There is, on rare occasion, a justification for going to trial. If your ex is keen to move to New Zealand for a new job, it can be difficult to find a compromise that allows you both to exercise meaningful and regular parenting time. Aside from such rare exceptions, it is almost always a better outcome to find an amicable solution that keeps your family out of court and preserves your savings. For this reason, separating spouses should take the time to seriously consider settlement negotiations before proceeding with trial.
There are plenty of wrong reasons to pursue a trial, which we encounter in family law with unfortunate regularity. Before making the decision to litigate, it can be worthwhile to assess whether any of the following, or similar, reasons may be motivating you:
- Punishing your ex
- Asserting control and power
- Holding on to the relationship for dear life
- Turning your children against the other parent
- Just because you can
Although the above objectives appear patently unreasonable, we aren’t always in a position to make rational decisions, especially during a painful life transition. It can be very beneficial to take the time and support to process your separation first, before pressing forward with court. Of course, it’s prudent to see a lawyer promptly after your relationship ends, to gather the appropriate information and advice regarding your potential claims against your spouse, and any court filing deadlines that may be applicable in your case, to preserve such claims. However, even if you start a court action as a precaution, negotiation remains available to you all the way up to and even during trial.
If settlement negotiations stall, there are ways to expedite a resolution which do not have to involve traditional litigation. For example, attending meditation or arbitration can allow you to settle for a fraction of the cost and time involved in a typical trial. While it does not guarantee settlement, mediation allows parties to engage in focused negotiations with an experienced mediator who can guide them towards a mutually beneficial resolution. Arbitration, on the other hand, does guarantee a binding order. Although the process is somewhat more structured than mediation, it is usually much less formal and adversarial than conventional court. A particularly popular form of alternative dispute resolution is a hybrid of mediation and arbitration, colloquially known as “med-arb”. This option allows parties to attempt to reach a settlement through mediation and, if that fails, they can proceed directly to arbitration and obtain an order.
Although alternative dispute resolution is usually far more affordable than court, it isn’t cheap or painless. It usually requires significant effort, on the part of both the parties and their lawyers, to achieve full financial disclosure and negotiate a fair and comprehensive settlement. Arbitration requires the parties to follow a number of procedural steps, many of which closely resemble the work that would be done in preparing for a trial. A starting retainer payment for a mediator or arbitrator may be several thousand dollars, and their fees may quickly escalate before a resolution is reached. However, trial will most likely vastly eclipse the investment involved with out-of-court resolution. For example, a five-day trial in the Supreme Court of British Columbia can easily cost more than $100,000. It involves grueling preparation and can take a serious and lasting toll on the whole family.
Given the foregoing, we always urge our clients to consider a more constructive way forward, even when they might be tempted to run their coparenting relationship into the ground, all costs. We bear in mind the long-term health and wellbeing of the family, rather than simply this moment in time.
Finally, it is important to consider that the party who is substantially successful at trial is usually entitled to an award of legal costs. This generally does not mean their full legal costs, but rather a portion to be determined in accordance with Appendix B of the Supreme Court Family Rules: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/169_2009_05#AppendixB%E2%80%94Costs
Even a fraction of the total cost of trial can be a substantial sum. For this reason, it can be especially valuable to consider making and/or accepting a reasonable settlement offer before attending trial. A party who rejects a settlement offer runs the risk of having to pay double costs to the other party, if the other party is awarded more than they proposed to receive in their settlement offer.
Ultimately, litigation usually entails many risks and substantial costs, both financially and mentally. It is often the case that even the party who is successful at trial experiences substantial losses, not least of which may include a damaged coparenting relationship for many years to come. The price of litigation is sometimes unavoidable, but the hope is that a growing number of separating spouses will come to prioritize an amicable and efficient settlement over the abstraction of “winning”.
