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The Reality of Court
The Family Court process is best described as frustrating, slow, fraught with uncertainty and very costly. Most people who go through the court process are unhappy with both the results and the process.
Mr. Justice Harvey Brownstone, is in his stunningly brilliant book entitled "Tug of War: A Judge's Verdict on Separation, Custody Battles, and The Bitter Realities of Family Court", strongly attacks the court system declaring it should be the place of last resort to resolve custody and access issues... and this is from a judge who has been presiding over family law cases for over 14 years.
Justice Brownstone asks in his book "how can two parents who love their child allow a total stranger to make crucial decisions about their child's living arrangements, health, education, extracurricular activities, vacation time, and degree of contact with each parent?"
The Purpose of Family Court
The purpose of the Family Court process is to resolve issues if people are unable to resolve them on their own. It is not necessary to have a judge decide your case if you and your spouse can resolve it with the help of other professionals.
Here are the important pieces of legislation that govern family law cases in Ontario:
• Family Law Act – Click here to Read More
• Family Law Rules – Click here to Read More
• Family Law Rules Forms – Click here to Read More
• Ontario Child Support Guidelines – Click here to Read More
• Federal Child Support Guidelines – Click here to Read More
• Children's Law Reform Act – Click here to Read More
• Family Responsibility and Support Areas Enforcement Act – Click here to Read More
The Principles of the Law
The law is a series of principles described in legislation that instructs judges how to resolve each case. The principles may conflict with one another in any case. When judges decide cases, they are applying the principles of the law to a set of facts in an effort to resolve the issues in a fair manner.
Past decisions are considered a precedents meaning that future cases with the same set of facts are supposed to be decided in the same manner. The reality is that every case is a little different than the last one so previously decided cases simply create more principles to be applied to future cases. Precedents are akin to legislation in that they stand for principles to be applied when deciding future cases.
Since every case is different and each judge brings with him or her a different perspective and life experience, and the judges are applying competing principles to the resolution of the complicated lives, family law is full of uncertainty.
If the law was clear and the outcome certain, there would be no need for people to go to Court. The Courts of overflowing with cases because of the uncertainty of the law.
Judges are appointed by the government. They are very experienced, well regarded, hard working, well meaning lawyers employed the government to make decisions when families are unable to make their own decisions.
Judges normally have not practiced in any area of the social sciences such as those involving the study of parenting, the development needs of children, the impact of separation on families, family systems, psychology, social work or any other aspects of family law. They are lawyers.
Judges normally have not practiced in the area of finances and financial planning. They are lawyers.
Judges in Family Court may not have even practiced family law when they were lawyers. They may have spent their entire legal career doing criminal law or insurance law.
Depending on the jurisdiction you live, you may appear before a different judge every time you go to Court. Each judge brings with them a unique perspective based on their own life experience, professional training and career experience.
Judges are overwhelmed with too many cases so cannot know every relevant fact of your life and your family. They do their best to discover the most important facts but due to the cost and time involved, they will make decisions about your family based on just a few of the "facts".
If you give one set of facts to five judges separately and ask each of them to resolve the case according to the law in Ontario, you will likely get five unique decisions. This is not to disparage the judges but rather a reflection of the judicial system.
Power to Decide
When you commence a court action, you are giving up your power to resolve the issues affecting yourself, your children and your family. You are giving all the power to a stranger, or a set of strangers: the judges.
The Adversarial System
The adversarial system is a contest between two competing parties seeking to persuade the neutral judge that their perspective more accurately describes the truth. The judge determines "the truth" after hearing both sides. The judge then applies the principles of the law to "the truth" to resolve the outstanding issues.
In Family Court, the adversarial system entails each party attempting to portray themselves in a positive light and their soon to be ex-spouse in an unfavorable light. Often parties exaggerate their points of view and take outlandish positions hoping that a compromised resolution between the two positions will be more in favour of themselves.
The Court Process
Although the Court Process is determined by the Rules and legislation in Ontario, it varies from jurisdiction to jurisdiction depending partly on the local practice, the complement of court staff and judges hearing the case. The following description is intended to be a general description of the process in Ontario and may not accurately describe the jurisdiction where you live.
The Pleadings: Beginning the Court Case
The process begins when one party completes an Application and Financial Statement, serves it on the other side and files it at Court. The Application is a legal document used to describe Applicant's perspective as to the facts of the case and asks the court to resolve the issues in a particular manner most favourable to themselves.
In response to the Application, the other side completes an Answer. This is a legal document used to describe the Respondent's personal perspective as to the facts of the case and their request to the Court as to how their case should be resolved.
