How does Family Law Litigation Work?
Updated: Oct 4
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 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.
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.
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 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.
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 their 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 a decision. The judge may provide the decision immediately following the trial, or may take additional time to formulate his or her reasons.