If you live together with another person in a romantic relationship of any kind, you may find yourself in Family Court if that relationship breaks down. According to statistics kept by the Department of Justice, Canada, in Ontario in the fiscal year of 2022 to 2023, 45,170 family law cases were commenced in the Superior Court of Justice. [1] During that time frame, there were 974,025 “process events” – which are described as “… events that move the case forward through the civil process, but are not the initiating event.” According to the data, 28,036 cases went to trial but the statistics include an additional case for each trial date. Therefore, if a trial took up 20 days, those 20 days would be part of the 28,036 cases. Accordingly, there seems to have been 28,036 days of trial. This number also includes uncontested trials which might take less than a day. There are 52 Judicial Districts in Ontario. Even if we distributed everything equally among those districts, each district would need approximately 540 “Judge” days for just trials and more judge days to handle 18,730 “process events”.
Imagine if you were one of those cases starting up in 2024. You can imagine how long it would take you to get to the trial stage. Here is why it would take you probably 2 to 3 years.
The typical family law case starts with one of the relationship partners preparing documentation containing what they are asking the court to order and filing that document (an Application with other required documents) with the court. This documentation is then personally served on the other partner who then has 30 days to respond. In their response (called an Answer), they can make claims of their own. The claims are typically for divorce if they are married, for a parenting plan which favours them, for child support, property division, spousal support and any other claim they wish to make. After that, the person who started the court cases gets another ten days to respond to the Answer. If they are not married, the property claims are not governed by the same law that applies to married couples and therefore, such claims are governed by a very gray area of law which makes these types of cases difficult to settle without a trial.
After all the paperwork is exchanged, the parties must first attend a case conference. In order to get a date for your case conference, you have to ask an official at the courthouse defined you a date. In some jurisdictions, the first available date might be 3 to 4 months away. Your case will be placed on a list with a number of cases. The number varies from jurisdiction to jurisdiction but in Central East, there are usually at least 6 to 10 cases on the list. Court normally opens at 9:30 AM breaks midmorning, lunch and midafternoon and usually ends the later than 5 PM. As a result, a judge will not have a great deal of time to spend on your matter. Where there is a high volume of cases, A case conference is always held before a judge and it usually deals only with preliminary procedural matters such as obtaining financial disclosure from the other party and so on. The judge also usually tries to assist the parties in coming to an agreement on such issues and explores the potential for settlement of the whole case. At such a hearing, the judge has no jurisdiction or authority to make an order resolving such things as what parenting plan should be in effect while the case moves through the system.
In order to deal with matters that have to be resolved while the case works its way through, after the case conference, a party may then bring what is called a Motion which is meant to have a judge make an order on a temporary basis determining such things as the parenting plan, the amount of child support and spousal support which a party must pay until the trial.
The next event is a settlement conference at which the judge has a bit more time to devote to trying to mediate a settlement for the parties.
If that fails, then the parties must attend a trial management conference which is sometimes combined with a trial scheduling conference.
All conferences are presided over by a judge who also tries to help the parties come to an agreement. If all of these fail, then the parties go on a trial list called a “settings” which is usually comprised of many cases. Many cases, thankfully, settle once they are on this trial list but many do not. The parties have to be ready for trial once they are on the list and very often, even though they are ready, their case is too far down the list to get heard and they have to go over to the next sittings. Trial lists are managed differently in Toronto where there is usually a “running list” of all cases which are ready for trial. Outside of Toronto, trial sittings are governed differently depending on each locations’ judicial leader’s view of what works best for their specific region.
If you have a lawyer, the typical trial, including attendance at all of the required conferences plus preparation time for each conference and for the trial will likely cost over $100,000. Complicated cases or highly contested parenting cases can far exceed that number. This does not include the cost of retaining experts who are often required in parenting cases, or in cases where the value of property or a self employed person’s income are in issue. In addition, professional services are subject to HST which only increases the financial pain. In short, going through the system can be financially ruinous for the typical Ontario family.
Recognizing this, Judges are actively taking steps to try and reduce the amount of time it takes to get matters resolved. Often they will recommend that the parties retain the services of a mediator or an arbitrator to help them resolve their problems in much less time and at much less cost. For those who need a trial, Judges are also trying to lower the cost and the time to conclusion by using such processes as Judicial Dispute Resolution which is a less cumbersome process than the trial process.
Many family law professionals are working hard to find ways to help people who find themselves trying to cope with this strain reduce their conflict and find a more peaceful process for resolution than “battling it out” in court. Several years ago, urged on by a number of family law professionals, the provincial government created subsidized mediation centres at all court locations in Ontario designed to offer mediation services at a reduced subsidized cost. This strategy has certainly added to the number of cases which settle without judicial intervention. But the numbers are still high.
Another not for profit organization called Separation Pathways has also opened an avenue for people of very modest means to access not only mediation and arbitration services but also to access the services they need including such services as counseling for any mental health issues which the parties or their children are experiencing as a result of their relationship breakdown.
In short, the move is afoot to try and keep people experiencing the trauma of a failed relationship to find a way to a better future for themselves and their children. So often a trial in Family Court only serves to increase the animosity and therefore cause so much more damage both emotionally and financially to the family unit than its worth. It’s really best to avoid the court process as much as possible if you are able.
– Tom Dart, Mediator & Arbitrator
[1] https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510011501 go to Superior Court family cases Ontario geography.
