How does Litigation/ Negotiation work?
In litigation, you hire a lawyer to provide legal advice and represent your interests in out of court negotiations and court hearings. Communication occurs primarily through lawyers, with the lawyers making proposals, counter-proposals, and defending the position taken, usually in writing with letters going back and forth and possibly through the attendance at settlement meetings. If attendances in court are necessary, your lawyer will prepare the required court documents and attend in court to present and argue your position in Court. You will then be bound by the decision of the Justice hearing your matter.
What is the Litigation Process: Step-by-step?
- Step #1: Preparing and filing a claim
- You and your lawyer work together to determine and outline the relief that you wish to seek, such as division of matrimonial property, a claim relating to the children, a claim for child support, and/or a claim for spousal support.
- The relief sought is set out in a Statement of Claim or Family Law Claim that is filed with the courthouse and served on the opposing party.
- Step #2: Gathering relevant information
- It is necessary for you and your lawyer to gather relevant financial and other information relating to your family’s assets, debts and income. This can be accomplished in a number of ways, including:
- The voluntary exchange of relevant information between you and your spouse.
- Filing a Notice to Disclose/Application, which requires you to exchange financial information with your spouse within a certain period of time, failing which the matter is heard in court and orders may be made requiring the provision of financial disclosure.
- Attending at Questioning, which is a process in which each of you and your spouse are questioned by the other’s lawyer under oath and the information that is gathered is used as sworn evidence in further proceedings.
- Step #3: Resolving the matters in issue
- There are a number of options in the litigation process which can be used to resolve the matters in issue between you and your spouse/partner. These include:
- Communications/settlement proposals exchanged in writing between the lawyers
- Four-way settlement meetings
- Meetings involving both lawyers and both parties where settlement options are canvassed
- Judicial Dispute Resolution
- The lawyers and both parties attend before a Justice where the Justice assists the parties in resolving their dispute
- Interim Court Applications
- Attendance before a Justice at the courthouse for interim relief (meaning a temporary solution to a problem – such as a temporary order outlining an interim parenting plan).
- Attendance before a Justice at the courthouse for final relief (meaning a final decision on any matters in dispute between the parties).
What is the process for Interim Court Applications?
Interim Court Applications are heard in either Regular Chambers or Special Chambers.
In Regular Chambers, matters are only allowed to take 20 minutes of the Justice’s time. Regular Chambers is meant for simple matters or matters with urgency that need to be heard as soon as possible. An Application and supporting Affidavit is filed by the initiating party. The responding party has the opportunity to file an Affidavit in response, and potentially a Cross-Application. An Affidavit is a sworn statement outlining the relevant facts in the matter and attaching any relevant documents. The Justice hearing the matter does not have the opportunity to review the materials filed by each party in advance of hearing the application in Chambers. The Justice makes a decision after hearing from the lawyers for each party. You and your spouse do not give oral evidence – your evidence is confined to your Affidavits.
Special Chambers involves matters that are expected to take longer than 20 minutes of the Justice’s time and are more complex. The process of filing Applications and Affidavits is the same as for Regular Chambers except that there are certain filing deadlines that occur long before the application is heard. In addition, each lawyer is able to prepare a letter outlining their client’s position and legal arguments in support. The Justice hearing the matter has the opportunity to review and consider the materials filed by each party in advance of hearing the application.
What is a trial?
A trial is a process where witnesses are called to give oral evidence before the Justice hearing the matter. Each witness is cross-examined by the opposing lawyer. The Justice is able to assess the credibility of each witness and make a final determination relating to all matters in dispute.
What are some key things to know?
- While the litigation process is a formal process utilizing the court system, it is important to understand that settlement still remains the primary objective. It is always better to attempt to reach a mutually agreeable resolution outside of court than to put your fate in the hands of someone else (i.e. the Justice hearing your dispute).
- As there are deadlines inherent in the litigation process, use of the litigation process may be a helpful way to move matters forward where one party is less motivated to reach a resolution.
- There are limitation periods that, if they expire, will prevent you from advancing certain claims. In addition, once a claim is initiated there are rules about long delay which may prevent a claim from being continued if it has stagnated for a long period of time. It is important to receive timely legal advice to prevent these limitations problems from happening to you.
At Symmetry Family Law, our lawyers are skilled litigators and have experience at all levels of the Alberta Courts.