Supreme Court

Process Overview

The following is a brief overview of the typical steps involved in filing a family claim in the Supreme Court. It does not represent all situations, and you should contact us for a full assessment of your situation before taking any steps described below.

 

Commencing Proceedings in Supreme Court

The Supreme Court process generally starts when one party files a Notice of Family Claim (Form F3) at a Supreme Court Registry. A person who starts an action this way is referred to as a Claimant. The party served with these proceedings by the Claimant is the Respondent.

A Notice of Family Claim must be personally served on all named Respondents. After the Notice of Family Claim is served, a Respondent generally files a Response to Family Claim (Form F4) within 30 days of service. The Respondent may also wish to file and serve a Counterclaim (Form F5) within the 30 day period. The Claimant, upon receipt of the Respondent’s Counterclaim, will have 30 days to file and serve a Response to Counterclaim (Form F6).

If any property is involved in the case, or if child support and spousal support will be an issue, both parties generally file and serve Financial Statements (Form 8) including all relevant attachments. This informs the court and opposing parties as to the financial matters between the parties.

Once financial statements have been filed and served, the parties generally attend a Judicial Case Conference (JCC).

 

Judicial Case Conference (JCC)

A Judicial Case Conference (JCC) is a sort of mediation with a Supreme Court Judge acting as Mediator. The parties, with the assistance of the Judge, engage in a discussion that clarifies the issues and attempt to reach resolutions on issues they feel can be resolved. The Judge in a JCC generally does not make substantive orders except by consent of both parties. However, the Judge in a JCC does retain the power to make orders regarding procedural issues, filing of documents, scheduling of further JCCs, etc.

After the JCC, the parties are generally permitted to proceed with individual Applications in Chambers, for orders other than those made by consent of the parties.

 

Chambers Applications

“Chambers” refers to regular near-daily sittings of the court. A party may file and serve documents indicating that he or she will apply to the court at one of these Chambers sessions for a particular order to be made in his or her favour. The other party has an opportunity to respond and apply in Chambers (usually on the same date) for an order of his or her own.

The parties eventually argue their respective positions on the requested orders in Chambers, in person, and the court makes a decision. The time granted to parties in Chambers is generally short, because all sorts of litigants “get in line” to be heard on all sorts of matters. It is commonplace to be “bumped” off the list and re-scheduled for another day after waiting hours, if other more pressing matters need to be heard.

Orders made in Chambers are generally “interim orders.” This means they are orders that will stand only until the parties reach a trial down the road, when a final order will be made resolving an issue with more finality. Normally interim orders are made to preserve the status quo. That is, the court will tend to make orders that keep things the way they are, keeping the parties are “stable” until trial when all the evidence can be weighed carefully.

Proceeding with a Chambers Application is a complex task that involves the preparation and service of various documents, submission of affidavit evidence, research into the law, and the ability to succinctly make legal arguments that persuade the court. While it possible for laypersons to represent themselves in these court appearances, it is not easy to do properly. On the other hand, paying lawyers to prepare and attend court for these types of hearings can be very expensive.

A typical family Chambers Application can cost between $2,000.00 and $5,000.00 (for each party), and appearing in Chambers 3-6 times in any given litigation before a trial date is set is not unusual.

 

Discoveries and Pre-Trial

Going to trial is about bringing evidence to the court, on the basis of which judgments and orders will be made. There is little room for emotional arguments or arguments which are unsubstantiated by evidence. It is imperative to build a case on a solid foundation of relevant and compelling evidence.

In gathering evidence for a family trial, it is common to question various parties and witnesses on the record, to obtain their evidence under oath. It is also common to request that relevant documents be produced. This process is called “discovery.” If a party does not use his or her opportunities to discover witnesses and obtain documents effectively, his or her chances of a successful outcome at trial diminish dramatically.

Discoveries involve paying for court reporters and the production of transcripts of the examination sessions. Of course, lawyers are usually involved in these processes as well at their hourly rates.

It is also commonplace to pay for expert reports to be compiled in preparation for trial. For example, psychiatrists or doctors may opine on the ability of one person to parent effectively or suggest parenting arrangements that might be in the best interests of children involved in any given case. These reports are very expensive. They can cost between $5,000.00 and $12,000.00.

Trial management conferences and similar proceedings also occur in preparation for trial, to ensure the parties and their lawyers are ready to proceed to trial as scheduled.

 

Trial

Family trials involve intensive preparation.

Trials mean calling witnesses to testify, adducing evidence, cross-examining opposing witnesses and researching the law to make submissions appropriate to particular legal positions. There are few second chances at trial, and rules pertaining to procedure and admissibility of evidence are rigidly, rigidly followed to ensure the court’s impartiality in the process.

Family trial witnesses tend to be parents, close relatives, friends, teachers, family doctors and the like. Sometimes young children are also required to give evidence. This type of adversarial process puts already fragile relationships on very dangerous ground and can cause rifts and factions to form within families. Many families never recover from being picked apart in a public courtroom. (Family trials are generally open to the public – any person can spectate and be privy to a family’s most intimate dealings. Further, everything that is said at trial is recorded and transcribed to form part of the court record.)

The expense of trial is shocking. Each lawyer involved can charge between $3,000.00 and $10,000.00 a day, or more depending on seniority, for taking on a family trial. Many families fight for months and years, only to settle all matters on the eve of trial because they simply cannot afford to go through with it.

 

Aftermath

After final orders are made, there is always the possibility that the decisions will be appealed and the dispute prolonged. Further, in most cases family members are expected to continue their lives with one another, struggling to mend whatever relationships are left between them.

 
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