Determine which Application is needed

1. Application: This is the first step in a court case; issuing, serving and filing an application. The person making the initial application is called the applicant, and the other person is then called the respondent. Starting your case you first must decide what application you need:

• • • Form 8A: Simple Application (Divorce only): You cannot make any other claim in this application.
    • Form 8A: Joint Application: If you and the other party agree on all the claims being made. (This can include divorce and other issues, i.e., parenting issues and support).
    • Form 8: General Application: This form is if you and the other party cannot agree on how to resolve some of the issues

2. Preparation: This involves completing the application and including all information asked within the form including necessary documents.

• Divorce: You must give your original marriage certificate (regardless of where you were married). Replacement copies can be acquired online through Service Ontario, however, if you can’t get a copy of your marriage certificate you must provide details regarding the marriage when you file your affidavit for divorce.
•  Parenting claims for a child: You must prepare and file Form 35.1 Affidavit (decision-making responsibility, parenting time, contact). This form asks you to answer some personal questions about the family situation and your suggested parenting plan. 
  • You will also have to fill out a Form 35.1A Affidavit (child protection information) if you, the respondent or the children have had any involvement with the Children’s Aid Society. Affidavits must be signed in front of a lawyer or commissioner of oaths to affirm or swear that what it says is true. (A clerk at the courthouse can commission your affidavit if you do not have a lawyer).
• Child or Spousal support claims (not including property):  You must prepare a Form 13 Financial Statement (Support Claims). This is a commissioned form that tells the other party and the court information about the value of your income, expenses, property and debts. Like an affidavit, you must also sign this in front of a lawyer or commissioner of oaths to affirm that what it says is true. Documents included in this form include proof of year-to-date income and your Notices of Assessment from the CRA.
• Division of Property (with or without support): If you are asking to divide (equalize) the family property you must prepare a Form 13.1: Financial Statement (Property and Support Claims). This form asks you to give your income information along with the value of assets and debts on the date you got married, and the date you and your partner separated.
  • You must also sign this form in front of a lawyer or commissioner of oaths to affirm that what it says is true.
  • Documents included in this form include proof of year-to-date income and your Notices of Assessment from the CRA.
  • You must update this form so that it is current when you are attending your case conference, settlement conference, motion, or trial. Updates are needed if your financial statement is older than 60 days by the time you have a case conference or settlement conference, 30 days by the time a motion is argued or 40 days by the time the trial begins.
  • If your circumstances haven’t changed, you can file a Form 14A affidavit.

3. Serving your application (Special Service) and then filing your application: 

Once your application is completed, you will be asked to serve it personally to all other participants named in the court case. Personal service (special service), means that the other party or their lawyer is given the documents in person.

• • • Form 6B: Affidavit of Service must be completed by the person who served the documents. This form sets out who served the documents, where, and how. Form 6B is proof that the other side is aware of the case. Affidavits must be signed in front of a lawyer or commissioner of oaths to affirm or swear that what it says is true.

Uncontested Trial: Once your application has been served, the other party has 30 days (or 60 days if outside Canada or the United States) to prepare, serve, and file their Form 10: Answer, which is their response to the claims made in your application.

• No response within this timeframe means that you can fill out Form 23C: Affidavit for Uncontested Trial to have an uncontested trial in which the court will decide the case based on only your evidence.

4. Answer: This is the formal term for when one is receiving (been served) a court order: As a respondent, you must prepare, serve and file your response using Form 10: Answer where you will either agree or disagree with the applicant’s claims while making your own.

• If your answer includes a parenting claim, you will need to include Form 35.1: Parenting Affidavit and Form 35.1A if you or your children have any involvement with Children’s Aid.
• If the applicant is asking for child/ spousal support or division of property, you will have to fill out Form 13: Financial statement or 13.1 (if there are any property issues).
  
