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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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If you are unable to settle your case to your satisfaction, you will need to go to trial.   
If you are unable to settle your case to your satisfaction, you will need to go to trial.   


Preparing for and going to trial is the most complex part of the court proceeding.  Both steps require careful planning and organization as well as being mindful of the many deadlines set out in the rules of court (the [http://canlii.ca/t/8mcr Supreme Court Family Rules]) some of which arise months before the trial date.   
Preparing for and going to trial is the most complex part of the court proceeding.  Both steps require careful planning and organization. You also need to be mindful of the many deadlines set out in the rules of court (the [http://canlii.ca/t/8mcr Supreme Court Family Rules]) some of which arise months before the trial date.   


There are also many rules about what evidence is allowed and how evidence is to be presented in court.  Although the law of evidence is beyond the scope of this chapter, a good summary is found in [http://www.supremecourtbc.ca/sites/default/files/web/Proving-Your-Case-In-Supreme-Court.pdf Proving Your Case in Supreme Court] (although do be aware that the references to rules are the Supreme Court Civil Rules rather than the Supreme Court Family Rules)
There are also many rules about what evidence is allowed and how evidence is to be presented in court.  Although the law of evidence is beyond the scope of this chapter, a good summary is found in [http://www.supremecourtbc.ca/sites/default/files/web/Proving-Your-Case-In-Supreme-Court.pdf Proving Your Case in Supreme Court] (although do be aware that the references to rules are the Supreme Court Civil Rules rather than the Supreme Court Family Rules)
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== Preparing for trial in the Supreme Court ==
== Preparing for trial in the Supreme Court ==


{{Tipsbox
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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| 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).
}}


Summary trials can seem like a good option 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.
The factors a court will consider in deciding whether a summary trial is appropriate include:   
 
*the complexity of the matter,  
The factors a court will consider in deciding whether a summary trial is appropriate include:  the complexity of the matter, any urgency and prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings, whether credibility is a critical factor in the determination of the dispute, whether the summary trial may create an unnecessary complexity in the resolution of the dispute and whether the application would result in litigating in slices  (see ''Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.'' (1989), 36 B.C.L.R. (2d) 202 (C.A.)).
*any urgency and prejudice likely to arise by reason of delay,  
*the cost of taking the case forward to a regular conventional trial in relation to the amount involved,  
*the course of the proceedings, whether credibility is a critical factor in the determination of the dispute,  
*whether the summary trial may create an unnecessary complexity in the resolution of the dispute and  
*whether the application would result in litigating in slices  (see ''Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.'' (1989), 36 B.C.L.R. (2d) 202 (C.A.)).


Summary trials are more common where lawyers are involved, and rare if both parties are self-represented.   
Summary trials are more common where lawyers are involved, and rare if both parties are self-represented.   
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=== Consider a Section 211 (Parenting Capacity) report or a Views of the Child report ===
=== Consider a Section 211 (Parenting Capacity) report or a Views of the Child report ===


In family law matters where guardianship and/or the children’s living arrangements are in dispute, one or both parties may request that a person be appointed to prepare a report pursuant to section 211 of the [[Family Law Act]]. That section empowers the court to direct a person approved by the court to conduct an investigation into:
In family law matters where guardianship and/or the children’s living arrangements are in dispute, one or both parties may request that a person be appointed to prepare a report pursuant to section 211 of the ''[[Family Law Act]]''. That section empowers the court to direct a person approved by the court to conduct an investigation into:


<blockquote>
<blockquote>
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While the appointed person’s recommendations are not binding on the court, the recommendations are often very persuasive at trial and therefore often assist in moving settlement discussions forward.
While the appointed person’s recommendations are not binding on the court, the recommendations are often very persuasive at trial and therefore often assist in moving settlement discussions forward.


