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Going to court

Whether you receive notification of legal proceedings from a bailiff or you decide to make the first move and start proceedings yourself, the workings of the legal system can be intimidating. Ordinary people can easily get lost in the complexities. A lawyer’s training and experience are major assets for going through the various stages of the legal process.

STEPS TO FOLLOW

Each case is unique and the steps you follow will depend on your individual circumstances. How to proceed in the case will depend on several factors: your legal status (married or de facto union); whether you have children; if you have assets; the legal district in which your case is registered, etc. Sometimes, certain steps can be eliminated and at other times, some steps are repeated. For example, if you are married, divorce or separation proceedings must be undertaken. These proceedings involve different steps than for unmarried people.

Any motion drawn up by my firm must be approved and signed by you and be accompanied by an affidavit attesting to its truth.

Here are the potential steps.

SAFEGUARD ORDERS
Also known as interim measures

These are urgent applications that must be heard by the Court quickly. For example, if you are worried that your spouse will refuse to let you have the children, or if major assets are being wasted, or if you urgently need financial support, etc.

These motions are presented in court but you do not have to testify. Detailed affidavits are submitted to the Court and the lawyers make verbal representations in front of the judge. A judgment will be rendered for a specified period of time.

There is also the possibility of arriving at a temporary agreement, i.e. for a short period of time. This agreement would be presented to the Court, which will render judgment after examining it, after which it has as much validity as a judgment rendered directly by a judge.

PROVISIONAL MEASURES

Provisional Measures apply only in cases of divorce or judicial separation. They are not appropriate for common-law spouses nor for motions to amend.

Since it takes a certain time before you receive a final judgment of divorce or separation, you can ask for a provisional judgment or to negotiate an agreement on provisional measures. Provisional Measures are therefore the measures in place until the final judgment, that is to say until the division of property and decisions on custody of the children, financial support, use of the family residence, etc.

If there is agreement to the Provisional Measures, you will not necessarily have to go back to Court. The signed agreement will be presented to the Court, which will give judgment after scrutiny.

If there is no agreement to the Provisional Measures, you will need to appear in Court for a hearing before the judge. In this event, we will prepare your case together. It will take time, research and a lot of work, depending on the nature of the case and the issues in dispute. It is as expensive to prepare for a hearing on the Provisional Measures as for a hearing for Accessory Measures, which are the final stage.

ACCESSORY MEASURES

The same will apply if there is agreement to the Accessory (permanent) Measures of the divorce, principally the division of the family patrimony, custody and access to the children, financial support and possibly other measures. The signed agreement will be submitted to the Court with the relevant documents. After the Court is satisfied that the rights of the partners and their children are being respected, a judgment of separation or divorce including the agreement to the Accessory Measures will be rendered in the following weeks.

If there is no agreement on any given Accessory Measures such as financial support, children’s custody, right of access, the division of property, etc., the Court will have to decide. It then becomes necessary to prepare for a lawsuit involving major expenses. The minimum waiting time for a hearing date is six to twelve months after preparation of the case is completed.

AN IMPORTANT FACT

Along the way, your hearing date may be postponed. This is sometimes unavoidable and may be caused by a bottleneck in the list of cases, an incomplete file, the need for an oral examination, etc.

HOW TO TESTIFY

It is normal to be nervous or anxious if you have to testify. Often, knowing the physical space helps us to be less anxious. I therefore suggest you to consult the website www.educaloi.qc.ca.

I am there to guide you and help you by preparing you in advance. Here are some guidelines.

You have to explain your life story and formulate your demands to someone who does not know you, and who is probably learning about your case (and your life!) for the first time. It is therefore important to be clear, to relate incidents in a logical sequence, to focus on what you wish to be granted and to be appropriately dressed.

Testimony is the basis of a hearing in Court where the judge is presented with the facts. The judge renders judgment on these same facts. Your testimony constitutes “evidence.” People often think that material evidence is necessary to prove a point. However, this is not always possible. The testimony of a witness constitutes evidence and it must be evaluated like any other item of evidence. The difference is that one does not judge the “credibility” of a document or a bank account, only that of the witness, who in this case is you! To be credible, you should not only speak the truth, but also present it in a clear and precise way. You will stand to testify; except for very long stretches or if you have a health condition that prevents you from standing. In that instance, we would ask the judge for permission to testify seated. However, considering the layout of the room, it is better if you stand. Do not forget to turn off your cell phone or pager.

I therefore recommend the following conduct:

  1. Dress appropriately.
  2. Address the judge as ‘Your Lordship’ or ‘Your Ladyship’ as the case may be.
  3. Speak up so that all your testimony is heard; your tone of voice will add to your credibility. Do not answer questions by signs; the hearing is recorded and signs or head movements are not – and the judge often takes notes and is not looking at you directly.
  4. Always tell the truth to the best of your knowledge.
  5. Look at the judge or the lawyer when they ask you questions and look towards the judge when you answer.
  6. Remain polite, respectful and calm at all times, and avoid debating or arguing with the lawyer of the opposing party, even when this is a challenge.
  7. Limit yourself only to the questions that are asked and do not to try to argue your case with each question.
  8. Avoid bringing up facts about which no question was asked or elaborating unnecessarily on your answers.
  9. Testify only on the facts that you know. Avoid speculating on things you do not know.
  10. When the situation arises, specify that you do not know the answer or that you are not certain.
  11. Ask for a question to be repeated when you do not fully understand the language or the meaning.
  12. Make sure you fully understand the question before answering and take all the time you need to answer. The Court is sitting to hear your case and it is important that you take time to testify and to present the facts you know.
  13. When a lawyer makes an objection, wait for the judge’s decision on the objection before answering.

You don’t feel good? Your emotions are hard to control? That’s normal, and you will not be judged for it. A brief pause may be requested at any time.

You want to have someone accompany you? Unfortunately, that is not possible. Your friends or close relations can however accompany you to the door of the courtroom.