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Why do I want to go to court?

Many couples, whether married or in a common-law relationship, need help to resolve their legal issues after they separate or divorce.

Some couples are able to resolve their issues on their own. You can talk to your partner on your own, with the help of someone you both trust, or with the help of a lawyer or a family law professional.

But maybe you and your partner cannot agree, even with the help of a family law professional. Or, maybe working with a family law professional isn’t the right option for you. For example, if:

  • you are afraid of your partner because of a history of partner abuse
  • there are serious mental health or drug abuse issues
  • you can't talk to your partner even with help
  • you can't work together with your partner even with help

In any of these situations, it may be better to start a family law court case to resolve your issues.

Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues

Trying another option

After you are in court, you and your partner can still agree to pause your case if you want to try to reach an agreement out of court.

There isn't one option that is best for everyone. The best option to resolve your issues depends on things like your relationship with your partner, how complicated your legal issues are, and your goals.

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1. Decide if you want to go to court

There are many reasons why people choose to go to court. And there are also reasons why some don't. Think about these reasons and then decide what works best for you.

Reasons to go to court

Some of the reasons people go to court are because they:

  • need a decision. For example, they need to know where their children will live and which school they will go to.
  • have an emergency and need a court order right away. For example, there is a risk that their partner is going to leave the country with their child.
  • want a court order that can be enforced. This means if either one of you stop following the order, the court can order you or your partner to do what the order says.

Reasons not to go to court

Some of the reasons people don't go to court is because going to court can be:

  • be expensive
  • take more time to resolve your issues
  • stressful
  • is public – in most cases, anyone can attend your court case and anyone can get the judge's decision
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2. Think about other options

Learn about other out of court options and see if any of them might work for you and your partner. For example, you can:

Make a separation agreement

If you and your partner agree on your family law issues, you can put what you've agreed on in a separation agreement. This is a written contract that you and your partner make.

Your separation agreement can deal with some or all of your issues like child support, spousal support, custody and access, and dividing property.

You don't have to wait until you and your partner agree on everything before making a separation agreement. You can make an agreement on the things you agree on, while working on other issues.

You can make a separation agreement if you're married or in a common-law relationship.

There are some good reasons to make a written separation agreement:

  • It can be faster, cheaper, and less stressful than going to court.
  • It lets you and your partner decide what works best for you and your family.
  • It lets others involved in your children's care, such as their school, daycare, and doctor, know what has been agreed on.
  • It's easier to prove what you and your partner agreed on if you have a written rather than a verbal agreement.
  • If there is a problem getting child support or spousal support, the Family Responsibility Office can help.
  • Monthly spousal support cannot be tax deductible without a separation agreement or court order.

Get help from a family law professional

There are different types of family law professionals who can help you and your partner resolve your issues. These are people who do not take sides and are trained to work with both of you. They help you reach an agreement and some can make a decision for you.

Family law professionals can work in:

  • mediation
  • arbitration
  • mediation-arbitration
  • collaborative family law
  • parenting coordination

These processes are sometimes called alternative dispute resolution because they help solve your issues without going to court.

Many people chose ADR because you can control the process more than going to court. For example, you can decide:

  • The type of family law professional that you want to use.
  • What timeline fits your schedule. For example, you may choose to meet with a mediator who is available in the evenings so that you can meet with them after work.
  • How your lawyers, if any, are involved.
  • Who pays for the costs.

ADR can sometimes work better than going to court because:

  • it can be faster
  • it can be cheaper
  • it can be less stressful
  • it is more private than going to court

But ADR might not be the right option if:

  • you are afraid of their partner because of a history of partner abuse
  • there are serious mental health or drug abuse issues
  • you can't talk to your partner even with help
  • you can't work together with you partner even with help
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3. Get familiar with court process and the law

Ontario's family courts follow the family law rules and laws when deciding a family law court case. There is a rule about what is needed at every step in a court case. These rules are called the Family Law Rules. Reading them can help you as you fill out court forms and go through the court process.

Steps in a Family Law Case explains each step in the family law court process. If you're starting a court case, you're called the applicant. Your partner is called the respondent. You're both known as the parties in your family court case.

Once you start your case, you must schedule a trial within 365 days. If your case isn’t scheduled for trial in that time, you get a notice that says you have 60 days to either:

  • file a consent to a judgment or order, or
  • schedule a case conference or settlement conference

If you don't do anything after getting this notice, your case may be dismissed.

At any time during the court process, you and your partner can stop your family law case and try to settle your issues.

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4. Talk to a lawyer

You can talk to a lawyer who can help you understand your rights and responsibilities, what the law says, and what your options are. They can also explain the court process and help you through it.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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August, 2016

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