After a case conference, a litigant usually seeks an order on motion, which requires two documents: a notice of motion and an affidavit. The affidavit is to contain as much as possible information only within the personal knowledge of the person swearing that affidavit. It can contain information that the person learned from someone else, but only if the source of the information is identified by name and the affiant states that he or she believes the information is true. Evidences are then served, the moving party first followed by the respondent. The party initiating the matter must serve his or her material on the other party not later than four days before the motion date and file the documents in court not later than two days before the motion date, along with a special form confirming that the motion is proceeding. Actually, in most cases the court will grant an adjournment requested by the opposing lawyer where he or she needs more time to respond and where the materials were served less than seven days before the motion.
Without notice motions
As their very nature is contrary to a fundamental principle, without notice motions are rare. The ruling principle is that before any order is made, any party affected by the order should have the full opportunity to know what is being sought and to respond fully. However, sometimes certain facts give rise to one party bringing a without notice motion, who thereafter has an obligation to make full and frank disclosure of all material facts, even where some of those facts may not be helpful to his or her position. Considering that the standard is indeed very high, it is no surprise that failure to provide a salient fact to the court will constitute grounds for setting aside the order.
Settlement & trial management conferences
It is possible that sometimes after the motion the parties are able to settle all of the issues in the case without further judicial involvement. But there would be cases where settlement remains elusive, the next step is usually a settlement conference. This is sometimes combined with the trial management conference. The settlement conference, held at least a month after the motion, is presided over by the case management judge, but not the trial judge. Although a trial could be scheduled before the conference is held, most of the time trial dates would not be provided until a settlement conference has been completed, the goals of which are:
- Finding the chances of settling the case;
- Pointing out the issues that are in dispute;
- Confirming that all relevant evidence has been or will be disclosed;
- Finding admissions that could simplify the case;
- Getting the judge’s view of how a trial judge might decide the case;
- Finding any other matter that could help in a quick and just resolution;
- Getting the witnesses and other evidence to be presented at trial, including an estimation of the time such testimony will take; and
- Arranging a trial management conference or holding one, if appropriate.
The most important item of the agenda above is the judge’s view of how a trial judge might decide the case and his or her ability to explore settlement with the parties. By guiding and suggesting, the judge can turn what appears to be an unbreakable impasse into a quick and final settlement. This gives the parties a fresh chance to honestly assess their cases in objective terms, see the other side’s position in new ways, and think about finding solutions instead of things that need to be done to prove the other side wrong.
The trial management conference is usually held a month or less before the trial starts. Usually, it is conducted by the case management judge, or by the trial judge, or by a judge the parties have never appeared before, the difference depending on the particular schedules of each court. Meant to ensure that the trial runs efficiently with as few surprises as possible, its purposes are nearly the same as the agenda above.
Sometimes, at the judge’s direction, part or all of the settlement conference is combined with a trial management conference. There the judge, if he or she deems it appropriate, makes an order for document disclosure, questioning, filing of summaries of argument, set the times for events in the case or give direction for next steps, order that a witness give evidence at trial by affidavit, make a temporary or final order if notice has been served, make an unopposed or consent order or, provided the parties agree refer any issue for alternative dispute resolution. Individual briefs are required for both conferences, the trial management conference briefs form part of the continuing record, but settlement conference briefs do not and are returned to counsel at the end of the session because they contain offers to settle which could prejudice the trial judge. The time service requirements are the same as for case conferences, and the parties should attend with their lawyers.
When attempts at settlement of some or all of the issues fail, a trial before a judge will follow, the judge having the applicant’s trial record, which contains:
- The Application, Answer, and Reply;
- Agreed statement of facts, updated financial statements and net family property statements;
- Assessment reports or orders relating to the trial; the relevant parts of any transcript on which a party intends to rely at trial; and
- Any expert report.
The trial under family law usually proceeds in the following order:
- Opening Statement,
- The Applicant’s Witnesses,
- Reading in Evidence,
- The Respondent’s Case,
- Rebuttal Evidence, and
- Closing Arguments
Normally, permission of the court is not required to appeal either a temporary or final order made in the Ontario Court of Justice. Appeals from that court are heard by a single judge of the Superior Court of Justice, while appeals from the Superior Court of Justice are heard either by the Court of Appeal or the Divisional Court, depending on whether the order appealed from is final or temporary and the amount in issue. Family law appeals in the Court of Appeal are heard “expeditiously”, meaning within three months. Besides, the Court offers a voluntary pre-hearing conference with a view to resolve family law appeals at an earlier stage in order to reduce costs for litigants. It is possible to freeze or stay a temporary or final on any conditions the court considers appropriate, but an order for support will not be stayed pending appeal. In Armstrong v. Armstrong, it has been held that where a trial court has heard all of the evidence and made a decision, the support recipient and children should not be deprived of support pending appeal unless exceptional circumstances suggest otherwise.
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