For more information on these types of reports, see the following sections of this website:
For more information on these types of reports, see the following resources under the part ''How Do I?'' in this resource:
*[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]]
*[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]]
*[[How Do I Get a Views of the Child Report?|How do I get a views of the child report?]]
*[[How Do I Get a Views of the Child Report?|How do I get a views of the child report?]]
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Because expert reports have to be served on the other party at least 84 days before the trial date (see Rule 13-6(3) of the Supreme Court Family Rules) and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial.  Also, because there are specific requirements about the use of expert evidence and the form it must take, if you think you might need an expert, this would be a good issue to talk to a lawyer about.  The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert so that the report meets the requirements for use in court.
Because expert reports have to be served on the other party at least 84 days before the trial date (see Rule 13-6(3) of the Supreme Court Family Rules) and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial.  Also, because there are specific requirements about the use of expert evidence and the form it must take, if you think you might need an expert, this would be a good issue to talk to a lawyer about.  The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert so that the report meets the requirements for use in court.


=== Expert evidence about “financial issues” ===
=== Expert evidence about financial issues ===


If either party wants to present expert evidence about a “financial issue”, that evidence must be presented to the court by means of an expert you and the other party hire together (often referred to as “a jointly appointed expert”), unless the court orders or the parties agree otherwise (Rule 13-3(1) & (2) of the Supreme Court Family Rules). Once appointed, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules).   
If either party wants to present expert evidence about a ''financial issue'', that evidence must be presented to the court by means of an expert you and the other party hire together (often referred to as a ''jointly appointed expert''), unless the court orders or the parties agree otherwise (Rule 13-3(1) & (2) of the Supreme Court Family Rules). Once appointed, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules).   


A “financial issue” is defined as an issue arising out of:
A financial issue is defined as an issue arising out of:


<blockquote>
<blockquote>
(a) a claim for division of property and debt or division of a pension under the ''[[Family Law Act]]'' or out of an application for a "FHRMIRA order" (which means an order made under the ''[http://laws-lois.justice.gc.ca/eng/acts/F-1.2/ Family Homes on Reserves and Matrimonial Interests or Rights Act]'' (Canada) or under a First Nation's law made under that ''Act'');  
(a) a claim for division of property and debt or division of a pension under the ''[[Family Law Act]]'' or out of an application for a FHRMIRA order (which means an order made under the ''[http://laws-lois.justice.gc.ca/eng/acts/F-1.2/ Family Homes on Reserves and Matrimonial Interests or Rights Act]'' (Canada) or under a First Nation's law made under that ''Act'');  


(b) a claim for an interest in property based on unjust enrichment or other trust claims, or
(b) a claim for an interest in property based on unjust enrichment or other trust claims, or
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(See Rule 13-3(1) of the Supreme Court Family Rules).
(See Rule 13-3(1) of the Supreme Court Family Rules).


This means that if you want an expert opinion about an issue that meets the definition of “financial issue” and the other party doesn’t, you may have to make an interim court application to get the expert evidence that you need to go to trial.  One option is to offer to pay the full cost of the report up front, but on a “without prejudice” basis so that a judge may later consider whether the other party should contribute to the cost of the report as well (usually after the judge has made his/her decision).  
This means that if you want an expert opinion about an issue that meets the definition of a financial issue and the other party doesn’t, you may have to make an interim court application to get the expert evidence that you need to go to trial.  One option is to offer to pay the full cost of the report up front, but on a without prejudice basis so that a judge may later consider whether the other party should contribute to the cost of the report as well (usually after the judge has made their decision).  


Each party has the right to cross-examine a joint expert at trial (Rule 13-4(10) of the Supreme Court Rules).
Each party has the right to cross-examine a joint expert at trial (Rule 13-4(10) of the Supreme Court Rules).
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<blockquote>
<blockquote>
(a) the identity of the expert;
(a) the identity of the expert;
(b) the issue in the family law case the expert opinion evidence may help to resolve;
(b) the issue in the family law case the expert opinion evidence may help to resolve;
(c) any facts or assumptions of fact agreed to by the parties;
(c) any facts or assumptions of fact agreed to by the parties;
(d) for each party, any assumptions of fact not included under paragraph (c) that the party wishes the expert to consider;
(d) for each party, any assumptions of fact not included under paragraph (c) that the party wishes the expert to consider;
(e) the questions to be considered by the expert;
(e) the questions to be considered by the expert;
(f) when the report must be prepared by the expert and given to the parties;
(f) when the report must be prepared by the expert and given to the parties;
(g) responsibility for fees and expenses payable to the expert.
(g) responsibility for fees and expenses payable to the expert.
</blockquote>
</blockquote>
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=== Court application if parties can’t agree or additional experts necessary ===
=== Court application if parties can’t agree or additional experts necessary ===


