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Difference between revisions of "Family Law Trials in Supreme Court"

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Family Law Trials in Supreme Court (view source)

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== Preparing for trial in the Supreme Court ==
== Preparing for trial in the Supreme Court ==


A note about summary trials:
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| tips = There are two available types of trial in Supreme Court – a regular trial (which is the type you see on TV and in the movies with cross-examination of witnesses and lawyers making legal arguments) and a summary trial (which is trial where each witness’ evidence is introduced by affidavit).
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There are two available types of trial in Supreme Court – a regular trial (which is the type you see on TV and in the movies with cross-examination of witnesses and lawyers making legal arguments) and a summary trial (which is trial where each witness’ evidence is introduced by affidavit).   


Summary trials are appealing because they can often be dealt with in fewer days of court time, often don’t involve cross-examination of the parties, and therefore are often easier and less expensive for the parties.  However, summary trials are not suitable for all court proceedings;  they are suitable only where there is sufficient evidence before the court for the judge to make a decision.
Summary trials are appealing because they can often be dealt with in fewer days of court time, often don’t involve cross-examination of the parties, and therefore are often easier and less expensive for the parties.  However, summary trials are not suitable for all court proceedings;  they are suitable only where there is sufficient evidence before the court for the judge to make a decision.
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In some cases, trial dates are discussed and agreed upon at the judicial case conference, but a notice of trial still needs to be filed in order to confirm the date with the registry.
In some cases, trial dates are discussed and agreed upon at the judicial case conference, but a notice of trial still needs to be filed in order to confirm the date with the registry.


If you are the party who has filed the notice of trial, you will also have to prepare and file a document called a trial record (as described below in the section [[{{PAGENAME}}#File and serve trial record|File & Serve Trial Record]]).
If you are the party who has filed the notice of trial, you will also have to prepare and file a document called a trial record (as described below in the section [[{{PAGENAME}}#File and serve Trial Record|File & Serve Trial Record]]).


