Navigating the courts in Ontario can be a complex process. This guide offers some insight into divorce procedures in Ontario.
With the possible exception of the court papers required to obtain an absolute divorce, the procedure for drafting, filing and serving most other litigation documents is extremely complex and fraught with legal peril to be attempted by even the most educated laypersons. The law has many hypertechnical rules that cannot be understood, or sufficiently mastered, without long legal study. The technical rules of the legal system govern not only what is known as the “substance” of an area of the law, such as child support, but also what is know as the “procedure.” The substance of the law of separation and divorce has been discussed in the separation section of this website. Now we turn to the procedural law, or the system of rules for having substantive law declared and enforced by the court system.
Put simply, procedure is the entire body of rules directing litigants about how to use the judicial system. The rules dictate, for instance, who can file an application or some other paper, when it can be filed, where it must be filed, how it must be filed in order to be validly brought before the court, how it can be served on the other party, the time limits for responses to the claim, how a hearing is to be noticed, how a trial is to be conducted, how a remedy granted by the court is to be enforced, and similar matters. The principal peril in failing to appreciate such procedural rules is the dismissal of a litigant’s claim for lack of adherence to the rules or, possibly worse, the imposition of sanctions against a litigant who makes an inappropriate move at the courthouse in terms of procedure.
Jurisdiction
There are three courts in Ontario that you may go to in the case of a divorce. The Family Court (sometimes refered to as the Unified Family Court) hears all family law matters including divorce, family property, child and spousal support, custody and access. There are 17 Family Court locations in Ontario: Barrie, Bracebridge, Brockville, Cobourg, Cornwall, Hamilton, Kingston, L’Orignal, Lindsay, London, Napanee, Newmarket, Oshawa/Whitby, Ottawa, Perth, Peterborough, and St. Catharines.
If you do not live in one of these cities, the family law matters are divided between the Ontario Court of Justice and the Superior Court of Justice. The Ontario Court of Justice does not decide divorce or division of property matters but does consider custody and access, child and spousal support, adoption and child protection. The Superior Court of justice decides disputes involving divorce, property distribution, custody and access and child and spousal support.
Pleadings and Service of Process
The court process in a divorce is begun with an application which sets out the issues the court is asked to decide. The person who makes the application is the applicant and the other party is the respondent. There are three types of applications: general (where parties do not agree on how matters should be resolved); simple (where divorce is the only relief sought); and joint (where you and your spouse agree on the issues and want to submit the application for divorce together). These forms can be filled out online at the Ministry of the Attorney General’s website. You can visit Ontario Court Forms for forms and instructions.
Once you have filled out all the necessary forms, you must issue them with the court. The court staff will ensure that you have all the proper forms. You must then serve the documents on your spouse. You may not serve the documents yourself. You must have someone else make service by what is called “special service”. In order to make “special service”, a person over the age of 18 who is not the applicant must (1) give a copy of the forms to your spouse or his/her lawyer; (2) mail a copy of the documents with Form 6: acknowledgement of service that the person must complete and return to you; (3) give a copy to an adult who lives at the residence of the respondent and then mail a copy to the person the next day.
The person who served the documents must then fill out an “Affidavit of Service” which tells the court when, where, and how the documents were served. The affidavit of service must be sworn or affirmed in front of a commissioner for taking affidavits. You must then file the affidavit with the court.
The respondent then has 30 days to file a response. The response does not have to be served through “special service” and can simply be mailed, faxed or dropped off to the applicant or applicant’s lawyer.
Court Processes
Once all documents have been filed and served, if your matter is proceeding at Ontario Court of Justice or Family Court, you will be assigned a “First Court Date” when a clerk of the court will review your file to ensure you have all the proper documentation you require. Where a “First Court Date” is not provided, you will have to ask the clerk to schedule a case conference for the case to proceed.
The case conference is the first time you will speak to a judge about your case. Everyone named in your case must attend the case conference and if parties have lawyers, the lawyers must attend as well. During the case conference, the judge will look at your file and discuss chances for settling your case. The judge will also help to identify issues and point out information that is missing. The judge is able to make certain orders at the case conference such as: an order that parties provide each other with financial information or other documentation, such as business records; an order that one or both parties may submit the other to questioning about the evidence they have filed; an order setting out next steps in the case; and any other order based on the agreement of the parties.
Each family case will have at least one case conference. In addition, a settlement conference of trial management conference may be required. A settlement conference allows a judge to help parties to try and settle their disputes outside of the court. A trial management conference allows parties to provide the court with information of how they intend to present their case at trial. This helps to ensure that proper procedures are being followed and that there is sufficient time allocated to the trial.
If no settlement is reached, the case will proceed to trial.