If one party seeks an expert opinion about “a financial matter” but the other party will not agree or the parties cannot reach agreement about the terms of appointment (as required by Rule 13-4(1)), that party will need to make an application to the court to order a joint retainer (see Rule 13-4(3) of the Supreme Court Family Rules).  Any order appointing an expert or setting out the terms of the expert’s appointment must be promptly served on the expert.
If one party seeks an expert opinion about a financial matter but the other party will not agree or the parties cannot reach agreement about the terms of appointment (as required by Rule 13-4(1)), that party will need to make an application to the court to order a joint retainer (see Rule 13-4(3) of the Supreme Court Family Rules).  Any order appointing an expert or setting out the terms of the expert’s appointment must be promptly served on the expert.


As stated before, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules).  A party can apply to the court for permission to introduce the evidence of an additional expert at trial, but must do so within 21 days after receipt of the joint expert’s report by serving the application materials on all parties.   
As stated before, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules).  A party can apply to the court for permission to introduce the evidence of an additional expert at trial, but must do so within 21 days after receipt of the joint expert’s report by serving the application materials on all parties.   
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Where one party has retained and served a report of its own expert, that party is required to provide to the other party, upon request, the following information:
Where one party has retained and served a report of its own expert, that party is required to provide to the other party, upon request, the following information:
<blockquote>
<blockquote>
(i) any written statement or statements of facts on which the expert's opinion is based;
(i) any written statement or statements of facts on which the expert's opinion is based;
 
(ii) a record of any independent observations made by the expert in relation to the report; and
(ii) a record of any independent observations made by the expert in relation to the report; and
(iii) any data compiled by the expert in relation to the report;
(iii) any data compiled by the expert in relation to the report;
(iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion,
(iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion,
</blockquote>
</blockquote>
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as well as access to the contents of the expert's file relating to the preparation of the opinion set out in the expert's report.  The party receiving the request must respond promptly to it (see Rule 13-6(8) of the Supreme Court Rules).
as well as access to the contents of the expert's file relating to the preparation of the opinion set out in the expert's report.  The party receiving the request must respond promptly to it (see Rule 13-6(8) of the Supreme Court Rules).


A party who intends to use an expert’s report at trial is responsible for notifying the expert (1) of the trial date as soon as possible after the trial date is scheduled or the expert retained, whichever is later, and (2) that the expert may be required to attend trial for the purpose of cross-examination (See Rule 13-6(9) of the Supreme Court Rules).
A party who intends to use an expert’s report at trial is responsible for notifying the expert:
<blockquote>
(1) of the trial date as soon as possible after the trial date is scheduled or the expert retained, whichever is later, and  
 
(2) that the expert may be required to attend trial for the purpose of cross-examination (See Rule 13-6(9) of the Supreme Court Rules).
</blockquote>


If a party objects to another party’s expert report that party must serve upon every other party a notice of any objection that party intends to raise about the admissibility of the report.  That notice of objection must be served on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date  (see Rule 13-6(10) of the Supreme Court Family Rules).  If such notice isn’t given, then the objection will not be permitted at trial (unless the court otherwise orders) (See Rule 13-6(11) of the Supreme Court Family Rules).
If a party objects to another party’s expert report that party must serve upon every other party a notice of any objection that party intends to raise about the admissibility of the report.  That notice of objection must be served on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date  (see Rule 13-6(10) of the Supreme Court Family Rules).  If such notice isn’t given, then the objection will not be permitted at trial (unless the court otherwise orders) (See Rule 13-6(11) of the Supreme Court Family Rules).
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=== Schedule and attend a trial management conference (TMC) ===
=== Schedule and attend a trial management conference (TMC) ===


