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  • Writer's pictureDeanna Paolucci

The Family Court Process in Ottawa, ON

Updated: Nov 20, 2023

THE FAMILY COURT PROCESS

In Ottawa Ontario


Please note: the below is not legal advice. All cases/matters are unique and the process may vary accordingly. If you have questions about the below, please reach out to your lawyer.


ATTENDING A COURT APPEARANCE


Arrive at the courthouse: If your matter is being heard in Ottawa, it will be heard at the courthouse at 161 Elgin Street, which is where the Superior Court of Justice sits in Ottawa. Upon entering the building and prior to proceeding through security, note that you are not allowed to take pictures anywhere in the courthouse, including at the entrance.


Proceed through security: This includes a metal detector. It is important that you do not bring items which will be seized by the security as they will not be returned to you on the way out. This includes pocket knives or anything that could be considered a weapon. You will be asked to remove your coat and place your personal items in a bin to pass through the ex-ray machine.


Find the courtroom: After you have cleared the security, you will be on the second floor of the Ottawa courthouse. This is one of the floors that family matters are heard on but there are others. Knowing which courtroom you are in will assist with where to go next. As the courtroom is assigned on the day, your lawyer may not already know which courtroom you are in at this stage and if they have not already advised you, you will have to ask at the information desk. After you have passed through security you will be facing the elevators, look right and you will see the information desk next to the elevators and on that same side of the hallway. There are normally two court staff at this desk and they have all of the dockets, if you ask them where your matter is being heard, they will advise accordingly.


Enter the courtroom: After you have found the courtroom and had the opportunity to speak with your lawyer, you will proceed to enter the court. In doing so, please note the following:

  • Most court proceedings are open to the public.

  • Be on time. Do not make the Court wait.

  • Make sure your cellphone or any electronic item you may have that could make a noise and disrupt the process is turned off.

  • Do not bring drinks or food into the courtroom.

  • Make sure to remove all hats or headwear not permitted for religious purposes and your sunglasses prior to entering the court room.

  • When the judge enters the courtroom, everyone in the room must rise to show respect. Remain standing until the registrar invites you to be seated.


During the court appearance:

  • Unless the judge asks you a specific question and indicates that they wish for you to personally answer, if you are represented, it is important that you do not speak out.

  • If you are asked to speak by the judge, be sure to stand when doing so and address the judge as “Your Honour” or if you are in a procedural matter and it is a master presiding by “Justice or Master (last name)”

TYPES OF COURT APPEARANCES


First Appearance


Barring any need for a procedural appearance, or if there is a claim for equalization in your matter (in which case, skip to case conference), your first court date will be a first appearance.


The First Appearance is before a registrar and is procedural with setting dates, extending timelines and means of or to serve and file and for making procedural requests. However, it is important to note that if you are eligible there is free mediation offered at this appearance which may assist to narrow some of the issues, if it is not otherwise possible to resolve any or all of the substantial issues.


At the time of writing, first appearances remain virtual in Ottawa. However, note that this is subject to change, so please confirm with your counsel prior to the date and ensure that you have the link, if it remains virtual.



Case Conference


If your matter includes a claim for equalization or you have otherwise now already attended to a first appearance, in the majority of the cases*, your next appearance will be to attend to a case conference.


Prior to a case conference, you will have to file a brief and will be served a brief from the other party or their lawyer. It is important that your contact information is kept up to date with your lawyer to ensure you do not miss any of the deadlines, both for the review of the brief being served and to prepare one for your own. If you fail to do so, you may risk attending to court without the Judge having your information and position and being awarded costs against you, so this is very important.


A case conference is meant to assist negotiations and, if possible, facilitate an Agreement, but to otherwise push your matter forward towards resolution with receiving an order for disclosure. In most cases, at a case conference you will be in a courtroom with a judge. In some jurisdictions case conferences are heard by a Justice of the Peace or senior lawyers. It is important to note that with few exceptions, only orders granted on consent can be received at a case conference. Think of it this way, a case conference is, at a time where, during your negotiations, you are at an impasse. All parties and their counsel attend to the case conference to tell the Court what their position is on the impasse and to hear how a judge would likely determine the issues. The judge will provide their insight and assist the parties as best as possible to overcome the impasse so as to allow the negotiations to continue. A judge will not make a decision on any of the substantive issues at a case conference. Orders on consent, procedural orders (including deadlines, disclosure, parties) and other such reliefs will be granted at a case conference. As long as it is on consent, the parties may receive an order for the involvement of the Office of the Children’s Lawyer at this stage as well.


Barring an issue in your matter being deemed urgent, a case conference must be held before any party can bring a motion. After a case conference has been held on the issue you wish to bring a motion forward for, a motion may be scheduled.


* In some cases it will be necessary to attend to procedural court in between should there be any procedural matters which could assist, or if to file a consent order or in the case of emergency and urgent motion.



