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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 21:31, 11 May 2016
, 21:31, 11 May 2016→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: | ||
*'''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. | *'''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. | ||
*'''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 reply says which orders the respondent agrees to and which he or she objects 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, called a counterclaim. The reply and any counterclaim must be delivered to the claimant. | *'''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 he or she objects 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, 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 he or she objects to. The claimant's reply must be delivered to the respondent. | *'''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 he or she objects 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. This way everyone knows exactly what is going on and how strong each person’s case is. | *'''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 chapter called "Starting a Court Proceeding in a Family Matter". | ||
*'''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 chapter entitled "Case Conferences". | |||
*'''Each party is examined out of court.''' After the documents have been exchanged, in Supreme Court proceedings each party will schedule an examination of the other party. An examination is an opportunity to ask questions about the facts and the issues out of court so that everyone knows the evidence that will be given at the trial. This is also an opportunity to ask for more documents. | *'''Each party is examined out of court.''' After the documents have been exchanged, in Supreme Court proceedings each party will schedule an examination of the other party. An examination is an opportunity to ask questions about the facts and the issues out of court so that everyone knows the evidence that will be given at the trial. This is also an opportunity to ask for more documents. | ||
*'''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 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 give a written decision later. | *'''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 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 give a written decision later. | ||
And that's pretty much it. | And that's pretty much it. Remember that you can continue to try to negotiate a settlement with the other party at every stage of this process. | ||
While working through this process, it is sometimes important to ask for ''interim orders''. These are temporary orders that might be necessary to get a court proceeding through to a trial or to take care of a short-term need | While working through this process, it is sometimes important to ask for ''interim orders''. These are temporary orders that might be necessary to get a court proceeding through to a trial or to take care of a short-term need. In family law cases, people often ask for interim orders to protect against family violence, to deal with the payment of child support or spousal support, to determine how the children will be cared for, or to protect property . | ||
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. | ||
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*'''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. | *'''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. | ||
*'''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. | *'''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. | ||
*'''The applicant files a | *'''The applicant files a responding affidavit.''' The applicant has a certain amount of time after being served with the application respondent's materials to file a further responding affidavit in court. The responding affidavit describes any additional facts that are important to the application. The responding affidavit must be delivered to the application respondent. | ||
*'''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 give a written decision later. | *'''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 give a written decision later. | ||
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 | 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 is the basic process in a nutshell. 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. | ||
It's important to remember that you and the other party can agree to resolve your dispute out of court at any time in this process. You should always be thinking about ways to reach agreement outside of the court process. Just because litigation has been started, that does not mean that you have to continue to litigate. If you haven't done so already, please read the chapter entiltd "Resolving Family Law Problems Outside of Court". | |||
==Resources and links== | ==Resources and links== | ||