Parties heading to trial are required to schedule and attend a trial management conference (unless the party has a lawyer in which case the party does not have to attend as long as s/he is available by telephone to speak with their lawyer if instructions are needed during the TMC) .  The trial management conference is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.   
Parties heading to trial are required to schedule and attend a ''trial management conference'' (unless the party has a lawyer in which case the party does not have to attend as long as they is available by telephone to speak with their lawyer if instructions are needed during the TMC).  The trial management conference is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.   


The trial management conference must take place at least 28 days before the scheduled trial date, unless the court orders otherwise (see Rule 14-3(1) of the Supreme Court Family Rules).  
The trial management conference must take place at least 28 days before the scheduled trial date, unless the court orders otherwise (see Rule 14-3(1) of the Supreme Court Family Rules).  


Each party (or their lawyer if represented) is required to file and serve on all other parties a trial brief in Form 45 at least 7 days before the trial management conference (see Rule 14-3(3) of the Supreme Court Family Rules).  The trial brief must contain:
Each party (or their lawyer if represented) is required to file and serve on all other parties a trial brief in Form 45 at least 7 days before the trial management conference (see Rule 14-3(3) of the Supreme Court Family Rules).   
 
The trial brief must contain:
# A summary of the issues and that party’s position about each issue;
# A summary of the issues and that party’s position about each issue;
# A list of the witnesses that party intends to call at trial, including each witness’ address and an estimate of the time that witness will be on the stand answering questions by that party;
# A list of the witnesses that party intends to call at trial, including each witness’ address and an estimate of the time that witness will be on the stand answering questions by that party;
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The trial record must include:
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),   
* 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,
* 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
* the most current Form F8 financial statement, if any, filed by each party, and
* Any orders relating to the conduct of the trial.
* 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:
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;
* 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
* 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.
* page numbers on the top right hand corner of each document.
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== Preparing evidence for 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:
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. Here is how you would begin:
* '''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.
# '''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).
* '''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).
# '''Know the Law:'''  Then review the law to figure out what factors the judge will be considering when making their 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.     
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.
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 their 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):
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):
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* Your outline;
* 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 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 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
* A section to include any other key documents such as a notice to admit or an offer to settle.


=== Documents ===
=== Documents ===
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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:   
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 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 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.
* 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.
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.
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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 [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/part-7/bc-reg-169-2009-part-7.html Appendix C] – Schedule 3 (Fees Payable to Witnesses) of the Supreme Court Family Rules (Rule 14-7(32) & (34) of the Supreme Court Family Rules).   
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 [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/part-7/bc-reg-169-2009-part-7.html Appendix C] – Schedule 3 (Fees Payable to Witnesses) 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:
The daily witness fee is currently $20 in addition to the travel costs of the party being examined as follows:
#Mileage:   
#Mileage:   
#:(a) If the party being examined lives within 200 km by road (including any ferry route and road tolls), $.30 per km each way by road between his/her residence and the place of the examination (but no payment if the distance is less than 8 km);  or
#:(a) If the party being examined lives within 200 km by road (including any ferry route and road tolls), currently $.30 per km each way by road between their residence and the place of the examination (but no payment if the distance is less than 8 km);  or
#:(b) If the party being examined lives more than 200 km away, the minimum return air fare by scheduled airline plus $.30 per km each way from his/her residence to the departure airport and from the arrival airport to the place of the examination.
#:(b) If the party being examined lives more than 200 km away, the minimum return air fare by scheduled airline plus $.30 per km at this time each way from their residence to the departure airport and from the arrival airport to the place of the examination.
#Reasonable allowance for meal expenses and if the witness isn’t local and has to stay the night, a reasonable allowance for overnight accommodation.  To figure out what is reasonable, call a few decent hotels in your area and consider including that information in a cover letter to the witness.
#Reasonable allowance for meal expenses and if the witness isn’t local and has to stay the night, a reasonable allowance for overnight accommodation.  To figure out what is reasonable, call a few decent hotels in your area and consider including that information in a cover letter to the witness.
#Reasonable payment for the witness’ time and any expenses the witness incurred to prepare to give evidence (if the preparation is necessary).  Basically you have to pay your witness their reasonable wage for missing work to testify.   
#Reasonable payment for the witness’ time and any expenses the witness incurred to prepare to give evidence (if the preparation is necessary).  Basically you have to pay your witness their reasonable wage for missing work to testify.   
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If the witness then fails to show up at the trial, the witness can be charged with contempt of court (see Rule 14-7 (38) of the Supreme Court Family Rules).  
If the witness then fails to show up at the trial, the witness can be charged with contempt of court (see Rule 14-7 (38) of the Supreme Court Family Rules).  