  • In addition to these documents, you and the other party must also practice financial disclosure by giving each other documents showing your income, property, savings and debts.
  • Delaying this process can lead to repercussions such as delaying the resolution, the judge deciding the case without your input or even by Rule 13 you may be ordered to pay all or part of the other parties’ legal costs.
  • Rule 13 may also take place after you issue your application or motion to change if you fail to comply with these obligations.
  • The court will issue an automatic order which you must give to the other party. The automatic order sets out the documents each party must provide to the other as part of the disclosure obligations.
  • No financial disclosure is necessary if you are the primary caretaker for the children and are only asking for table amount (basic child support).
  • If you’ve been unemployed within the past 3 years, you may be asked to give the other party a copy of your record of employment or other proof that your job ended; evidence of any medical condition or other reason why you cannot work; and any statement of income or benefits that you have received or will receive.

Filing can be done through CaseLines, Family Submissions Online Portal, or paper documents at the courthouse. Case-sensitive or urgent filings can be emailed by finding the information at the Ministry of the Attorney General Website: https://www.ontario.ca/locations/courts)

5. The First Court Date: If your case is at the family branch, in all cases except those dealing with divorce, division of property or an arbitration award, the first court date is scheduled by the court with the application is issued; this date is called a first appearance.

(For all other cases*, the first court date is normally a case conference before a judge or with a Dispute Resolution Officer (DRO) for a motion to change).

• The court will check all of your documents to make sure that they are complete and properly served.
• An opportunity to discuss settlement or to attempt mediation with the other party will also ensue.
  • An agreement during this time means that you can file your agreement with the court and ask for an order to be made on consent.
  • If the case has not been settled and your documents are complete, the court clerk will normally set a date for a case conference. 

6. Case Conference: This is a step in a family law case where the judge meets with you and the other party and your lawyers, if you have them, to discuss: the issues that you can agree on, the issues that you don’t agree on, the chance of resolving those issues and how the case should move forward.

• Rule 17 of the Family Law Rules is the main rule that applies to conferences, and which sets out the process for case conferences, settlement conferences and trial management conferences. 

• Before each conference, both sides must negotiate with one another about how to resolve the disagreements (and this should not be the first time these issues are being discussed unless there has been domestic violence or the party does not have a lawyer). 

*Divorce, division of property or your case not being in the Family Court branch means that you must schedule your first court date as you will not be automatically given one*

• Scheduling your case conference is done by contacting the court office.
• A case conference is usually the first meeting that the parties and their lawyers attend with a judge or a Dispute Resolution Officer (DRO) to make sure all the necessary documents have been exchanged and to explore how to resolve the issues in the case.
• Once you have your Form 17: Conference Notice with your court date scheduled, you need to serve it on the other party and file it with an affidavit of service.
• You need to fill out Form 17A: Case Conference Brief, serve it on the other party, and then file it with the Court with Form 6B: Affidavit of Service. Case conference briefs cannot be longer than 8 pages, plus the allowed attachments. Focus on important information; do not include long texts, emails, or social media postings as references to the necessary excerpts from those communications should be enough. 

7. Temporary Court Orders ((Notice of Motion: Form 14): before the parties can get final orders at a trial or agree on how to settle their case, they will ask the court to make temporary orders about important issues. 

• To get a temporary court order, you need to notify the other side in writing and file the request with the court, (this is called bringing a motion). 
  • Your Form 14 Notice of Motion will include the date when the parties will argue the motion in court. You will also have to file a Form 14A affidavit that supports your position on this motion.
• The person bringing the motion is the moving party and the other side is the responding party.
• In almost all cases, the judge will only hear your motion if you have provided notice to the other party and have given them time to respond before the motion is held.

Types of Motions:

• Procedural, uncomplicated, or unopposed issues (Motion: Form 14B)

• • I.e., (asking for permission to file a document after a deadline has passed, uncontested hearings and important orders such as parenting, support and property issues that you and the other party agree to (with this motion, consent or minutes of settlement that is signed by both parties must be attached, alongside a draft order)).
  • With this motion, you and the other side do not have to be in court, instead, the judge will let you know the decision in writing. 

• Motion without notice to the other party (ex-parte motion)

• • In minimal situations, you may be able to bring a motion without first providing notice to the other party. According to rule 14(12), you can bring a motion without notice when:
    • I.e., where you have tried everything but cannot locate the other party;
    • there is an immediate danger that a child will be removed from Ontario and the delay in serving a notice of motion, or alerting the other party to your motion, would probably have serious consequences;
    • there is an immediate danger to your health or safety or that of a child and the delay in serving a notice of motion would probably have serious consequences;
    • serving a notice of motion would probably have serious consequences.
  • Motions without notice are the exception to the basic rule that the other party must know of any motions ahead of time and have a chance to respond. 
    • After a judge makes orders on a motion without notice, the other side must be notified immediately, and the case must be brought back to court within 14 days. 

