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Difference between revisions of "Resolving Family Law Problems in Court"
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Resolving Family Law Problems in Court (view source)
Revision as of 16:52, 24 February 2013
, 16:52, 24 February 2013→An Overview of Non-Criminal Court Proceedings
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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. | 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 | ==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. Before going further, it'll help to learn some of the terminology. | 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. | |||
===Definitions=== | ===Definitions=== | ||
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<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=== | ||
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: | ||
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<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 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 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 | <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 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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<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> | <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 | 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 child support or spousal support, determine how the children will be cared, or protect property or a person. | |||
The process for interim orders is a miniature version of the larger process for getting a claim to trial. | |||
<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, the Application Respondent. An affidavit is a written statement of the facts important to the application.</blockquote> | |||
<blockquote>'''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.</blockquote> | |||
<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 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> | |||
There are lots of details I've skipped over, including 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. | 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== | ==Further Reading in this Chapter== | ||
