The First Step in Your Case: The MIP Session
The MIP, or Mandatory Information Program, is intended as a first step for family court parties who have contested issues. It is a two-hour session that provides attendees with information about the family court system and process, local community resources and programs, common issues facing family law litigants, alternatives to litigation, and the effects of separation and divorce on the parties and their children. In general, the MIP helps encourage parties to settle where possible. The session usually takes place in the same court in which the application was filed. Both spouses must attend their MIP sessions before the matter can come before a judge, but the parties do not attend the MIP session together—it is not a mediation session. You and your partner will be given separate MIP dates.
When the Applicant files the application in court, the clerk will give the Applicant two Notices: one of their MIP date and one for the Respondent indicating the Respondent’s MIP date. The Applicant must provide that MIP Notice to the Respondent. If you are the Respondent in your proceeding and you are concerned for your safety and do not want your partner to know your MIP date and location, you can reschedule your MIP session.
Your First Appearance & Case Conference
For some cases at the Superior Court, and all cases at the Ontario Court of Justice, a first court date, or first appearance, is a required next step after your MIP session. Your first appearance will be scheduled when you (or the other party) file your application. The clerk will schedule the date and note it on the application. The first appearance is a purely administrative meeting; you and the other party and your lawyers will typically meet with a judge or a clerk who will ensure that all relevant documents have been filed with the court and served on the other party. The clerk or judge can then schedule the first case conference. In the District of Sudbury, your lawyer can attend your first appearance on your behalf.
If you have had your first appearance, or if your matter does not require a first appearance, your next step will be a case conference. If one is not already scheduled for you, one of the parties must ask the court staff to schedule the case conference. At the case conference, all parties and their lawyers (if one or both parties have legal representation) must be present. You will meet with a judge, who will discuss with you the issues that remain in dispute, the chances of resolving those issues and settling your case, and whether all necessary information has been disclosed. Each party will be invited to speak and give their side of the case. The judge will likely then ask follow-up questions of each party, to gain a greater understanding of the issues and of each party’s position.
At the case conference, the judge can also make a variety of procedural orders, such as that the parties pursue mediation, or produce certain documents. If the parties are able to agree on the resolution to an issue at a case conference, the judge can also make an order incorporating a resolution agreed upon by the parties. The judge will then set a date for the next step. At all subsequent conferences, you will see the same judge.
Each case can have more than one case conference. You or the other party can request additional case conferences at any time in the process. A case conference is a requirement before either party can bring a motion because a party can only bring a motion on a matter that has been discussed at a case conference.
Each party must file and serve on the other party a Form 17A: Case Conference Brief.
A settlement conference can be scheduled at the request of either party and is a required next step if parties are unable to agree on issues at the case conference. A settlement conference is similar to a case conference in many respects. The parties and the judge will again attempt to narrow and/or resolve issues that can be decided or settled without a trial. However, the judge will be more focused on determining what attempts the parties have made to settle thus far in the process and will be more aggressive in offering opinions on the issues at hand, and how those issues might play out if the matter goes to trial. Prior to the conference, each party is required to submit a settlement conference brief that includes a proposal for settling the matter completely.
If the case is to proceed to trial, the parties and the judge will estimate the time needed for the trial, and schedule one. At that time a trial management conference will also be scheduled. The judge who conducts a settlement conference on an issue will not be the judge who hears the matter at trial.
Each party must file and serve on the other party a Form 17C: Settlement Conference Brief.
The preparation and documentation for a settlement conference are similar to that for a case conference.
Trial Management Conferences
Trial management conferences focus on issues that will be proceeding to trial. The judge will likely try again to assist the parties in settling but otherwise will seek to ensure the trial is as focused and expeditious as possible, and that both parties are aware of what evidence the other party will bring.
At the trial management conference, each party must indicate what witnesses they will call, how they will present their case, and how much time they anticipate needing at each stage. If a trial date has not already been scheduled, that will be done at the trial management conference.
The preparation, documentation, and deadlines for filing/serving forms for a trial management conference are similar to those for a case conference. In the case of a trial management conference, each party must file and serve on the other party a Form 17E: Trial Management Conference Brief.
Rule 17 of the Family Law Rules governs case conferences, settlement conferences, and trial management conferences.
Motions for Temporary Orders & Motions to Change
In a motion for a temporary order, the moving party brings one or more issues in a case before a judge and asks for temporary relief, such as interim spousal or child support, to last until a final order is made. A motion can be brought at any time in the proceeding, provided the subject matter of the motion has been discussed at a case conference. (If the matter is urgent, it may be possible to bring your motion without a case conference first.)