Motion


At any time after a case conference, or if an issue in your matter has been deemed urgent by the Court, any party may bring a motion, whether it be a long or short motion. Should it be a long motion, more work is involved with there being a requirement that a factum must be filed as well as your affidavit and supporting materials. This factum and supporting Book of Authorities, is to assist the court with providing the law, including case law and provides the opportunity to have a judge read your argument prior to attending to court with ensuring they have all of the information necessary before them to make a decision.


Once more, it is very important that your lawyer be able to reach you during the preparation of this process. It may be necessary to have affidavits from a number of witnesses, which could take time to facilitate and have sworn. It is quite likely your lawyer will be working to prepare your motion weeks before the actual date, so be sure to remain in close contact during this time. Should your lawyer be unable to reach you to properly prepare, not only will it become more difficult to be granted the relief sought, but you may also risk costs against you for failure to be prepared. A lawyer cannot prepare a motion without you. Even short motions require the client to swear an affidavit, so this is important.


When you appear at the motion, your lawyer will be robed, as will opposing counsel. Both lawyers will be given the opportunity to make their arguments before the judge hearing the motion, with the moving party also having the right of reply. The judge will have reviewed all of the materials either before the motion, or prior to providing a decision in the form of an endorsement. At this stage, and unlike a case conference or first appearance, a judge will make a decision about the issue.


Motions are not always necessary and can be avoided most times if the parties are able to work towards a settlement and it is not a high conflict case. When you bring a motion you risk there being a decision which opposes your position being made into an order and on a with prejudice basis and you also risk costs. It is therefore very important that you do not request a motion unless advised to do so by your lawyer or for an important issue which you have evidence to support your position on.




Settlement Conference


If after all of the above, the parties have not come to an agreement and cannot provide the court with minutes of settlement, the matter will proceed to a settlement conference, on the request of either party.


Again, it is very important that your lawyer be able to reach you at this stage to review the brief from the other party and to prepare your own.


A settlement conference has many similarities to a case conference, in that a judge will not make a decision, orders will be made on consent only, and it is meant to facilitate a settlement. At this stage it is expected that at least some of the issues are resolved and full disclosure has been made by both parties. However, if further disclosure is required, it can be requested at this stage as well.


It should also be noted that after a case conference both parties have a right to bring a motion. After a settlement conference has been scheduled, a motion can only be brought with leave of the court.


At a settlement conference judge will once more hear the positions of each of the parties and give an opinion as to the outcome should the matter proceed to the next step, which is a trial. However, at a settlement conference, the Court is much more focused on settlement and will push the parties to reach an agreement if possible. In addition to this, a settlement conference is unique to the case conference in that the case has now progressed and the parties provide information with respect to how the matter would be argued at trial, including (**sometimes but not always) who they would call as a witness, and what evidence they would present in support of their position. If a judge cannot assist the parties to reach an agreement at this stage and they do not feel it is likely a further settlement conference will assist to resolve the matter, they will set the matter down for trial and your next appearance will be a trial management conference. Should the judge feel another settlement conference could assist the parties to avoid trial, they may request that the parties proceed to a second settlement conference and provide guidance as to what should happen between the conferences.


Your matter may have several settlement conferences if necessary to resolve the issues or may proceed to the next step following the settlement conference.


**Sometimes but not always – please note, this is not legal advice and the particulars, issues or facts of your case and what makes it unique may require a different approach.



Trial Management Conference


Your lawyer will guide you through this process. It is a bit unique to other conferences in that this conference has a focus on the trial. When the necessary disclosure and trial books should be exchanged and filed, any procedural issues (translators, video testimony of a witness), and the scheduling of voir dires if necessary. While the Court would facilitate a settlement at this time, this conference is mainly to ensure that all documents, deadlines, and admissibility issues are identified and prepared in order to proceed to the trial on the set date.


In some jurisdictions, prior to the trial management conference, your lawyer will need to provide a brief, in others, only a Trial Scheduling Endorsement Form, is necessary. Both documents list your witnesses, provide the issue they have evidence about and provide the court with timelines of testimonies. This will assist to determine how long the trial will take and how many days should be scheduled. It is therefore once more, very important you meet with your lawyer to prepare prior to this appearance and to ensure your lawyer has a means to contact you.


After the trial management conference your matter will proceed to the set trial dates and barring any agreement, minutes of settlement or urgent motion in the interim will be heard by a judge on the set date.


Please keep in mind that there may be deviations from the above dependent on your particular case and jurisdiction and the above does not get into appeals for interim orders, which are also possible. In a blog to come, we will discuss urgent motions, when they are brought and the test for these, which is one of the other exceptions above. In all cases, it is always important that your lawyer can reach you to explain the next step and what is expected of you, so remember to always keep your lawyer up to date with your current contact information.


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