The Down Sides of the Court Process

The Down Sides of the Court Process

The Down Sides of the Court Process

Quite often, I have clients who say to me, “I want my day in court”. While entering the court process is sometimes the only way to try to resolve a family law dispute, it is usually the most financially expensive, the most emotionally draining (particularly if children are involved), and more often than not, takes the longest amount of time to achieve any resolution, either by settlement or once a court order is made. While many clients seem to believe that going to court will solve all of their problems, the reality is that in a great number of cases, clients are disappointed with the process.

Why is court so expensive?

Typically, lawyers initially try to come to an interim agreement for their clients outside of the court process. Often, a great deal of time (and therefore, money), has been spent leading up to the commencement of any court process. Once negotiations break down, as they often do, and a client decides that he or she would like to go to court, the drafting of numerous court documents begins. These documents are the first documents a judge will usually see and must be drafted persuasively and with precision. Throughout the court process, many other documents will be drafted, including conference briefs and sometimes, affidavits for motions. At each step of the litigation, documents must be served on the opposing party or his or her lawyer and filed with the court. In many cases, there are additional fees associated with this. Once the day finally comes when the parties attend at court, they will be paying for their lawyers’ travel time and waiting time. Depending on the court, they may have to wait all day, and in some cases, may not even see a judge. Meanwhile, they will be paying their lawyers’ hourly rates during this wait time, as it is difficult for a lawyer to do any other work for another client when they are at court.

Why is court emotionally draining?

I have never met a client who has not said to me that he or she is nervous before a court appearance. The anxieties and concerns that come with having a judge offer guidelines or provide a decision that directly affects one’s family, is a terrifying experience for most people. In many cases, my clients have not seen or spoken to their ex-partner for many weeks or even months, and are then forced to come face-to-face in an unfamiliar and usually adversarial environment. This also creates anxiety, anger and, sometimes, fear. In cases where children are involved, the stakes are even higher and therefore, emotions are heightened. The sense of losing control to a third party judge can easily affect a person’s ability to cope well in this process.

Why does it take so long to reach a resolution in the court process?

There are hundreds of governing rules that apply once a client decides to enter into the court process. These rules consist of specific timelines and procedures for filing documents and attending at court. Before a party can be heard by a judge, these procedures and timelines must be met. In addition, there is a significant backlog in many Ontario courts, thus taking several months before a date can be scheduled. As there are many steps that must be followed before a trial, every step of the process typically requires a period of three to six months before the next step can occur, making it years, usually, before a trial occurs.

As I indicated previously, in many situations, it is necessary to go to court. However, for those clients who simply want to “have their day in court”, they may want to re-think their beliefs (or, in an ideal world, go observe a day in family court to see what actually happens!), as they will likely face a great deal of financial and emotional stress along the way that may not be worth it to them.