Henderson Heinrichs LLP

Setting a Trial in Ontario and BC

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio ) Published: June 11, 2014

Categorized: Family Court.

Many people’s idea of family law is based on what they see on TV. They imagine that they are going to “fight it out” at trial.

Nothing could be farther from the truth.

Trials are enormously expensive if you hire a lawyer to represent you, they take a very long time to arrange, and they are incredibly emotionally draining to prepare for and to attend. Not surprisingly, therefore, only about 3% of family law cases in Ontario conclude with a trial. The rest of the many cases flowing through the Ontario courts very sensibly settle before a trial is necessary.

The percentage of family law cases that go to trial in BC may be a bit higher, but the same principle applies. Smart people settle their differences instead of gambling that a judge will give them what they want. As I always tell my clients: there are no guarantees in court, no matter how “right” you are.

For the few people who do need trials to settle their family law disputes, whether they are self-represented or (hopefully) have an experienced family law lawyer representing them, an interesting question is: how do you actually get a trial date?

In the BC Supreme Court, just like in the Ontario Court of Justice and the Superior Court of Justice, people are required to have a case conference before they can do much of anything else. Once that is done things vary significantly between the two provinces.

If you happen to live in Vancouver and are going through a divorce or dividing property as “common law spouses”, and if you need court intervention, you will be in the BC Supreme Court. That court is governed by the Supreme Court Family Rules. Those Rules quite helpfully set out how a person goes about asking for a trial. It might be that a judge has picked a trial date at a judicial case conference, or maybe the parties have agreed to a date. In either case, one of the parties needs to fill out “Form F44” (available on the BC government’s web site http://www.ag.gov.bc.ca/courts/other/supreme/2010SupRules/info/index_family.htm) and submit it to the registry. That’s it. Trial Scheduling will add you to the list and you can start preparing. (There are many things you must do after setting the trial date, though, and your date could be removed from the list if you don’t do them at certain times–make sure you talk to an experienced family law lawyer so you don’t miss any deadlines.)

If you happen to live in Toronto, things are not quite so simple. This is because the Ontario courts have a very strong belief that most people are best served by repeated conferences, and that forcing them to attend those conferences might keep them out of a trial.

As in BC, parties in a family law action in Toronto (and other Ontario municipalities) will need to attend a case conference. At that case conference, a judge may order that the parties attend a settlement conference. At a settlement conference, a judge may order that they attend a trial management conference. Finally, at either a settlement conference or a trial management conference, the judge may set a date for a trial.

Remember those folks in Vancouver who had a judge set a trial date for them? Yes, that happens here in Toronto too. The difference is, in Toronto, a person involved in a family law action cannot just fill out a form, walk into the registry, and set a trial–even if her spouse agrees to the date she picked. A judge must order a trial date for parties in Ontario.

So if you are trying to muddle through the court system in BC, and you’re wondering how you and your spouse can just cut to the chase and get yourselves a trial date, just fill out Form F44 (but please, talk to a lawyer first!).

But if you’re in Ontario, forget trying to find a similar form, and instead just fill out form 17 (Conference Notice), and get yourselves in front of a judge for a settlement conference. He or she will (wisely) try to talk you into settling your differences without a trial. But if you cannot, he or she will order a trial and set a date with you.

Trevor B. Smith

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