Divorce Process – Family Law Trials in Ontario
Family law trials can be very stressful for all parties involved and are generally seen as a last resort option for resolving issues. They can be long and expensive; consequently, all reasonable steps should be taken to avoid one. Though the Courts prefer that parties sort their affairs and make decisions themselves to avoid trial for most family law cases, some contentious issues in such matters can only be resolved through the court.
A trial is essentially a hearing wherein the judge makes final decisions on any issues that remain unresolved between the parties. Both parties have the opportunity to submit their position and produce any relevant evidence so that the trial judge may make an informed decision based on the specific facts and the law.
Family cases generally do not have juries and are open to the public. Thus, it is important to remember that the court will be deciding on the public and important practical aspects of your life and not private matters.
It is highly recommended that you consider carefully whether you need to go to trial; in the case where you do, it would be advisable that you consult with an experienced family law lawyer beforehand. If you are unable to afford a lawyer, you may also contact Legal Aid Ontario to see if you are eligible for legal aid.
You also have the option of representing yourself; however, it is recommended that you find legal counsel to help you with your case even in this case, as they can provide guidance on the process and preparation steps.
Preparation for a Trial
Rule 23 of the Family Law Rules provides direction on how to prepare for your trial and provide evidence. If you are going to trial and you are the Applicant or the moving party in a motion, you must prepare a trial record, which is to be served on every party and person/agency required to be served and filed with the court at least 30 calendar days before the start of the trial.
This trial record includes numerous documents, including:
· A table of contents;
· A copy of the application that was filed with the court;
· A copy of the Respondent’s answer;
· Any reply that you filed with the court;
· Any agreed statement of facts;
· Financial statements, certificates of financial disclosure, and net family property statements;
· Any assessment reports;
· Reports from the Office of the Children’s Lawyer;
· Any temporary orders or final orders about the trial; and
· Any relevant parts of any transcripts you intend to refer to at trial.
For more information on what is included in the Trial Record as well as how to prepare your evidence and witnesses, please refer to the Ministry of the Attorney General’s Guide to Procedures in Family Court.
You should aim to arrive at the courthouse early on the day of your trial and proceed to look for the name of your case or court file number on that day’s list of cases to be heard. The day’s list of cases is usually posted on a board somewhere outside the courtroom – if you are unable to locate this, proceed to ask the family court counter.
A basic trial begins with written or oral opening statements, during which each party (beginning with the Applicant) introduces the issues they are asking the court to decide, the orders they seek, the law they are relying on, and a summary of the evidence they intend to enter during the trial. This provides the trial judge with a road map of the facts, issues and what to expect.
This is generally followed by the presentation of the evidence, where the Applicant’s witnesses are brought forth to testify and verify documents. These witnesses may be cross-examined by the opposing party in order to test their credibility and validity. After the questioning of the Applicant’s witnesses, the Respondent will then call their witnesses, and the process will repeat.
After this step, each of the parties will submit either a written or oral closing statement, with the Applicant presenting first, explaining why the orders sought should be made by the court based on the evidence that was presented.
The judge may be ready to decide after the closing arguments are submitted, or they may choose to reserve the decision to a later date and time. In this case, you may need to come back to court for the decision, or you may be notified of the decision in writing. The judge’s decision is usually offered in the form of an endorsement, which are written directions for you and your partner. You would then be able to obtain a formal signed order from the court.
The court may order you to pay some or all of the costs of the other party, in cases where you fail to appear in court, are not adequately prepared, or if the judge feels your conduct or position is unreasonable.
This also applies where you are self-represented – self-representation does not necessarily mean you will receive lenience from the judge. In considering costs, the judge considers any offers to settle that have been made by either party when determining who should be required to pay costs and how much. This is meant to incentivize reasonable behaviour and cooperation between parties for more efficient conflict-resolution. Rules 17, 18 and 24 of the Family Law Rules tell you more about costs.
Trials can be very technical and complicated in nature, and the process can be difficult to navigate on your own. Nothing in this article should be considered or relied on as legal advice or opinion.
This article only provides general information and should you have any further questions regarding the family law trial process, please contact us to book a free initial consultation 905-366-0202 or through our website here.