“Can’t Talk Now ‘Cause …. I’m Going To Court”

It is a relatively rare occasion for a family law case to make the newspapers let alone the lead story in the front section.

Our media is geared, by and large, to crime reporting and much of the daily legal stories revolve around what is going on in the criminal courts or police.  But today, our local paper reported on a custody case that had recently been decided by one of our family law judges, whom I know to be very experienced and thoughtful. The story was fairly easy to follow although it centred entirely on the mother who had fled to Canada with her two small children after winning custody in a foreign country where she and her husband had been residing. The Canadian decision went against the mother and her lawyer was interviewed. Her lawyer said that she would bring an appeal.  I kept asking myself, where was the father in all this? He was the successful party. Presumably he took part in the court proceeding but there is no mention of him or his lawyer (if he even had a lawyer) being present or asked to comment.

I’m not writing about the decision itself or the topic of custody.  I have mentioned the decision because whenever I read a media article about a legal decision or hear about a decision on TV, I want to understand the decision in context. Was it a criminal case, a civil case, a family case? Who sued whom? Was it a final or only temporary decision? Is the decision reported with enough clarity that it would make sense to the average reader let alone a lawyer like me? Or is the story a jumble of snippets and quotes taken from the decision, which leaves me more confused than when I started? (As a lawyer, I can sometimes retrieve the actual decision on-line if I really want this information but I don’t generally do that when reading my morning paper at the breakfast table or putting my feet up for the nightly news.)

Sometimes a well-researched article in the newspaper or online media is edited to the point where important information is left out and what remains is a bit of a confusing mess. But in other cases, the reporter may not have really understood the judge’s decision or may have limited or no knowledge as to how our family and civil courts work.  I am not suggesting that they need to be experts but sometimes it is pretty obvious that they don’t really know enough about the legal context for their article to make sense.  This does happen in family law when the rare case is publicized.

That got me thinking about the average reader and their understanding of our court process.

Lord knows I don’t expect laypeople to show up at my office knowing beforehand about motions, variations, the Child Support Guidelines, equalization of net family properties or joint vs. sole custody any more than I can make a self-diagnosis of my toothache before I visit my dentist.  In fact, part of our job at MORRISON REIST is to explain to our clients, in clear and understandable language our rather complicated system of laws and courts.

This leads me to comment on one common term which we often hear from both clients and their lawyers: “going to court”.  Some refer to it in the physical sense, for example, the act of walking into a courtroom.  Some think of it as meaning a trial.  Others (including most lawyers) refer to it in the context of having a lawsuit which is starting or going on in a court.

I have had clients who are well into a court action who look at me as if I were from another part of the galaxy when I refer to their “lawsuit” or refer, for example, to the fact that one has “sued” the other.  They may think that because they have not yet passed through the doors of a trial courtroom (and most never need to as most family cases in court are eventually settled without a trial) they have not yet “gone to court” or that they even have a lawsuit brewing.

So, let me try to set straight the phrase “going to court”.

When you “go to court”, someone is suing someone else.  You have a “court action” (also referred to as “litigation” or lawsuit or court proceeding). Papers have been filed in a courthouse and, at least in a family law case, the pile will increase considerably over time as the various steps in the lawsuit are reached.

At MORRISON REIST, we provide to our clients our brochure which details the various stages in a typical family law lawsuit. It contains a great deal of useful information about the various court documents, the role of the Family Responsibility Office, the Office of the Children’s Lawyer and other topics.

Some steps or stages in the lawsuit do not require our clients to actually attend at the courthouse. Instead, that can be done by their lawyers.  Other steps such as case conferences, settlement conferences and trials do require them to attend at the courthouse.

In some of my future family law blogs, I will try to clarify some of the other terms that are used or sometimes mis-used.  “Property” is one term that can be referred to in a number of different ways. “Custody” is another and my article entitled “Custody/Shmustody” is already on our website.

Yikes, I have to sign off now as I have to go to court. I will be wearing my law suit. Hope that doesn’t confuse things.