Family Law Litigation FAQ's
▶ 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 what the access schedule should be. When you and the other party agree on some things, 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.
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.
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.
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 can be 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.
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 fairly 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 days 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.
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+.