The Litigation Process


The Litigation Process in Ontario

As society progresses the law must keep pace. Whether it be in the form of simple amendments to existing legislation or the implementation of new statutes and regulations the law must always represent our current social status. Given that times have significantly changed over the past decade and divorce proceedings have become commonplace family law in Canada has as a result evolved alongside to reflect the changing norms of society.

It is for this reason that family law has evolved to incorporate a multi-step legal process. Given the increasing demand for family lawyers in a rapidly changing society the Family Law Rules have been amended to assist individuals in resolving their matrimonial disputes. Among other amendments, the most relevant is that the Family Law Rules now stipulate that several court appearances must be made in front of a judge before a trial can ever take place.

The benefits derived from such amendments is that there now exists an elimination process that assists individuals in reducing the number of legal issues for trial. Judges actually become directly involved in the matrimonial dispute early in the process and assist the parties in settling issues that the judge believes can be resolved prior to trial. The judge even provides his or her professional opinion as to what the likely outcome would be if any of the issues were to go to trial.

This process not only minimizes the backlog in the family court system but it also assists parties in working cooperatively in arriving at a resolution. Equally important is that this process significantly reduces the parties costs if a settlement can be made on any of the open issues. This is beneficial to all those involved as the amount of time required for trial preparation is significantly reduced. The amount of time and money that can therefore be saved ranges into the tens of thousands of dollars.

The way that this streamlined process works is that once an application is filed with the court an initial case conference is scheduled. A case conference can be described as an appearance before a judge who reviews the facts of the case and discusses all relevant issues with each party and their respective counsel. The intent is to gauge each party to determine whether any issues can be settled right there on the spot. The judge then provides his or her professional opinion as to what the likely outcome would be if any of the issues were to go to trial.

This intent of the judge when providing his or her professional opinion is assist each party in obtaining a realistic expectation as to the likelihood of success as according to their stance on each issue. Also relevant is that the judge will discuss the costs involved in litigation if the parties wish to proceed to trial. The presiding judge will provide a fair and reasonable estimate as to all of the costs involved in pursuing litigation from that point forward as well as to which party would likely bear the burden of costs at the conclusion of trial. The judge's intent is to essentially advise each party to as to the risks and costs involved in pursuing further litigation from that point forward.

A settlement conference follows the initial case conference. Although a settlement conference is relatively similar in structure to a case conference the presiding judge tends to place more of an emphasis upon settlement. If a settlement cannot be reached and the judge is of the opinion that a resolution will not result at a trial management conference may be scheduled by the judge. The decision to schedule a trial management conference is discretionary and the judge may decide that it would not be productive. If this is the case the settlement conference becomes a combined settlement conference and trial management conference thereby eliminating the need to appear before the judge on another occasion if settlement will not be reached. At this point the judge sets a date for trial and the parties must then begin to prepare their materials.