Resolving Family Law Problems in Court

Introductory blathering.

DRAFT

Hold on for a minute, is litigation really necessary?

Sometimes, you really have no choice except to start a court proceeding. But please think twice before you do, and make certain that litigation is your only choice.

The end of a relationship, especially a long relationship, is an emotionally charged, stressful moment. Litigation is not the only way there is to solve a problem, even though it might be really tempting to drop the bomb and hire the most aggressive lawyer you can find. Before you decide to go to court, think about these things first:

Your future relationship with your ex. Right now you might hate your ex and want to rip his or her eyes out. You might not feel that way in a year or two. If you don't have children, it might be entirely possible for you to simply walk out of each other's lives and into the sunset. If you do have children, you don't have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.

Your children, and your relationship with your children. Your children will be aware that there is a conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in litigation, it can be tremendously difficult to shield the children from the litigation, and from your emotional reactions to the litigation. It can also be difficult to refrain from using the children as weapons in the litigation. This will always affect the children adversely and often in ways you don't expect.

Your own worries and anxieties. Litigation is always an uncertain affair. No one, not even your lawyer, will guarantee that you will be successful about any issue. At the end of the day, fundamental decisions will be made by a complete stranger — the judge — about the things that matter the most to you, and his or her decision is not something you can predict with absolute certainty. On top of that, litigation, especially when you're doing it yourself, is extremely stressful. The documents and processes will be new to you, and each court appearance will be a fresh cause of anxiety and uncertainty.

Your pocket book. The only time litigation isn't expensive is when you do it yourself. If you opt to hire a lawyer, be prepared to pay and to pay a lot. Sometimes a lawyer can help you get things done quickly and with a minimum of fuss and bother, but if emotions are running high, you stand to pay a whopping legal bill, especially if you go all the way through to trial.

There are other ways of solving your problem than litigation. Going to court is only one of the ways to bring your dispute to an end. Other, less confrontational and less adversarial approaches include: negotiation, mediation and collaborative law. All of these other approaches generally cost a lot less, and, because they are cooperative in nature, they'll give you the best chance of maintaining a working relationship with your ex after the dust has settled. (These options are discussed in more detail in the Resolving Problems out of Court chapter.)

Now, in fairness, there are times when litigation is your only choice. It may be critical to start an action when:

1. there is a threat or a risk of child abduction;
2. there has been physical, verbal or sexual abuse in the relationship, whether to you or to your children;
3. threats have been made to your physical safety, or to the safety of your children;
4. there is a threat or a risk that your ex will damage, hide or dispose of property;
5. there is an urgent need to immediately secure some financial support; or,
6. negotiations have failed and, despite your best efforts, you can't agree on how to solve your differences.

Absent these important factors, your dispute, no matter how ugly it might seem to you, can always be resolved by negotiation or mediation rather than litigation. Even an action for a divorce order, which is the only other time when litigation is required, can be done in a cooperative, non-confrontational manner.

Think twice before deciding that litigation is your only option.

For more information about the emotions that surround the end of a long-term relationship, and how these emotions can affect the course of litigation, read the chapter Marriage & Divorce > Separating Emotionally. You should also track down and read a copy of Tug of War by Mr. Justice Brownstone from the Ontario Court of Justice. He gives a lot of practical advice about the family law court system, when it works best and when it doesn't work at all.

Court Proceedings

If you need the court to make an order about something, you must start a court proceeding. That’s the only way to get a court order.

Court proceedings in the Provincial Court and the Supreme Court work like this:

The person who needs the order starts a court proceeding by filing a claim in court and serving the filed claim on the other person.

The other person has a fixed amount of time after being served to respond to the court proceeding by filing a reply in court. The reply says which orders the person agrees to and which are objected to. The person may ask the court for other orders. If other orders are needed, the person will file a claim of his or her own. The reply and any new claim must be delivered to the person who started the court proceeding.

Next, the parties gather the information and documents they need to explain why they should have the orders they are asking for. Because trials are not run like an ambush, the parties must also exchange their information and documents. This way everyone knows exactly what is going on and how strong each person’s case is.