Settlement Conference and Trial in a Contested Ontario Divorce

A contested divorce is one where you and your spouse do not agree on everything. The disagreement might be about parenting, support, dividing property, or all three. Many people hear the word and picture a dramatic courtroom fight, but most of the process is paperwork, deadlines and meetings with a judge that are aimed at settling.

This article walks through the later stages: the settlement conference, the trial management conference and trial, and the evidence and cost issues that come with them. It is general information about how things work, not advice on your own case. A lawyer can tell you which steps and forms apply to your situation.

What makes a divorce contested

In Ontario, a court can grant a divorce when the marriage has broken down. That is usually shown by the spouses living separate and apart for at least one year immediately before the determination, or by adultery or cruelty that makes living together intolerable. The court must also be satisfied there is no possibility of reconciliation, no collusion, and that reasonable arrangements have been made for the support of any children of the marriage.

The divorce itself is often the simple part. A divorce becomes contested when the related issues are in dispute. Those issues can include:

• Child support and spousal support, which a court can order under the Divorce Act.
• Dividing property, where the spouse with the larger net increase in family property generally pays half the difference to the other.
• Parenting arrangements for your children.

From the answer to the first court dates

After you are served with an application, the answer is due 30 days after service, or 60 days if you are outside Canada and the United States. If the other side then wants to respond to new points, a Form 10A Reply is due within 10 days of the answer.

Conferences may be scheduled or combined in different ways depending on the court and your case, so it is worth confirming with a lawyer. That means the stages described below do not always happen as separate events.

Early on, most people also have to complete the Mandatory Information Program, which is the first step in a family court case. There are exceptions, such as when both parties consent to the order sought or the only claims are for divorce, costs, or an order based on an existing agreement or order.

The settlement conference

The settlement conference is a meeting with a judge where the goal is to explore settlement, narrow the issues, and make sure disclosure has been completed. If the case does not settle, the conference is used to identify witnesses, estimate how long the trial will take and schedule it.

The timing is tight. Exact brief deadlines and forms depend on the court that has your case, so it is worth confirming them with a lawyer. In the Superior Court, settlement conference briefs are limited to 12 pages and case conference briefs to 8 pages. Local practice differs between courts, so confirm the rules for the court that has your case.

The trial management conference and trial

The trial management conference is the final planning step before trial. The judge will explore settlement again, work out how evidence will be received (for example by affidavit, written report or agreed statement of facts), decide how the trial will proceed, address any expert evidence, confirm witnesses and set the trial time estimate and date. The judge may limit affidavit pages and the number of witnesses.

Because the judge can shape what evidence is allowed, this is a step where preparation matters.

Costs, offers and disclosure

In family cases there is a presumption that a successful party gets costs, although the court can deprive a successful party of costs if that party behaved unreasonably. Courts give significant deference to family costs awards.

Written offers to settle matter. A party who makes an offer at least seven days before trial that is not accepted, and then gets a result as favourable or better, can get full recovery costs. Even when that rule does not apply, the court may consider any written offer, its date and its terms.

Disclosure also affects costs. Unreasonable conduct such as late financial disclosure can reduce a costs award, and the Court of Appeal calls the duty to disclose financial information the most basic obligation in family law.

What to do next

• Note every deadline you have been given and count backward from each conference date.
• Gather complete financial records so your financial statement is accurate and current.
• Ask a lawyer whether a written offer to settle makes sense, and when it should be made.
• Consider mediation or arbitration. Courthouses offer free mediation on the court date, but an arbitrator cannot grant a divorce.
• Get legal advice before the settlement conference, not after it.

Frequently asked questions