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Difference between revisions of "Family Law Trials in Provincial Court"
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Family Law Trials in Provincial 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 deadlines set out in the rules of court (the [http://canlii.ca/t/85pb Provincial Court (Family) Rules]) | 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 deadlines set out in the rules of court (the [http://canlii.ca/t/85pb Provincial Court (Family) Rules]). Some of these deadlines occur a full month 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 Provincial 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 Provincial Court (Family) Rules). | ||
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Rule 11 of the Provincial Court (Family) Rules deals with trial procedures in Provincial Court. | Rule 11 of the Provincial Court (Family) Rules deals with trial procedures in Provincial Court. | ||
Preparing for trial requires careful planning and organization as well as being mindful of the many deadlines set out in the rules of court. All deadlines count back from the | Preparing for trial requires careful planning and organization as well as being mindful of the many deadlines set out in the rules of court. All deadlines count back from the first day of trial (not the last or any day in between) and should be considered well in advance of the actual deadline. The main deadlines in a Provincial Court proceeding are as follows: | ||
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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 | For more information on these types of reports, see the ''How Do I?'' part of 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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If you intend to introduce expert evidence at trial, you must serve a written summary of the expert’s evidence on the other party at least 30 days before the expert is called to give evidence or a judge grants permission (see Rule 11(3) of the Provincial Court (Family) Rules). Instead of calling the expert to testify at trial, a party can introduce the evidence by way of a written report of the expert (setting out the expert’s opinion) as long as the party serves a copy of the report on all other parties at least 30 days before the expert is called to give evidence (see Rule 11(4) of the Provincial Court (Family) Rules). The report must also include a statement of the qualifications of the expert. | If you intend to introduce expert evidence at trial, you must serve a written summary of the expert’s evidence on the other party at least 30 days before the expert is called to give evidence or a judge grants permission (see Rule 11(3) of the Provincial Court (Family) Rules). Instead of calling the expert to testify at trial, a party can introduce the evidence by way of a written report of the expert (setting out the expert’s opinion) as long as the party serves a copy of the report on all other parties at least 30 days before the expert is called to give evidence (see Rule 11(4) of the Provincial Court (Family) Rules). The report must also include a statement of the qualifications of the expert. | ||
The other party can require that the expert be available for cross-examination at trial (see Rule 11(7) of the Provincial Court (Family Rules) although that party may be ordered to pay the expense of the expert’s attendance at trial (which could include travel costs, a meal allowance, and the expert’s time (at | The other party can require that the expert be available for cross-examination at trial (see Rule 11(7) of the Provincial Court (Family Rules) although that party may be ordered to pay the expense of the expert’s attendance at trial (which could include travel costs, a meal allowance, and the expert’s time (at their hourly rate). See Rule 11(8) of the Provincial Court (Family) Rules). | ||
Because expert reports have to be served on the other party at least 30 days before the trial date and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial. In addition, 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 about which to consult a lawyer. The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert. | Because expert reports have to be served on the other party at least 30 days before the trial date and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial. In addition, 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 about which to consult a lawyer. The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert. | ||
=== Attend a trial preparation conference (TPC) === | === Attend a trial preparation conference (TPC) === | ||
Parties heading to trial are usually required to attend a trial preparation conference (except if a party has a lawyer in which case the party does not have to attend as long as | Parties heading to trial are usually required to attend a trial preparation conference (except if a party has a lawyer in which case the party does not have to attend as long as they are available by telephone to speak with their lawyer if instructions are needed during the TPC) . The trial preparation conference is a short court hearing with a judge to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial. | ||
There is no specific time frame for scheduling a trial preparation conference nor are they mandatory. | There is no specific time frame for scheduling a trial preparation conference nor are they mandatory. | ||
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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. 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 applicant’s claims are listed in the application to obtain or change an order 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). | *'''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 applicant’s claims are listed in the application to obtain or change an order 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 | *'''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 (i.e.: presenting a document or having a witness testify). | *'''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 (i.e.: 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 | 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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If the witness then fails to show up at the trial, the judge can issue a warrant for the witness’ arrest if the judge is satisfied that the subpoena was served, reasonable traveling expenses were offered and justice requires the witness’ presence (see Rule 10-7 (6) of the [http://canlii.ca/t/85pb Provincial Court (Family) Rules]). | If the witness then fails to show up at the trial, the judge can issue a warrant for the witness’ arrest if the judge is satisfied that the subpoena was served, reasonable traveling expenses were offered and justice requires the witness’ presence (see Rule 10-7 (6) of the [http://canlii.ca/t/85pb Provincial 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 likely want to start with basic questions such as their full name, address, age and occupation, | 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 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 | You can only ask your witnesses open ended questions, meaning questions that do not suggest the answers. Questions that suggest answers are limited to cross examination of the other party’s witnesses. | ||
=== Expert witnesses === | === Expert witnesses === | ||
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Preparing to cross-examine a Section 211 report writer is similar to preparing to cross-examine an expert. | Preparing to cross-examine a Section 211 report writer is similar to preparing to cross-examine an expert. | ||
For more information about Section 211 reports, see: | For more information about Section 211 reports, see the ''How Do I?'' part of 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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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. Informatio about doing so 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. Informatio about doing so 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 (collectively referred to as | # '''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 (collectively referred to as ''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 orders that party is asking for. 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 | # '''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 orders that party is asking for. 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.''' | ||
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(a) '''Opening Statement of the Applicant:''' At the beginning of the trial, the applicant (or applicant’s counsel) usually has the opportunity to tell the court what the case is about and what proof the applicant will be presenting. | (a) '''Opening Statement of the Applicant:''' At the beginning of the trial, the applicant (or applicant’s counsel) usually has the opportunity to tell the court what the case is about and what proof the applicant will be presenting. | ||
(b) '''Applicant’s Presentation of Evidence:''' The applicant (or applicant’s counsel) will then call each of | (b) '''Applicant’s Presentation of Evidence:''' The applicant (or applicant’s counsel) will then call each of their witnesses, including the applicant 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. | ||
(c) '''Opening Statement of the Respondent:''' After the applicant has finished presenting | (c) '''Opening Statement of the Respondent:''' After the applicant has finished presenting their witnesses and evidence, the respondent (or respondent’s counsel) is usually 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 applicant (or applicant’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 applicant (or applicant’s counsel) will then have the right to cross-examine them. | ||
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=== Tips about etiquette at trial in Provincial Court === | === Tips about etiquette at trial in Provincial 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. | ||
* Refer to the judge as “Your Honour” | * Refer to the judge as “Your Honour”. | ||
* 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 | * 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). | ||
=== No costs in Provincial Court === | === No costs in Provincial Court === | ||
