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{{JP Boyd on Family Law TOC}}
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 perils dangers of commencing litigation in haste and a thumbnail sketch of the court process.
'''DRAFTJP done. No glossary tags to be added. Links to be added.'''
==Hold on for a minute, is litigation do you really necessaryhave 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. Litigation 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:
<blockquote>'''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.</blockquote>
<blockquote>'''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.</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 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 <span style="color: red;">Resolving Problems out of Court</span> chapter.)
Now, in fairness, there are times when litigation is going to court may be your only choice. It may be critical to start an action court proceeding when:
#there is a threat or a risk of child abduction;
#there has been physical, verbal or sexual abuse in the relationship, whether to you or to your children;
#threats have been made to your physical safety, or to the safety of your children, have been made;
#there is a threat or a risk that your ex will damage, hide or dispose of property;
#there is an urgent need to immediately secure some financial supporthelp; or,#negotiations have failed and, despite your best efforts, you and your ex 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 a court proceeding is requirednecessary, can be done in a cooperative, non-confrontational manner.
Think twice before deciding that litigation 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 chapter <span style="color: red;">Marriage & Divorce > Separating Emotionally</span>. 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 Non-Criminal 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. Before going further, it'll help to learn some of the terminology:. ===Definitions===
<blockquote>'''Claimant.''' The person who starts a court proceeding is the Claimant. In the Provincial Court, this person is the Applicant. In this page, "Claimant" refers to Claimants and Applicants.</blockquote>
<blockquote>'''Respondent.''' The person or people against whom the court proceeding is brought. In family law proceedings, there is usually only one Respondent.</blockquote>
<blockquote>'''Parties.''' The Claimant and the Respondent are the parties to the court proceeding.</blockquote>
<blockquote>'''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.</blockquote>
<blockquote>'''PartiesReply.''' 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.</blockquote> <blockquote>'''Pleadings.''' The Claimant 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 Respondent pleadings are the parties Application to Obtain an Order and the court proceedingReply.</blockquote>
Court proceedings in the Provincial Court and the Supreme Court, other than criminal proceedings, work more or less like this:
<blockquote>'''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 make give a written decision later.</blockquote>
And that's pretty much it. There are lots of details I've skipped over, including about experts, case conferences and applications, 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.
==Further Reading in this Chapter==
* <span style="color: red;">Collaborative Processes</span>* <span style="color: red;">Mediation</span>* <span style="color: red;">Arbitration</span>* <span style="color: red;">Parenting Coordination</span>links to each page in chapter
==Page Resources and Links==
===Legislation===
* <span style="color: red;">bulleted list of linked legislation referred to in page</span>Provincial Court Family Rules* Supreme Court Family Rules
===Links===
* <span style="color''Tug of War'' by Mr. Justice Brownstone * Supreme Court trial scheduling: red;">bulleted list of linked external http://www.courts.gov.bc.ca/supreme_court/scheduling/ (Supreme Court Trial Scheduling)* any pages from sup ct and prv ct websites referred to in page</span>summarizing litigation process
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