Ontario Child Custody Court Process: 8 Steps
Parents who cannot resolve disagreements about how to raise their kids after they separate will have to go through the court process.
You'll follow the steps below until you reach a settlement or the judge decides matters at trial.
If you settle, you will either withdraw your case or apply for a consent order. Applying for a consent order jumps the process ahead to Step 8.
Some procedures may vary depending on your case and court.
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Step 1: Try mediation
Most parents should try mediation. They can try either private or court-connected mediation before or after applying for a case.
Here, a professional mediator will lead a respectful conversation between parents to encourage them to settle their case by agreeing on a parenting plan. If you reach an agreement, you can keep it between you and the other parent, or you can submit it to the court to be made into a consent order.
Ideally, parents attend mediation (or another alternative dispute resolution method) as soon as possible to avoid a long dispute. However, you're not required to attend at all.
Parents are advised to get independent legal advice before going to mediation, though they don't have to.
Step 2: Apply for a case
To start your case, apply for a parenting order.
If you apply for a divorce, after filing your paperwork, the court must receive confirmation from the Central Registry of Divorce Proceedings that no other pending divorce cases involve you in Canada. It can take four to six weeks to get this. Your case will proceed during this time but cannot finalize without a Clearance Certificate.
Step 3: Serve the respondent
A third party, like a relative or professional process server, must give copies of the forms you filed to the respondent (the other person in the case). This is called serving court documents. However, you can skip this step if you filed for joint divorce.
The respondent will have 30 days to answer your application. If they respond with an Answer, you can submit a Reply to state which of their claims you agree or disagree with.
Possible step: Attend an urgent motion hearing
If your child is in danger of being harmed or removed from the province, you might need a temporary order immediately.
If so, bring an urgent motion, and the court will schedule a hearing quickly. You'll present your evidence to a judge, and they'll decide whether you need a temporary order. You'll need to prove that the matter cannot wait until your first court date.
The other parent may or may not attend, depending on whether you bring a motion with or without notice.
In the latter case, which is less common, your hearing will take place before Step 3, and they won't be at the hearing. Then, if the judge gives you an order, you'll have another hearing later where the other parent can tell their side of things. At that point, the judge will extend the order or change or terminate it.
Step 4: Go to the Mandatory Information Program session
Both parents will have to attend a free Mandatory Information Program (MIP) session before your first court date or no more than 45 days after your case opens. The session will take place online or at the courthouse and last two hours. If it's in person, parents will attend separate sessions.
At the session, you'll learn about:
- The impact of separation on parents and kids
- Options for resolving the case outside of court, like mediation
- The court process
- Legal issues like child support
- Resources available to help you deal with separation
You'll receive a certificate of attendance afterward and must file it online.
You don't have to go to the MIP if:
- You've been before.
- You've reached an agreement with the other parent and submitted it as a settlement or withdrawn your case.
- You need an urgent temporary order.
- Attending would cause you hardship.
Step 5: Go to your first court date
If your case is in the Superior Court of Justice, call the court to schedule a case conference (more below). That will be your first court appearance.
If you're in the Superior Court's family branch or the Ontario Court of Justice, you'll attend what is called the first appearance. The court clerk will give you a date when you file your application.
At the appearance, parents will meet with a court clerk together. The clerk will make sure the appropriate forms and documents are on file with the court and that everyone involved in the case has copies.
If your court has a Dispute Resolution Officer Program, instead of meeting with a clerk, you may meet with a lawyer to try to form an agreement. This is more common in cases to change a parenting plan or child support order.
Possible step: Update your financial statement
If you request spousal or child support, you'll need to file the following financial forms with the court — and serve them on the other parent — before each of your coming court dates.
If there have been major changes to your finances since you last submitted a financial statement, fill out a new financial statement for support or a new financial statement for property and support (if your case involves property disputes).
If there's been no change or only minor changes, write an affidavit saying so.
In either case, include a Certificate of Financial Disclosure listing evidence of your finances, like pay stubs. Attach the evidence itself.
Note that you will be exempted from this step entirely if:
- You're going to a case or settlement conference and filed a financial statement less than 60 days before it.
- You're going to a motion and filed a financial statement less than 30 days before it.
- You're going to a trial and filed a financial statement less than 40 days before it.
Don't forget to revisit this step before each of your court events.
Step 6: Attend conferences
Conferences address the administrative parts of your case and give you the opportunity to resolve disputes in your case. There are a few different types of conferences. The judge could combine them into one meeting.
At least three days before each conference, you must turn in Form 17F: Confirmation of Conference to let the court know you will be attending.
Parents typically meet the judge for the first time at the case conference. Here, you'll:
- Identify the issues you can't agree on.
- Discuss the chances of settlement.
- Make sure each parent has the information they need from one another.
- Set dates for the next steps in the case.
You might have more case conferences later on.
If parents are still at odds after one or more case conferences, the judge might schedule a settlement conference.
You'll need to fill out a Trial Scheduling Endorsement Form beforehand.
At the conference, you'll try to resolve all or some of the issues in your case, which will involve a discussion of any settlement offers. You'll also ensure you've exchanged the information necessary to resolve the issues.
If you don't reach a settlement, the judge will set a trial date at the end of the conference.
Trial management conference
You'll attend a trial management conference before the trial.
Here, the judge will make sure you're ready for trial and are complying with procedural orders (e.g., orders to provide the other parent with copies of evidence). You'll also figure out how long the trial will likely last, discuss the evidence you'll present and, as always, discuss the possibility of settlement.
Possible step: Request and attend a motion
Motions are how you ask the court for something. You might bring a motion to ask for an interpreter or for permission to turn in a document late. You'll have to wait until after your first case conference to bring a motion for anything other than an urgent or consent order (an agreement).
If the judge determines what you're asking for is unnecessary or inappropriate, they might order you to pay the legal fees the other parent incurred to participate in the motion.
Step 7: Attend trial
If settlement has proved impossible, you'll go to trial. During a trial, each parent presents the evidence they've collected to prove to the judge they should get the orders they're asking for.
After reviewing the arguments and evidence, the judge makes a decision about the parenting order and any other orders the parents requested (e.g., support, property division).
Step 8: Get a final parenting order
The final parenting order is the last word on how parents will handle raising their child after trial or settlement. If parents reached an agreement and submitted their parenting plan to the court, it will be part of their order.
A final parenting order stands until someone successfully appeals, the court approves a modification or the child involved reaches adulthood.
Throughout your case
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Take advantage of our technology to stay on top of all the moving parts of your case.
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