In short, yes, there are several good reasons to be the first to the courts when it comes to issues of separation, divorce, child custody & access and eventual settlement.
I’m sure many of you would agree that it is not at all surprising when someone finds themselves confronted by a dissolution of a relationship to hesitate to be the one who is first to file with the courts. Reasons can be quite varied and have included not wanting to upset the other party; having concerns about being kicked out of the family home; holding out for a possible (albeit unlikely) reconciliation; worried about the costs of retaining counsel & going to court; how the children and extended family may view them afterwards; and almost always having a fear of the unknown.
Generally speaking, unless there is a risk or history of domestic violence in the partnership (in which case appropriate measures and safeguards need to be in place beforehand), there are many advantages to being the first to file & serve the other party. From a purely tactical standpoint, being first instantly puts the client in the ‘driver’s seat’ for the remainder of the procedural decisions and timing related to how their case may unfold. For example, it is the Claimant (ie. the person making the application or claim before the courts) and not the Respondent (ie. the person replying to your application or claim before the courts) who gets to ‘discover’ first and are first to present their case at trial. The Claimant also gets to be the last at trial to sum up their reasons as to why their claim ought to take precedence over the Respondents.
A Psychologist would tell you that going first and last at trial engages the principles of ‘primacy’ and ‘recency’. A basic principle of persuasion is that we all tend to accept and hold as true what we hear first, hence ‘primacy’. On the other end of the spectrum, ‘recency’ tells us that people remember best what they hear last. Therefore, as Claimant you get to take unique advantage of both situations – something extremely useful especially when faced with the familiar ‘he said, she said’ set of arguments.
On a more objective note, being the one to commence an action allows a client to decide the venue or jurisdiction in which all future court appearances will be held. This can be especially important in cases where the ex now lives out-of-province or in an all together different community. Often the increased costs to a party by having to travel to and from a court or venue outside of their local jurisdiction will play a part in motivating the other side to consider mediating a settlement versus proceeding by the more adversarial and expensive trial format.
While being first to file a claim doesn’t guarantee a particular outcome, it does mean you and your client at least have greater control over the way in which the process rolls out and the influence you may be able to exert both on the opposing party and the courts.
At Hart Legal we try to see beyond the ordinary and think outside the box for creative solutions and strategies to best serve our client’s unique situations and goals. If you or someone you care about needs the services of a family law lawyer, call us and arrange to meet one of our lawyers now. We are here to help.