Difference between revisions of "Starting a Court Proceeding in a Family Matter"

<blockquote>'''3. Make interim applications as needed.''' In almost all cases, parties need the court to decide certain issues on a temporary basis until the trial can be heard. Typically, people need a set of rules to guide them until the claims at issue in the court proceeding are finally determined. The most common interim applications in family law cases involve financial and personal restraining orders, the care and control of the children, and the payment of child support and spousal support. The process for bringing interim applications is discussed in detail in the Interim Applications page.</blockquote>

<blockquote>'''4. Disclose documents and information.''' The rules of court require that each party produce to the other all documents in their possession that are relevant to the matters at issue in an action. This can include things like bank statements, report cards, medical records, school reports and so forth. Each party must list these documents in a formal ''List of Documents'', and keep their Lists of Documents updated when new documents are found or become available.</blockquote>

<blockquote>'''5. Examine each other out of court.''' The parties may, if they wish, conduct a cross-examination of the other party under oath, outside of court. This is called an Examination for Discovery. Examinations for Discovery are helpful to get the other party's views of the evidence and the matters at issue on the record. Discoveries are almost always held after Financial Statements have been prepared and the documents have been exchanged.</blockquote>

<blockquote>'''6. Have a Settlement Conference.''' The rules allow a party to schedule a Settlement Conference before a judge ahead of trial. At this hearing, the parties will explain their positions to the court and their areas of disagreement and hopefully negotiate a settlement. These conferences can be very helpful, as the judge serves as a mediator and helps the parties work towards a settlement. The judge may also express his or her opinion about the strengths and weaknesses of each party's position, which also encourages settlement.</blockquote>

<blockquote>'''7. Have a Trial Management Conference.''' A TMC is a formal hearing before a judge designed to fix the schedule of events at the trial and resolve as many disputes about evidence before trial as possible. Among other things, the judge will ask about the witnesses each party intends to call, the completeness of the disclosure made to date, expert's reports and expert witnesses, and anything else that can be dealt with to help make sure the trial will go ahead and be completed within the time available. A TMC is generally not an opportunity to engage in settlement discussions.</blockquote>

<blockquote>'''8. Go to trial.''' At the end of the day, if you can't agree you will wind up at trial. At the trial, each side will call their witnesses to give evidence, cross-examine the witnesses of the other party, and give their argument as to why the judge ought to decide the case in their favour. The judge will hear all the evidence and the arguments, and reach a decision in the form of ''Reasons for Judgment''. The lawyers, or the court clerk in the absence of lawyers, will prepare a final order based on the Reasons for Judgment.</blockquote>

This is, of course, just a rough sketch of the lengthy process of bringing an action to a conclusion. Not every case will need to use all of these steps (some people may not need to have Examinations for Discovery and others won't see the point of holding a Settlement Conference, for example), and some steps may need to be repeated more than once. As well, the actual trial process is much, much more complex that my brief description.

If the court proceeding involves a claim for spousal support, child support or the division of assets, each party must prepare and file a ''Financial Statement''. A Financial Statement sets out a person's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an Affidavit, by a lawyer, notary public or registry clerk.

Financial Statements are very important in family law cases. The portions about income are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish amount, the portions about assets and debts will sometimes be used to establish the value of an asset and the outstanding balance of a liability. As well, since Financial Statements are sworn statements, someone making a Financial Statement can find his or her credibility being challenged if the numbers don't make sense, if they are overblown or understated, if they omit critical information, or if they are outright fabrications.

#the last three years' worth of tax returns (what's required are the complete T1 income tax and benefit returns, not tax return "summaries" or "informations");

#all Notices of Assessment and Reassessment received in connection with the last three tax years;

#business and/or corporate records such as financial statements and corporate income tax returns, if the party has an incorporated or unincorporated business; and,

Judicial Case Conferences are relatively informal, off-the-record, private meetings between the parties, their lawyers and a judge in a courtroom. JCCs must be held in all contested family law proceedings, and, in most cases, they must be held before any interim applications can be heard.

JCCs are discussed in more in _____ .