Litigation is the process of disputing a contested matter before a Judge. Litigation involves pre-trial disclosure, examinations for discovery, and court applications with the final determination made by a Judge in a Courtroom. The litigation process is governed by the Alberta Rules of Court and legislation.
Our Courts provide a number of options to litigants. This includes short hearings on brief matters where all evidence is presented in Affidavit form, to longer hearings being a combination of affidavit evidence and legal arguments, all the way up to formal trials in which all evidence is presented directly by the parties, other witnesses or experts.
The advantage of litigation is that parties will get a decision with respect to a disputed matter. It may also result in a Court Order which requires the opposing party to do something (such as to provide financial information, or pay child support) or to refrain from doing something (such as a restraining Order, or an Order preventing an asset from being sold). For many parties litigation is necessary because all attempts to negotiate and mediate have failed, and it is the only way to resolve matters.
To ensure litigation is advantageous to parties, they must do a cost/benefit analysis with their lawyer. In family matters, there are two important costs which must be considered, the financial and emotional costs. The more issues in dispute, the more time that will be required for preparation and in the Courtroom, hence the greater cost, both financially and emotionally. Also, there are some issues for which the Courtroom is a better forum for dispute resolution than others, i.e., a Courtroom is generally well suited for deciding financial matters, but may not be the best place to decide matters related to parenting, particularly given that Judges rarely meet the children involved or see the parents interact with children.
The disadvantages of litigation involve accurate risk assessments, significantly increased costs for preparation, unpredictable results, and additional delays in awaiting hearing or trial.
At Foster LLP, we generally see the Courtroom as a place of last resort and will canvas other options with our clients first. For appropriate cases, however, we will use litigation to get matters ultimately decided for our clients.