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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 | The new [https://canlii.ca/t/b8rn Provincial Court Family Rules] rely on ''family management conferences'' and ''settlement conferences'' to try to get parties to settle their issues without going to trial. See the section on [[Case Conferences in a Family Law Matter]] in this chapter. If you are unable to settle your case to your satisfaction, however, you will need to prepare for 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/ | 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/b8rn Provincial Court Family Rules]). Some of these deadlines occur a full month before the trial date. | ||
In addition to the information in this section, you should consult: | |||
* The BC Provincial Court's own guide on ''[https://perma.cc/UGK2-6B5A Preparing for a Family Court Trial in Provincial Court]'' which was updated in May 2021 to reflect the many changes to the Provincial Court Family Rules, and | |||
* Legal Aid BC's Family Law website's information page on [https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/trials-provincial-court Trials in Provincial Court] which features tips for what to expect, what you need to prepare, how to find cases that support your position, and more information about the newer ''Informal trials'' pilot project in the Kamloops registry. | |||
Please note that the information in this section ''does not'' apply to family law cases in the Victoria or Surrey registries of the Provincial Court. Those cases are managed under the Early Resolution Model, which is governed by special rules. For more information about the Early Resolution Model, read the resources published by the [https://www.clicklaw.bc.ca/resource/4844 BC Government]. | |||
== Preparing for trial in the Provincial Court == | == Preparing for trial in the Provincial Court == | ||
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. Again, you should review the BC Provincial Court's own guide on ''[https://perma.cc/UGK2-6B5A Preparing for a Family Court Trial in Provincial Court]'', and Legal Aid BC's Family Law website's information page on [https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/trials-provincial-court Trials in Provincial Court]. | ||
The Judicial Case Manager will schedule the trial date after receiving direction from a judge | The Judicial Case Manager will schedule the trial date after receiving direction from a judge at a family management conference, or another other 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. | A judge (or family justice manager) is also likely to direct that a trial preparation conference be scheduled. The judge may personally schedule the date or direct the judicial case manager to schedule it. Trial preparation conferences are discussed in more detail later in this chapter. | ||
Part 9 of the Provincial Court Family Rules deals with trial procedures in Provincial Court. | |||
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Preparing for trial requires careful planning and organization as well as being mindful of the many deadlines set out in the rules of court. | <!-- TRIAGE LEFT OUT | ||
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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=== Consider a Section 211 (Parenting Capacity) report or a Views of the Child report === | === Consider a Section 211 (Parenting Capacity) report or a Views of the Child report === | ||
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*the ability and willingness of a party to a family law dispute to satisfy the needs of a child. | *the ability and willingness of a party to a family law dispute to satisfy the needs of a child. | ||
Depending on the scope of the assessment, a social worker or a counselor or a psychologist may be appointed. | 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 two thousand 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 two thousand 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. | ||
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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 Helpful Guides & Common Questions 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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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. | 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, read Rule | If you intend to introduce expert evidence at trial, read Rule 120 of the Provincial Court Family Rules. You normally serve the other party with a written summary of the expert’s evidence at least 60 days before the expert is going to be called on to give evidence. Otherwise you need a judge to grant you permission. Instead of calling the expert to testify at trial, a party can introduce 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 60 days before the report is introduced. 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 | The other party can require that the expert be available for cross-examination at trial. The party that demands this may be ordered to pay for the expert to attend at trial (including travel costs, a meal allowance, and the expert’s time at their hourly rate). | ||
Because expert reports have to be served on the other party at least | Because expert reports have to be served on the other party at least 60 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) === | ||
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**the witnesses (names and contact information) you intend to call at trial, and a time estimate for each witness’ testimony. | **the witnesses (names and contact information) you intend to call at trial, and a time estimate for each witness’ testimony. | ||
At the trial preparation conference, a judge can do any of the | At the trial preparation conference, a judge can do any of the things mentioned in Rule 112, including giving directions about time and date, procedure, evidence, how views of a child will be heard, expert witnesses, exchange and inspection of documents, or any other direction that would expedite the trial. | ||
== Preparing evidence for trial == | == Preparing evidence for trial == | ||
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. | 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 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. | *'''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. | ||
