Difference between revisions of "Family Law Trials in Provincial Court"

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,  

The usual rule is that witnesses are to testify in person at trial, although sometimes a judge will allow a witness to provide evidence through an affidavit.  A judge can make such an order on an application by the party by notice of motion (see Rule 13(3) of the Provincial Court (Family) Rules) or at the trial preparation conference (see Rule 8(4)(g) of the Provincial 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 [[PCFR Form 15 Subpoena|Form 15]]  and needs to be served personally on the witness at least 7 days before trial, along with “reasonable estimated travelling expenses” (see Rule 10(2) of the Provincial Court (Family) Rules.  This means a reasonable amount to cover mileage if the witness is traveling by car or airfare if the witness is not local, lunch if the witness has to remain at the courthouse over the lunch break.  

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, 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. Questions that suggest answers are limited to cross examination of the other party’s witnesses.