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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)
Revision as of 19:05, 28 June 2019
, 19:05, 28 June 2019→Preparing for trial in the Provincial Court
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There are fewer rules and procedures involved in preparing for trial in Provincial Court than there are in Supreme Court. | There are fewer rules and procedures involved in preparing for trial in Provincial Court than there are in Supreme Court. | ||
The Judicial Case Manager will schedule the trial date after receiving direction from a judge to do so following the parties’ first appearance in court, attendance at the family case conference or another hearing. You should contact the Judicial Case Manager following the court appearance that provided the direction to schedule a trial so that you are consulted about your availability. This is best done by going to the Judicial Case Manager’s office at the courthouse, but can also be done by phoning the Judicial Case Manager. | The Judicial Case Manager will schedule the trial date after receiving direction from a judge to do so following the parties’ first appearance in court, attendance at the family case conference, or another hearing. You should contact the Judicial Case Manager following the court appearance that provided the direction to schedule a trial so that you are consulted about your availability. This is best done by going to the Judicial Case Manager’s office at the courthouse, but can also be done by phoning the Judicial Case Manager. | ||
A judge is also likely to direct that a trial preparation conference be scheduled. The judge may schedule the date him/herself (to a date that is a usual remand date at the courthouse) or direct the judicial case manager to schedule it. Trial preparation conferences are discussed in more detail later in this chapter. | A judge is also likely to direct that a trial preparation conference be scheduled. The judge may schedule the date him/herself (to a date that is a usual remand date at the courthouse) or direct the judicial case manager to schedule it. Trial preparation conferences are discussed in more detail later in this chapter. | ||
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| 30 days: | | 30 days: | ||
| Service of expert report or summary of expert | | Service of expert report or summary of expert | ||
evidence on other party (Rule 11(3) & (4)) | evidence on other party (Rule 11(3) & (4)). | ||
|- | |- | ||
| 30 days: | | 30 days: | ||
| Court | | Court | ||
ordered section 211 report to be filed and provided to all parties (Rule 11(1.1)) | ordered section 211 report to be filed and provided to all parties (Rule 11(1.1)). | ||
|- | |- | ||
| 14 days: | | 14 days: | ||
| Service | | Service | ||
of notice requiring other party’s expert to attend trial for cross examination | of notice requiring other party’s expert to attend trial for cross examination | ||
(Rule 11(7) | (Rule 11(7). | ||
|- | |- | ||
| 14 days: | | 14 days: | ||
| Party | | Party | ||
wanting section 211 report writer to attend trial must apply by notice of | wanting section 211 report writer to attend trial must apply by notice of | ||
motion for permission to do so (Rule 11(2)) | motion for permission to do so (Rule 11(2)). | ||
|- | |- | ||
| 7 days | | 7 days | ||
| Service of subpoena | | Service of subpoena. | ||
|} | |} | ||
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</blockquote> | </blockquote> | ||
Depending on the scope of the assessment, a social worker or a counselor or a psychologist may be appointed. The section 211 assessment involves the appointed person conducting interviews with both parents as well as the children and may involve additional steps such as observing each parent with the children (either in each parent’s home or at the psychologist’s office), conducting psychological testing of the parents (if the person is a psychologist and qualified to do so) | Depending on the scope of the assessment, a social worker or a counselor or a psychologist may be appointed. The section 211 assessment involves the appointed person conducting interviews with both parents as well as the children and may involve additional steps such as observing each parent with the children (either in each parent’s home or at the psychologist’s office), conducting psychological testing of the parents (if the person is a psychologist and qualified to do so), conducting interviews with collateral witnesses, and then preparing a written report of the observations and opinions (if asked that an opinion be provided). | ||
The cost of such a report can vary greatly from a couple or a few thousand dollars for interviews of the children only to over $10,000 (and often considerably more) for a more extensive assessment and report. Publicly funded reports (free-of-charge) are available through the province but are less extensive, often take longer to prepare, and require a court order. | The cost of such a report can vary greatly from a couple or a few thousand dollars for interviews of the children only, to over $10,000 (and often considerably more) for a more extensive assessment and report. Publicly funded reports (free-of-charge) are available through the province but are less extensive, often take longer to prepare, and require a court order. | ||
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. | ||
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=== Consider expert evidence === | === Consider expert evidence === | ||
Expert evidence is a form of opinion evidence that is admissible in court due to the specialized education, training, skills, certification or experience of the person providing the opinion and would not otherwise be within the judge’s knowledge. Experts can provide opinion evidence about many types of issues such as a person’s medical and/or psychological condition, whether a party’s income earning capacity is impaired due to physical injuries or psychological conditions, the level of income person is capable of earning ( | Expert evidence is a form of opinion evidence that is admissible in court due to the specialized education, training, skills, certification, or experience of the person providing the opinion and would not otherwise be within the judge’s knowledge. Experts can provide opinion evidence about many types of issues such as a person’s medical and/or psychological condition, whether a party’s income earning capacity is impaired due to physical injuries or psychological conditions, the level of income a person is capable of earning (i.e.: in their business or their field of employment), and the like. | ||
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 their hourly rate). See Rule 11(8) of the Provincial Court (Family) Rules). | 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 | 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 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. | ||
=== 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 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. | 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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There is no specific rule as to what parties need to bring to the trial preparation conference, but each party should: | There is no specific rule as to what parties need to bring to the trial preparation conference, but each party should: | ||
* | *prepare a summary of the issues and that party’s position about each issue, and | ||
* | *be aware of the evidence that party intends to use at trial, including: | ||
**the documents (including expert reports, if any) that party intends to rely upon at trial | **the documents (including expert reports, if any) that party intends to rely upon at trial, and | ||
**the witnesses (names and contact information) that party intends to call at trial, and a time estimate for each witness’ testimony | **the witnesses (names and contact information) that party intends to call at trial, and a time estimate for each witness’ testimony. | ||
At the trial preparation conference, the judge may do one or more of the following (see Rule 8(4) of the Provincial Court (Family) Rules): | At the trial preparation conference, the judge may do one or more of the following (see Rule 8(4) of the Provincial Court (Family) Rules): | ||