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* a page to list the documents you intend to rely upon at trial; this list will become the index to your book of documents (which step is discussed more below), and | * a page to list the documents you intend to rely upon at trial; this list will become the index to your book of documents (which step is discussed more below), and | ||
* a section to include all court documents in date order (i.e.: the application to obtain an order, response, etc.) | * a section to include all court documents in date order (i.e.: the application to obtain an order, response, etc.) | ||
Consult the Legal Aid BC's Family Law website's information page on ''[https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/trials-provincial-court/preparing-attend-provincial-court Preparing to attend a Provincial Court trial]'', which includes tips for getting organized with a trial book. | |||
=== Documents === | === Documents === | ||
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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 and 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 and experience. | ||
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 | 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 or at the trial preparation conference. | ||
Contact each witness to ask them to testify. If they won’t agree to testify (or you're uncertain that they will show up), then you will need to issue a subpoena to require them to testify. A subpoena is in [[PCFR Form | Contact each witness to ask them to testify. If they won’t agree to testify (or you're uncertain that they will show up), then you will need to issue a subpoena to require them to testify. A subpoena is in [[PCFR Form 23 Subpoena to Witness|Form 23 Subpoena to Witness]] 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, and 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 | 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. | ||
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 them with the witness 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. | 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 them with the witness 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. | ||
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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 the | For more information about Section 211 reports, see the Helpful Guides & Common Questions 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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# '''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:''' | ||
#*Are you relying on witnesses? Are you sure they will show up? Should you be delivering a subpoena? [[PCFR Form | #*Are you relying on witnesses? Are you sure they will show up? Should you be delivering a subpoena? [[PCFR Form 23 Subpoena to Witness|Subpoena to Witness]] in Form 23 needs to be served personally on the witness at least 7 days before trial. | ||
#*Write out questions you think you may want to ask. | #*Write out questions you think you may want to ask. | ||
#*Consider reading ''[https://www.clicklaw.bc.ca/resource/4039 Preparing for a Family Court Trial in Provincial Court]'' (published by the Provincial Court), in particular the information on preparing for cross-examination. | #*Consider reading ''[https://www.clicklaw.bc.ca/resource/4039 Preparing for a Family Court Trial in Provincial Court]'' (published by the Provincial Court), in particular the information on preparing for cross-examination. | ||
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Costs are generally not payable in Provincial Court. Rather, each party is simply responsible for their legal fees and any out-of-pocket expenses. | Costs are generally not payable in Provincial Court. Rather, each party is simply responsible for their legal fees and any out-of-pocket expenses. | ||
One exception to this rule is for the cost of requiring an expert or a section 211 report writer to attend court to testify. If a judge determines that the report writer or expert’s attendance was unnecessary, the judge can order the party who required the writer's, or expert’s attendance to pay the reasonable costs of the writer's or expert’s attendance (Rule | One exception to this rule is for the cost of requiring an expert or a section 211 report writer to attend court to testify. If a judge determines that the report writer or expert’s attendance was unnecessary, the judge can order the party who required the writer's, or expert’s attendance to pay the reasonable costs of the writer's or expert’s attendance (Rule 120(6) of the Provincial Court Family Rules). | ||
==Resources and links== | ==Resources and links== | ||
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* ''[http://canlii.ca/t/849w Provincial Court Act]'' | * ''[http://canlii.ca/t/849w Provincial Court Act]'' | ||
* [http://canlii.ca/t/ | * [http://canlii.ca/t/b8rnProvincial Court Family Rules] | ||
===Resources=== | ===Resources=== | ||
* [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions] | * [http://www.provincialcourt.bc.ca/types-of-cases/family-matters/chief-judge-practice-directions Provincial Court Family Practice Directions] | ||
* ''[https://www.clicklaw.bc.ca/resource/4039 Preparing for a Family Court Trial in Provincial Court]'' | * BC Provincial Court's guide on ''[https://www.clicklaw.bc.ca/resource/4039 Preparing for a Family Court Trial in Provincial Court]'' | ||
* Legal Aid BC's Family Law website's information pages [https://family.legalaid.bc.ca/bc-legal-system/if-you-have-go-court/trials-provincial-court Trials in Provincial Court] | |||
===Links=== | ===Links=== | ||
* [http://www.provincialcourt.bc.ca/ Provincial Court website] | * [http://www.provincialcourt.bc.ca/ Provincial Court website] | ||
* [https://clicklaw.bc.ca/resource/4649 Legal | * [https://clicklaw.bc.ca/resource/4649 Legal Aid BC's Family Law website's information page "If you have to go to court"] | ||
**Under the section "Trials in Provincial Court" see "Preparing to attend a Provincial Court trial" | **Under the section "Trials in Provincial Court" see "Preparing to attend a Provincial Court trial" | ||
{{REVIEWED | reviewer = [[ | |||
{{REVIEWED | reviewer = [[Nate Russell]], June 20, 2022}} | |||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||
