Now that you’ve learned a few legal skills, it’s time to put it all together and start building your case. This is the critical step that brings together what you have learned so far about the law, case law, and evidence.
Whether you are appearing in court or completing a court document, you need to be able to make legal arguments. You need to ask the court for something and provide information that supports a favourable decision. To do this, you need to build your case.
To build your case, you need to answer these four questions:
This section of the course will help you answer these questions. You will use a Case Building Worksheet (shown below) that provides a step-by-step roadmap for your case.
Judges make decisions on the issues brought to court. Ask yourself: what do I want the judge to decide? You need to be realistic. Consider the legal principles discussed in Chapter 2-Key Issues. You may want to keep everything, while your former spouse gets nothing. But asking for an order that is against the principles of the court is not going to get you very far. In fact, in Supreme Court, you may be penalized by being required to pay court costs.
Deciding what you ask for depends on what you are legally entitled to. A judge can only make an order that follows the law. For instance, a judge won’t award you spousal support if you don’t meet the definition of a spouse.
You need to understand the law and your legal rights before you decide what order you are asking the judge to make.
To figure out what to ask for you need to know:
You’ve learnt about your legal rights, how to read the laws and how to research case law. Now, take a look at the case study to see how you can use your legal knowledge to determine what to ask for.
Your neighbor has a tree in their yard. Its branches have grown over onto your property and they are scratching your car. You want the tree cut so that it doesn’t scratch your car.
The law says: You can only cut tree branches that reach into your yard.
If you ask a judge to order that the whole tree be cut down, you are not likely to succeed. Even though it might be ugly tree and it is scratching your car, you have no right to cut it down. The law only gives you the right to cut the branches that reach into your yard.
You should ask for the branches that have grown over onto your property to be cut. This will meet both your desire to stop the scratching and will be within your legal rights.
NOTE: In this situation you may be able to resolve your dispute by talking to your neighbor first. Remember, negotiating is always an option. Review the Negotiation and Communication section in Chapter 3 if you think you can resolve your issues outside of court.
You must include what you are asking for (the order you seek) in your pleadings (court forms such as your application or notice forms). If it’s not in there, the judge cannot grant you that order. If your application is for child support, you shouldn’t go to court trying to get a division of your bank accounts.
You’ve already learned some legal research skills, now it’s time to put those skills into use. It’s good to know the law that supports your claim. You’ll want to be able to refer to the specific section of the law that gives you the right to what you want. For instance, if you want an order giving you spousal support, you’ll be relying on s.160, 161 and 162 of the Family Law Act which gives spouses the right to claim spousal support.
In the last step you identified the laws that give you the right to what you are claiming. This next step is to determine what you need to prove that the law applies to your situation. When thinking about what you need to prove, you have to think like a judge. What will the judge want to know? Remember, a judge can only make orders that follow the law.
If the law says you’re entitled to a free horse only if you’ve lived on the moon for a year, a judge can’t give you a horse if you’ve never lived on the moon. If you want a free horse, think how can you prove that you should get one. Break the law down into its elements.
You get a free horse only if you’ve lived on the moon for a year.
Broken down, there are 2 elements you need to prove to get that free horse:
a) That you lived on the moon
b) That you lived there for at least one year
Showing the judge how good of an owner of the horse you will be won’t help your case.
This is a very silly example, but it shows how you need to work within the legal requirements set out in the law. The best way to do this is by breaking down the law into its legal elements. Once you’ve figured out what elements you need to prove, you can start thinking about proving them.
Once you’ve figured out what you need to prove, you can think about how best to do this. You will need to bring in evidence to prove your position. Refer back to your Evidence Inventory Worksheet. This should give you a good idea of what evidence you have. If there is evidence you’re missing (e.g. your former spouse’s income statement), make note of it and try to obtain it. For each point you’re trying to prove, you should have some evidence to prove it.
Test the skills you have learned this chapter with the Chapter 7 Activity.
You are now ready to complete your own Case Building Worksheet.