A vital aspect when addressing family law issues in Canada and following the legal system, is family law litigation. Resolving disputes like divorce or child support can rely on many different legal processes, litigation being one of them.

The Litigation Process

Family law litigation means using the court to resolve issues.

The overarching framework for a family law litigation involves starting the litigation, attending  conferences, pre-trial motions, the trial itself, and any subsequent appeals. Each step is necessary in order to move through the litigation process.

Initiating Litigation

To start a family law litigation, one files an Application with the Court. This Application is referred to by legal professionals as a “pleading” because it details the “plea” (or request) that a person is seeking from the court, such as child support, and the reasons why a person wants that relief.

The other party must respond with an Answer, which is also referred to as a “pleading” because it details what the responding party wants the court to order and the reasons why, as well as the reasons why the responding party does not want what is requested in the Application

There are additional documents to file, depending on what one is requesting the court to order. Both parties should still seek legal advice to ensure their documents meet legal requirements.

Service of these documents upon the other party (making sure the other person receives a copy of the documents you have filed, or will be filing with the court), as per the Family Law Rules, is necessary. Proper service ensures the other party is notified and can prepare a response.

Conferences

There are three types of conferences parties typically attend prior to a trial:

1. A Case Conference;
2. A Settlement Conference; and 
3. A Trial Management Conference.

A Case Conference is the first court appearance in most family law matters. This step helps clarify the issues and explore possibilities for settlement.

The only orders a judge makes at a conference are procedural orders, and orders about the issues, but can only make the latter type of order if it’s with the agreement of the parties.

The judge is particularly helpful to the parties by providing insight into how a judge might rule on the issues, providing assistance in organizing the case, and may recommend services like mediation.

Case Conferences aim to resolve disputes early and minimize costs. However, if settlement isn’t possible, the case proceeds to the next stage.

A Settlement Conference has some of the same goals and limitations as a case conference, but is the second to last step before setting a trial. By the time parties reach a settlement conference they are usually 8-12 months into the court process, and have had more opportunity to navigate the possibility of settling outside of a full trial, as well as conduct a cost-benefit analysis of the likelihood of “winning” at trial versus the cost (monetary, emotional, etc.) of a trial.

A Trial Management Conference is the step where parties plan out their trial steps including deadlines for exchanging evidence, witnesses, and the like.

Pre-Trial Motions

A motion is a battle of sorts, with a winner and a loser. Before trial, a judge can only make temporary orders. These temporary orders can be on the substantive issues, like parenting or sale of a matrimonial home. They can also be procedural, like orders for disclosure. These steps address specific disputes that arise before the trial.

The Trial Process

If settlement or resolution is not reached, the case proceeds to trial. During the trial, each party presents their case, including evidence and witness testimony.

The trial process is formal and follows strict rules of evidence and procedure. Both parties get the opportunity to cross-examine witnesses and challenge the evidence presented against them.

Lawyers play a vital role in presenting the case clearly and adhering to court protocols. Trials are lengthy and very expensive, so attempting other settlement avenues first is recommended.

Judgment and Appeals

After the trial, the judge makes a judgment based on the evidence. The judgment addresses all issues, such as custody arrangements, support payments, and property division.

If either party believes there was a legal error, they can file an appeal. Appeals must be based on very specific grounds, such as incorrect application of the law or procedural errors.

Appeals are reviewed by a higher court, and the process can be complex and time-consuming. Legal advice is important at this stage to understand the likelihood of success, potential implications and complicated legal process.

When is Litigation the Most Appropriate Solution for Resolving Family Disputes?

While alternative dispute resolution methods such as negotiation, mediation, and arbitration often provide more efficient, cost-effective, and amicable solutions to family conflicts, there are instances where litigation becomes the most suitable or necessary course of action.

Litigation may be the best option in scenarios including:

• Unresolved disputes over child custody and support
• Unresolved and unpaid child or spousal support
• Unresolved property matters
• Concerns regarding family assets being depleted or hidden
• Significant changes since court order or separation
• Complication with relocation of child or children
• Need for restraining order
• Need of Divorce Order
• History of child abuse
• History of spousal abuse
• Refusal of financial informational

Frequently Asked Questions