Litigation

Litigation is the process of filing a lawsuit and preparing to go to court. The process is very complex, very expensive and for most families, it should be the last resort in terms of dispute resolution.

 

An Open, Public Process

Litigation is, for the most part, conducted in open court in full view of the public.

This means that members of the public are free to spectate at your hearings. For some people this is ideal – the openness of the process offers a measure of protection against abuse or power imbalances, and occasionally can even “shame” the other side into acting reasonably. However, for most people it is very embarrassing to have intimate details made the subject of public scrutiny.

Further, court appearances are audio-recorded and documents submitted to the court remain in the court file for years after the fact. Litigating parties must be extremely careful about what is admitted into the court record because personal letters, e-mails, telephone conversations, and so on can become evidence and be available to other parties later on. On top of this, if other family members and relatives later find themselves involved in the dispute, they can be privy to information that was never intended for them.

 

Solutions Are Ordered

The parties have little or no control over the orders of the court.

The fact is judges do not have time or resources to delve into the unique details or nuances of each family conflict. They make decisions as best they can with the limited information and time available. Adding to this concern, British Columbia does not possess a separate, specialized “Family Court” system like some other jurisdictions – this means that a family dispute could ultimately be determined by a judge who knows more about tax law or criminal law than family law.

Further, there is always the risk that courts may make decisions that leave both parties to the dispute unhappy. For example, a father may want to share parenting responsibilities over a child equally with the child’s mother because the father feels this is best for the child; the mother may want the sole parenting responsibility because she feels this is best for the child. However, the court may very well order that the father have the sole parenting responsibility because the court feels this is best for the child! This unexpected result may be something nobody is happy about, but now the family has to live with it because that is what the court ordered.

 

Expensive

The amount of paperwork involved in litigation is enormous, but lawyers are generally happy to prepare all of it if clients are prepared to pay.

Unfortunately, litigation also involves a lot of strategizing and guesswork as to what the other side will do next. Because lawyers have to “cover all the bases” to protect their clients, they are often forced to prepare for scenarios that may never materialize. For this reason, family litigation has been described as “selling the existing family home to then build a house nobody is ever going to live in.” The amount of money that gets wasted can be truly shocking.

In many cases, the fees eventually get so high that the parties end up letting go of their lawyers and representing themselves in court. This is frightening for many people, who have little or no understanding of the justice system, and who do not know what their rights are under the law. This is also frustrating and difficult for courts and judges, who are supposed to remain neutral but find themselves doing much of the work of two absent lawyers when two unrepresented clients show up for a hearing, unprepared and confused.

 

Summary

Overall, litigation should really be the last refuge for families in distress. The traditional, adversarial justice system is simply not designed to address the needs of families.

That having been said, when dealing with a partner or spouse who simply refuses to enter any other dispute resolution process, or when the history or circumstances between the parties is such that no other process can adequately address a party’s particular needs, litigation may offer the only solution.

 
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