6. Building Your Case

Now that you have learned a few legal skills, it is 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 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:

• What do I want?
• What is the law?
• What do I need to prove?
• How am I going to prove it?

What do I want?

Ask yourself: what do I want the judge to decide? You need to be realistic. You may want to keep everything, while your former spouse / partner gets nothing. But asking for an order that is not supported by law will not be successful. In fact, in some courts you may be required to pay court costs for bringing unsuccessful claims.

Deciding what you ask for depends on what you are legally entitled. A judge can only make an order that follows the law. For instance, a judge will not award you spousal/partner support if you do not meet the definition of a spouse / partner.

To figure out what to ask for you need to know:

• What the law says about your rights; and
• How the laws relate to the facts of your situation.

You must include what you are asking for (the order you seek) in your pleadings (or initiating court forms). If it is not in there, the judge may not grant you that order. For example, if your application does not include a claim for spousal support, the judge is unlikely to/may not be legally able to order spousal support.

What is the law?

Do your legal research. It is good to know the law that supports your claim. If the law does not support your claim, you may need to rethink your application. When you make your legal argument, you will want to be able to refer to the specific section of the statute law (legislation) that gives you the right to what you want, or the cases that have been decided in a way that helps support your own case.

What do I need to prove?

This next step is to determine what facts you need to prove to establish that the law applies to your situation. When thinking about what you need to prove, remember, a judge can only make orders that follow the law.

For example, say you want a portion of the value of the family home, but you want to know whether a court would give you an interest in the home. The law might say (in some jurisdictions):

Subject to section 85 [excluded property], family property is all real property and personal property on the date the spouses separate, property that is owned by at least one spouse.

Broken down, there are two elements you need to show you have an interest in the property:

1. That the property was owned by one of the spouses upon separation; and
2. That it does not fall into one of the exceptions of excluded property.

If you want an equal share of an asset, think of how you can prove these two elements.

How am I going to prove it?

Once you have figured out what you need to prove, you can think about how best to do this. You will need to bring to court evidence to establish the facts. For each claim or element of the claim, you are trying to make, you should have some evidence to prove it. If there is evidence you are missing (e.g. financial statement), make note of it and try to obtain it.

For example: Say you are trying to prove that the house is not family property:

Element A: Only one spouse owned it at time of separation.

Evidence: Ownership documents showing you acquired the home after your relationship ended and your own oral testimony as to the date of separation.

You are now ready to complete your own Case Building Worksheet

Download the Worksheet

Fill in the columns. Under “What I want” state the orders you are asking the judge to make. Under “The Law” summarize the statutory and case law you are relying on. Under “Points to Prove” apply the law to your situation to find what you need to show the judge. Under “Evidence (the Proof)” state the evidence you are using to support your points. For example, hypothetically: What I want: To have the majority of the parenting time with my children. The Law: Case law states that parenting time should be in the best interests of the children, and the ability of a parent to spend time with the children is an important consideration. Points to prove: Having regard to work schedule, the children would be left with a care giver rather than your spouse / partner, whereas your work is done at home, giving the children the benefit of your guidance. The Proof: Evidence of your employer or fellow worker.