Court Process
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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, |
| 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.
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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.
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| 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 start
the court process (usually a Statement of Claim, Notice
of Motion, Affidavit and Financial Statement) and review
them with you. |
| 7 |
Usually you will swear to the truth of
the Affidavit and Financial Statement that set out the
circumstances of your case. |
| 8 |
Typically an Interim Order is obtained
that sets out terms to cover the time it takes to obtain
a final Order. |
| 9 |
Obtain a Trial date if a desk Order process
or a summary trial are not appropriate. |
| 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. |
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