Both parties must complete a Financial Statement which is a legal document that lists each party's assets and debts on the date of marriage, date of separation and the date of they completed the form. It also lists the income of the party and the average monthly expenses of that party. For example, you must list every expense you have including how much you spend on housing, gifts, food, clothing, medicine, gas, entertainment, parking, children's lunches, extracurricular activities and savings. Generally most Financial Statements include documentary proof of the assets, debts and income of the party (income tax returns for the last three years).
It is easy to determine the value of some assets such as bank accounts or RRSP's. Other assets may require experts. For example, a pension is valued by an actuary which costs about $600. A privately owned business may have to be valued which costs $5,000 to $20,000. Other items that may be appraised include jewelry, household contents, stock options, cottages, homes, art collections, coin collections or memorabilia collections or any other valuable assets.
Parties attend Court on a prescribed day. At the first appearance, a judge is not available to see the clients. Some cases are sent to mediation in which a neutral party assists the parties to negotiate an agreement. Some cases are resolved by immediate negotiations in the hallways of the courthouse or outside. Most cases are merely set over to a future Case Conference.
Prior to the Case Conference, each party must complete a Case Conference Brief which is a legal document outlining each party's position on the issues with a special emphasis on procedural issues and disclosure issues. If financial circumstances have changed or more than three months has passed, the Financial Statement must be updated or completed again. In advance of the Case Conference the parties are supposed to communicate with one another and attempt to resolve the issues. Failing agreement, they must file a Confirmation with the Court. The Confirmation is a legal document served on the other side and filed at Court that outlines the issues to be resolved and the readiness of the parties to proceed.
A Case Conference usually occurs about 3 to 4 months after a court action is commenced. One judge may have 20 to 50 Case Conferences scheduled in one day depending on the jurisdiction. Some judges read the Case Conference Briefs in advance. Others will read them on the day of court. The judges generally hear each case on a "first come, first served" basis. It is possible that your case will not be heard at all because the judge simply has too many cases in one day.
If your Case Conference is heard, the judge will discuss whether there are any disclosure issues needing resolution. For example, a party may wish to see their spouse's bank statements for the last three years, or medical records or business financial statements and the other spouse is resistant to providing such documentation. The judge will have to determine if the disclosure is appropriate and may make an order for its disclosure within a certain time period.
The judge may also hear submissions regarding the substantive legal issues outstanding such as custody, access or support. The judge may make recommendations as to how these issues may be resolved on a temporary basis. These recommendations can be fodder for further negotiations.
Often negotiations are conducted outside the court room, in the court house halls or small meeting rooms. The tension in the halls of Family Court is palpable.
The judge will also explore the next steps in the process. Sometimes a case will have several Case Conferences.
Children's Lawyer or Assessments
A judge may be asked to recommend the appointment of a lawyer to represent the children if there is a dispute as to the children's wishes. The judge can only recommend the appointment. The Office of the Children's Lawyer, an Ontario government agency, determines if it is appropriate to make such appointment. If it agrees to appoint a lawyer, a local lawyer will meet with the children on a few occasions to determine the views and preferences of the children. The lawyer will present his or her findings to the parties at a disclosure meeting. Failing an agreement, the lawyer will present his or her findings as to the wishes of the children to the Court usually in about 5 to 8 months from the date of the judge's recommendation for their appointment.
Occasionally, the Office of the Children's Law will appoint a social worker who will investigate and recommend to the court how the issues of custody and access should be resolved. Most investigations take 5 to 12 months to complete.
If the parties can afford it, the judge may order that an assessment be conducted by a psychologist. The cost of a psychologist's assessment is somewhere between $8,000 to $20,000 or more and can take 6 to 12 months to complete.
If a temporary resolution of the substantive issues (custody, access, child support, spousal support) cannot be resolved by agreement, the next step may be a motion.
A motion is an adversarial process at which both parties attempt to persuade judge to make a decision resolving substantive issues on a temporary basis. Both parties must complete affidavits which are sworn legal documents that describe the facts from that party's point of view. Attached to the affidavit may be documentary evidence supporting the points made in the affidavit. A party may have affidavits done by other people in support of their motion. The party's do not testify at the motion. Instead, their sworn affidavits is the evidence upon which the judge decides the case.
The opposing party or their lawyer may cross examine any person who has done a sworn affidavit. This is done in advance of the hearing of the motion in a private office outside of the courthouse.
A cross-examination is process in which one party or their lawyer is able to ask questions of the other side about the statements they have made in their affidavit and ask for further clarification or documents. All of the questions and answers are recorded and a verbatim transcript is created. This transcript may be submitted in Court as evidence at the motion.