Trial
You do not require a lawyer to go to trial in family matters. However, it is a good idea to get a lawyer to help you understand the issues and court processes.
The applicant must prepare a trial record which must be served on every party and any agency required to be served. The purpose of the trial record is to help tell your side of the case to the judge. The trial record must be filed with the court at least 30 days before trial (Rule 23 of Family Law Rules). The trial record must include the following elements: a table of contents; a copy of all documents (i.e. application, response, etc.); any agreed statement of facts; financial statements and net family property statements for all parties (if applicable to issue in trial), completed or updated within 30 days of the record being served; any assessment report ordered by the court or obtained by consent of the parties; any temporary order; any order relating to the trial; and any relevant parts of a transcript you intend to rely on at trial.
The responding party need not prepare a trial record. You can, however, add any of the items listed above to the trial record no later than 7 days before the start of the trial. You must also serve the applicant with any additions.
If you would like to have a document or witness to be available for trial you must prepare and serve the witness with a Summons to Witness (Form 23). Any witnesses must be paid for each day he or she is needed in court. According to Rule 23(4), a witness must be paid $50 for coming to court or to be questioned, travel money ($5 if the person lives in the same city where evidence is to be given; 30 cents per kilometer if the person lives within 300 kilometres of court or place of questioning; or the cheapest airfare plus $10 a day for airport parking and 30 cents for travel to and from airport) and $100 per night for meals and overnight stay if the person lives outside the city or town where they are required as a witness.
If your witness is an expert in a particular field, they must prepare a report which must be served on the other party 90 days before trial. If this report is not served, you may not be able to call the expert at trial.
The actual trial is heard by a trial judge only, no jury. Trials are ordinarily held in an open court so there may be people you do not know in the courtroom. If you think you have reasons to keep other people out of the courtroom, you can ask a judge and the judge will make a determination if he or she will allow only the parties, their lawyers and court staff in the room.
When the trial begins, each side will have a chance to give a short overview of their case, starting with the applicant. After these opening statements, the applicant will ask their first witness to come forward and will question them. Once the applicant’s questioning is over, the respondent will have a chance to ask the witness questions. After all the applicant’s witnesses have been questioned by both sides, the respondent will call his or her witnesses and the applicant will have a chance to question them as well.
Once all witnesses have been heard and cross-examined, including the applicant and respondent, each party will make closing arguments, summarizing all the evidence.
Decision
The judge will render his or her decision. If the judge needs more time to review the evidence, he or she may reserve the judgment to a later time, or the judge may be prepared to give a judgment immediately.
Appeal
Appeal is the procedure for getting a higher court to review the work of a lower court. If the monetary relief in your appeal is $25,000 or less, the appeal is to the Divisional Court. If the appeal is greater than $25,000 or for non-monetary issues, the appeal is to the Court of Appeal.
In an appeal, the dissatisfied party asks the appeals court to review what the trial judge did to see if the trial judge did something wrong. This is a point you need to understand; the appellate court looks at what the trial judge did to decide if the trial judge committed legal errors. The appellate court does not function as a fact-finding body that re-sifts the evidence to alter a decision that you feel should have gone your way based on the equities of your case.
Laypersons should not try to handle their own appeals, as the only points that can be raised on appeal are wholly legal issues, Moreover, the procedures for raising those points are extremely technical. Lawyers are concerned about the techniques for getting things onto the trial record, in order to preserve those same issues for appeal. Lawyers are also concerned about putting together the Notice of Appeal, Certificate Respecting Evidence, Appeal Book and Factum, in the proper manner and within the proper timeframe.
An appeal begins with the serving and filing of a written Notice of Appeal and a Certificate Respecting Evidence. These must be served within thirty days from the entry of judgment or order and must be filed within 10 days of the service. Within 15 days after the filing of the notice, the other side must serve a Certificate Respecting Evidence or both sides can agree on what evidence will be used. Within 30 days of filing the Notice of Appeal, proof that you have ordered any required transcripts must be served.
That is just some of the paperwork required to complete (“perfect”) an appeal, however. The main pieces of paper presented to the appellate court in most cases are the appellant’s and respondent’s appeal book and factum. A factum is the written discussion of all the legal points being argued on appeal. This is the appellate court’s tool for understanding each sides’s view of what went wrong (or right) with the case at the trial court level. As with the other appellate rules, there are extremely exacting requirements for the format and content of a factum. The factum for the appellant must be served and filed within 30 days of filing the notice of appeal. The other side must also serve and file a factum within sixty days of the service of the appelant’s materials. In addition, both sides must serve and file a compendium of evidence and exhibits within 60 days before the hearing.
The standard on appeal is very high. It is rare that an appeal court will reverse a decision as it will only do so if there had been an error of law.
