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Resolving Family Law Problems in Court (view source)
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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 chapter | 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 ''[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. | ||
==An | ==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. | 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. | Before going further, it'll help to learn some of the terminology. | ||
===A | ===A few definitions=== | ||
<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>'''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> | ||
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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 | ===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: | 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>'''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> | ||
There are lots of details | 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. | 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. | ||
<!--- HIDDEN | |||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
* links to each page in chapter | * links to each page in chapter | ||
END HIDDEN---> | |||
==Page | ==Page resources and links== | ||
===Legislation=== | ===Legislation=== | ||
* Provincial Court Family Rules | * [http://canlii.ca/t/85pb Provincial Court (Family) Rules] | ||
* Supreme Court Family Rules | * [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules] | ||
===Links=== | ===Links=== | ||
* | * [http://books.google.ca/books?id=fi7TlN3sU88C&printsec=frontcover#v=onepage&q&f=false Tug of War] by Mr. Justice Brownstone | ||
* | * [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling] | ||
* any pages from sup ct and prv ct websites summarizing litigation process | * any pages from sup ct and prv ct websites summarizing litigation process | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||