• Urgency or hardship plays a part in whether or not a motion can be presented until after a case conference

• • If you are filing an urgent motion, you must prepare, serve, and file all the documents needed for your motion. The only difference with an urgent motion is that you must also ask the Court for permission to bring a motion before a case conference and explain the reason for the urgency.

• Regular motions can be heard by the court in one hour or less (submissions by both parties must be done within that hour).

• Long motions are scheduled through the Trial Coordinator and must be permitted by a judge before being scheduled.

• Refraining motions are motions to stop Family Responsibilty Office (FRO) from actions such as suspending one’s license due to the inability to pay child support.

• • You have 30 days to stop FRO from seeking the suspension of your license once they send you a First Notice of Driver’s Licence Suspension by proving that financially you are unable to pay or workout a payment plan with them. 

Scheduling a motion: the first step is to check with the court directly, or the

Regional Practice Direction where you case is being heard, to find out when you can

schedule your motion. 

• Some courts keep one or more days open each week to hear motions and you can bring your motion on any of those days. 
• In other locations, you must book a specific time with the court for your motion to be heard. 
• Make sure to check with the other party and their lawyer to see when they are available before you schedule your motion.

Required documents for your motion:

• Form 14 Notice of Motion 

• Form 14A Affidavit this is where you tell the court why you agree or disagree with the orders the other party is asking for, and provide your evidence (this is also known as the responding affidavit portion).

• Factum or summary of argument; This is the written summary of the key facts from your affidavit, as well as the rules and the law that apply to your case.

• • • Most long motions require these, and some locations may require them for regular motions.

• Reply affidavit is to be filed if you bring a motion, and the other side responds and raises new issues. 

• Your reply can only address the new issues raised in the other party’s affidavit. It is not an opportunity for you to bring up any new issues of your own.

RECAP: Timelines for Serving and Filing Your Motion Materials

• Motion with notice
  • The moving party must serve their materials no later than six business days before the motion.
  • If the other party is responding to the motion, they must serve their materials no later than four business days before the motion.
  • Both parties must file their materials with the court no later than four business days before the motion, along with an affidavit of service.
  • If required by your region’s Practice Direction, each party must also serve their factum/summary of argument no later than four business days before the motion.
  • The moving party may serve and file a reply affidavit, to respond to any new issues raised by the responding party, no later than two business days before the motion.
  • Don’t forget to include an updated financial statement and 35.1 parenting affidavit if these forms are too old or inaccurate when you serve your motion materials.
    • Timelines and file materials for long motions will be arranged when the long motion is booked

• The moving party is required to file a Form 14C: Confirmation of Motion with the court no later than 2:00 p.m. three business days before the motion is to be heard. If you don’t confirm your motion, the judge may not hear your case.
  • The confirmation form entails the list of issues, specific materials and the estimated time it will take you and the other party to argue the motion for the judge to read.

Offers to Settle

• These can be done at any time during your court case
  • An offer to settle outlines what you are willing to accept to resolve the issues. Your offer to settle should be clear, reasonable, and fair. 
  • Offers to settle can help you agree with the other party, and they can also be used to request costs against the other party.
    • The trial judge can only see any offers to settle after they have decided on your motion.

What to expect at your motion

• • Arrive 30 minutes early before your conference to give you time to discuss your case with the other party.
  • Find your courtroom.
  • Once found, you may have to sign in with the court registrar, wait for your turn and inform the court registrar if you and the other party have come to an agreement or if you don’t expect the other party to attend the motion as the judge deals with the quickest motions first.

• Make your submissions (speak to the judge to explain what orders you are asking the Court to make, and the evidence that you are relying upon in support of your request).

• • • You can only refer to evidence submitted in your motion or that of which the other party has filed.
    • When hearing a motion, the judge will normally hear first from the moving party and then from the responding party. The judge may also have questions for you.

