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).

Consider amendments to pleadings before filing the notice of trial

If you need to amend the claims set out in your notice of family claim or counterclaim, you should do so before you file the notice of trial. This is because Rule 8-1(1) of the Supreme Court Family Rules allows a party to amend their pleadings once without leave of the court as long as the amendment is done before the notice of trial is filed. Once the notice of trial is filed, a party (or their lawyer) can only make amendments with the agreement of the other party or an order of the court (Rule 8-1(1)).

Consider a section 211 (parenting capacity) report or a views of the child report

In family law matters where guardianship and/or the children’s living arrangements are in dispute, one or both parties may request that a person be appointed to prepare a report pursuant to section 211 of the Family Law Act. That section empowers the court to direct a person approved by the court to conduct an investigation into:

(a) the needs of a child in relation to a family law dispute;

(b) the views of a child in relation to a family law dispute;

(c) 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. 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) and 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.

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 following sections of this website:

• How do I get a needs of the child assessment?
• How do I get a views of the child report?

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, the valuation of property (i.e.: the family home, a pension, a business, shares in a company), 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 (i.e.: in their business or their field of employment), and the like.

Rule 13 of the Supreme Court Family Rules applies to the use of expert evidence at trial.

If you intend to introduce expert evidence at trial, you must ask the expert to prepare a written report (see Rule 13-6 and 13-7 of the Supreme Court Family Rules). Do note that under Rule 13-2 of the Supreme Court Family Rules, the role of the expert is to assist the court, not to be an advocate for either party. The expert is required to certify to their understanding of their role under this rule in the written report that they are to prepare (see Rule 13-2(2) of the Supreme Court Family Rules).

Because expert reports have to be served on the other party at least 84 days before the trial date (see Rule 13-6(3) of the Supreme Court Family Rules) and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial. Also, 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 so that the report meets the requirements for use in court.

Expert evidence about “financial issues”

If either party wants to present expert evidence about a “financial issue”, that evidence must be presented to the court by means of an expert you and the other party hire together (often referred to as “a jointly appointed expert”), unless the court orders or the parties agree otherwise (Rule 13-3(1) & (2) of the Supreme Court Family Rules). Once appointed, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules).

A “financial issue” is defined as an issue arising out of:

(a) a claim for division of property and debt or division of a pension under the Family Law Act or out of an application for a "FHRMIRA order" (which means an order made under the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) or under a First Nation's law made under that Act);

(b) a claim for an interest in property based on unjust enrichment or other trust claims, or

(c) a claim for compensation based on unjust enrichment.

(See Rule 13-3(1) of the Supreme Court Family Rules).

This means that if you want an expert opinion about an issue that meets the definition of “financial issue” and the other party doesn’t, you may have to make an interim court application to get the expert evidence that you need to go to trial. One option is to offer to pay the full cost of the report up front, but on a “without prejudice” basis so that a judge may later consider whether the other party should contribute to the cost of the report as well (usually after the judge has made his/her decision).

Each party has the right to cross-examine a joint expert at trial (Rule 13-4(10) of the Supreme Court Rules).

Each party is required to cooperate with the jointly appointed expert and to produce in a timely manner all relevant documents and information to the jointly appointed expert (Rule 13-4(9) of the Supreme Court Rules).

Expert evidence about other issues

If either party wants to present expert evidence on any other issues (ie: medical issues, psychological issues, the earning capacity of a party or particular occupation), the parties can either present the evidence through an expert that the parties together retain or any party may retain their own expert (see Rule 13-3(3) of the Supreme Court Family Rules).

Retaining the expert

The expert will need to be retained by way of a letter of instruction or retainer letter. If the expert accepts the retainer or instructions, it is likely that the parties will be required to pay a retainer to the expert right away and before the expert gets started on the report.

If the expert is retained by both parties, the parties must then reach agreement about the following issues:

(a) the identity of the expert; (b) the issue in the family law case the expert opinion evidence may help to resolve; (c) any facts or assumptions of fact agreed to by the parties; (d) for each party, any assumptions of fact not included under paragraph (c) that the party wishes the expert to consider; (e) the questions to be considered by the expert; (f) when the report must be prepared by the expert and given to the parties; (g) responsibility for fees and expenses payable to the expert.

(See Rule 13-4(1) of the Supreme Court Family Rules). That agreement must then be put in writing (in the form of a letter to the expert or an agreement between the parties and the expert) (See Rule 13-4(2) of the Supreme Court Family Rules) and the expert must consent the appointment reflected in the agreement.

Court application if parties can’t agree or additional experts necessary

If one party seeks an expert opinion about “a financial matter” but the other party will not agree or the parties cannot reach agreement about the terms of appointment (as required by Rule 13-4(1)), that party will need to make an application to the court to order a joint retainer (see Rule 13-4(3) of the Supreme Court Family Rules). Any order appointing an expert or setting out the terms of the expert’s appointment must be promptly served on the expert.

As stated before, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules). A party can apply to the court for permission to introduce the evidence of an additional expert at trial, but must do so within 21 days after receipt of the joint expert’s report by serving the application materials on all parties.

Parties also have the opportunity to apply to the court for an order allowing them to introduce the evidence of a further additional expert. The judge hearing the application will consider whether the evidence of a further additional expert is “necessary to ensure a fair trial” (see Rule 13-4(7) of the Supreme Court Family Rules). Other factors that the court may consider include:

(a) whether the parties have fully cooperated with the joint expert and have made full and timely disclosure of all relevant information and documents to the joint expert,

(b) whether the dispute about the opinions of the joint expert may be resolved by requesting clarification or further opinions from that expert, and

(c) any other factor the court considers relevant.

