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Interlocutory Steps
Interlocutory steps are interim matters that can take place at any point in the court process. These steps are optional and, as such, it is entirely possible to have a family law case proceed without including any of them.
Motions
A Motion is a contested court appearance arguing over a few issues. Motions deal strictly with interim or temporary orders that stay in place only until the final resolution of the case. Generally, the parties do not testify at motions, but rather evidence is submitted in affidavits. Unless a matter is urgent, the parties must have a Case Conference before there can be a motion.
The typical motion involves things such as child support, spousal support or custody and access of the children. These issues are extremely important to the parties involved, and thus motions are amongst the most serious events in a family law proceeding.
The moving party will prepare a Notice of Motion, indicating what exactly you are asking for. You will then also complete an affidavit explaining why you feel you are entitled to them. The other party will then prepare an affidavit of their own explaining their position.
At the motion itself, each parties’ lawyer will make oral submissions. The parties themselves do not speak to the judge at all. In addition to the Notice of Motion and Affidavits, each lawyer will also compiled a Brief of Authorities containing the legal precedents they consider relevant to the case.
The Judge will then render his decision based on the arguments presented by the lawyers. In an extremely complicated case the Judge may reserve his decision for a future day, but generally decisions are made on the day of the motion. In addition to deciding the motion, the Judge will also make a determination as to costs. Generally, the ‘loser’ of the motion pays the ‘winner’s’ costs.
Motions take varying amounts of time depending on their complexity. A typical motion would require approximately ten hours of preparation and two hours of court time.
Questioning
As the family law process moves on, one or both of the lawyers may wish to question the opposing party about the case. If the questioning is related to a Financial Statement, the opposing party has a right to conduct such questioning as long as they have served a “Request for Information” Form. Questioning on any other issue requires a court order or the consent of the parties. Typically, questioning is conducted at a Court Reporter’s Office so that transcripts can be ordered. You should note that there are fees associated with both the use of the Court Reporter’s Office and ordering the transcript.
Questioning generally occurs where there are concerns regarding contentious issues or when the parties have an idea as to what issues may be introduced at Trial. Questioning often results in one party undertaking, or agreeing, to provide further information and/or disclosure. These undertakings are on the record and, as such, can be enforced by the opposing party.
Questioning typically takes approximately three hours of preparation in addition to the actual time in questioning.
Assessment’s and Children’s Lawyer
When Custody and Access are contentious issues in a case, the parties often present different versions of past events and can’t agree on what would be best for the children. In such situations, it is possible to have a third party become involved. There are two different ways this can occur: Custody Assessments and the Office of the Children’s Lawyer.
Custody Assessments are done by social workers or psychologists who specialize in that field of practice. The assessor spends time with the children in an effort to determine what form of custody and access arrangement would be in the best interests of the children. Once the assessment is complete, a report will be prepared that can be put before the Judge. While assessments aren’t binding, they are extremely persuasive. Custody Assessments are risky because they are costly and if the assessment contains recommendations you don’t agree with it is difficult to overcome.
The Office of the Children’s Lawyer is a government agency that hires lawyers to represent children involved in a variety of legal proceedings. The Court can order The Office of the Children’s Lawyer to consider involvement, but they have the discretion to accept or decline involvement in any case. If they do choose to become involved, the Office of the Children’s Lawyer will appoint a lawyer for the children who will talk to the children and appear before the Judge to argue on their behalf.