• At the end of the hearing, the judge usually makes a temporary order that stays in place while you and the other party continue to try to resolve your issues on a final basis. The judge may decide right away, or they may reserve their decision to a later time. 

• • • If the judge reserves the decision, it means that they need more time to review the evidence and think about the orders you have asked for.

• Endorsement – this is the judge’s written decision

Costs

• the successful party on a motion is usually allowed to have a portion of their legal costs paid by the other side.
  • The judge considers several factors in deciding what costs should be paid, including how reasonable the party was during the motion and whether the party made reasonable offers to settle.

• Trials: Most family cases eventually settle by agreement, but sometimes a case will go to trial for a final resolution.

• 30 days before the trials start, the applicant must serve the other party. ((Rule 23(1)) shows the list of required documents.
  • Documents can be submitted as exhibits during the trial if they are admissible.
  • Prepare a document brief that you can rely on for the trial.

• Respondent has 7 days before the start of the trial to add required documents.
• Witnesses may be called if they have evidence to help prove your case. Your witnesses should be notified about testifying according to the following procedure:
  • Fill out Form 23: Summons to a Witness and list any documents that you want them to bring.
  • Serve the form on the witness and file it with the court.
  • Provide the necessary witness fee set out in rule 23(4).

How to behave in court:

• Turn off all electronic devices that aren’t being used in the hearing.
• Stand up when the judge enters or leaves the hearing room and when you are speaking to the judge.
• Refer to the judge as “Your Honour” and ask the judge for permission to speak before you begin speaking.
• Always speak directly to the judge, not to the other party, except when you are examining a witness.
• During the trial, don’t interrupt other people except to object to an inappropriate question.
• Don’t argue with the other party or the judge.
• Pay careful attention to what is being said. 
• You can take notes while you are in court 
• You can also ask court staff for a copy of the digital recording that is being made.
• If you want to use your own recording device, you must get permission from the court first.
• Don’t eat food or chew gum. Only water is allowed in the courtroom.
• Refer to any witness by their title (such as Doctor or Professor) or by their identified pronouns. Don’t use their first name.
• Any documents you wish to give to the judge must be handed to the court Registrar.
• If your hearing is being held by videoconference, the same guidelines apply, although you do not need to stand when the judge joins the online session.

8. Settlement Conference: the next conference that is scheduled and focuses on settling or narrowing down as many of the issues as possible.

Before the settlement conference,

• • Financial statements older than 60 days, at this point, must be updated or a new Form 13 or 13.1 or an affidavit using Form 14A must be filed that confirms the information present or how your financial situation has changed. Form 13A: Certificate of Financial Disclosure must be prepared
  • If you were married and you or the other party are asking to divide property, you must also file Form 13B: Net Family Property Statement and Form 13C: Comparison of Net Family Property Statement.

• Then prepare Form 17C: Settlement Conference Brief carefully and complete all the sections that apply to your situation. It should set out the issues you disagree about, your version of events, and how the issues can be resolved. These briefs cannot be longer than 12 pages, not including permitted attachments. They also include your offer to settle which outlines what you are willing to accept to resolve your case. Your offer to settle should be clear, reasonable, and fair. The judge will use these offers to provide feedback and help you to settle your case. Your offers to settle are confidential and cannot be shown to the judge hearing a motion or a trial until after the decision has been made.

(A judge may combine a case conference and settlement conference if: the parties have participated in an approved family mediation or legal aid settlement conference, the parties were screened for domestic violence, all financial disclosure has been exchanged, neither party needs to bring a motion for temporary orders AND each party has filed a certificate of dispute resolution (Form 17G)

9. Trial Management Conference: here, the parties should be prepared to see if you can agree on any of the issues in dispute, confirm that you and your witnesses are ready to proceed as scheduled and confirm whether the time you estimated for your trial is correct

