Litigation

Litigation is the resolution of competing legal positions in a public forum. The Family Law Rules are the “playbook” outlining the rules and expectations of the clients and their attorneys for each stage of the court process.

Realistic expectations about what may be gained or lost need to be discussed before the decision is made to go to court. Being mindful that those expectations, other priorities, and perspectives shift as the matter proceeds, a client should be considering settlement once full disclosure has been exchanged with the other side.

Best-Suited Clients

To enforce arrears for child or spousal support or the payment of a property settlement when all other avenues of recourse have failed, proceeding to litigation makes sense.

Sometimes just initializing the litigation process brings the clients to consider settlement. Litigation is also well suited for litigants seeking to create or expand a new right in law to benefit a class of disadvantaged individuals.This process is also for clients who are unable to come to a decision themselves and seek an impartial judge to resolve urgent matters or long-term problems.An appreciation of the benefits and the real risks of potential harm to families who think of using the court process should be considered up front. Regrettably, simply making the choice to go to court may ramp up emotions between the parties, though they may only realize this in hindsight.Litigation is often portrayed to clients as “the last resort,” to encourage them to first consider less destructive and less costly alternatives. Understanding each other’s perspective, needs, and wants through a court-appointed mediator may be a more cost-effective, efficient, and satisfactory approach. Being able to narrow the number and scope of the issues often leads to a partial resolution of the disputes.

The Formal Process

The litigation process is laced with formal protocols and legislated rules (the Family Law Rules) to be observed by all participants. Even the clothing to be worn by the lawyers in open court and the manner of conducting oneself in the presence of the judge follow historical precedents.
Summarizing the stages of the process as set out in the Family Law Rules:

  1. Exchange of pleadings, including “full and frank financial disclosure” together with the court filing fee
  2. Attending a Mandatory Information Program, if required by the court
  3. Case Conference before the judge
  4. Motion for any urgent matters
  5. Settlement Conference before the judge
  6. Trial Management Conference
  7. Trial

Timeline and Cost

The process may not necessarily move in a simple progression. There will likely be delays, postponements, extra conferences, the involvement of an expert and many other strategic diversions.

Process fatigue, overcrowded court dockets, and limited financial resources all contribute to the matter extending beyond a reasonable timeline, much like a house renovation going over budget.

Public Results

Results are unpredictable and bittersweet. A party may achieve only some of the claims sought. Or they may lose all that they believed they were entitled to receive.

Typically one party wins and one loses, although a draw of sorts has been known to occur. The losing party may be responsible for paying a portion of the legal costs of the winning party.

The judge’s decision will most likely include details of the family’s private and financial circumstances, which may be published and accessible online.

Rarely, struggling to “cut their losses,” the clients may jointly decide to opt out of the court process and complete the settlement using a tailored negotiation process.