reached through mediation, the parties may continue with negotiations or proceed with litigation.
Arbitration is also a voluntary process, but in this case the parties are acknowledging that they are opting out of the court process. Once an arbitration or mediation-arbitration agreement is signed it is a binding contract and a party will not be able to change his or her mind unilaterally about proceeding to mediation and, if not settled, to arbitration. Often parties will agree to mediation/arbitration with the hope of settling at mediation so that arbitration is not required. However, if a resolution is not reached through mediation, the matter proceeds to arbitration, which is essentially the same as a trial occurring outside the court room, with the arbitrator acting as judge. The arbitrator can be the same or a different person from the mediator, depending on the terms of the parties' agreement. The arbitrator's decision is final subject to a very narrow right of appeal that is set out in the agreement. It is important you understand the rights of appeal prior to signing any agreement.
Alternative dispute resolution processes are not the right choice for every file, but you should discuss and consider them with your lawyer.
At your consultation and in the meetings to follow after our retainer, we will review all the circumstances and discuss the best way to proceed in your matter.