Several aspects of a divorce can feel unfair to individuals navigating the process. For instance, they might think it’s unfair that they must pay spousal support or divide time with their child. But arguing against the law as it exists is a fool’s gambit unless you really know that you have a great argument that will lead a court to change or differently interpret the law.
The true unfairness in the system arises when the court process essentially violates a person’s rights and robs them of the opportunity to advance their case in a timely manner. Knowing what this might look like can help you protect yourself and your family.
Examples of procedural unfairness
In the context of a divorce or other family legal matter, there are ways that the system unfairly seems to punish or favour one party without just cause. This is different from an outcome that you feel should have gone differently. Most people will accept an unfavourable result provided they perceive that the process was fair.
We have Family Law Rules in place that are supposed to ensure procedural fairness. Violations of procedural fairness principles can include:
- Refusing to give parties equal opportunity to present their case;
- Failing to grant a reasonable adjournment request so that you can adequately prepare your case;
- Awarding excess amounts of child support based upon an imputed income where the payor never had a reasonable chance to present his true income;
- Unreasonable procedural delays;
- Not allowing cases to proceed when they are truly “urgent” thus giving an effective ‘victory’ to one side without the court even reading any evidence at all;
- Using Covid 19 as an excuse for lack of access to the courts;
- Failing to allow parties sufficient time to present their case adequately;
- Judges failing to properly prepare for motions by not reading the affidavit evidence;
- Judges taking into consideration allegations that are not sworn evidence;
- Judges exhibiting blatant bias on the face of the record.
This partial list represents merely some of the ways that the legal system or its representatives can violate an individual’s rights to procedural fairness.
In these situations, victims of an unfair process or outcome can feel angry, scared, and powerless. Thankfully, there are ways to protect yourself – and your rights.
Keeping things fair during divorce
One of the easiest ways to avoid unfairness in court is to avoid court in the first place. Parties can do this by resolving divorce-related matters through alternative measures such as negotiation, mediation, or collaborative law. These approaches allow divorcing spouses to come to their own agreements without relying on a judge to make a decision.
But certainly not every case can avoid court. A lawyer is your best antidote to procedural unfairness. A lawyer can keep the process transparent and fair. Having a lawyer by your side ensures you have someone familiar with federal and provincial laws who knows what procedural fairness should look like.
Every person has a right to procedural fairness when it comes to matters like divorce, parenting time, and parental decision-making (formerly called “child custody and access”), and support. Understanding this and your legal options can help you secure a fair and just outcome.