Thinking of Going to Family Court to Break Your Separation Negotiation Deadlock? Family Law Confidential Episode #5: What Pulling the Trigger on Litigation Really Means

You may have been embroiled in friendly or more likely not so friendly family separation settlement negotiations for weeks, months, or even years. You might be getting frustrated that no matter how much you try, or how much you concede, you still can’t come to an agreement with your former partner. Maybe you’ve agreed on money, but can’t agree on children. Or maybe its the opposite. Whatever the reason, you might be getting itchy to have someone put an end to the endless negotiations. 

I work exclusively as a Family Law Barrister, rather than as a Family Law Solicitor, so going to court for clients is definitely my thing. But I still caution them to fully understand what pulling the trigger on litigation really means prior to doing so. I tell my clients there are really only two kinds of family law cases: those that go to court, and those that don’t. There’s a dramatic difference between the two. So much difference that all the other factual variations between cases are inconsequential by comparison. 

PULLING THE TRIGGER MEANS GREATLY INCREASED LEGAL COSTS

Family cases not in court are usually relatively inexpensive (seriously), while those in court can get expensive very quickly because of the amount of lawyer time that can be burned through. How much more expensive? Probably by a factor of 5 to 10 times. And that’s just in the early stages working towards a trial, but not to run the actual trial itself if the issues are complex. For very complex cases, with lengthy trials, experts, and possibly appeals, your in-court costs could reach as high as 100 times greater than your out of court settlement costs. 

Yes, you read that correctly, 100 times. I know it’s a shocking figure. And it’s not driven by my being any more expensive than a similarly qualified Family Law Solicitor. It all comes down to time.

An efficiently negotiated and drafted out of court separation agreement might be completed in as little as ten hours of lawyer time, and that total could be spread over several weeks. Whereas with litigation, 10 hours only amount to one of the many days in court that might be necessary, including a little preparation for that day. The 100 times is an extreme worst case figure; most cases will be much less expensive, but you at least need to think about the 5 to 10 times number, and be prepared for escalating costs.

The best way to keep down your family court costs if you do decide to pull the litigation trigger is firstly to see court as a collaborative process with your lawyer, where you carefully organize your supporting documents, and precisely write down the factual chronological and pertinent details justifying what you want out of the process. Secondly, you need to constantly evaluate and reevaluate what winning means.

Litigation hopefully doesn’t mean going all the way to trial. You do need to be prepared emotionally and financially for that possibility, but even a trial that goes well does not ensure total victory; a trial judge might not give you all you want, and an overly favourable trial judgment might be appealed. So you need to look for breaks in the litigation freight train, where you might be able to get what you need without fighting out litigation to the bitter end. 

PULLING THE TRIGGER MEANS YOU RISK PAYING FOR THE OTHER SIDE’S LEGAL COSTS

So long as your case is not in court, you won’t be at risk of being forced to pay the other side’s possibly considerable legal costs. In court, if you lose - which can even mean turning down a reasonable settlement offer, and at trial doing no better than that offer - you could get stuck with huge court costs of the other side, in addition to your own legal fees. 

Regardless of how just you may believe your cause, and how good your supporting evidence, there are no “sure things” in the litigation world. My job is to maximize your chances of an optimal outcome, based on the material I have to work with. Any lawyer who tells you your case is a sure thing is either lying to you, or hasn’t done enough cases. So losing is always possible, and getting hit with legal costs is a possible consequence of losing. In the worst cases, I’ve seen Family Court costs awards exceed $200,000 - truly financially ruinous territory. 

But there are ways to protect yourself from costs, like by making your own pre-trial reasonable settlement offer that if refused, can lead to you getting your own enhanced costs or at least not be hit with costs. 

PULLING THE TRIGGER MEANS YOU’RE NO LONGER IN CONTROL OF THE PROCESS

With cases not in court there are no strict deadlines, so you’ll have time to consider your position. In court, you be on a strict timetable: case conference, settlement conference, trial management conference, trial. That also means you’ll need to be able to continually fund that court process, or there could be a breakdown in the relationship between you and your lawyer. 

The court won’t wait for you to save up money for the next step. The court may give you a pause to see if something can be worked out through negotiation, but it won’t be a huge pause. So be prepared for being on court time once you start your case, as courts don’t want hosts of stalled cases clogging up their system. 

PULLING THE TRIGGER SHOULD BE THE LAST STEP, NOT THE FIRST STEP

So my advice is always that going to court is the last step in a family law case, not the first step. Some think jumping right into court will give them more leverage over the other side. More likely, you’ll lose control of the proceeding as the other side retaliates and may make outrageous claims against you that were never made while the case stayed out of court. 

There’s no question that true deadlock in family settlement negotiations (or a complete refusal to negotiate) requires a court or other external dispute settlement process. Mediation or arbitration could also be worth considering. But any of those options can get expensive, so holding your fire as long as possible will best preserve your resources, and give you time to amass evidence that you can use to win in court.

This post should not discourage you from going to family court. Often, it's the only viable means to permanently settle your financial and child custody issues after the end of a spousal relationship. You just need to be aware of how different things will be in a court environment, rather than outside a court process. 

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com.