For each witness, prepare a list of the issues that you need them to speak about in their testimony.  Then make a list of questions to ask and review with them before trial.  For each witness, you will likely want to start with basic questions such as their full name, address, age and occupation, his or her education if relevant, and his or her relationship to the parties, and then move on to the focused areas of inquiry.  
For each witness, prepare a list of the issues that you need them to speak about in their testimony.  Then make a list of questions to ask and review with them before trial.  For each witness, you will likely want to start with basic questions such as their full name, address, age and occupation, their education if relevant, and their relationship to the parties, and then move on to the focused areas of inquiry.  


You can only ask your witnesses open ended questions, meaning questions that do not suggest the answers (those types of questions are limited to cross examination of the other party’s witnesses).  
You can only ask your witnesses open ended questions, meaning questions that do not suggest the answers (those types of questions are limited to cross examination of the other party’s witnesses).  
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For more information about section 211 reports, see:
For more information about section 211 reports, see:
[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]]
[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]]
[[How Do I Get a Views of the Child Report?|How do I get a views of the child report?]]
 
[[How Do I Get a Views of the Child Report?|How do I get a views of the child report?]] in the ''How Do I?'' part of this resource.


=== Use of physical objects ===
=== Use of physical objects ===
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There are a number of final steps to prepare for a family law trial:
There are a number of final steps to prepare for a family law trial:
# '''Book of Documents:'''  If you haven’t already done so, prepare your Book of Documents.  Preparation of a book of documents is set out earlier in this section under Preparing Evidence for Trial:  Documents.   
# '''Book of Documents:'''  If you haven’t already done so, prepare your Book of Documents.  Preparation of a book of documents is set out earlier in this section under Preparing Evidence for Trial:  Documents.   
# '''Prepare Book of Authorities.'''  This is a bound volume of the law that you intend to rely on at trial and should include copies of any statutes, regulations and case law (which are collectively called “authorities”) you intend to rely on at trial.  Each authority should be placed behind a separate tab and an index listing each authority and its corresponding tab for easy reference during the trial.  You will need to make enough copies for the judge, yourself and every other party (or their lawyer if they have one).   
# '''Prepare Book of Authorities.'''  This is a bound volume of the law that you intend to rely on at trial and should include copies of any statutes, regulations and case law (which are collectively called ''authorities'') you intend to rely on at trial.  Each authority should be placed behind a separate tab and an index listing each authority and its corresponding tab for easy reference during the trial.  You will need to make enough copies for the judge, yourself and every other party (or their lawyer if they have one).   
# '''Prepare an opening statement:'''  This is a statement that is made at the beginning of each party’s case to give the judge some factual background about the case, an overview of the legal issues involved and the positions taken/orders sought by that party.  If the parties have reached agreement on any issues, this should be communicated to the judge during a party’s opening statement.  If there are “housekeeping issues” (such as an expert witness only be available to testify on a specific date), such issues should be raised at this time as well.  A party’s opening statement should be consistent with a party’s closing argument.  
# '''Prepare an opening statement:'''  This is a statement that is made at the beginning of each party’s case to give the judge some factual background about the case, an overview of the legal issues involved and the positions taken/orders sought by that party.  