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Resolving Family Law Problems in Court (view source)
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<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> | <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 settlement processes. 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 Family Law Problems out of Court]] | 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 settlement processes. 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: | 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 is a threat or a risk of child abduction, | *there is a threat or a risk of child abduction, | ||
*there has been physical, verbal | *there has been physical, verbal or sexual abuse in the relationship, whether to you or to your children, | ||
*threats to your physical safety, or to the safety of your children, have been made, | *threats 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 a threat or a risk that your ex will damage, hide or dispose of property, | ||
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*negotiations have failed and, despite your best efforts, you and your ex can't agree on how to solve your differences. | *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 | 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. | 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 | 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 on [[Separating Emotionally]] in the chapter on [[Separation & Divorce]]. You should also track down and read a copy of ''[http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false 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 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). | 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). | ||
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===A few definitions=== | ===A few definitions=== | ||
<blockquote>'''Claimant.''' The person who starts a court proceeding in the Supreme Court is the | <blockquote>'''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.</blockquote> | ||
<blockquote>'''Respondent.''' The person or people against whom the court proceeding is brought. In family law proceedings, there is usually only one | <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 | <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>'''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>'''Reply.''' A | <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. In the Provincial Court, the respondent will file a Reply. In this page, "reply" refers to both of these documents.</blockquote> | ||
<blockquote>'''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.</blockquote> | <blockquote>'''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.</blockquote> | ||
===Court procedure in a nutshell=== | ===Court procedure in a nutshell=== | ||
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Court proceedings in the Provincial Court and the Supreme Court, other than criminal proceedings, work more or less like this: | Court proceedings in the Provincial Court and the Supreme Court, other than criminal proceedings, work more or less like this: | ||
<blockquote>'''The | <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.</blockquote> | ||
<blockquote>'''The | <blockquote>'''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.</blockquote> | ||
<blockquote>'''The | <blockquote>'''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.</blockquote> | ||
<blockquote>'''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.</blockquote> | <blockquote>'''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.</blockquote> | ||
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And that's pretty much it. | 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. | 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 process for interim orders is a miniature version of the larger process for getting a claim to trial. | ||
<blockquote>'''The | <blockquote>'''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, called the application respondent. An affidavit is a written statement of the facts important to the application.</blockquote> | ||
<blockquote>'''The | <blockquote>'''The application respondent files a reply.''' The application respondent — the person who is responding to the application — 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.</blockquote> | ||
<blockquote>'''The | <blockquote>'''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.</blockquote> | ||
<blockquote>'''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.</blockquote> | <blockquote>'''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.</blockquote> | ||
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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. | 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. | ||
== | ==Resources and links== | ||
===Legislation=== | ===Legislation=== | ||