What is it?

Family Litigation is a process whereby parties to go court and ask a judge to resolve the issues. In family litigation, the most common issues that a judge will be asked to determine are the division of property, child custody and access, child support and spousal support. The parties may choose to hire lawyers to argue the matter on their behalf or they may choose to represent themselves.

Whom is it for?

Family litigation is for individuals who are unwilling or incapable of agreeing on how they should resolve their outstanding issues. Sometimes, parties agree how to resolve most of their differences but are unable to agree on one or two issues and must ask a judge to resolve those particular matters.

How does the process work?  

Hire a lawyer
Before hiring a lawyer, you will have a consultation with a lawyer trained in litigation. During the consultation, you will discuss the issues and the lawyer will provide you with advice based on the information that you give to him or her. It is important to hire a lawyer with whom you are comfortable because you are asking that lawyer to handle a matter that is of the utmost importance to you. Likewise, the lawyer will also be determining whether your matter is a good fit for his or her practice during the consultation.

If you decide to hire the lawyer, you will likely be required to provide a retainer and to sign a retainer agreement which establishes the parameters of your relationship. The lawyer will explain his or her retainer requirements during the consultation.

Exchange disclosure documents
In family law matters involving property or support issues, it is very important to exchange all of the relevant financial documents. This is often exchanged willingly by the parties through their counsel, but either party may bring a court application for disclosure if one party fails or refuses to provide some or all of the relevant disclosure.

Interim applications
Depending on the complexity and the immediacy of your matter, you may opt to bring an interim application. This is an application for a temporary resolution pending a trial. Interim applications will most often determine where children reside and what the parenting schedule should be and support issues. Though it is possible to bring interim applications for property-related issues, these types of applications tend to be less common than custody/access and support related applications.

During an interim application, you will swear one or more affidavits which will be provided to the justice who determines the issue. Your lawyer will appear in queen’s bench chambers or provincial court and will argue the matter on your behalf. The justice will make a decision which is usually intended to be temporary in nature.

Discovery
The discovery process allows you and your lawyer to learn about the other party’s case and to examine any documents that they rely on to support their position. The exchange of documents mentioned above is part of the discovery process. Another method of discovery is called Questioning. This is where your lawyer questions the other party under oath about the relevant issues. A court reporter will be present to record the questions and answers and will produce a transcript of the proceeding. The goal of Questioning is to learn about the strengths and weaknesses of the other party’s position.

Pre-trial Settlement Conference
Prior to setting a matter for trial, a pre-trial settlement conference will be held. These settlement conferences are held at the court house with a judge. The judge will speak to both you and the other party about your position and will attempt to mediate a settlement agreement. Depending on the judge, they may choose to separate you and the other party into different rooms and caucus back and forth. Pre-trial settlement conferences have a fairly high success rate. If a matter cannot be resolved at pre-trial, it will be scheduled for a trial.

At any point during the litigation process, we may also engage in other less litigious methods of dispute resolution. We may send settlement offers, have 4-way meetings, or you may be referred for mediation. You are not tied to the litigation process simply because a matter started out as litigation.

Trial
Depending on the complexity of the matter, a trial could take anywhere from a few hours to several weeks. At trial, the plaintiff will present his or her case first, and then the defendant will have an opportunity to present his or her case. Both parties can have other witnesses testify on his or her behalf. This could be a lay witness or an expert witness. For example, in a custody situation, a psychologist might be called to provide his or her expert opinion.

Following the trial, the judge will render his or her decision. The judge may provide the decision immediately following the trial, or may take additional time to formulate his or her reasons.

How long does it take?

The time required will depend on the parties and the steps required to reach resolution. If, for example, numerous interim court applications are required, it may take longer to reach a final resolution. Family litigation can take anywhere from a few months to several years. The factors that determine the length can include: level of conflict between the parties, number of issues to resolve, and courtroom availability.

Most often, the parties will have 1-2 interim applications and will eventually resolve the matters before attending a trial. Taking a matter all the way to trial can be very expensive and time consuming.

What are the possible outcomes?

You may get everything you are asking the court you, none of what you are seeking, or most often, something in the middle.

If you are successful in arguing your position, the judge may order that the other party pays some of your legal fees. Such an order will not cover the entirety of your legal fees. Likewise, if you are not successful or if you have adopted a position that the judge feels is unreasonable, he or she may order costs against you. Costs awards in family law are not overly common because the situations are not “black and white” as they more commonly are in civil litigation settings.


Family Litigation FAQ

What if we agree on some aspects of our separation/divorce but not others?

It is not necessary to disagree about everything to litigate a matter. Very often, the parties may agree on several items but disagree on others. For example, in a parenting situation, the parties may agree where the child should live, but disagree as to what the access schedule should be. When you and the other party have some items about which you mutually agree, this helps to streamline an application for the judge. Most judges agree that you are the person best equipped to make decisions about you and your family.

What happens if the other party does not respond to my claim?

If the other party does not respond to your claim, they will be noted for default and you will be able to obtain a judgment for the relief that you are seeking, subject to a few restrictions. A Judge always gets the final say in whether an order is granted or not, so if your claim is unreasonable, it may still be denied even if the other party does not respond. Most often, your claim will be granted but it is important to know that a judge ultimately holds the control.

What is the difference between Provincial Court and the Court of Queen’s Bench?

The Court of Queen’s Bench is the higher court between the two. The Court of Appeal is the highest court in the province. In Alberta, it is possible to deal with support and parenting issues in provincial court. Divorces and property issues must be dealt with in the Court of Queen’s Bench. In Saskatchewan, family law issues are almost exclusively dealt with in the Court of Queen’s Bench.

Can I get my legal expenses paid by the other party?

In a court application, we usually ask for the other party to pay your legal expenses. Whether costs are awarded is at the discretion of the presiding judge. Costs are awarded to the winning party. Costs will not, however, be automatically awarded just because you win. Costs are solely at the discretion of the judge and will only be awarded where the judge feels the situation warrants it. In family law situations, a judge will generally only order costs where one party has taken an unreasonable position. Even when costs have been awarded against the other party, they will not cover all of your legal expenses. Cost awards will generally cover 23 – 30 % of your legal expenses at best.

How long will it take to achieve a resolution?

The time required to achieve resolution depends largely on the complexity of the matter, the positions of the parties, and the availability of court time. For an interim application, the matter can generally proceed very quickly in Saskatchewan. If the matter is proceeding in Alberta, it may take longer to obtain a court order because a special sitting is required for more complicated matters. Scheduling a special sitting can often take several months. If the matter goes to trial, it may be one or more years before the matter is completely resolved. Trial dates can be difficult to come by, especially if several dates are required for the trial. In most cases, the matter will begin as litigious and will eventually resolve through a settlement between the parties. Settling the matter will expedite it and be less costly.

What does it cost to go to court?

Court-based dispute resolution can be costly and time consuming. We effectively assist our clients in negotiating settlements that result in an earlier and less costly resolution whenever possible. When negotiation is not possible, or not successful, we will pursue the matter through the court system in order to obtain an appropriate resolution for our clients. It is impossible to say exactly how much litigation will cost. It can be a very costly endeavour, depending largely on the complexity of the matter and whether or not it proceeds to trial. If the matter proceeds all the way to trial, costs may range anywhere from $5,000.00 to $60,000+.