Court proceedings involve a five-step process. While this process takes time and costs money, it is sometimes the best course of action.
1. Case Conference
A case conference is a relatively informal meeting with a Judge to try to resolve or narrow the issues. The Judge may meet with the lawyers only or with the partners and their lawyers to give his or her preliminary views. Procedural decisions, including fairly routine orders on disclosure of documents or child support can be made at a case conference while substantive decisions or factual disputes are not decided at a case conference.
If a decision needs to be made prior to the end of the proceeding, the party seeking the order must bring a motion. This may be necessary when the couple cannot agree on the parenting schedule or the amount of support to be paid pending a final determination. Motions are determined by judges based on written materials, such as affidavits and financial statements along with oral argument by the lawyers.
The partners can be present for the hearing of the motion, but are not required or permitted to speak. It is sometimes helpful to be present to see what is happening and get an understanding of the Judge’s thought process.
2. Settlement Conference
The next step is a settlement conference, which is very similar to a case conference. The difference is that the settlement conference is conducted at a later stage when more information is available. A trial date is set during a settlement conference.
A trial management conference is held with a Judge prior to the trial itself. This is when details of the trial are reviewed. Details may include, the number of witnesses, whether there will be expert witnesses, if special needs must be taken into account (e.g. interpreters), how many days the trial is expected to take, etc.
It will take roughly two years from starting your application to get to trial. The vast majority of cases are settled before the trial date with only about five percent of cases making it to trial.
The conduct of the trial and the mood of the courtroom are determined by the Judge. Some Judges are very efficient and communicate clearly when they do not need to hear more on certain points. Other Judges may conduct trials in an exact opposite manner.
At the start of a trial, each lawyer makes an opening statement outlining the issues and evidence that can be expected.
Witnesses provide evidence on the invitation of an applicant’s lawyer and may be cross-examined by opposing counsel. After all evidence is presented, each lawyer makes a closing argument to persuade the Judge to rely on any case law and act in his or her client’s favour.
During a trial, Jacqueline is extremely focused on expectations, goals and points that need proof—and she sticks to this with her signature tenacity and cool-headed professionalism. Grandstanding, showboating, or displays of arrogance and insults are simply not her style.
A Judge will reserve his or her decision after the expected days of evidence and argument. Conditions that have been in place up until this time continue until the Judge releases a decision. Judges sometimes do this in court or they may communicate the decision by fax.
At this point, there is usually an opportunity to address which partner should be paying costs to the other. There are usually not costs when the success is mixed. If the decision is obviously in one partner’s favour, the opposing partner will have to pay some portion of the successors costs.
After the trial, one side or the other prepares the formal judgment for the Judge’s signature. In the event that there are other small issues that need to be addressed, the same Judge can be approached. Disputes are uncommon, but can arise due to differing interpretations of the Judge’s decision.
An appeal may be considered when it can be demonstrated that the Judge made a significant error. An outcome that favours one partner over the other is not grounds for appeal.
An appeal must be made to the Ontario Court of Appeal and started within 30 days of the release of the Judge’s decision. A full transcript of the trial is normally required. The appeal process is as slow as the trial process and, unless there is urgency, most appeals take 18 to 24 months to be heard.