If I Don’t Have Money, Will I Lose in Family Court?

Often when spouses separate, one spouse leaves with much greater access to money than the other. Then that spouse wants to hold on to his or her money after separation, so doesn’t want to be cooperative, knowing that his or her ex does not have the money to go very far in Family Court, and so will just have to take what is offered and give up what he or she is entitled to receive.

There are a lot of good reasons to avoid going to Family Court. The cost of going through the process is a big one. Family Court costs exponentially more than mediation, arbitration or collaborative practice. But, where one spouse has all the money, he or she may not see any reason to choose a less expensive alternative when his or her ex cannot afford to go to court. Going to Family Court to enforce your rights usually means hiring a lawyer (you have to live in poverty to get Legal Aid, and Legal Aid only covers limited legal issues) and if one spouse cannot afford that, then that spouse may not even be able to make it in front of a judge to get what is fair

Although, often all it takes is getting in front of a judge who is concerned that only one spouse has money for the other spouse to want to negotiate, go to mediation or otherwise stay out of court. When one spouse has found the money to start court proceedings, his or her ex may worry that there is the money to continue them. Starting court involves a lot of steps, which can make it expensive. So, an uncooperative spouse may choose to be cooperative to avoid spending more on a court case that he or she may lose, and uncooperative spouses may find that lose a lot. 

Fortunately, there are some options for people with limited funds to get the legal help they need to go to court:

  1. Ask for money from friends and family. This is the most common way people get money for their divorce or to go to Family Court. Often, this money will be a gift, or if it is a loan, then the repayment terms are very favourable.
  2.  Hire a lawyer on a limited-scope retainer. There is a lot more information at the link, but essentially this means hiring a lawyer to give advice only or do one specific task, rather than dealing with every part of the file. The spouse with limited funds then can choose what he or she is going to have the lawyer do and keep control over how much it will cost.
  3. Ask a judge for an advance on monies owed. In many cases, particularly when it comes to property division in a divorce, it will be evident right from the beginning that one spouse will owe the other some money in the end. Where the spouse who needs money is the spouse who will be receiving the money, then it is possible to ask for the spouse with the money to pay at least some of it immediately. If the spouse with the money won’t agree to do this, Judges can order the payment on a motion where it is clear that one spouse will owe money. However, this is a motion for “partial summary judgment”, which makes it a little technical, so it is best to speak to a lawyer.
  4. Ask a judge for “interim costs and disbursements.” Rule 24(18) of the Family Law Rules says that a judge can order that a party to a Family Court case pay an amount to another party to cover some or all of the expenses for carrying on the case. Judges may do this where it is necessary to “level to playing field” or where one party’s behaviour is so unreasonable it is clear that party will end up paying costs in the end anyway.
  5. Get a “Divorce Loan” or a Litigation Loan. These can be expensive loans, but they may be worth it to a spouse who needs to go to court to get anything from their ex.

Also, it is often possible to get support orders, especially child support orders, early on in the case. These are for temporary support and are meant to last until there is a trial or settlement. They may not get the support amount exactly right, but they can provide some necessary cash flow to help with Family Court. With the court making automatic orders for disclosure right at the start of the case, the parties are required to provide at least basic financial disclosure within 30 days of the start of the court proceeding. That allows for at least an estimate of what support will be payable. Only unreasonable Family Court litigants will not settle some or all of the support issues. Judges may punish a party for being unreasonable by having that party pay the legal fees for the other party.

All of the above options that require a court order can be a little tricky and technical. It is best to at least book a consultation with a respected family law lawyer to understand what option is best for you and how to pursue it.

Still, there is no denying that court is very expensive. It is the only dispute resolution process that one separated spouse can force the other into. For that reason, and others, some judges struggled between allowing each party the full opportunity to present his or her case the way he or she sees fit, and dealing with matters quickly and potentially leaving the impression that the court was not listening or did not care. Parties with more money can ask for more opportunities to pursue more steps, bring more motions, present more arguments, and generally litigate more aggressively than parties who are trying to do their case on a tight budget. In addition, where judges believe a settlement may be possible, there may be repeated settlement conferences, which one party can use to financially exhaust the other – looking ready to settle but just really trying to multiply the number of court appearances.

Many Family Court cases are wars of economic attrition. The party that can stay in the fight the longest can take advantage of the other party’s need to “get out” to leverage a favourable settlement. Or, the party with money can be forced on a trial, which will be extremely expensive, knowing the other party cannot afford to have a lawyer assist and so the party with less money either has to settle for a reduced amount, or face the prospect of losing at trial because he or she does not know how to conduct a trial, or the laws and rules that apply.

Of course, none of this matters when spouses want to work toward a fair arrangement after separation. But parties who want that should not be in Family Court in the first place. When things are nasty enough to go to court, each spouse really should speak to a lawyer about the financial situation on both sides and what that means for what strategy will work best for that spouse. 

To get the best advice, specific to your situation, you should speak to a family lawyer. Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases. To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

To comment on this article, or to contact John Schuman, please use the form below.

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