Litigation & Court

To initiate Court proceedings one party generally commences an Application or Motion to Change by serving his or her former spouse with the document and filing it with the Court. If you are served with Court documents, you must respond within the prescribed time frame. If you need to commence court proceedings or have been served with Court documents you should immediately retain Counsel to represent you in the proceedings.

Pursuant to the Family Rules which became effective on July 1st, 2004 in Ontario, every case is now operating under a Case Management System.  This means that Family Law litigants are required to attend a series of Conferences at the Court. Depending on whether you are able to resolve your matters before a Trial, this can include a Case Conference, a Settlement Conference, and a Trial Management Conference.

A settlement conference is a meeting before a judge wherein the judge tries to help the parties resolve some or all of their matters. Each party is required to have a Settlement Conference Brief and a comprehensive offer to settle. The judge then tries to find areas of compromise, gives opinion on each parties’ positions and works with the parties and Counsel to resolve some or all of the issues.

• Exploring the chances of settling the case;
• Identifying the issues that are in dispute and those that are not in dispute;
• Exploring ways to resolve the issues that are in dispute;
• Ensuring disclosure of the relevant evidence;
• Noting admissions that may simplify the case;
• Setting the date for the next step in the case;
• If possible, having the parties agree to a specific timetable for the steps to be taken in the case before it comes to trial;
• Organizing a settlement conference; and
• Giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument.

A settlement conference is a meeting before a judge ___ the judge ___ to help the parties resolve some or all of their matters. Each party is required to have a Settlement Conference Brief and a ______ Offer to settle. The judge then tries to find areas of compromise, gives ____ on each parties positions and works with the parties and Counsel to resolve some or all of the issues.

• Exploring the chances of settling the case;
• Settling or narrowing the issues in dispute;
• Ensuring disclosure of the relevant evidence;
• Noting admissions that may simplify the case;
• If possible, obtaining a view of how the court might decide the case;
• Considering any other matter that may help in a quick and just conclusion to the case;
• If the case is not settled, identifying the witnesses and other evidence to be presented at trial, estimating the time needed for trial and scheduling the case for trial; and
• Organizing a trial management conference, or holding one.
• Giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument.

If you cannot settle your matters at a Settlement Conference, a Trial will be scheduled and you will be required to attend at a Trial Management Conference.

The Trial Management Conference is the last conference in the Court process before the Trial. Although Judges will try to help parties narrow or resolve their issues at this Conference, the purpose of the Conference is to set out the procedure for Trial.  Each party is required to file a Trial Management Conference Brief which includes an outline of their Opening Statement and a list of witnesses they intend to have testify at Trial.

A Trial is the final stage in Court proceedings. Depending on how many issues need to be resolved and the complexity of the issues, a Trial can run anywhere between half a day to multiple weeks. Upon completion of the Trial, the presiding Judge will render a decision about how the outstanding issues between the parties will be resolved. This is called a Final Order and the parties are required to adhere to the terms of the Final Order. A Trial is different than a Motion. Generally, at a Motion, Affidavits are filed with the Court, Counsel makes submissions to the Court and the Court makes a decision based on the Affidavit evidence and the submissions of Counsel. At Trial, both parties (and others) will be required to testify under oath. In other words, both parties will be orally examined by their respective Counsel and cross-examined by opposing Counsel.

Counsel at Bombardieri Family Law have extensive Trial experience and have successfully obtained many Trial decisions wherein their client is awarded the relief he or she was seeking.

Pursuant to the Family Law Rules, once a Case Conference has been held, if it is necessary, either party can proceed with a Motion for interim (temporary) relief pending Trial. To proceed with a Motion you must serve and file a Notice of Motion setting out the Orders you are asking the Court to make on the Motion and a sworn Affidavit detailing the facts and evidence you are relying on to obtain the Orders. At a Motion, Counsel makes oral submissions based on the Affidavit evidence and parties are not required to testify. Often, the losing party on a Motion will be ordered to pay the costs to the successful party.

Questioning is the process by which Counsel obtains information and evidence from the other party that is relevant to the case. Questioning is an out of Court process and is very similar to being cross-examined in a court room. Questioning usually occurs at a Reporting Centre and you will be required to swear or take an oath that you are telling the truth. The questioning will be recorded by the Reporter and a transcript of the questioning can be ordered by either party. If you go to Trial, the transcript will likely be filed with the Court.

Our Team encourages clients to take reasonable positions and only to engage in Court proceedings if it is necessary. In the event that our clients are in Court, we take all the steps necessary to insulate our clients from cost consequences (ie. serving Offers to Settle, working to negotiate settlements, etc.) and we regularly obtain significant cost awards in favour of our clients.

The Bombardieri Family Law Team attends proceedings in the Ontario Court and the Ontario Superior Court of Justice in Hamilton, Milton, Brampton, Toronto, Newmarket, and St. Catharines.