How Family Court Works in Ontario From Application to Order

If you are about to start a family case in Ontario, or you have just been served with court papers, the process can feel like a maze. Knowing the usual order of the steps makes it easier to plan, to gather documents and to know when to ask for advice.

This article gives an overview from application to final order. Details vary by court and by region, and not every case uses every step, so use this as a map and not as a substitute for advice on your own situation.

Starting the case: the application

A family case generally begins when one person files an application and serves it on the other person. If the application, the Answer or a motion to change includes a claim about decision-making responsibility, parenting time or contact, the party must serve and file an affidavit in Form 35.1 with that document.

Form 35.1 must be sworn before a commissioner for taking affidavits, and a party must also file Form 35.1A if the child or any party has been involved in a child protection case. If you later discover that information in your Form 35.1 is incorrect or incomplete, you must correct it as soon as you discover it.

In the Family Court of the Superior Court of Justice, most applications and motions to change are on the fast track, with a first court date. Divorce and property claims are on the standard track, where the clerk does not set a court date when the application is filed but schedules a case conference when a party asks.

If you are served: responding to the application

A respondent must serve and file an Answer (Form 10) within 30 days after being served with the application, or within 60 days if the application was served outside Canada or the United States.

Ignoring the papers can cost you your say in the case. If a respondent does not answer, then unless the court orders otherwise, they are not entitled to further notice of steps or to take part in the case, and the court may deal with the case in their absence. If no answer has been filed by the first court date, the clerk sends the case to a judge to decide on affidavit evidence (Form 23C), or schedules a case conference if the applicant asks.

Conferences and motions

In every case in which an answer is filed, a judge must hold at least one conference. Required steps usually include the Mandatory Information Program (MIP), a case conference, a settlement conference and a trial management conference. Conference briefs are limited to 8 pages for a case conference and 12 pages for a settlement conference.

A motion is a request for a temporary or procedural order before the final result. Generally, no motion may be heard before a case conference on the substantive issues has been held. That rule does not apply if the court finds a situation of urgency or hardship, or that a case conference is not required for some other reason in the interest of justice.

• Mediation can be tried alongside court. Free on-site mediation is available at family courts on the day a matter is scheduled for court.
• Before each step, the parties must confer about costs, or make their best efforts to do so, unless a court order prohibits it or there is a risk of domestic violence.

Trial and the final order

Not every case reaches trial, but if yours does, you will want to know the order of events. The applicant gives the opening statement and calls witnesses first, and the respondent cross-examines each one. The respondent then calls their witnesses, whom the applicant may cross-examine. Closing statements come last, with the applicant going first.

Before trial, each party files Form 17E (Trial Management Conference Brief) for the trial management conference. Once the court sets a trial date, the parties are expected to go ahead, and adjournments are allowed only in exceptional circumstances.

After closing statements, the judge either decides right away or reserves the decision to a later date. Cases that sit idle can also end: if a case has not been settled, withdrawn, or scheduled or adjourned for trial by the 365th day after it started, the clerk serves a Notice of Approaching Dismissal (Form 39), and the case is dismissed without further notice unless a party takes a listed step within 60 days.

After the order, and what to do next

A final order is not always the end. To appeal a final Ontario Court of Justice order to the Superior Court of Justice, you must serve a notice of appeal (Form 38) within 30 days after the date of the order and file it within 10 days after serving it. Which court hears an appeal from a Superior Court of Justice order depends on the court and the kind of order.

To change a final order, a person uses Form 15 (Motion to Change), sworn before a commissioner. Support orders are automatically filed with the Family Responsibility Office.

• Note the date you were served and count your Answer deadline right away.
• Gather financial records, parenting-related documents and any earlier court orders.
• Find out which court your case is in, since steps and tracks differ.
• Speak with a lawyer early about deadlines, appeals and your options.

Frequently asked questions