If a party's income, assets or debts are at issue, it is possible to have a conduct cross examinations on the Financial Statements. Again, a verbatim transcript of the questions and answers is made for use in future court proceedings. Often at the end of cross examinations, each party must produce further documentation to the other side.
If a party refuses to answer a question or inadequately answers a question during a cross examination, it is possible to bring a motion seeking an order of the court that the question be answered or the document produced.
Factums at Motions
Usually both sides present the judge with a Factum before the motion begins. This is a legal document containing the legislation which governs the issues. It also contains previously decided cases which suggest a particular outcome is appropriate. A Factum may be very brief or several volumes of information and case law.
During the motion, each side has an opportunity to point out to the judge the evidence and "facts" they believe most support their position on the issues. Each side also highlights the law and precedents that support their position.
The person who brought the motion starts the proceedings by making their argument to the judge, followed by the opposing side and then the first side again has a chance to reply. During the motion, the judge will ask questions about of the presenters. If a motion will take more than one hour to argue, a special date and time will be scheduled for the motion.
In some jurisdictions, motions are not scheduled to be heard on a specific date or time. They are heard in the order determined by the judge sitting in Court that day. It is not unusual for parties to attend Court for a motion and their case not be reached. This can occur two or three times costing both parties thousands of dollars.
Motions do not resolve matters on a final basis. They are only temporary resolutions. Final resolutions are achieved by agreements or after a trial.
The next step in the process is the Settlement Conference. Before attending the Settlement Conference, each party must serve and file a Settlement Conference Brief. This is a legal document outlining each party's version of the "facts", their position on the outstanding issues. Attached are any assessments or reports, the governing legislation, any relevant case law and the evidence that will be presented at trial.
Three days before the Settlement Conference, each side must serve and file a Confirmation.
If the Financial Statements are old or circumstances have changed, new Financial Statements must be served and filed at Court.
The Settlement Conference is a legal hearing at which the judge explains how s/he believes the case will likely be resolved if the matter is heard at trial. The judge who hears the Settlement Conference will not be the judge to hear the trial so they cannot guarantee the result at trial. They can only express how they would likely determine the issues if they were the judge hearing the case at trial. The purpose of the Settlement Conference is to encourage settlement of the case so a trial is not necessary.
If a negotiated agreement is not reached at the Settlement Conference, the case will be set down for trial scheduling court (to set a date for the trial) and a Trial Management Conference at which the details of the trial process are discussed. Prior to the trial occurring, there is often a final attempt at settlement with a judge's help.
If a case goes to trial, it may be just a few hours, a few days or a few weeks depending on the number of issues, the number of witnesses and the complexity of the case.
There is much to do in preparation for trial including the production of a Trial Record, a Factum, an Agreed Statement of Facts, a Document Brief, Will Say Statements and an Opening Statement. Perhaps the most important step is to determine the theory of the case and how it will be argued before the judge.
In advance of the trial, each witness must be interviewed so that their evidence is known in advance and they know what to expect. It is important to anticipate the questions the opposing lawyer will use against the witnesses so they are prepared. Questions for each witness are prepared for the trial.
The testimony of the opposing witnesses must be anticipated and questions developed to undermine their testimony. Sometimes a carefully developed line of questioning of the opposing party's witnesses will in fact help your own case.
The documentary evidence is accumulated and Rules of Evidence are reviewed to ensure that each piece of documentary evidence can be submitted properly and is helpful to the case.
Most Court cases take six months to three years to resolve and cost several thousands of dollars. After the trial is heard it may take a few hours or a few months before the judge realizes his or her decision.
Appeals of decisions in Family Court are rare simply because of the prohibitive cost of legal proceedings but it is possible to seek an appeal causing further delay to the final resolution of issues.
Frustrated with Court?
- Does it feel like the court process could go on forever?
- Are you missing a lot of time from work to be in court?
- Are your financial resources dwindling due to high costs of the court process?
- Is the chasm between your ex-spouse and you ever-widening, making it more difficult to communicate?
- Do you see your children suffering through this battle?
- Are you questioning – "How did it get to this?"
- Do you feel like you have no control?
At any point in the court process, you can always take back your control. With the agreement of your ex-spouse, you can both drop out of the court process and come into the Collaborative Team Practice process. Building on the mutual agreements you have already made, your Collaborative team can work with you to find solutions that you both can live with.
Steps to Take
- Contact a Collaborative professional in your community to explore this option
- Learn how to get this information to your ex-spouse
- If you both choose Collaborative, your professional can help you get the Participation Agreement signed and the process started.