=== Consider amendments to pleadings before filing the notice of trial ===
=== Consider amendments to pleadings before filing the notice of trial ===
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(o) any other matter that may assist in making the trial more efficient or aid in the resolution of the family law proceeding.
(o) any other matter that may assist in making the trial more efficient or aid in the resolution of the family law proceeding.
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If a party (or that party’s) lawyer does not attend a Trial Management Conference, the judge or master may proceed with the TMC without the party, adjourn the TMC to another date, and/or order the party to pay costs to the other party (see Rule 14-3(5)). 
Rule 14-3 of the Supreme Court Family Rules sets out further information about the Trial Management Conference. 
=== File and serve Trial Record ===
If you are the party who has filed the Notice of Trial, you are also required to prepare and file a Trial Record.  The Trial Record must be filed and served on the other party at least 14 days, but not more than 28 days, before the first day of trial (see Rule 14-4(3) of the Supreme Court Family Rules).
The Trial Record must include:
* The pleadings (i.e.: the Notice of Family Claim and each Response to Family Claim, Counterclaim and Response to Counterclaim), 
* Any particulars served under a demand for particulars, together with the demand made,
* The most current Form F8 financial statement, if any, filed by each party, and
* Any orders relating to the conduct of the trial.
Once you have collected these documents, you will need to arrange them into a bound book (such as a binder).  The bound book should include:
* a cover with the style of cause; the title “Trial Record”, the names and contact information (addresses and phone numbers) of each party (or their lawyers if represented), and the date and place of trial in the bottom right hand corner;
* an index of the documents in the Trial Record, including the name and date of each document and on which page it can be found within the Trial Record;  and
* page numbers on the top right hand corner of each document.
Once the Trial Record is complete, you will need to make two additional copies (or more if there are corporate or other respondents).  You will then need to file the Trial Record (original and copies) with the registry and serve one copy on each party, saving one for yourself. 
Further information about filing a Trial Record is set out in Rule 14-4 of the Supreme Court Family Rules.
=== File and serve Trial Certificate ===
The Trial Certificate is a short document ([[Form F46 Trial Certificate|Form 46]]) that provides notice to the court that you are ready to proceed with the trial as scheduled.  It specifically sets out that (1) the party filing the form is ready to proceed with the trial as scheduled; (2) the party filing the form has completed all examinations for discovery; (3) the current time estimate for the length of the trial;  and (4) confirmation that the trial management conference has been completed. Both parties must file a Trial Certificate (see Rule 14-5 (1) of the Supreme Court Family Rules). 
The Trial Certificate must be filed at least 14 days but not more than 28 days before trial and it is crucial that it is done within this timeframe (See Rule 14-5(2) of the Supreme Court Family Rules).  If no party files the Trial Certificate, the proceeding will be removed from the trial list and you will lose your trial date (therefore requiring you to reschedule the trial).  Although the practice is for the Claimant (or the party who filed the Notice to Trial) to file the Trial Certificate, if that party fails to do so, the other party can in order to preserve the scheduled trial date.
Further information about filing a Trial Record is set out in Rule 14-5 of the Supreme Court Family Rules.
=== Update Form F8 Financial Statement ===
Each party is required to update their Form F8 financial statement before trial. 
The usual rule is that each party must file and serve on the other party an updated financial statement at least 28 days before trial (but not more than 63 days before the start of the trial).  There is an exception for parties who have delivered their original Form F8 within 91 days before the start of the trial (see Rule 5-1(8) of the Supreme Court Rules).
If a party’s updated Form F8 financial statement includes material changes in that party’s financial circumstances since the initial Form F8, then the other party may seek a court order to allow that party to cross-examined before trial.
== Preparing evidence for trial ==
A good starting point is to prepare a framework for the eventual argument that you will be making at trial and keep updating it until you get to trial.  To do that:
* '''List of Claims:'''  Start by making a list of all of the claims that each of the parties are making in the court proceeding.  The claimant’s claims are listed in the notice of family claim and the respondent’s claims are listed in the counterclaim.  Consider the specifics of each order you want the court to make in relation to each claim (and make notes where appropriate).
* '''Know the Law:'''  Then review the law to figure out what factors the judge will be considering when making his or her decision, and figure out what you need to prove at trial in order for the judge to consider making (and hopefully make) the orders you are requesting.  Note those factors in your outline so that you remember to address them in the evidence you lead at trial and your eventual argument to the judge.
* '''Consider the Evidence:'''  Then review the evidence you have to prove your case to make sure that you are including all the information the judge needs to know to be persuaded to make the orders you are requesting.  You must also consider the form of the evidence and how you will present it to the judge (ie: presenting a document or having a witness testify).
Once you know where there are gaps in your evidence, you can figure out what further evidence you need.  It is also useful to make note of where in the outline the evidence fits in and address that in your closing argument.   
You should also consider whether there is any evidence that disproves an aspect of your case and any evidence you know (or even think you know) the other party has to prove his or her case because these factors should be taken into account when considering settlement options and positions at trial.
Put your outline (which at this point may be several or many pages already) into a three ring binder which will eventually become your trial binder.  In the meantime, it will be a key organizational tool for preparing for trial and should include the following (each behind its own tab):
* A prominent page (the first page or behind the first tab) which includes:
** the trial date;  and
** a list of all the dates by which you must take specific steps in the court proceeding (such as filing a trial certificate which if not done will cause you to lose your trial date);
* Your outline;
* A list of all the witnesses you intend to call to testify at trial, their address and phone number;  you should later add a point form summary of the evidence you expect to receive from them as well as the date of trial you expect each to testify;
