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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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* Rule 14-7(8) of the Supreme Court Family Rules which allows either party to serve a notice to require the other party to bring to the trial any physical object the party serving the notice is considering introducing at trial.  The notice must identify the object, be in [[Form F47 Notice to Produce|Form 47]], and served on the other party at least 2 days before trial.   
* Rule 14-7(8) of the Supreme Court Family Rules which allows either party to serve a notice to require the other party to bring to the trial any physical object the party serving the notice is considering introducing at trial.  The notice must identify the object, be in [[Form F47 Notice to Produce|Form 47]], and served on the other party at least 2 days before trial.   


=== 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. 
# '''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.
# '''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'''
# '''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.
# '''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:
#* 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
#* Chronology &/or Scott Schedule, if either/both have been prepared
#* Opening statement
#* Direct examination of each witness that party intends to call (with each examination behind a separate tab)
#* Cross examination of each witness the other party intends to call (with each examination behind a separate tab)
#* List of read-ins (from examination for discovery, pre-trial examinations of witnesses or depositions, if any)
#* Final argument/closing submissions
#* Miscellaneous notes/to do list – sometimes during a trial a judge will ask a party to do something during a court break or a party thinks of another idea to explore.  It is helpful to have a place to list such miscellaneous items and thoughts that come up during trial in order to stay organized.
#'''Personal preparation:'''
#*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).
#**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).
#*For more tips on personal preparation to manage the trial process, see the Legal Services Society of British Columbia’s factsheets:
#**[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]
== Conducting the trial in Supreme Court ==
=== Usual sequence of events ===
Trials of family matters in Supreme Court are usually conducted in the following manner and sequence:
<blockquote>
(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. 
(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. 
(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.
(e) '''Argument:'''  After the evidence is complete, both parties (or their lawyers) will have the opportunity to make submissions (arguments) about how the case should be decided.  The claimant is given the opportunity to make submissions first, then the respondent, and then the claimant is often given a further opportunity to respond (briefly) to the submissions of the respondent.
</blockquote>
=== 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;
* 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;
* 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
* 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].
=== Taxable costs and disbursements ===
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. 
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.
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].
==Resources and links==
===Legislation===
* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
===Resources===
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [http://www.courts.gov.bc.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [http://www.courts.gov.bc.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]
===Links===
* [http://www.courts.gov.bc.ca/supreme_court/ Supreme Court website]
* Legal Services Society Family Law in BC website:
**[http://familylaw.lss.bc.ca/guides/prepare/index.php How to schedule and prepare for your Supreme Court trial]
**[http://www.familylaw.lss.bc.ca/resources/fact_sheets/evidence/ Present your evidence at Supreme Court]
**[http://familylaw.lss.bc.ca/resources/fact_sheets/preparingtoattendcourt.php Preparing to attend Supreme Court]
**[http://www.familylaw.lss.bc.ca/resources/fact_sheets/whathappensattrial.php What happens at a Supreme Court trial?]
**[http://familylaw.lss.bc.ca/resources/fact_sheets/tipsforconductingyourtrial.php Tips for conducting your Supreme Court trial]
**[http://familylaw.lss.bc.ca/resources/fact_sheets/copingwiththecourtprocess.php Coping with the court process]
**[http://www.familylaw.lss.bc.ca/guides/orders/ How to draft a Supreme Court order]
* [http://www.supremecourtbc.ca Justice Education Society Website for BC Supreme Court]


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