Setting Reasonable Expectations for the Family Court Experience

What Might Happen in Family Court?

Naturally, when faced with either type of misconduct by a Family Law litigant, the court has an arsenal of sanctions at its disposal. Among the more serious is a finding of contempt against the party committing the breach. A finding of contempt involves satisfaction of a three-part test, namely that: 1) the disobedient party was both wilful and deliberate; 2) the evidence shows contempt beyond a reasonable doubt; and 3) the order that was breached was both clear and unequivocal.

(And note that while technically under the Family Law Rules, a failure to pay child or spousal support alone cannot be made the subject of a contempt of court order, the court will often find con- tempt based on related non-compliance, such as the party’s failure to satisfy his or her related disclosure obligations. See for example, the recent decision in Luckman v. Luckman,6 where the paying parent had a whole raft of related and contemptuous conduct relating to child support payments, including misleading the court and failing to provide relevant documents as promised.)

Contempt orders have been called the “big stick of litigation,” and courts are not shy to impose them when warranted. Indeed, the availability of such measures is viewed as one of the cornerstones of the Canadian justice system, a sentiment that is reflected in this quote by Mr. Justice Curtis in Peers v. Poupore:

Contempt orders are serious business. No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court orders at their whim because in their own particular view it is right to do so.

A society which countenances such conduct is a society tottering on the precipice of disorder and injustice.

What Not to Expect from Family Court

We have seen there are many common misconceptions about what happens in Ontario Family Court, but now I want to let you know what not to expect from the legal process.

1. Don’t Expect to Have Your Legal Matter Heard Immediately

There may be great benefit to having matters adjudicated promptly and to having the parties’ affairs quickly wound up
– especially in acrimonious family litigation, where emotions run high. However, the Ontario legal system is saturated with unavoidable delays. Litigants can expect to wait many months or even years to have their matters finally resolved, and this will be exacerbated when one or both parties take a highly adversarial stance in the litigation, injecting numerous interim motions and other steps that may prolong the process even further.

Remember: even at the best of times, the legal process takes time.

2. Don’t Expect to Have Your Matter Decided Right Away, Either

Unless there is an emergency situation (for example in cases where there is an urgent motion brought in connection with the custody or care of any children of the marriage), decisions of the court will not be made immediately at the hearing.
Rather, after hearing the parties, the court may take some additional days or weeks to render a decision, and to produce formal written reasons where necessary.

3. Don’t Expect Any Hand-Holding by the Judge

Generally speaking, it is always best to have competent legal representation when attending Family Court. Although the Ontario justice system does allow for litigants to be self- represented, the decision to go this route is fraught with inherent risks and pitfalls. True, a court may be a little more understanding and patient with those litigants who choose to represent themselves, but the court has no positive obligation to do so, and certainly is not obliged to step in and help such a party con- duct his or her side of the litigation, to give instruction on the relevant legal principles or to help develop a litigation strategy.

4. Don’t Expect TV-Grade Courtroom Drama

For those who have no regular exposure to the legal system, there may be common misconceptions about how that system works, usually formed from watching movies and television. However, the truth is that in Ontario (and in virtually all juris- dictions), the real-life court process simply does not involve high-drama tactics such as a lawyer who brow-beats witnesses during abusive cross-examinations, or dramatic last-minute courtroom entrances with “surprise” witnesses who save the day for the underdog litigant.

In reality, the court process is well-established, plodding and rigorously defined. It involves certain procedural steps and requirements, strict adherence to laws and civil practice rules, and sometimes tedious documentary review and other processes.

5. Don’t Expect Everything to Go Your Way

The resolution of Family Law disputes is complex, and involves not only the application of established legal principles and laws, but also the consideration of facts and various interests of the affected parties. (For example, where there are children involved, the best interests of the child will generally govern the court’s determination.)

Therefore, as with all litigation, the outcome of any Family Law matter can go one of many different ways, and it is not always solely dependent on the sheer strength of the parties’ respective legal positions in the technical sense.

This may come as a particular surprise to those spouses whose temperament is of the “all-or-nothing” variety, and who have dug in their heels to insist the matter be resolved by a court rather than through alternative dispute resolution methods such as mediation or arbitration. For such people, the eventual court-imposed outcome is not always to their liking. This is always the risk that has to be taken when going to court.