Although I will often recommend separating spouses try mediation prior to embarking down the onerous litigation trail, I do understand that in some cases court proceedings are necessary. Having many years of litigation experience, I can help clients to navigate the procedurally complicated court process.
Most people share a misconception of how the court process works. Television and film portray litigation as quick and decisive—something akin to ‘Judge Judy’. This is not the case. The Court process can be slow and arduous. There are many stages to the process, and much time to wait between these stages.
Mandatory Information Session (MIP)
Unless one is dealing with a simple divorce, both the parties (the Applicant and the Respondent) are required to attend a two hour Mandatory Information Session. This Session addresses alternatives to litigation as well as the negative impact litigation can have on the children of the relationship.
First Court Date Appearance
This is the first step in the process if one or both of the parties are self-represented. One does not appear in front of a Judge or a Master at this step. Generally, this step is required to ensure that the materials filed are 'judge ready'. A date for a Case Conference will be set at this stage.
The Case Conference is the first time the parties are in front of a Judge or a Master. This is a relatively informal stage, aimed at making the family law process less adversarial. One can discuss the issues in front of a judge. The judge will attempt to assist the parties to settle some if not all of the issues. The judge might give her/his opinion as to the most likely outcome if the parties choose to continue down the litigation route. Generally speaking, the judge will not make any orders unless the order is on consent of both parties. The exception to this is disclosure. For example: if the issue is child support, a judge will order financial disclosure that has not already been provided—e.g. income tax returns, recent pay stubs, possibly bank and credit card statements. Unless it is a case of urgency, a Case Conference is a necessary step prior to bringing a motion.
A court appearance for the purpose of obtaining temporary relief: for example, interim child custody or support. A court will make an Order at this stage. This is where the cost consequences of an unsuccessful verdict should be kept in mind. If the judge rules more in favor of what the opposing party proposed, you could be responsible for a portion of the other party's legal costs. The evidence at a motion usually consists of affidavit (sworn statement) evidence.
Similar to a Case Conference, but more intensive. A judge again attempts to assist the parties in coming to a mutually acceptable compromise, without proceeding further to a full-fledged trial. The judge will encourage parties to settle, often by forecasting the most likely outcome if the matter proceeds to trial. Any disclosure lacking will be court ordered.
Trial Management Conference
At this point, a Settlement Conference has not served to settle the outstanding issues, and a trial appears unavoidable. At this Conference, the court tries to ascertain how many days will be required for the trial-- how much evidence, how many witnesses etc.
The final step. A trial can last days, if not weeks. Evidence is introduced, and witnesses are heard. There is examination-in-chief and cross-examination. The cost of a trial can amount to many thousands of dollars. If successful, one might be able to recoup a portion of the costs from the other side. Of course, if the other side is impecunious, one must keep this old adage in mind: 'one cannot get blood from a stone'.
FAQs about Litigation
How much does it cost to go to court?
The cost will vary depending on a variety of factors, including the nature and complexity of the issues, and how reasonable or unreasonable the conduct of the parties. It is important to keep in mind that if one commences a court application, one is not necessarily committed to continuing through to the end. By that I mean the parties can settle at any point during the process. The cost of litigation will depend in great part, therefore, on how far one must go down the litigation road to achieve one’s objectives.
How much will court cost is a very legitimate question, but unfortunately one to which it is difficult to provide a concrete, definitive answer. Litigation is expensive business. Generally, even getting to the Case Conference stage will cost the client $2,500.00 - $3,000.00 as a minimum. A trial (the last step in the court process) can cost tens of thousands of dollars. Lawyers will charge an hourly rate. Blake's hourly rate is $300.00. Laura's hourly rate is $200.00.