Surviving Family Conflict

The Divorce Process: How Are Matters Resolved?

How are family matters resolved? Family matters are resolved in two ways - (1) by agreement between you and your spouse preferably with professional assistance, or failing which, (2) by a third party. In other words, you and your spouse negotiate a resolution with professional help or, a third party, such as a judge or an arbitrator, who will decide for you and dictate the terms of any resolution.

1. By Agreement

More often then not, the resolution of the issues arising from the breakdown of a relationship is contained in a domestic contract. Typically, you will negotiate the terms of such an agreement through counsel or with the assistance of a mediator. Often, one spouse hires a lawyer and instructs the lawyer to send a letter to his/her spouse. The letter typically asks the spouse to hire a lawyer to negotiate the issues and, with the assistance of his/her lawyer, prepare a Financial Statement.

Financial Statements are then exchanged and the parties, through counsel, attempt to resolve the issues either through further correspondence and/or a four-way meeting. Once resolved, the agreement is reduced to writing in the form of a domestic contract, known as a Separation Agreement.

2. By Litigation

If you and your spouse reach an impasse and cannot agree or when something is urgent (i.e. a child has been taken without consent), a lawsuit is usually commenced. As well, a lawsuit is sometimes commenced on the belief that the threat of going to court will result in an immediate settlement.

A lawsuit is commenced by the issuance of an Application. In an Application one spouse states what he or she wants and on what basis. The lawsuit is "defended" by the delivery an Answer.

A lawsuit can be commenced in one of two Courts in Ontario: the "Ontario Superior Court of Justice" or the "Ontario Court of Justice." If property is in issue or if you or your spouse seeks exclusive possession of the matrimonial home, among other things, a lawsuit must take place in the Ontario Superior Court of Justice. Alternatively, if property is not in issue, a lawsuit may take place in the Ontario Court of Justice.

Don't be surprised if the claims of your spouse seem totally unreasonable. Claims are often inflated on the theory that "the more you ask for, the more you get."

You will usually be required to obtain a Case Conference before any other steps are taken in a lawsuit. A Case Conference is a meeting between lawyers and a Judge to narrow the issues and explore settlement, among other things.

If claims are made for support, exclusive possession of a matrimonial home, or custody of children, and a Case Conference did not resolve the issue, a "Motion" will usually be brought shortly after the Case Conference. In other words, you or your spouse goes to Court and asks for something on a temporary basis, until the case is settled or otherwise decided by a Judge at a trial.

Note that if a motion is brought, significant time and effort is required to prepare the appropriate materials, including a Notice of Motion, Affidavits in support thereof, a Financial Statement, a Statement of Prior Legal Proceedings and a Confirmation Form. As well, you may be questioned on any Affidavits or Financial Statements filed in support of the motion.

Following the filing of an Application and Answer and a Case Conference, documents may be exchanged if there is no settlement.

If your matter does not settle by this stage, questioning may take place. Questioning is an informal hearing where one or both parties get an opportunity to discover the facts relied upon in support of the respective claims. A representative from our firm, the opposing counsel and you or your spouse will meet in an office.

If you are questioned, your spouse's lawyer will ask you questions and you will give answers recorded by a reporter. A representative of our firm will be there to ensure that the questions you are asked are proper questions. The questions and answers may be used at trial or to settle the case.If there is still no settlement, a case is set down for trial. A "pre-trial" conference may take place and then ultimately a trial may occur. Note that it may take a few years for a case to reach the trial stage because the courts have hundreds of cases pending.

A Divorce in the Process

A divorce is simply that - a divorce. It means that you are free to marry another individual. Technically, it does not have anything to do with the other issues, such as support, custody or a division of property.

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