Difference between revisions of "Family Law Trials in Supreme Court"
Jump to navigation
Jump to search
Nate Russell (talk | contribs) |
Nate Russell (talk | contribs) |
||
| Line 7: | Line 7: | ||
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. | 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 of evidence'', like what evidence is allowed and how evidence is presented in court. The law of evidence is beyond the scope of this chapter. A good general summary is found in ''[http://www.clicklaw.bc.ca/resource/2335 Proving Your Case in Supreme Court]'' from the Justice Education Society of BC, although you should be aware that this resource is not specific to family law. It talks about the Supreme Court ''Civil'' Rules rather than the Supreme Court ''Family'' Rules. | There are also many ''rules of evidence'', like what evidence is allowed and how evidence is presented in court. The law of evidence is beyond the scope of this chapter. A good general summary is found in ''[http://www.clicklaw.bc.ca/resource/2335 Proving Your Case in Supreme Court]'' from the Justice Education Society of BC, although you should be aware that this resource is not specific to family law. It talks about the Supreme Court ''Civil'' Rules rather than the Supreme Court ''Family'' Rules. Another useful resource of theirs is [https://www.clicklaw.bc.ca/resource/1498 Trials in Supreme Court], although apply similar caution because it references the ''civil'' set of rules rather than the ''family'' rules of court. | ||
== Preparing for trial in the Supreme Court == | == Preparing for trial in the Supreme Court == | ||
| Line 347: | Line 347: | ||
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. | 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 === | ==== 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). | 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). | ||
| Line 366: | Line 366: | ||
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). | ||
=== Use of pre-trial examination or deposition === | ==== Use of pre-trial examination or deposition ==== | ||
There are limited circumstances under which a witness may be able to testify before trial and have the transcript of their answers used as evidence at trial. See Rule 14-7(40) about the use of ''deposition evidence'', and Rule 14-7(52) about the use of transcripts of ''pre-trial examinations of witnesses''. Even when a transcript is allowed as evidence at a trial, the court can require the witness to attend and testify in person (see Rule 14-7(40)). Using a transcript as evidence at trial may be appropriate in the following circumstances: | There are limited circumstances under which a witness may be able to testify before trial and have the transcript of their answers used as evidence at trial. See Rule 14-7(40) about the use of ''deposition evidence'', and Rule 14-7(52) about the use of transcripts of ''pre-trial examinations of witnesses''. Even when a transcript is allowed as evidence at a trial, the court can require the witness to attend and testify in person (see Rule 14-7(40)). Using a transcript as evidence at trial may be appropriate in the following circumstances: | ||
| Line 379: | Line 379: | ||
Note that you can’t cherry pick the evidence from the transcript to introduce at trial. Rule 14-7(45) requires that depositions (whether by video or transcript) must be presented in full at trial. Rule 14-7(53) states that a court may consider the whole of the pre-trial examination and can direct that other related portions be introduced as evidence. Rule 14-7(56) allows a party to object to the admissibility of any question asked at a deposition or pre-trial examination of a witness even if the party didn’t object at the time to to the question was being asked. | Note that you can’t cherry pick the evidence from the transcript to introduce at trial. Rule 14-7(45) requires that depositions (whether by video or transcript) must be presented in full at trial. Rule 14-7(53) states that a court may consider the whole of the pre-trial examination and can direct that other related portions be introduced as evidence. Rule 14-7(56) allows a party to object to the admissibility of any question asked at a deposition or pre-trial examination of a witness even if the party didn’t object at the time to to the question was being asked. | ||
=== Expert witnesses === | ==== Expert witnesses ==== | ||
If the expert has been jointly appointed, each party has the right to cross-examine that expert at trial (see Rule 13-4(10) of the Supreme Court Family Rules). | If the expert has been jointly appointed, each party has the right to cross-examine that expert at trial (see Rule 13-4(10) of the Supreme Court Family Rules). | ||