We cannot agree to mediate or to use the collaborative approach, now what?

If your former partner will not consent to the use of mediation or to negotiation with the collaborative negotiation, then litigation, or the threat of it, may be the only tool left.

Usually, both sides will have already tried, and failed, to settle matters between themselves. If they have family law lawyers, their lawyers may have tried and failed to negotiate some or all of the issues, by way of a separation agreement. In the end, the resort to litigation means that at least one party believes that they need the power and processes of the court system to obtain justice.

How does litigation work?

Unlike mediation and the collaborative negotiation, litigation is an adversarial process in which opposing sides argue against each other in an effort to convince a judge to make an order in their favour. The forms and processes used by parties who are litigating family issues are largely governed by the Ontario Family Court Rules, Family Law Act, Divorce Act and the individual court’s practice directions.

Once a court process has been started, the Court’s rules and procedures will govern the pace of the case and will impose on both sides obligations to provide information documentation. Some of the court’s procedures and rules can be changed, but only by consent of both sides, and sometimes, even with both parties’ consent, a court order may be necessary to vary the Court’s rules.

Settlement of some or all of the issues in dispute can occur at any stage of the litigation process, even after the trial has started. Settlements are encouraged. They are voluntary and provide a means for parties to control an outcome rather than the uncertainty of a Judge’s decision.

How does litigation start?

Litigation starts when one party, referred to as the “Applicant” serves the other side, referred to as the “Respondent” with a court form called an “Application” in which the Applicant formally tells the other side, and the court, what the Applicant wants and why. The Respondent in turn files their “Answer” detailing the reasons why the Applicant should, or should not, get what they want; and,the Respondent may also advance their own claims against the Applicant.

What happens once I start litigation?

Litigation starts with one side serving the other with an application and financial statement. The application tells the other side what you want and why. The financial statement is a sworn document which provides the necessary financial information. The party receiving these documents has an opportunity to respond and an obligation to also provide a financial statement.

Once litigation has started the parties will both be required to attend a “Mandatory Information Session”. The dates for these information sessions are set down by the court. There will be one date for a group of Applicants to attend and another date for a group of Respondents. This ensures that the disputing couples do not attend the same session.

Next the parties will attend a case conference before a judge who will have received materials mandated by the rules from each side. The judge at a case conference will explore whether any issues can be settled, and if not, what steps are needed to move the matter forward.

After a case conference, the parties may bring motions for interim (temporary) orders. These motions are necessary when the opposing parties can not reach agreement, for example:

  • Is the other side refusing to provide bank statements for one of their accounts?
  • Is the other side refusing to pay for a valuation of their business?
  • Is the other side refusing to agree to a parenting plan while we wait for trial?
  • Is the other side refusing to pay any, or enough, child support while we wait for trial?

The parties will attend a settlement conference, where again the possibility of settlement of some or all of the issues will be explored. If necessary, a trial management conference will also be held, where the court and the parties make certain that they are ready for trial.

Finally, there is a trail. Both sides present their best evidence, at the conclusion of which a judge will decide the issues argued at trial. The party that does not like the judge’s decision may appeal that decision to a higher court.

How much does litigation cost?

At every step in the litigation process each party must weigh the possible costs and benefits of proceeding against the costs and benefits of settlement. Decisions about what will be challenged and what can be conceded are often determined by the realities and limitations of a party’s financial resources and the importance of the issue to that party.

In my experience the costs of litigating generally come down to the following factors:

  • The complexity of the facts and law; and
  • If, and how much, the parties are prepared to concede to each other.

It is also possible to hire a lawyer for only parts of the litigation process and to represent yourselves for the other parts. This is called “Unbundled Legal Services”. For instance, you may only want a lawyer to draft a document or to attend court. This can be one way to manage costs. For more information on Unbundled Legal Services please contact us directly.

How long will litigation take?

It is impossible to estimate how long litigation will take. As with the costs of litigation, the answer depends on many factors such as: how co-operative the two sides are, the strength of the evidence on any given issue, whether experts are required, the complexity of the legal issues, whether offers to settle are made and accepted, and the court’s availability.