Resolving Family Law Problems in Court

The process of starting a court proceeding and bringing it through to a trial can be complicated. This chapter will discuss the process for starting and defending proceedings in the Provincial Court and the Supreme Court, attending case conferences and making applications for temporary and urgent orders. This page provides a thumbnail sketch of the basic court process common to all non-criminal proceedings, but first offers a brief caution about the dangers of commencing litigation in haste.

JP done. No glossary tags to be added. Links to be added.

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 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. 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 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 going to court may be your only choice. It may be critical to start a court proceeding 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 to your physical safety, or to the safety of your children, have been made;
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 help; or,
6. negotiations have failed and, despite your best efforts, you and your ex can't agree on how to solve your differences.

If none of these apply to you, your dispute — no matter how ugly it might seem to you — can always be resolved by negotiation or mediation rather than litigation. Even a proceeding for a divorce order, which is the only other time when a court proceeding is necessary, can be done in a cooperative, non-confrontational manner.

Think twice before deciding that court 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 page on Separating Emotionally in the chapter on Separation & Divorce. 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.

An overview of court procedure for civil claims

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. The kind of court you need to go to is a civil court, the kind of trial court that deals with claims between people and companies. The other kind of trial court is criminal court, the court that deals with criminal offences.

Before going further, it'll help to learn some of the terminology.

A few definitions

Claimant. The person who starts a court proceeding in the Supreme Court is the Claimant. In the Provincial Court, this person is the Applicant. In this page, "Claimant" refers to Claimants and Applicants.

Respondent. The person or people against whom the court proceeding is brought. In family law proceedings, there is usually only one Respondent.

Parties. The Claimant and the Respondent are the parties to the court proceeding.

Claim. The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family Claim or a Petition. In the Provincial Court, proceedings are started with an Application to Obtain an Order or an Application to Change or Cancel an Order. In this page, "claim" refers to all of these documents.

Reply. A Respondent who objects to all or some of the orders sought by the Claimant in the Supreme Court will file a Response to Family Claim. In the Provincial Court, the Respondent will file a Reply. In this page, "reply" refers to both of these documents.

Pleadings. The basic documents that frame a legal dispute are called the pleadings. In most Supreme Court family law proceedings, the pleadings are the Notice of Family Claim, the Response to Family Claim and also usually a Counterclaim. In most Provincial Court proceedings, the pleadings are the Application to Obtain an Order and the Reply.

Court procedure in a nutshell

Court proceedings in the Provincial Court and the Supreme Court, other than criminal proceedings, work more or less like this:

The Claimant starts the proceeding. The person who wants a court order, the Claimant, starts a court proceeding by filing a claim in court and serving the filed claim on the Respondent.

The Respondent files a reply. The Respondent 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 Respondent agrees to and which are objected to. The Respondent may ask the court for other orders; if other orders are needed, the Respondent will file a claim of his or her own. The reply and any new claim must be delivered to the Claimant.

The Claimant files a reply. The Claimant has a fixed amount of time after being served to respond to any claim made by the Respondent by filing a reply in court. The reply says which orders the Claimant agrees to and which are objected to. The Claimant's reply must be delivered to the Claimant.

The parties exchange information. 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.

Each party is examined out of court. After the documents have been exchanged, in Supreme Court proceedings each party will schedule an examination of the other party. An examination is an opportunity to ask questions about the facts and the issues out of court so that everyone knows the evidence that will be given at the trial. This is also an opportunity to ask for more documents.

Go to trial. Assuming that settlement isn't possible, the only way to resolve the problem is to have a trial. At the trial, each of the parties will present their evidence and explain to the judge why he or she should make the orders asked for. The judge may make a decision resolving the decision on the spot; most often, however, the judge will want to think about the evidence and the parties' arguments and will give a written decision later.

And that's pretty much it.

While working through this process, it is sometimes important to ask for interim orders. These are temporary orders that are meant to get a court proceeding through to a trial or to take care of a short term need. In a case involving a car accident, for example, an interim order might be needed to make someone submit to an examination by a doctor or to make someone produce financial information. In family law cases, people often ask for interim orders to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property or a person.

The process for interim orders is a miniature version of the larger process for getting a claim to trial.

The Applicant starts the application. The person who wants the interim order, the Applicant, starts an application for an interim order by filing an application and an affidavit in court and serving the filed application and affidavit on the other party, the Application Respondent. An affidavit is a written statement of the facts important to the application.

The Application Respondent files a reply. The Application Respondent has a fixed amount of time after being served to respond to the application by filing a reply and an affidavit in court. The reply says which orders the person agrees to and which are objected to; the affidavit describes any additional facts that are important to the application. The reply and affidavit must be delivered to the Applicant.

The Applicant files a new affidavit. The Applicant has a fixed amount of time after being served with the Application Respondent's materials to file a new affidavit in court. The new affidavit describes any additional facts that are important to the application. The new affidavit must be delivered to the Application Respondent.

Go to the hearing. Assuming that settlement isn't possible, the only way to resolve the application is to have a hearing. At the hearing, each of the parties will present the evidence set out in his or her affidavits and explain to the judge why he or she should make the orders asked for. Most of the time the judge will make a decision resolving the decision on the spot; sometimes, however, the judge will want to think about the evidence and the parties' arguments and will make give a written decision later.

There are lots of details we've skipped over, including details about important things like experts, case conferences, and the rules of evidence, but this about it. These details are governed by each court's set of rules. The rules of court are very important!

You can probably guess that this can be a long and involved process, and that if you have a lawyer representing you, it'll cost a lot of money to wrap everything up. In the Lower Mainland, for example, it can be possible to get trial dates for short family law trials in as little as six months, but most of the time it takes a year or more to get from the start of a proceeding to trial.

Page resources and links

Legislation

• Provincial Court (Family) Rules
• Supreme Court Family Rules

Links

• Tug of War by Mr. Justice Brownstone
• Supreme Court Trial Scheduling
• any pages from sup ct and prv ct websites summarizing litigation process