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Difference between revisions of "Resolving Family Law Problems in Court"

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|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
|ChapterEditors = [[Shannon Aldinger]] and [[Julie Brown]]
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The process of starting a court proceeding and wrapping it up at trial can be complicated. This chapter discusses the process for starting, and replying to, court proceedings in British Columbia's Supreme Court, making applications before trial, and completing a trial. For Provincial Court trials, please refer to the resources on Legal Aid BC's Family Law website, posted at the end of this section.
This section provides a thumbnail sketch of the basic court process common to all family law court proceedings. The following sections in this chapter provide more detail about [[Starting a Court Proceeding in a Family Matter|starting a proceeding]], [[Responding to a Court Proceeding in a Family Matter|responding to a proceeding]], going to [[Case Conferences in a Family Law Matter|case conferences]], making [[Interim Applications in Family Matters|applications for temporary and urgent orders]], [[Enforcing Orders in Family Matters|enforcing orders]], and [[Changing Orders in Family Matters|changing final orders]].
==Hold on for a minute, do you really have to go to court?==
Sometimes, you really have no choice except to start a court proceeding. But you should think twice before you do, and make sure that litigation is your best choice.
The end of a relationship, especially a long relationship, is an emotionally charged, stressful time. Court 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 start a court proceeding, think about these things first:
<blockquote>'''Your future relationship with your ex.''' Right now you might hate your ex and want to make their life miserable. 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, however, you don't have that option. Your relationship as lovers and partners might be over, but your relationship as ''parents'' will continue forever.</blockquote>
<blockquote>'''Your children, and your relationship with your children.''' Your children will be aware that there is a certain degree of conflict between you and your ex, an understanding that will differ depending on the children's ages. When parents are engaged in a court proceeding, it can be tremendously difficult to shield the children from the litigation, from your emotional reactions to the litigation, and from your conflict with their other parents. 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.</blockquote>
<blockquote>'''Your own worries and anxieties.''' Litigation is always an uncertain process. No one, not even your lawyer, can guarantee that you will be completely successful about any particular issue. At the end of the day, fundamental decisions will be made by a complete stranger &mdash; a judge &mdash; about the things that matter the most to you, and the judge's decision is not something you can predict with any certainty. On top of that, litigation, especially when you're doing it yourself, is very stressful. The forms and processes will be new to you, and each court appearance will likely be a fresh cause of anxiety and uncertainty.</blockquote>
<blockquote>'''Your wallet.''' 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 <span class="noglossary">bill</span>, especially if you go all the way through to trial. Even if you don't hire a lawyer, litigation can be expensive, and if you are unsuccessful you can also be ordered to pay the other side's court costs. </blockquote>
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, collaborative negotiation and arbitration. 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 chapter [[Resolving Family Law Problems out of Court]].
Now, in fairness, there are times when going to court may be your only choice. It may be critical to start a court proceeding when:
#there has been family violence in your relationship, whether involving you or your children;
#there have been threats to your physical safety, or to the safety of your children;
#your ex has threatened to take the children out of town, out of the province, or out of the country against your wishes;
#there is a threat or a risk that your ex will damage, hide, or dispose of property;
#you urgently need to get some financial help;
#negotiations have failed and, despite your very best efforts, you and your ex can't agree on how to solve your differences; or,
#your ex refuses to communicate with you about the legal issues that need to be resolved.
While you should think twice before deciding that court is your only option, starting a lawsuit doesn't mean that you can't continue to try to negotiate a resolution outside of the court process.
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 section [[Separating Emotionally]] in the chapter [[Separating and Getting Divorced]]. You should also track down and read a copy of ''[http://www.worldcat.org/oclc/436259309 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.
You might also want to read a paper I wrote for people who are representing themselves in court proceedings, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]".
==Okay, I'm going to court. Which court do I go to?==
Before getting any deeper into this chapter, go review the chapter [[Understanding the Legal System for Family Law Matters]], in particular, the section on [[The Court System for Family Matters|The Court System]]. What you'll learn there is that there are two courts that hear trials in British Columbia, the ''[https://www.provincialcourt.bc.ca/ Provincial Court]'' and the ''[https://www.bccourts.ca/supreme_court/ Supreme Court]'', and that these courts are very different from one another.
{{Template:BCPCJPBOFL2022}}
The Provincial Court deals with issues relating to parenting children, child support, spousal support, and orders protecting people under the ''[[Family Law Act]]''. The Supreme Court has the authority to deal with all of those issues, but can also deal with issues about parentage, dividing property and debt, and orders protecting property under the act. Only the Supreme Court has the authority to make orders under the ''[[Divorce Act]]'', including orders for divorce. This chart shows which trial court can deal with which family law problem:
::{| width="65%" class="wikitable"
!style="width: 25%"|
!style="width: 20%" align="center"|Supreme Court
!style="width: 20%" align="center"|Provincial Court
|-
|align="center"|'''Claims under the ''Divorce Act'''''||align="center"|All claims||
|-
|align="center"|'''Claims under the ''Family Law Act'''''||align="center"|All claims||align="center"|Some but not all claims
|-
|align="center"|'''Divorce'''||align="center"|Yes||
|-
|align="center"|'''Guardianship and<br/>parenting children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Time with children'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Child support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Children's property'''||align="center"|Yes||
|-
|align="center"|'''Spousal support'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Family property and<br/>family debt'''||align="center"|Yes||align="center"|Pets only
|-
|align="center"|'''Orders protecting people'''||align="center"|Yes||align="center"|Yes
|-
|align="center"|'''Orders protecting property'''||align="center"|Yes||
|}
The rules of the Supreme Court can be very complicated and fees are charged for many steps in the court process, including filing the paperwork that starts a court proceeding, making an application, or going to trial. The Provincial Court process is intended to be more affordable and easier to navigate without a lawyer's help. Visit Legal Aid BC's Family Law website for more information, including ''[https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court If you have to go to court]'' and ''[https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/trials-provincial-court Trials in Provincial Court].''
It is possible to start a proceeding in the Provincial Court to deal with things like child support, and then start a proceeding in the Supreme Court to get a divorce and deal with things like property. It can be complicated to split your family law issues between two courts. A lot of people find it easier just to deal with everything in one court, but because of the limits of the authority of the Provincial Court, the Supreme Court is the only choice available.
==What's the court process going to be like?==
==What's the court process going to be like?==


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