Family Law Trials in Supreme Court

If you are unable to settle your case to your satisfaction, you will need to go to 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 many deadlines set out in the rules of court (the Supreme Court Family Rules) some of which arise months before the trial date.

There are also many rules about what evidence is allowed and how evidence is to be presented in court. Although the law of evidence is beyond the scope of this chapter, a good summary is found in Proving Your Case in Supreme Court (although do be aware that the references to rules are the Supreme Court Civil Rules rather than the Supreme Court Family Rules)

Preparing for trial in the Supreme Court

A note about summary trials:

There are two available types of trial in Supreme Court – a regular trial (which is the type you see on TV and in the movies with cross-examination of witnesses and lawyers making legal arguments) and a summary trial (which is trial where each witness’ evidence is introduced by affidavit).

Summary trials are appealing because they can often be dealt with in fewer days of court time, often don’t involve cross-examination of the parties, and therefore are often easier and less expensive for the parties. However, summary trials are not suitable for all court proceedings; they are suitable only where there is sufficient evidence before the court for the judge to make a decision.

The factors a court will consider in deciding whether a summary trial is appropriate include: the complexity of the matter, any urgency and prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings, whether credibility is a critical factor in the determination of the dispute, whether the summary trial may create an unnecessary complexity in the resolution of the dispute and whether the application would result in litigating in slices (see Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.)).

Summary trials are more common where lawyers are involved, and rare if both parties are self-represented.

Summary trials are governed by Rule 11-3 of the Supreme Court Family Rules and are not subject to all of the rules and procedures described in the rest of the section below.

Summary trials must be heard at least 42 days before the scheduled trial date (see Rule 11-3(3) of the Supreme Court Rules) and a summary trial application must be set for hearing in accordance with Part 10 of the Supreme Court Rules (Obtaining Orders Other Than at Trial).

Preparing for trial

Rule 14 of the Supreme Court Family Rules deals with trial procedures in Supreme Court.

Again, 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 1st day of trial (not the last or any day in between) and should be considered well in advance of the actual deadline. The main (but NOT only) deadlines in a Supreme Court proceeding are as follows:

84 days:	Service of expert report on other party (Rule 13-6(3))
42 days:	Service of expert report in response to other party’s expert report (Rule 13-6(4))
28 days:	Attendance at a trial management conference (Rule 14-3(1)) NOTE: There is a further deadline to file and serve on all other parties a Trial Brief in Form 45 at least 7 days before the trial management conference (Rule 14-3(3))
28 days:	Updated Form F8 Financial Statement must be filed and served on the other party at least 28 days and no later than 63 days before the start of the trial
21 days:	Notice of Objection to other party’s expert report must be served (Rule 13-6(10))
14-28 days:	The Trial Record must be filed and served on the other party (Rule 14-4(3)) or trial date will be lost
14-28 days:	The Trial Certificate must be filed and served on the other party (Rule 14-5(2))
7 days:	Any plans, objects or photographs to be relied upon at trial must be available for inspection by the other party (rule 14-7(10))
7 days:	Service of subpoena & witness fees on any witnesses (Rule 14-7(32) & (34) & Form F23)

Before triggering any of these deadlines however you’ll need to schedule the trial date.

Scheduling a trial

The usual practice is for the claimant to schedule the trial, but the respondent is also able to do so. Given that the availability of trial dates varies from registry to registry (and there may be no available dates for many months), you may want to schedule the trial at the judicial case conference or as soon as possible after it.

In order to schedule a trial, you need to file a notice of trial in Form 44 in the registry where the court proceeding was started (or transferred). To do so, you will have to consider how many days of trial are needed to hear the evidence of all of the witnesses (both your witnesses and the other party’s witnesses, including both direct examination and cross-examination of each witness) as well as the summary of evidence and legal arguments presented by both parties (or their lawyers) at the end of the trial. You will then need to contact that registry to find out what dates are available for your trial. You should then contact the other party (or that party’s lawyer) to find out their availability. Once the date is confirmed and the notice of trial is filed, you must then promptly serve the notice of trial on the other party (see Rule 14-2(1), (3) and (5) of the Supreme Court Family Rules).

If you are served with a notice of trial and you are not available on the date(s) indicated, you must apply to the court within 21 days to have the trial rescheduled (see Rule 14-2(6) of the Supreme Court Family Rules).

In some cases, trial dates are discussed and agreed upon at the judicial case conference, but a notice of trial still needs to be filed in order to confirm the date with the registry.

If you are the party who has filed the notice of trial, you will also have to prepare and file a document called a trial record (as described below in the section File & Serve Trial Record).

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shannon Aldinger, June 15, 2017.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.