(see Rule 13-4(8) of the Supreme Court Family Rules).

This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.

Court-appointed experts

The court can also appoint an expert on its own initiative (see Rule 13-5(1) of the Supreme Court Family Rules). The circumstances and process for the court to do make this type of order are set out in Rule 13-5 of the Supreme Court Family Rules.

The expert’s report

There are specific requirements for an expert’s report is set out in Rule 13-6 (1):

• must be signed by the expert;
• must include the certification required under Rule 13-2(2); and
• must set out the following:

(a) the expert's name, address and area of expertise;

(b) the expert's qualifications and employment and educational experience in his or her area of expertise;

(c) the instructions provided to the expert in relation to the family law case;

(d) the nature of the opinion being sought and the issues in the family law case to which the opinion relates;

(e) the expert's opinion respecting those issues;

(f) the expert's reasons for his or her opinion, including

(i) a description of the factual assumptions on which the opinion is based,

(ii) a description of any research conducted by the expert that led him or her to form the opinion, and

(iii) a list of every document, if any, relied on by the expert in forming the opinion.

The expert report must be served on the other party at least 84 days before the scheduled trial date along with written notice that the report is being served under Rule 13 of the Supreme Court Family Rules (see Rule 13-6(3) of the Supreme Court Family Rules), except reports of court appointed experts. This is the case even where there is a jointly retained expert; each party is still entitled to notice of the other party’s intention to rely on the report at trial.

If a party intends to introduce at trial an expert’s report that responds to another expert report, that party must serve a copy of the responding expert’s report on every party at least 42 days before the scheduled trial date.

Where one party has retained and served a report of its own expert, that party is required to provide to the other party, upon request, the following information:

(i) any written statement or statements of facts on which the expert's opinion is based; (ii) a record of any independent observations made by the expert in relation to the report; and (iii) any data compiled by the expert in relation to the report; (iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion,

as well as access to the contents of the expert's file relating to the preparation of the opinion set out in the expert's report. The party receiving the request must respond promptly to it (see Rule 13-6(8) of the Supreme Court Rules).

A party who intends to use an expert’s report at trial is responsible for notifying the expert (1) of the trial date as soon as possible after the trial date is scheduled or the expert retained, whichever is later, and (2) that the expert may be required to attend trial for the purpose of cross-examination (See Rule 13-6(9) of the Supreme Court Rules).

If a party objects to another party’s expert report that party must serve upon every other party a notice of any objection that party intends to raise about the admissibility of the report. That notice of objection must be served on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date (see Rule 13-6(10) of the Supreme Court Family Rules). If such notice isn’t given, then the objection will not be permitted at trial (unless the court otherwise orders) (See Rule 13-6(11) of the Supreme Court Family Rules).

Schedule and attend a Trial Management Conference (TMC)

Parties heading to trial are required to schedule and attend a trial management conference (unless the party has a lawyer in which case the party does not have to attend as long as s/he is available by telephone to speak with their lawyer if instructions are needed during the TMC) . The trial management conference is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

The trial management conference must take place at least 28 days before the scheduled trial date, unless the court orders otherwise (see Rule 14-3(1) of the Supreme Court Family Rules).

Each party (or their lawyer if represented) is required to file and serve on all other parties a trial brief in Form 45 at least 7 days before the trial management conference (see Rule 14-3(3) of the Supreme Court Family Rules). The trial brief must contain:

1. A summary of the issues and that party’s position about each issue;
2. A list of the witnesses that party intends to call at trial, including each witness’ address and an estimate of the time that witness will be on the stand answering questions by that party;
3. A list of any expert reports that party intends to rely upon at trial;
4. A list of the witnesses that party intends to cross examine and the time estimate for each;
5. A list of any orders already made in the court proceeding which may affect the conduct of the trial;
6. A list of the documents and other exhibits that party intends to rely upon at trial;
7. A list of the legal authorities that party intends to rely upon at trial;
8. A list of the orders that party is requesting the judge to make; and
9. That party’s time estimate for submissions (final argument) at the end of the trial.

At the trial management conference, the judge or master may consider and make orders about the following issues (see Rule 14-3(9)):

(a) direct the parties to attend a settlement conference;

(b) amendment of pleadings within a fixed time;

(c) a plan for how the trial should be conducted;

(d) admissions of fact at trial;

(e) admission of documents at trial, including:

(i) agreements as to the purposes for which documents may be admitted, and

(ii) the preparation of common books of documents and document agreements;

(f) imposing time limits for the direct examination or cross-examination of witnesses, opening statements and final submissions;

(g) directing that a party provide a summary of the evidence that the party expects one or more of the party's witnesses will give at trial;

(h) directing that evidence of witnesses be presented at trial by way of affidavit;

(i) respecting experts, including, without limitation, orders that the parties' experts must, before the service of their respective reports, confer to determine and report on those matters on which they agree and those matters on which they do not agree;

(j) directing that the parties present opening statements and final submissions in writing;

(k) adjournment of the trial;

(l) directing that the number of days reserved for the trial be changed;

(m) adjourning the trial management conference;

(n) directing the parties to attend a further trial management conference at a specified date and time; and

(o) any other matter that may assist in making the trial more efficient or aid in the resolution of the family law proceeding.

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.