Lisa M. Dewar, Family Law and Medation  
Family Lawyer and Mediator   Email












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Court Process


Court Litigation is a court process used when there is urgency or no prospect of agreement. You may want to invoke court process for several reasons, including the following:

1 you need restraining Orders for your protection, or the preservation of family property
2 there is urgency for the payment of support and maintenance,
3 there is no prospect of agreement, or
4 an Order needs to be varied.

Going to court can be very stressful, expensive financially and emotionally, often unpredictable with long delays.

Fortunately, if you must obtain a divorce in the Supreme Court, you may obtain it as an unopposed desk Order without the necessity of a court appearance, where a Separation Agreement has already been signed or the other spouse will not be opposing the Orders you are seeking.

 

You will be eligible for a final divorce Order if you have lived separate and apart from your spouse for one year, if your spouse commits adultery or if you have suffered severe physical or mental cruelty. The court process may be started at the time of separation (especially if interim Orders are required for support, protection, or the preservation of assets).

Going to court means taking various steps, including many of those that are described in the process set out below. As each family has its own circumstances, it is important to consult with legal counsel to determine which steps are appropriate in your particular case.


 Process
1 Consult with counsel.
2 Consider children and parenting arrangements .
3 Consider financial arrangements (income, expenses, assets and debts).
4 Gather relevant information and documents.
5 Instruct counsel based on the legal advice provided.
6 Counsel will draft documents to commence the court process (usually by way of a Notice of Family Claim and sworn Financial Statement).
7 After the court proceeding has been commenced, and before any interim applications are made, a Judicial Case Conference is scheduled if there are contested issues. The parties with their lawyers attend before a judge in a mediated setting and consent orders may be made. If urgent applications are required (for example: for interim support), permission may have to be obtained to proceed prior to a Judicial Case Conference.
8 After the Judicial Case Conference, if there are still contested matters, a Notice of Application and Affidavit can be filed to seek additional interim relief.
9 Typically an Interim Order is obtained that sets out terms to cover the time it takes to obtain a final Order.
10 There are many avenues for the discovery of documents, testimony and other relevant information that may have to be obtained before you are ready to apply for a final Order.
11 Expert reports may have to be obtained.
12 There are many opportunities for settlement efforts, as the courts are crowded, adjournments are commonplace, and costs can escalate quickly.
13 A Trial may be booked for several days during which evidence is called through witnesses (including the spouses), and each witness on your side is usually prepared in interviews with your counsel; books are prepared to submit documents and case law precedents to the Judge.
14 During the Trial, you will likely be called upon to speak about your part in the case, then you will be asked questions to test your credibility; the Judge will decide what arrangements will be in place after hearing all the evidence and arguments.
15 After the Order is made, costs may have to be assessed at a Registrar's Hearing
16 The court process is governed by Rules and requires the use of Court Forms (BC) or Manitoba.


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