BY VALERIE DYE
In Ontario, when a family law matter is brought before the court it does not automatically go to trial. Various steps are taken by the Court in an effort to bring about an early resolution to family law cases so that litigants will be spared the expense and time of going through a trial. In Ontario most family law cases do not go to trial.
The first step in most family law proceedings in Ontario is the case conference. This is the most important step in the family law proceedings as it allows the parties to go before the Judge and hear the Judge’s views on their matter. The case conference allows parties to have an idea of the strengths or weakness of their case and to explore the chances of settling the case. Other purposes of the case conference as outlined in Rule 17 (4) of the Family Law Rules include, ensuring that parties make disclosure of relevant evidence, noting admissions made by the parties and setting dates for the next step in the proceedings. It is important to note that at case conferences the court cannot make a substantive order unless both parties consent to that order. This underscores the fact that the main aim behind the holding of a case conference is to allow for an early resolution of the dispute. If parties can arrive at a resolution at the case conference then a final order may be made and the matter will not proceed further.
If a party wants an order to be made he or she may choose to bring a motion after a case conference has been held. Unlike the case conference the court can make orders at a motion without the consent of both parties. Except for cases of emergency, a motion can only be brought after a case conference has been held.
If parties cannot resolve their issues at a case conference or at a motion the next step in the court proceedings would be a settlement conference. Again the court will try to facilitate a settlement of the dispute. Parties will narrow the issues for trial and ensure that all disclosure has been made. The main item for disclosure in family law proceedings is the financial statement which must be filed by both parties. It is important for both parties to make full disclosure of their financial standings including assets, liabilities, earnings and debts.
One of the most important outcomes of the settlement conference is that parties will obtain the judge’s view on what the outcome of the case is likely to be. The judge may also provide guidance and suggestions to the parties in an effort to help them settle the disputes. Obviously, since both the case conference and the settlement conference judges are involved in helping parties navigate the issues and the possibility of settlement, neither judge will be the trial judge if the case should go to trial. Nonetheless, the settlement conference judge is able to use his or her experience as a judge to provide guidance as to how the trial judge is likely to decide the case.
Quite a number of cases are settled at this stage. However, if parties fail to arrive at a settlement the judge will schedule a trial management conference which is essentially preparation for trial. Trials can be quite costly and it for this reason that judges and some lawyers encourage parties to explore the possibility of settling their issues either at the case conference or at the settlement conference stage.
