Why Court is not always the solution.....

We are re-posting here an updated version of a post from 2012. 

This is the age of mass media - TV, video, Facebook, Twitter, Netlix. An average person's view of the world is greatly affected by what media portrays and pushes on the consumer. This includes the public's perception of court and the legal system in general.

For example, TV shows and movies teach that legal battles are waged in the court room, with fist-pounding lawyers and finger-wagging judges. In fact, some of the battle is fought in front of the court, in press skirmishes where reporters (and the viewers) have a chance to see lawyers expound on the merits of their clients' cases, sometimes with a "we will show you" attitude.

Reality is not what you see on TV. There are no surprise witnesses (our justice system does not allow for them) and polygraph tests have very serious limitations, particularly in family law.

What you also do not see in the media-packaged versions of court and the legal system are the tremendous costs involved in conducting a court case, from start to finish.

A family court proceeding in Ontario can be an expensive, drawn-out process, for a variety of complex reasons over some of which you will have control and many of which you won't.

Going to court is not the panaceum, be-all-end-all solution you may think it is.

There are cases/situations where the involvement of a Judge is necessary to move the case forward. When parties are stuck on a legal issue/principle and cannot reach a compromise, a Judge's view of the legal issue may be necessary to break the log-jam. Sometimes, the intervention of a Judge is required to address an emergency situation like the abduction of a child or non-payment of support.

Overall, however, settlement is always the preferable solution. Despite a commonly-held perception, negotiation and settlement is not a sign of weakness. It is a sign of strength and maturity on the part of both parties that continued conflict and entrenchment is emotionally draining and expensive.

Settlement is usually the best outcome for all concerned, assuming the parties both understand their legal rights, are making the bargain freely and without pressure or duress, understand the basis of the bargain through solid disclosure and have had an opportunity to get legal advice.

In the end, settlement polarizes the parties less than does a court case, where there is sometimes a clear winner and a clear loser (perhaps not of the entire case but issue by issue).

In a settlement, the parties are the authors of the terms of their agreement. They have "ownership" in the outcome. This is the opposite of what happens in Court (other than in the context of a case which settles through Case Management) ~ a stranger to your family (the Judge) makes decisions for you and your family.  These outsider-decisions may very well affect you and your children for the rest of your lives.

For the reasons above (and many other reasons which a family law lawyer can provide you) choose settlement if you can.

WE are ABLE to help. We are great proponents of mediation, for example, and have worked with many mediators in Ontario. 

"Will the Judge ask me questions in Court?"

Clients ask us this question from time to time. It is usually associated with a measure of unease or even anxiety. The answer depends on the hearing you are attending.

At a Case Conference, for example, your having a direct dialogue with a Judge is possible but unlikely, particularly if you are attending with a lawyer. The Judge can ask a party questions and if he/she does, you will be expected to answer. There is no reason to be nervous, however. You are not being tested in any way - the Judge is likely simply trying to gather information. For example, your lawyer may be able to answer only a part of the question asked by the Court and you may be asked to provide further detail. This is a great opportunity for you to show that you are sincere, credible and interested in assisting the Court. Speak as clearly as you can and take a drink of water (provided in the courtroom) if you think that will assist.

At a Motion, by way of further example, your speaking to a judge is highly unlikely as most family law motions in Ontario proceed by affidavit rather than oral evidence. This means that the Judge presiding over the motion receives the parties' respective evidence (and the evidence of any other witnesses) in writing. There are rare situations in which a motion proceeds by viva voce evidence (meaning by the "live voice" of a witness). In such situations, the witness (maybe you) will respond to questions from a witness box and those questions may include some from the Judge. This latter scenario is also the most likely at a Trial.

You should ask your lawyer as many questions about court procedure as you need to feel comfortable and informed. Calm, informed clients are very helpful to their lawyers and they also present better to the Court.

Art work: Evelina Oliveira

"I am going to a Case Conference - what can I expect?"

A Case Conference is one type of hearing in a series of hearings expected to take place in a family law case in Ontario under the Case Management system of court practice.

Case Management in family courts in Ontario is designed to keep cases "on the rails" and moving to their resolution in a prompt, organized and cost-effective way.

A Case Conference is generally the first hearing in this system - it is expected to take place soon after the court case is commenced. It is a meeting of a judge with the parties and their lawyers (if they are represented) to discuss the most pressing of issues, to organize the exchange of documents and disclosure and to schedule any necessary contested hearings and questioning. All discussions at a Case Conference take place on a "without prejudice" basis, meaning, they cannot be repeated at a contested hearing. The judge presiding over a Case Conference has the power to make some court orders. All court orders are made on a "with prejudice" basis, meaning that they affect the parties and the overall court case.

Your Case Conference may take place in open court or in the judge's office (chambers). Practice varies depending on the judge and the jurisdiction. Dress comfortably but appropriately. The judge may (but is not likely to) ask you questions.


UPDATE - January, 2018

We are pleased to let you know that our Etsy shop is now OPEN!

Visit it here: SELFREP SUPPORT

In the shop, we make available to you Manuals (E-books) on various topics, to assist you in representing yourself before Ontario's family law Courts.

So far, we have Manuals on preparing an effective:

• Financial Statement (both long-form and short-form); and
• Affidavit.

MORE MANUALS TO COME! 

Robert Roth - Landscape

Pretending to be an ostrich will hurt you in a court case!

A post title to get your attention but here is the message I want to stress for you:

* Do not ignore court documents which are delivered to you, either by mail, by process server or otherwise *

These documents are likely to signal a step in the court case (either a preceding step or one about to take place) and you are mistaken if you believe that ignoring these documents will stop that next step and/or the court case.

If you have "notice" of a step in a case, through a document, you are expected to respond to that document. If you do not, the Court will proceed with the step, in your absence.

Here is an example: if you are served with an Application, you have to respond to it (defend it) by way of Answer. You have a limited period of time to do so and if you do not respond, the Court will proceed without your participation in the case, based on the claims (and allegations as to fact) made in the Application. This scenario is unlikely to be in your interests and, therefore, you need to exercise your rights of response and participation.