Written by Jason Howie
In a previous blog, we discussed the panic that can ensue when a person receives an Application from their former spouse or partner, especially when the recipient disagrees with the claims the Application contains. We addressed what an Application is, and what it isn’t. In part two of our two-part series, we’ll discuss how to respond.
What to Do When You Receive a Family Law Application
The Applicant, your former spouse or partner, has put his or her case out there. As the Respondent, you are now to voice your side of the dispute in a document called an “Answer”. The answer sets out the Respondent’s version of the facts similarly to how the Application serves the Applicant. But the same rules apply. An answer is not evidence. It is not a list of everything the Respondent is going to get. It contains nothing but allegations.
Let me now go back to my client that I mentioned in the previous blog. You will recall that she wanted to send me a detailed response to each and every allegation. Again, there is nothing wrong with that. But I warned the client about a few things:
- The judge likely won’t be reading either document. While this is not scientific, I believe that there is less than a 5% chance that a judge will ever read the Application or answer. Many people are surprised by this fact. Why would a judge not read these important documents? The Application or answer goes into the court file. Everybody knows that the allegations contained in both documents have not been proven. The only time a judge will turn to the Application or answer (together we call these documents “pleadings”) is a day or two before the final hearing. Bear in mind that 95% of all cases don’t get this far. At that point, the judge is given his or her files for the next day in court. The judge is told that the “Smith v. Jones” [one of these days I will get more creative] case is on his or her docket. The judge wants to know: is it an estate case, breach of contract, or a divorce? This is likely when the judge will review the pleadings to get a general idea of what the case is all about. Nothing more, nothing less.
- The pleadings will become outdated during the trial. Another important fact is this: By the time the case reaches a final hearing, there may have been a ton of changes since the case began. The matrimonial home may have been sold. The family business may have changed hands. One spouse got a promotion or lost their job. Depending upon the case, we will have filed documents to update the pleadings, therefore making the pleadings outdated.
- It’s best not to get too specific. In my opinion, it is better to be concise and general in the pleadings rather than wordy and specific, at this early stage. I want to make sure that the Application or the answer that I submit to the court is broad enough to allow me the flexibility to frame my client’s case using a couple of different scenarios further down the road. In other words, I should leave myself room to establish a Plan A and a Plan B for the proceedings. I think a lot of lawyers miss that point. Years ago, I used to practice personal injury law. If I represented a victim who was rear-ended, the truth of the matter is that we had no idea whatsoever what caused the accident. After all, my client wasn’t staring in the rear-view mirror [or at least should not have been!]. So routinely, we would claim that the driver who caused the accident may have been intoxicated. Why? By making that claim, it allowed me to ask questions about what the driver had to drink prior to the accident. [Miraculously, it was never more than two drinks].
- Excessive detail in the pleadings serves no legitimate purpose. There are some lawyers who are in the habit, and a bad one in my opinion, of throwing everything they can think of into the Application or answer. This seems to be a growing phenomenon and I can’t say why for certain. The fact that lawyers have become very proficient at the keyboard hasn’t helped. I suspect that some lawyers use the pleadings as a future aid to jog their memory at trial. By putting these excessive details into the court record rather than a memo to file, I suppose that lawyer things that he or she is saving time. I also think there are some lawyers who try to “flex their muscles” by putting things in the pleadings that just shouldn’t be there as a form of intimidation. It just leads to eye rolling and confusion, in my opinion.
- Leave room to refute false claims at trial. There are some facts that I would rather keep close to the vest so I can use them to my client’s advantage in court. I remember one lawyer actually went into detail about the alleged “fake” accounting records of my client. When I read that I could only say one thing: “Thank you. You have made my job a little easier.”
Let’s get back to the original question. Should a client spend a lot of time providing me with detailed notes to refute each and every allegation? On one hand, it can’t hurt, other than all the time the client will spend on the exercise. On the other hand, there are some documents that are far more important (such as the sworn financial statement). There are only so many hours in the day and it’s important to allocate that time to tasks that require the most attention.
In short, there is a time and place for everything. Certainly, with the advent of so-called “plain language” court documents, there is a temptation for every client to try to control the narrative. I get it. If I read some terrible things about myself, I would want to respond too. But it’s important to be “above the cesspool” and focus on a successful outcome instead. Trust your lawyer – they can help save you time and help to focus you on what’s most important if and when you find yourself in family court.
To speak with an experienced Windsor family lawyer about your divorce or what to expect in family court, call Howie Johnson Barristers and Solicitors at 519.973.1500, get started now or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.