How can I explain the family court process to my client?

A family court case can be confusing to anyone who is not familiar with the process. For a woman who is dealing with trauma as a result of past and ongoing abuse by her partner, it may be completely overwhelming.

She may need to apply for legal aid. She needs to figure out what issues she needs to resolve. There are documents to fill in, serve, file. Everyone she talks to will use acronyms – FLIC, MIP, ADR, to list just a few – and assume she knows what they mean. The people she encounters at family court may be abrupt and impatient and show little understanding of her fear of her former partner.

Key points to cover

Basic steps: One of the best ways you can support a woman if you are working with her before she starts her family court case is to walk her through the basic steps and give her a realistic sense of when various things are likely to happen.

Be realistic: Many women start their court case with high hopes and expectations, which are repeatedly dashed as they move through the process. It is better if they start out with some realistic information.

It will be slow: Perhaps the most important thing for women to know as early as possible is that their case will move slowly. Few people enter family court understanding how long the whole thing is going to take. Many assume they can get an order the first or second time they go to court. You can review the steps and timelines with them, and then point out how the case can get slowed down either because the court is overloaded or because their abuser intentionally slows things down.

Legal bullying: Talking about legal bullying right from the start is probably a good idea. Help your client think about strategies to handle her former partner’s ongoing attempts to intimidate and control her. Share our fact sheet on legal bullying with her.

You can also talk to her about:

  • How she can manage the slow process, both practically (what will she do for money until she gets an interim child support order?) and emotionally (how will she deal with the frustration of a case that can stretch on for months or even years?).
  • Is there safety planning she needs to do because she may have to manage for months without an order in place?
  • Does she need to think about bringing a motion to get an interim order?
  • Is there an urgent situation that might warrant her bringing an emergency motion?

Explaining the process

Before you begin explaining the process to a client, you may want to refresh your own memory about the steps, even if you are not going to discuss them with her in detail all at one time.

  1. Talk to the woman about who is the applicant and who is the respondent in a family court case. Once you (and she) know which she is, you can explain the process to her from that perspective.
     
    Reassure her that she is not at a disadvantage just because her partner has started the case. She has the same opportunities to tell the judge her story, and judges do not assume that the person who started the case is the better parent or person.
     
  2. Initially, provide a broad strokes overview of the process without getting into the details of every single step. Giving a detailed description of each step from beginning to end is too much for anyone to take in at one time. Women who are dealing with abuse-related trauma may have trouble absorbing what you are telling them and retaining the information until they need it. Hopefully you will be working with your client throughout her case and can add information about each step as she comes to it.
     
  3. If she plans to start the case, it is important for her to know:
    • She will begin the case by completing the initial documents: the Application (Form 8), Financial Statement (Form 13 or 13.1) and the Affidavit in Support of a Claim for Custody or Access (Form 35.1)
    • She also has to start the court file, which is called the Continuing Record
    • What the Family Law Rules are and where she can find them. In particular, show her Rule 6, which deals with service of documents and Rule 3, which explains how time is calculated
    • What she has to do with her documents once she has completed them:
      • Take them to the court to have them issued
      • Have them served on her former partner
      • Return to the court to have the documents and an Affidavit of Service placed in the Continuing Record (court file)
         
  4. It is also helpful for her to know that once these initial steps are taken:
    • She will be given a date to attend a Mandatory Information Program (MIP) session
    • Her partner will have 30 days to answer her application, after which she will have 10 days to file a Reply if she chooses to do so
    • The first court date is just an administrative appearance at which the court clerk ensures the documentation is complete and sets a date for the first case conference, but at which no decisions about the issues in the case are made
    • There will be a series of conferences with the goal of encouraging her and her former partner to settle as many of the issues as possible
       
  5. If her former partner starts the case, it is important for her to know:
    • He has to serve all the originating documents (the Application, Financial Statement and Affidavit in Support of a Claim for Custody or Access) on her before the case actually starts
    • She will have 30 days to respond by completing an Answer (Form 10), Financial Statement and Affidavit In Support of a Claim for Custody or Access, which she then must serve on him and file with the court
    • She will be given a date to attend a Mandatory Information Program session
    • Her partner has 10 days after receiving her Answer to file a Reply, should he decide to do so
    • The first court date is just an administrative appearance at which the court clerk ensures the documentation is complete and sets a date for the first case conference, but at which no decisions about the issues in the case are made
    • There will be a series of conferences with the goal of encouraging her and her former partner to settle as many of the issues as possible
       
  6. Once you have reviewed the opening steps in a case, you may wish to discuss motions and emergency motions with your client, so she understands these options.

An excellent resource

Community Legal Information Ontario (CLEO) has created an excellent interactive flowchart that lets someone walk through the steps in a family law case. While written for a general audience, there are frequent references to family violence, and safety concerns and strategies are highlighted throughout. This is a very good resource to encourage women to use or for you to use with your clients. Visit Steps in a Family Law Case.

Posted in For service providers, For women, Frequently asked questions