If the parties have reached agreement on any issues, this should be communicated to the judge during a party’s opening statement.  If there are housekeeping issues (such as an expert witness only be available to testify on a specific date), such issues should be raised at this time as well.  A party’s opening statement should be consistent with a party’s closing argument.  
# '''Update outline for closing submissions:'''  Each party’s closing submissions should include a summary of the law on each issue, a description of each order sought by the party making the submissions, and a summary of the evidence that supports each order sought.  If a party has made an extensive outline during their earlier trial preparation (as suggested above), this step is simplified.  A party’s closing argument should be consistent with the party’s opening statement.
# '''Update outline for closing submissions:'''  Each party’s closing submissions should include a summary of the law on each issue, a description of each order sought by the party making the submissions, and a summary of the evidence that supports each order sought.  If a party has made an extensive outline during their earlier trial preparation (as suggested above), this step is simplified.  A party’s closing argument should be consistent with the party’s opening statement.
# '''Finalize preparation of direct examinations & cross examinations of witnesses'''
# '''Finalize preparation of direct examinations & cross examinations of witnesses'''
# '''Consider preparing a chronology:''' Each party should also consider preparing a chronology of important events such as the birth dates of each party and child, the date of cohabitation, the date of marriage, the date of separation, the date of divorce (if applicable), and the dates of any other significant events such as moves, job changes, promotions, inheritances, gifts, diagnoses etc. for easy reference by the judge at trial.  If you do prepare a chronology, be sure to bring copies for the judge, the other party (or their lawyer) and yourself.
# '''Consider preparing a chronology:''' Each party should also consider preparing a chronology of important events such as the birth dates of each party and child, the date of cohabitation, the date of marriage, the date of separation, the date of divorce (if applicable), and the dates of any other significant events such as moves, job changes, promotions, inheritances, gifts, diagnoses etc. for easy reference by the judge at trial.  If you do prepare a chronology, be sure to bring copies for the judge, the other party (or their lawyer) and yourself.
# '''Consider preparing a Scott Schedule:'''  If either party has a lawyer and division of property and debt is in dispute, then the lawyer will also prepare a Scott Schedule.  A Scott Schedule is a spreadsheet that lists all of the property and debt in issue, the value of each at various dates, and other useful information such as whether there are excluded property claims, that party’s position about what should happen with each property and debt and the like.  There is no requirement in the Supreme Court Family Rules that a Scott Schedule be prepared, but it is a useful reference tool at trial.  If one party has a lawyer who prepares a Scott Schedule, the other party can review it carefully and make note of where that party disagrees with the information provided.  If neither party have a lawyer and neither party prepares a Scott Schedule, the judge will likely use the parties’ financial statements as the main reference for financial information about property and debts.
# '''Consider preparing a Scott Schedule:'''  If either party has a lawyer and division of property and debt is in dispute, then the lawyer will also prepare a ''Scott Schedule''.  A Scott Schedule is a spreadsheet that lists all of the property and debt in issue, the value of each at various dates, and other useful information such as whether there are excluded property claims, that party’s position about what should happen with each property and debt and the like.  There is no requirement in the Supreme Court Family Rules that a Scott Schedule be prepared, but it is a useful reference tool at trial.  If one party has a lawyer who prepares a Scott Schedule, the other party can review it carefully and make note of where that party disagrees with the information provided.  