Divorce litigation comes with high costs, both financially and emotionally. Some clients come into my office wanting to go to court right off the bat. They’re angry, tired and frustrated — and they want validation or to make the other person hurt as much as they do.
Generally, I try my best to use the full range of options to achieve the best possible outcome and resolve disputes out of court. However, sometimes a court application is the best or only way to proceed. For example, in situations where it’s suspected a party is hiding assets, or there’s a genuine or novel legal issue that needs to be tried, litigation might be the path forward. Perhaps parties have exhausted all other avenues and can’t agree on a particular issue.
In the event, your matter is headed to court, here are some general ways to prepare.
It bears repeating that litigation is expensive. You’re paying a lawyer for drafting documents, preparation time, hours in court, filing fees, etc. It all adds up — and quickly. You have to keep an eye on the cost-benefit analysis before heading down the litigation path, but it’s also worth checking in and recalibrating throughout the process.
There are also emotional and psychological costs attached to divorce litigation. Courts function by fits and starts and the process can be drawn out for years. Before COVID-19, there were a couple of months between conference dates. Currently, if you’re trying to get a conference date in many jurisdictions, you’re looking at six months or more. If you require a motion date, you will likely be seeking permission of the court to have your motion heard. Litigation has become an even slower process since COVID because court resources are stretched thin. It can be challenging to remain focused, and litigation fatigue is real.
Not all clients appreciate that they may end up with a series of judges, as not all judges are willing to commit to being assigned to a particular file. Instead, you frequently find yourself with different judges at each court appearance. So, each time you return to court, you’re effectively explaining the history of the file again. You may get a judge who has a markedly different opinion about the issues, and it’s a bit like rolling the dice every time you return to court. In essence, you’re starting over each time you attend, and you have to prepare new court documents every time you go back.
The first big step in the litigation process is getting a grip on your financials. We must prepare a financial statement and start gathering information about your finances, including pension plans, inheritances, assets and possessions brought into the marriage, childcare costs, etc. You will also have to list all debts.
If you or your former spouse owns a business or is self-employed, you may need a certified accountant to value the company or verify salaries. If you own real estate, you could be required to have an appraisal done. In this hot and unpredictable real estate market, house values are quickly changing.
Clients often overlook overseas assets — such as real estate in other parts of the world — or things like cryptocurrency accounts and unvested stock options. Of course, you will have to gather this information no matter what approach you take, but you have to be careful to dot your I’s and cross your T’s when you’re preparing for court.
As mentioned, every time you attend court, you’re quite likely dealing with a different judge, so you have to be on top of your information. Litigation is rather unforgiving in that respect. It’s very information-intensive and requires a large amount of uploading at the start.
Close joint accounts and withdraw carefully
One issue that often comes up at this point is a concern that the other spouse will raid the joint bank account, HELOC or line of credit. Sometimes this gets done out of anger; other times, they were instructed by their lawyer to scoop funds out of a shared account.
If you’re going to take money out of a shared account, only take 50 per cent and document to the penny what you spend so you can account for it during court proceedings or settlement negotiations. If you’re concerned about sources of funds being ransacked, it may be wise to consider closing joint bank or credit accounts.
Clients often wonder if they should move out of the house or ask if they can make their spouse move out, and the answer is, it depends. If there are no children and you’re married (as opposed to common law), you can move out and it doesn’t impact your claim regarding the matrimonial home. But if you have kids, you probably shouldn’t consider moving unless you’re going to take the children with you. To maintain your status as an equal parent, it’s better to stay put until the co-parenting issues are worked out. If you upset the applecart without having a parenting plan in place, it could make negotiation more difficult later.
It may seem trite, but I regularly invest time reminding clients to be on their best behaviour during court appearances. For example, I once had a client who invited all her spouse’s family members to come to court to witness his downfall. Suffice it to say that this stunt did not play well with the judge when it was brought to his attention.
Credibility is very important during litigation; you want to avoid anything that would give the judge a negative impression. If you have an idea that you’re second-guessing for a moment, reach out to a trusted friend or family member or contact your lawyer to check your impulses.
Now that you have a general idea of how to prepare yourself for litigation, here is a general rundown of the procedure. In Ontario, divorce litigation proceeds through a ‘conferencing’ system. First, an application and financial statement are served and filed with the court. These are the initiating “pleadings” of a court action. Then, the responding spouse has 30 days to serve and file an Answer, which is a chance to respond to the claims made in the Application.
The first step will be a case conference, which often makes clients nervous as it is their first appearance before a judge. Fortunately, there’s no need to get too stressed about it — nothing of any real substance will be ordered unless both parties consent to it. A case conference is the first kick of the can, where we usually sort out what information and more specifically, financial disclosure, is required. That being said, if your spouse refuses to share information or is attempting to hide financial assets, the judge has the power to make orders against them. On the whole, I liken the conferencing system to a mediation where the judge offers guidance to the parties. The judge can explain how the law might decide the dispute if the parties are unable to arrive at a resolution of their own making. In this way the parties have the opportunity to better understand the issues and get a sense of their settlement options, but nothing is binding at this point.
Following the case conference, the court will assign a settlement conference date. At this stage, you are expected to put comprehensive offers to settle before the court. The judge is now seeking to narrow the issues to help you both resolve outstanding problems. If you’re at a stalemate though, it’s on to the trial management conference.
At this point, we’re preparing opening trial statements and actively scheduling a trial date because it’s assumed that you’re going to trial. It’s not unusual for parties to make very genuine efforts to reach a resolution at the trial management conference because this is when it becomes clear that a judge will be making the final decisions about your money and, possibly, your children. It should also be said that trials can last for days, even weeks in some cases, and the cost becomes prohibitive for most people.
If you’re going into a motion, that usually means push has come to shove — something has become so difficult or intolerable that you’re asking a judge to decide a specific issue that can’t wait for trial. This is increasingly becoming an emergency option involving either co-parenting or financial issues, which are deemed urgent by one or both parties. Interestingly, motions have also become less frequent over the past year or so, as judicial resources are stretched thin due to COVID accommodations, not to mention that people simply fear the uncertainty of a judge making the final decision.
In the event you find yourself at trial, the judge first deals with any preliminary or procedural matters and then the parties take turns giving evidence under questioning, and then cross-examination. Trials can last days or weeks and it is ultimately the judge who decides what they feel is best for you and your family.
Sometimes when people enter the court process that find it so frustrating and unresponsive to their needs that they will reconsider mediation or collaborative family law. They burn off some of the anger through litigation, and can then sit across the table from each other and voice their concerns and goals through negotiation. Despite starting with an all-or-nothing mindset, some people find their way to alternative dispute resolution which is, almost without exception, more efficient, affordable and responsive to the needs of parties while imparting a sense of control in the process and outcome.
If you’re considering a separation or divorce and would like to learn more about your options, give us a call at Morgan and Phillips.