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

<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, you don't have that option. Your relationship as partners might be over, but your relationship as parents will continue forever.</blockquote>

<blockquote>'''Your own worries and anxieties.''' Litigation is always an uncertain affair. No one, not even your lawyer, will 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 — the judge — about the things that matter the most to you, and the judge's 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.</blockquote>

*there has been ''family violence'' in the relationship, whether to you or to your children (family violence is defined in [http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20F%20--/Family%20Law%20Act%20%5BSBC%202011%5D%20c.%2025/00_Act/11025_01.xml#section1 section 1] of the ''Family Law Act''),

You might also want to read a short note I've written for people who are representing themselves in a court proceeding, "[[Media:SRL_Bill_of_Rights_and_Responsibilities_-_November_2012_-_JP_Boyd.pdf|The Rights and Responsibilities of the Self-Represented Litigant]]" (PDF) which you can find in the chapter From the Author in this resource.

<blockquote>'''Claimant/Applicant.''' The person or people who start a court proceeding in the Supreme Court are the claimants. In the Provincial Court, this person is the applicant. In family law proceedings, there is usually only one claimant. In this section, claimant refers to claimants and applicants.</blockquote>  

<blockquote>'''Claim/Application.''' The document that is filed to start a court proceeding in the Supreme Court is a Notice of Family Claim (or less often, 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 section, claim refers to all of these documents.</blockquote>

<blockquote>'''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 and sometimes a Counterclaim if the respondent wants to advance claims on their own. In the Provincial Court, the respondent will file a Reply, which includes a section to complete a counterclaim. In this section, reply refers to all of these documents.</blockquote>

*'''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 claims says what orders the claimant wants the court to make. Serving the filed claim involves having the claim hand delivered to the respondent by someone other than the claimant (this could be a process server who you pay or a friend who is over the age of majority).   

*'''The respondent files a reply.''' The respondent has a certain amount of time after being served to respond to the court proceeding by filing a reply in court. The number of days is set out in the document filed by the claimant. The reply says which orders the respondent agrees to and which they object to. The respondent may ask the court for other orders; if other orders are needed, the respondent will file a claim of their own, called a counterclaim. The reply and any counterclaim must be delivered to the claimant.

*'''The claimant files a reply.''' The claimant has a certain amount of time after being served to respond to any claim made by the respondent by filing a reply in court. The claimant's reply says which orders the claimant agrees to and which they object to. The claimant's reply must be delivered to the respondent.

*'''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 well in advance of trial. This way everyone knows exactly what is going on and how strong each person’s case is. If financial matters are in dispute, one the key documents you will need to exchange is a sworn financial statement.  There are different processes in Supreme Court and Provincial Court for exchanging information.  For more details, see the section [[Starting a Court Proceeding in a Family Matter]] in this chapter.

*'''The parties attend Case Conferences.''' ''Case conferences'' are conferences that take place in front of a judge, which provide an opportunity for the parties to discuss settlement possibilities and obtain orders regarding the conduct of the court proceeding.  For more about case conferences, see the section about [[Case Conferences]] in this chapter.  

*'''Go to trial.''' Assuming that settlement isn't possible, the only way to resolve the court proceeding is to have a trial. At the trial, each of the parties will present their evidence and explain to the judge why the judge 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.

*'''The applicant starts the application.''' The person who wants the interim order, the ''applicant'', starts the application process by filing an application and an affidavit in court, and serving the filed application and affidavit on the other party, called the ''application respondent''. An affidavit is a written statement of the facts that are important to the application.  For more information about affidavits, see [[How Do I Prepare an Affidavit?]] in the chapter ''How Do I'' in this resource.

*'''The application respondent files a reply.''' ''The application respondent'', the person who is responding to the application, has a certain 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.

*'''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 their affidavits and explain to the judge why the judge 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 give a written decision later.

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 of Vancouver, 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.