If neither party have a lawyer and neither party prepares a Scott Schedule, the judge will likely use the parties’ financial statements as the main reference for financial information about property and debts.
# '''Prepare party’s own trial binder:'''  Convert any trial preparation binder to your trial binder.  Replace all documents with the following, each of which should be included behind separate tabs:
# '''Prepare your own trial binder:'''  Convert any trial preparation binder to your trial binder.  Replace all documents with the following, each of which should be included behind separate tabs:
#* List of witnesses (with contact information for each) and anticipated trial plan/schedule (which is really just a best guess as to when each witness will testify and for how long)
#* List of witnesses (with contact information for each) and anticipated trial plan/schedule (which is really just a best guess as to when each witness will testify and for how long)
#* Page to list exhibits as they are entered at trial – this will be an important reference during the trial and when you are preparing your final argument
#* Page to list exhibits as they are entered at trial – this will be an important reference during the trial and when you are preparing your final argument
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#'''Personal preparation:'''
#'''Personal preparation:'''
#*Familiarize yourself with court and court processes:  
#*Familiarize yourself with court and court processes:  
#**Visit the courthouse to familiarize yourself with it (unless you know it well already), including checking the hours of operation, the location of the hearing list, the location of washrooms, and the availability of food at or near the courthouse (if you don’t plan to pack a lunch each day of trial).
#**Visit the courthouse to familiarize yourself with it (unless you know it well already), including checking the hours of operation, the location of the hearing list, the location of washrooms, and the availability of food at or near the courthouse if you don’t plan to pack a lunch each day of trial.
#**Consider watching a trial as observation of the real thing is often the best education.  Trials are open to the public and are generally in session from 10 am to 12:30 pm and from 2:00 to 4:00 pm each day.
#**Consider watching a trial as observation of the real thing is often the best education.  Trials are open to the public and are generally in session from 10 am to 12:30 pm and from 2:00 to 4:00 pm each day.
#*Engage in self-care leading up to trial, including ensuring that you get enough sleep, that you are eating healthily and getting regular exercise, and that you have the emotional support that you need to help you through this process (ie: family, friend, counselor).
#*Engage in self-care leading up to trial, including ensuring that you get enough sleep, that you are eating healthily and getting regular exercise, and that you have the emotional support that you need to help you through this process (ie: family, friend, counsellor).
#*For more tips on personal preparation to manage the trial process, see the Legal Services Society of British Columbia’s factsheets:  
#*For more tips on personal preparation to manage the trial process, see the Legal Services Society of British Columbia’s fact sheets:  
#**[http://familylaw.lss.bc.ca/resources/fact_sheets/copingwiththecourtprocess.php Coping with the court process]
#**[http://familylaw.lss.bc.ca/resources/fact_sheets/copingwiththecourtprocess.php Coping with the court process]
#**[http://familylaw.lss.bc.ca/resources/fact_sheets/preparingtoattendcourt.php Preparing to attend Supreme Court]
#**[http://familylaw.lss.bc.ca/resources/fact_sheets/preparingtoattendcourt.php Preparing to attend Supreme Court]
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(a) '''Opening Statement of the Claimant:'''  At the beginning of the trial, the claimant (or claimant’s counsel) has the opportunity to tell the court what the case is about and what proof the claimant will be presenting.
(a) '''Opening Statement of the Claimant:'''  At the beginning of the trial, the claimant (or claimant’s counsel) has the opportunity to tell the court what the case is about and what proof the claimant will be presenting.


