(Scenario is based on Ontario court procedures)
(The following content is for informational purposes only and is not intended to create a lawyer/client relationship between the author and the reader)
Litigation (using the court process) is costly. Depending on the circumstances, litigation in the family court could cost anywhere from $6,000 (if you’re lucky) to $500,000 or more. Frightening,– but it’s happened!
While you are “fighting each other in court” you are being held hostage by a court system that is slow and ill equipped to find you practical solutions.
To commence a court action, your lawyer needs to meet with you and to “tell your story” essentially about your relationship and to “ask for what you want” in an Application. If your spouse has already started the Application, “your side of the story” will go into an Answer. In addition, if you are asking for support or a division of property, your lawyer will need to help you complete a financial statement.
Typically, the court process requires a First Appearance, one or more Case Conferences, a Settlement Conference, a Trial Management Conference, Trial Scheduling, then Trial. For each of the conferences, your lawyer is required to prepare a brief for you in order to provide the judge with a brief summary of what the issues are and what your position on these issues are. You are also required to attend court on those dates meaning possible lost wages.
A Judge typically does not make orders at the Conferences unless there is a situation that needs immediate rectification such as child support or spousal support payments to commence. As well, those are only interim not final orders. To get any other relief, (e.g. an order for exclusive possession or the partition and sale of the matrimonial home) a motion must be brought and argued.
Attendance at court could be an all day situation since there are often a number of other cases on the docket (list of cases) and there are no guarantees that you will get reached that day. You are being billed for the time your lawyer is in attendance at court (as well as travel to and from court) whether or not your matter is actively before the Judge. At $250 to $600 an hour, you can do the math.
Possible other costs which could be incurred are an appraisal of the matrimonial home, pensions valuation, business valuation, child assessments, forensic accounting, etc.
Most litigants end up representing themselves at trial (when they need the lawyer the most) or find themselves being “forced” to settle because they can no longer afford to pay their lawyer. In many cases, the result they end up with could be pretty much what they ought to have settled on to begin with except they are now several thousands of dollars poorer because of the legal fees. Even worse, they could end up with a decision not to their liking and having to pay costs to the other side. Judges are often heard to say that if both parties were unhappy with the Judge’s decision, then her job was done.
Knowing the potential cost and uncertainty of litigation, why not seek a better alternative. That will be the subject for another article