A party can also bring a motion to change an existing order, such as a child support order. In either instance, the motions judge will not be the same judge who presided over your case conference or settlement conference.
At the motion, each party has a chance to present their case. The judge will then either make a decision immediately or reserve.
All the previous steps in your case have been designed to encourage settlement, and it is therefore very unlikely that your matter will proceed to trial. (Trials occur in less than 5% of cases.) Trials are very expensive for litigants and typically last for several days.
If you are at the point in your case where it seems that all potential methods for resolution have been exhausted, and you have not yet retained a lawyer, it would be wise to do so at this point. Trials are emotionally charged and they can get quite nasty. You should avoid the cost, time, and emotional harm of a trial if at all possible.
Trials are procedurally complex and will require extensive preparation on your part if you are self-represented.
Offers to Settle
One of the goals of the family law system is to encourage resolution between the parties wherever possible. Offers to Settle, governed by Rule 18, are one way in which parties are encouraged to resolve their issues. At any point in the process, it is possible for either party to serve on the other party an Offer to Settle. Offers must be signed.
In your Offer, you should set out how you wish to resolve all the contested issues between you. You can specify a deadline for accepting the Offer. If the other party does not accept by that date, then the Offer will be considered to have been withdrawn. If you do not specify a deadline, the Offer remains open until you formally withdraw it.
If you receive an Offer from the other side, it is very important to be aware of Rule 18(14), which states that if the other party makes you an Offer to Settle, you do not accept that Offer, and the order ultimately made by the court is as favourable or more favourable to the offering party than their Offer was, the offeror is entitled to their legal costs, unless the court orders otherwise, to the date the Offer was served, and full recovery of costs from that date. In other words, if you reject an Offer, and it turns out you would have been better off taking it, you will have to pay a large chunk of the other party’s costs. The Offer must have been made at least one day before the motion date if it relates to a motion, and at least seven days before the trial or hearing, if it relates to a trial or hearing.
It is therefore very important that you seriously consider any reasonable Offers you receive from the other party. It is also in your best interests to consider making the other side an Offer if you think there is a way for you to come to an agreement.
Every item that you file with the court must also be “served” on (delivered to) the other party. The same is true for everything on the other side files: copies will be served on you. This ensures that both of you are aware of the case you have to meet, and what evidence will be brought. There are very specific rules for how to serve the other party because the court must ensure that service has taken place.
Once relevant documentation has been filed with the court, it is up to the party filing them to have the other party formally served. Rule 6 sets out the rules of service for all documents, and specifies various methods in which you can serve the other party (mail or courier to the other party’s lawyer, for example). The person who serves the documents must be over 18, and you cannot serve the other party yourself. A process server (a person whose job is to serve documents) is the safest way to ensure timely delivery.
- What documents have been delivered;
- To whom they were delivered; and
- How they were delivered.
This Affidavit serves as proof for the court that the documents have been served.
If you cannot find the other party, or you know where they are but are unable to serve them for some reason, you can request substitute service, which will allow you to serve the documents to a third party (for example, a relative the other party is staying with) who will be able to deliver them. You will have to fill out Form 14B: Motion, and request an order for substituted service, under Rule 6(15).
Rule 6(15) sets out what you must show in order to have the court grant your request: You must show the steps that have been taken to locate the person you need to serve (for example, internet searches, email or phone record searches, phoning relatives and friends), and what steps have been taken to serve that person if you have been able to locate them. Then, you must explain what substitute method of service you are requesting, and why you know that this method of service will likely be successful in getting the documents to the other party.
Service can present various complexities, and ensuring full compliance with service requirements can help you avoid unnecessary pitfalls in your divorce, separation, or other family law matter.
The person who served the documents will have to complete Form 6B: Affidavit of Service, a sworn document outlining:
Commonly Asked Questions About Collaborative Family Practice also known as Collaborative Family Law
Collaborative Family Law is a form of alternative dispute resolution. Each spouse’s lawyer will assist you through the process and advise, advocate, and analyze options that best suit your family’s needs. Lawyers and neutral professionals use tools to help guide the family through the important topics of separation and divorce.
That spouse and their lawyers will collaborate and negotiate to reach a mutually acceptable settlement outside of the court process.
Collaborative Family Law lawyers are specifically trained in Collaborative Family Law and participate in ongoing legal education programs.
Although rare, if a separation agreement cannot be reached the parties withdraw from the collaborative law process and a proceeding can be commenced in Court with alternate lawyers (not the collaborative lawyers hired in the collaborative law process). Therefore none of the lawyers, professionals engaged in the process, or the documents and meetings during the Collaborative period can be used in court.