(b) '''Claimant’s Presentation of Evidence:'''  The claimant (or claimant’s counsel) will then call each of his/her witnesses, including the claimant him/herself, to testify and to introduce any applicable exhibits into evidence (ie: documents or objects).  The respondent (or respondent’s counsel) will then have the right to cross-examine the witnesses.   
(b) '''Claimant’s Presentation of Evidence:'''  The claimant (or claimant’s counsel) will then call each of their witnesses, including the claimant themself, to testify and to introduce any applicable exhibits into evidence (ie: documents or objects).  The respondent (or respondent’s counsel) will then have the right to cross-examine the witnesses.   


(c) '''Opening Statement of the Respondent:'''  After the claimant has finished presenting his/her witnesses and evidence, the respondent (or respondent’s counsel) is entitled to make an opening statement to the court.   
(c) '''Opening Statement of the Respondent:'''  After the claimant has finished presenting their witnesses and evidence, the respondent (or respondent’s counsel) is entitled to make an opening statement to the court.   


(d) '''Respondent’s Presentation of Evidence:'''  The respondent (or respondent’s counsel) will then be given the opportunity to call witnesses, including the respondent him/herself, to testify and to introduce any applicable exhibits into evidence.  The claimant (or claimant’s counsel) will then have the right to cross-examine them.
(d) '''Respondent’s Presentation of Evidence:'''  The respondent (or respondent’s counsel) will then be given the opportunity to call witnesses, including the respondent him/herself, to testify and to introduce any applicable exhibits into evidence.  The claimant (or claimant’s counsel) will then have the right to cross-examine them.
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=== Tips about etiquette at trial in Supreme Court ===
=== Tips about etiquette at trial in Supreme Court ===


* Always arrive early for court (15 minutes early is a good guideline) and return to the courtroom on time after breaks;
* Always arrive early for court (15 minutes early is a good guideline) and return to the courtroom on time after breaks.
* Stand up when the judge enters or leaves the courtroom and when you are speaking to the judge;
* Stand up when the judge enters or leaves the courtroom and when you are speaking to the judge.
* If the judge is a man call him My Lord or Your Lordship;  if the judge is a woman call her My Lady or Your Ladyship;
* If the judge is a man call him My Lord or Your Lordship;  if the judge is a woman call her My Lady or Your Ladyship.
* Always be respectful to the judge and to everyone else in the courtroom, including the court clerk, the sheriff (if any) and the other party and counsel;  and
* Always be respectful to the judge and to everyone else in the courtroom, including the court clerk, the sheriff (if any) and the other party and counsel.
* When speaking to a witness, use Mr., Ms., or Dr. followed by their surname, rather than the witness’ first name (which is too casual);
* When speaking to a witness, use Mr., Ms., or Dr. followed by their surname, rather than the witness’ first name (which is too casual).
* For more tips on conducting a trial in Supreme Court, see the Legal Services Society of British Columbia’s factsheet: [http://familylaw.lss.bc.ca/resources/fact_sheets/tipsforconductingyourtrial.php Tips for conducting your Supreme Court trial].
 
For more tips on conducting a trial in Supreme Court, see the Legal Services Society of British Columbia’s factsheet: [http://familylaw.lss.bc.ca/resources/fact_sheets/tipsforconductingyourtrial.php Tips for conducting your Supreme Court trial].


=== Taxable costs and disbursements ===
=== Taxable costs and disbursements ===
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There is a distinction between costs and disbursements.  Costs are intended as a partial payment of the legal fees of the successful party.  Disbursements are the out-of-pocket expenses such as court filing fees, witness fees, traveling and subsistence expenses, experts' fees, fees for medical/legal reports and the like.
There is a distinction between costs and disbursements.  Costs are intended as a partial payment of the legal fees of the successful party.  Disbursements are the out-of-pocket expenses such as court filing fees, witness fees, traveling and subsistence expenses, experts' fees, fees for medical/legal reports and the like.


Both are dealt with in Rule 11-1 of the Supreme Court Family Rules.  The usual rule is that the successful party will be awarded their taxable costs and disbursements on a "party and party" basis, but there are many exceptions.   
Both are dealt with in Rule 11-1 of the Supreme Court Family Rules.  The usual rule is that the successful party will be awarded their taxable costs and disbursements on a ''party and party'' basis, but there are many exceptions.   


An award of costs normally does not amount to more than approximately 30% of a party's actual legal fees.  Generally, most disbursements are recoverable, although there are some exceptions.  A successful party can expect to recover about 80-90% of actual out-of-pocket expenses.
An award of costs normally does not amount to more than approximately 30% of a party's actual legal fees.  Generally, most disbursements are recoverable, although there are some exceptions.  A successful party can expect to recover about 80-90% of actual out-of-pocket expenses.


A party can ask the judge for a ruling on costs after the judge has delivered his/her decision.
A party can ask the judge for a ruling on costs after the judge has delivered the decision.


For more information about costs see the Legal Services Society of British Columbia’s [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Costs.php factsheet on costs].
For more information about costs see the Legal Services Society of British Columbia’s [http://www.familylaw.lss.bc.ca/resources/fact_sheets/Costs.php factsheet on costs].
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