• Firstly, you and the other party have to complete the Trial Scheduling Endorsement Form 
  • The judge will then use this endorsement form to help the parties organize the issues that need to be decided at trial, determine who the witnesses will be, address any other procedural issues that must be resolved before the trial can start and give an estimate of the total time that will be needed for the trial.
  • While preparing, also consider if any of your evidence can be presented at trial by 14A affidavit as this will shorten the trial time usually. (Any evidence submitted will be subject to cross-examination meaning that the witness who wrote the affidavit must attend).
• The Trial Scheduling Endorsement Form must be reviewed and endorsed by the judge before a trial management conference can be scheduled. 
  • The judge may schedule a time for you to return to court if you can’t complete the Trial Scheduling Endorsement Form right away. 
• Before your trial management conference, you need to file the following documents with the Court:
  • Your completed Trial Scheduling Endorsement Form, unless it has already been filed
  • An offer to settle all issues that remain in dispute
  • An outline of your opening statement for trial
  • (Unless you have been directed to do so, you do not need to prepare a Trial Management Conference brief.)

• You must do everything you are supposed to do before your conference for it to be useful. You and the other party should have shared all financial documents and any expert reports. 
  • If you have updated your financial disclosure before your settlement conference or trial management conference, you must serve and file an updated Form 13A Certificate of Financial Disclosure.
  • Before your settlement conference, if there are property issues, you must serve and file your Net Family Property Statement (or an affidavit if the information has not changed).
  • You should also serve and file a Form 13C: Comparison of Net Family Property Statement (jointly with the other party if possible). This form clarifies any items that you and the other party disagree about in your net family property calculations.
• Case conference documents can be served by regular service or special service. This means that you can give the other party, or their lawyer, your documents by e-mail, mail, courier or in person. Service by mail must be mailed 5 business days before the normal deadlines.
• The person who has served the conference brief and any other necessary documents on the other party must complete an affidavit of service: Form 6B.
• The conference briefs, updated financial statements, certificate of financial disclosure and affidavit of service must be filed with the court by the timelines set out in Rule 17:
  • The party asking for the conference must complete the correct forms, serve them to the other side, and file them with the Court, along with the Affidavit of Service, at least 6 business days before the conference date.
  • The other party must serve and file their forms with the Court at least 4 business days before the conference date.
  • Each party must confirm they will be in court by completing and filing a Form 17F: Confirmation of Conference by 2 p.m. three business days before the conference. Not sending your confirmation forms (you or the other party) to court on time will lead to the conference not going ahead without the judge’s permission. You have to speak to the other party’s lawyer (the other party if they are unrepresented) before filing your confirmation to discuss issues and times needed for the conference.You can send your 17F confirmation form to the court by email.
  • Unlike at a motion or a trial, the Court cannot normally make orders at a conference unless all the parties agree. There are some exceptions:
    • judges can make procedural orders that help move the case along such as ordering disclosure or setting out a timetable for the next steps in the case.
    • judges can order the parties to get information from a court-connected mediation service or to attend a community program or resource.
    • if the other party is told in advance (on notice), judges can also make temporary orders to preserve the rights of the parties.

10. Overview of the Trial Process (refer to “Trials” under Legal Topics for more detailed information)

• Excluding Witnesses: before the trial begins, you or the other party can ask for an order to exclude all witnesses. The witnesses will be asked to stay outside the courtroom until it is time to give their evidence (this is done to make sure the witness does not change their evidence in response to hearing another witness’ evidence.

• Opening Statement: The applicant goes first; In their opening statement they summarize what they expect their evidence will be and let the judge know the specific orders they’re asking for. Respondent may choose to have an opening statement after this.

• Evidence: Evidence can include testimony from witnesses, including the applicant, or the introduction of documents. Documents submitted at trial are called Exhibits. 

• Examination in chief: when a party questions their own witnesses
• Cross-examination: those witnesses are then questioned by the respondent
• Re-examination: happens after the cross-examination and is done by the applicant only to clarify issues that were raised then.
  • This whole process is then repeated with the respondent’s witnesses.

• Closing statement: After all the witnesses have been called, both parties can make submissions, called a closing statement about what they think the judge’s decision should be, based on: 

• what the witnesses have said, 
• the documents that have been submitted as evidence, 
• and the laws that apply.

• The closing statement should go through the testimony that the witnesses have given, and the documents that have been accepted as exhibits, to show why the judge should agree with your position. 
  • You should only refer to evidence or issues in your closing if they were raised during the trial.
  • If you make your closing statement orally, the applicant goes first, followed by the respondent.
  • The judge may ask for closing statements to be delivered in writing.