* A page to list the documents you intend to rely upon at trial;  this list will become the index to your book of documents (which step is discussed more below)
* A section to include any other key documents such as a notice to admit or an offer to settle
=== Documents ===
Preparing your outline (as described above) will help you decide which documents you will want to present as evidence during the trial. 
Once you have collected all of the documents you intend to use at trial, you will need to consider how you will prove each document in court (i.e.: through a witness testifying about the document or another means), unless the other party will simply agree to the document being used.  Consider doing the following: 
* Ask the other party if they will agree to the use of the document for a specific purpose (i.e.: in the case of an email exchange between the parties about special or extraordinary expenses, the fact that one party responded on a specific date);
* Ask the other party to agree to the authenticity of the document through the use of a notice to admit (see the Discovery Process in Family Matters also in this chapter).  Be aware that agreeing to the authenticity of a document means that you are agreeing that the document is what it looks to be (i.e.: a letter from a family doctor, dated …); it does not mean agreeing to the truth of its contents (i.e.: the diagnosis or prognosis within the letter from the family doctor);
* Ask the other party to agree to a form of document agreement which may include agreement on one or more of the following:  the documents are all true copies of the originals, the documents were signed and dated as indicated on the documents;  the documents were mailed, emailed or faxed on the dates indicated on the documents; and the documents were all received by the recipient indicated on the documents.
Any agreements you are able to reach with the other party about the use of documents at trial should be noted in your trial preparation binder and told to the trial judge when the trial begins.  If the other party won’t reach agreement about the use of documents at trial, this is a good issue to discuss at the trial management conference.
Once you have collected your documents for use at trial and you know how you intend to prove each one, you can start preparing your book of documents.  Start by organizing the documents in chronological order (by date);  then separate each document by numbered tabs to make them easy to find, and if the documents are longer than one page number each page of that document starting with page one for each separate document (this is required by rule 17-7(9) of the [http://canlii.ca/t/8mcr Supreme Court Family Rules]).  You will need to prepare an index of each document included in the book and the corresponding tab number for each.
It is also a good idea to prepare a joint book of documents where possible.  A joint book of documents would include:
* all documents that both parties intend to rely upon at trial; and
* all documents that one party intends to rely upon at trial and to which the other party does not object.
The joint book of documents can then be entered as a single exhibit at trial.  If there are some documents that one party wants to use in court but the other party objects to including them in the joint book of documents, then that party wishing to rely on the additional documents can prepare a separate and additional book of documents and will need to address each document separately at trial.
In the days leading up to the trial, you will need to bind the documents (i.e.: use a binder or cerlox binding machine if you have access to one).  Include a cover page that sets out:
* the style of cause of the court proceeding (the names of the parties and court registry information as set out at the beginning of every filed document);
* the title of the book:  Book of Documents of the Claimant/Respondent (whichever applies);  and
* the names and contact information for each party or their lawyer if represented.
You should prepare and bring to court an original and at least three copies of your book of documents (more if there are more than two parties).  The original will used to show to witnesses at trial (if their testimony requires it) and copies will be provided to the judge and each party.
Also be aware of:
* Rule 14-7(10) of the Supreme Court Family Rules which requires that all ''plans, photographs or objects'' for use as evidence at trial must be available for inspection by the other party at least 7 days before the start of the trial (unless the court orders or the parties agree otherwise).  That means that you can’t leave it to the last minute to figure out whether you will introduce these types of evidence at trial. 
* Rule 14-7(8) of the Supreme Court Family Rules which entitles either party to require the other party to bring to the trial any document listed in the other party’s list of documents by service a notice in [[Form F47 Notice to Produce|Form F47]] on the other party at least 2 days before trial.
=== Witnesses ===
You will need to consider whether you need anyone else to attend the trial to give evidence in support of your case.  Witnesses should only be called to testify about facts that are relevant to the case and that are within the witness’ direct experience (in contrast to having heard information from another person who is not testifying).
Witnesses are generally not allowed to testify about their opinions, although there are exceptions to this general rule. One notable exception:  a lay person is allowed to provide an opinion based upon personal observation of something that is commonly known (such as coming to the conclusion that it was raining outside because everyone who came inside was soaking wet).  A second notable exception:  an expert witness is allowed to provide an opinion based upon their specialized education, training, skills, certification or experience. 
=== Testifying in Person ===
The usual rule is that witnesses are to testify in person at trial, although there are limited circumstances under which affidavit evidence or deposition evidence (Rule 14-7(40) to (45) of the Supreme Court Family Rules) or pre-trial examination of a witness may be allowed instead (discussed further below).
You will need to contact each witness to ask them to testify.  If they won’t agree to testify or you are otherwise uncertain as to whether they will show up, then you will need to issue a subpoena to require them to testify.  A subpoena is in [[Form F23 Subpoena to Witness|Form F23]] and needs to be served personally on the witness at least 7 days before trial, along with the required witness fees which are set out in Schedule C – Schedule 3 (Fees Payable by Witnesses) LINK NEEDED TO SCHEDULE  of the Supreme Court Family Rules (Rule 14-7(32) & (34) of the Supreme Court Family Rules). 
The daily witness fee is $20 in addition to the travel costs of the party being examined as follows:


{{REVIEWED | reviewer = [[Shannon Aldinger]], June 15, 2017}}
{{REVIEWED | reviewer = [[Shannon Aldinger]], June 15, 2017}}
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