Clients are often understandably wary of commencing family litigation. Many have heard horror stories from friends, family members and co-workers that represent the worst examples of this process.
While any aspect of litigation is both emotionally exhausting and expensive, there are reasons why it may still be worth consideration in your case. I offer the following thoughts to anyone who is faced with or contemplating family litigation:
- Litigation can be used alongside alternative dispute resolution processes. While I am a strong proponent of collaborative law, I believe that in cases where one party is negotiating in bad faith or failing to provide disclosure, filing a court claim while the parties attempt to resolve the issues with the help of their lawyers or a mediator can be very effective. This ensures parties have a mechanism to get the disclosure they need to have informed discussions and ultimately make an enforceable agreement. Particularly in regard to non-disclosure, this can actually shorten the time it takes to get a resolution, and can increase the fairness of negotiated outcomes.
- Court intervention is swift and effective where there are issues of family violence or the risk of dissipation of assets. Where there are issues of physical danger to parties or children, the ability to obtain court intervention immediately is of course a necessity. Where there is a risk of a party transferring or selling assets, particularly where one party controls the majority of family property, an order restraining these assets can provide the security to allow the parties to negotiate a resolution. It can also motivate the controlling party to engage in the dispute resolution process in a meaningful way.
- The term “litigation” means all court-related activity up to and including a trial. This encompasses a whole spectrum of activity, from filing a Notice of Family Claim to alert your spouse to your intention to begin the process, to dispute resolution oriented mechanisms such as a Judicial Case Conference, to a trial. There are also discovery procedures where each party can gather information by having the other answer questions under oath and produce documents.
- Filing in court does not mean that you will proceed through the whole spectrum of court processes. The process of disentangling your life from that of your former spouse is inherently stressful. If used judiciously and thoughtfully in appropriate circumstances, litigation processes can move your case forward, cutting down the amount of time you ultimately spend in this difficult period in your life.
- Most cases do not go to trial. The vast majority of litigated cases settle long before trial, although the processes leading up to trial can be very expensive if not used judiciously.
- Interim orders can be very useful. Interim orders are orders made by the court outlining what will happen before the court can examine the issues more closely at trial. Where separation is relatively recent and no agreement can be reached for paying expenses, sharing time with children, or payment of support, an interim order can bring order to a chaotic situation. This provides certainty and stability for children and parents and helps reduce the emotional drain associated with repeated negative and unproductive interactions with an ex-spouse.
There are a few negative outcomes associated with extended litigation in particular that I would warn of, as well:
- Where the opposing party is unreasonable and engages in litigation, this will necessarily become extremely expensive. Where court processes are not used thoughtfully and judiciously, the opposing party is unfortunately along for the ride, so to speak. In certain circumstances where you have offered reasonable solutions and the other party has refused them, the court may award costs to you. The costs payable to you will not cover your actual court costs, however they should serve as a deterrent to the party whose objective it is to make life miserable for the other.
- Prolonged litigation, particularly where there has been a trial, is not conducive to maintaining a healthy co-parenting relationship long-term. Once the parties have been pitted against one another in what is usually a bitter and expensive trial, their ability to communicate effectively even in matters involving the children is often irreparably harmed. In these cases, co-parenting counselling is recommended.
- The settlement options outside of litigation are flexible and can be tailored to the needs of the parties and the children. Litigated outcomes are often rigid and although “fair” do not often leave the parties with what they want or need. Creative solutions crafted by good counsel or mediators can maximize the benefits of a settlement to both parties, essentially expanding the “pie” by creating more value.
Ultimately, whether any type of litigation is right for you will depend on the facts and dynamics present in your case. Where I believe parties are acting in good faith or can be motivated to engage in a productive way, I always endeavor to come to a negotiated resolution of the issues. I have found that most issues in most cases can be resolved in this way. When that is not possible, the formal justice system can be used to ensure that the matter is resolved in a timely way that balances costs and return.