There are times in a separation or divorce where one of the parties, or both, decide that their matters are best decided by a Judge in a contested court proceeding. Serious matters such as family violence, child protection, hiding assets, bad faith negotiations, willful failure to support children or dependant spouses – all of these issues may result in parties going to court to try to have matters resolved.
Sometimes your former partner files for a divorce and you come to our office for a consultation because “I’ve been served!”. We routinely handle cases which are started in litigation, and use our extensive negotiation skills to divert your matter to a settlement process to avoid having a Judge decide your private family matters in a public courtroom.
There are a number of laws which give the Courts jurisdiction to become involved in your private family matters. Some are federal laws and some are provincial. The Divorce Act, Matrimonial Property Act, Adult Interdependent Relationships Act, Family Law Act are a few of the more important statutes that may affect you. There are others. Become informed.
In court you will need to follow detailed processes before you may ask a Judge to make decisions about your life. The TV image of lawyers and clients in court, oral testimony, legal argument at a trial, immediate decision reinforced by a gavel pounding down on the table is Hollywood. In family law in Alberta, matters proceed to trial only after very lengthy interim proceedings and after a sequence of litigation steps are taken under the Alberta Rules of Court. Very rarely is a trial held, and it will generally take years before a trial is scheduled.
There are two different levels of courts in Alberta that may hear family law matters. The Provincial Court has jurisdiction under some statutes. The Court of Queen’s Bench has jurisdiction under others. Sometimes they have “concurrent jurisdiction” which requires you to make a significant decision about the choice of a court to use. In the Court of Queen’s Bench a morning chambers application may be scheduled in Court where a matter will take less than 20 minutes to be heard. An afternoon special chambers application must be scheduled where the matter will take over 20 minutes and up to a half day to be heard. Waiting times for special chambers exceed six months, as a rule. No applications that involve children may be filed unless the party seeking an order has first attended the Parenting After Separation course – a course mandated by the Alberta Government. It may be attended in person, or online. (link).
It is important to note that under the Alberta Rules of Court section 10.29(1), a successful party to an application, subject to the court’s discretion, is entitled to a costs award against an unsuccessful party. In other words, the “winner” of a court application has a potential entitlement for court costs (i.e. lawyer costs, trial preparation, post applications, questioning, morning/special chambers appearances, etc.) which must be paid by the “loser.”
Although winning on an application gives a party the right to ask for reimbursement from the court, this DOES NOT automatically mean costs will be awarded. The court still has the discretion to limit or even deny the full amount of reimbursement a party is seeking.
In family law, where there may be many applications involved, these court costs can accumulate to large amounts.
Learn more about how Long Family Law Group LLP can advocate for your rights as a before the courts during a contested divorce or separation proceeding. Call 780-461-8416 or send us an email to arrange a meeting to talk about how we can help.