As we have already noted, about half of all spouses in Canada are able to negotiate a separation agreement without going to court. The other half start a court process, and most find a way to settle things, before going to trial. Only about 6% of family law cases go to trial.

Going to court does not mean you have to have a lawyer. You can file court documents without a lawyer. You can attend court hearings without a lawyer and you can represent yourself at trial without a lawyer.

Keep in mind that representing yourself does not mean that the court will relax the rules for you. If you represent yourself, you will be expected to have an understanding of the law, as well as court rules and procedures.

With or without a lawyer, going to court is time-consuming, costly, and emotionally scarring on everyone involved. By having the court decide your case, you and your former partner are giving up your ability to make decisions about things that are important to you.

Court is a confrontational system with a winner and a loser – and it can be unpredictable. Just because you believe you have a strong case does not mean that the judge will see things your way. You may be stuck with an order you don’t agree with.

Often, both parties in family cases conclude the court process feeling unsatisfied with the outcome. For these reasons (and others mentioned earlier), you should do everything you can to reach an agreement with your former spouse without involving the court.

Options Chart

Consider your situation and see which option would work best for you. Remember you can always go to court after you have tried to reach an agreement but could not. Similarly you can still come to an agreement after you have started a court case.

You should consider all your options before committing yourself to going through what might be a long, tiring, frustrating and expensive court process. Here is a chart that lays out the options of going to court or reaching an agreement without going to court. 

Risks of Going to Court

Though court can be appropriate in certain cases, it’s good to think of it as a last resort. Going to court is costly and time consuming. It’s especially difficult if you are going to represent yourself, without a lawyer.

A major risk to consider when choosing to go to court is the unpredictability of your outcome. You are essentially giving up control of deciding how you and your former spouse are separating or how you will parent. The judge is the one to decide what’s best for you and your children. This might not be what you want since a judge doesn’t know your situation as well as you do.

Another factor to consider is how important a future relationship with your former spouse is. If you need to continue to parent, going to court could damage your relationship and make it harder to work together in the future.

Since the court system is adversarial in nature, you may find yourself in the middle of a bitter court battle. Bitter court battles don`t end in a win-win situation, in fact they often end in a lose-lose situation. Usually neither side gets exactly what they want. If your goal was to do what`s in the best interests of your children, take a moment to consider how a drawn out court battle will affect them. 

Why Go to Court?

Though going to court can be difficult, in certain situations it is necessary and in some situations it can be helpful. Going to court may be necessary when:

• There's a history of violence or abuse in the relationship
• You or your children need to be protected from your former spouse
• Your former spouse is threatening to do something drastic like take the children, hide property or rack up debt
• Your former spouse is refusing to disclose financial or other information
• Your former spouse is refusing to provide support and you need financial help