If you and your spouse cannot agree on how to settle the issues between you, you can go to court and ask a judge to decide for you.
Sometimes you can agree on everything except one thing, like custody of the children or what should happen to the family home. You can go to court and ask the court to decide that one thing for you.
Many decisions about the children and about support may have to be made quickly. If you cannot agree on what to do right away, you can go to court to ask for a temporary order. This order can cover things like custody of, and access to, the children, who can stay in the family home, and how much support should be paid.
Unless the court orders otherwise, the temporary order will stay in effect until the court has time to hear your case in full. The court will then make a final decision.
The first step in most family court cases is for both spouses to attend a Mandatory Information Program (MIP) session. At the MIP, you will learn about how adults and children adjust to separation, the different ways you can try to resolve disputes and the legal issues that arise upon separation and divorce.
In most cases, the court will schedule a case conference or a settlement conference. These conferences provide opportunities for you and your spouse and/or your lawyers, if you are represented, to meet with a judge to discuss the issues in your case. The judge may recommend that you see a mediator, if you have not already done so. Sometimes, the judge will give his or her opinion on what a judge hearing your case at a trial would likely decide. The judge’s opinion will not decide the issues in your case. However, it may help you to come to an agreement with your spouse. Even if you do not agree on everything, you may be able to agree on some issues.
We cannot agree on who should have custody of our children. When we go to court, will the children have to go too?
The judge will want information about the needs of the children and their relationship with each of you. Judges generally want to avoid having children give evidence in these cases.
In some circumstances, you may want to ask for an assessment. An assessment is a detailed review of your family situation by a person such as a social worker, psychologist or psychiatrist. The person doing the assessment will usually meet with each member of the family and sometimes with other people. He or she will then write a report for the court, which contains recommendations on the issues of custody and/or access. In most cases, you and your spouse will be responsible for the costs of the assessment.
In some cases the judge may ask the Children’s Lawyer to conduct an investigation and report back to the court with recommendations. The Children’s Lawyer may assign a clinical investigator to conduct the investigation. The clinical investigator will meet with the children, the parents and other key people.
If the court feels that the children would benefit from having their own lawyer during the court process, the court can ask the Children’s Lawyer to provide a lawyer to represent your children’s interests in court.
Do I need a lawyer to go to court?
No. You can go to court without a lawyer. You will then be responsible for completing and filing all of the appropriate court documents. You will also speak for yourself in front of the judge. Some courts have lawyers who are called duty counsel. Legal aid provides these lawyers at no cost to people who have low incomes. Their job is to answer people’s questions and to help the court. They may be able to give you some information about the law. In some cases, duty counsel can also speak to the court on your behalf and help you negotiate a settlement.