Family Law Trials in Provincial 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 deadlines set out in the rules of court (the Provincial Court (Family) Rules), some of which a full month 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 Provincial Court (Family) Rules).

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.

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.

Rule 11 of the Provincial Court (Family) Rules deals with trial procedures in Provincial Court.

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 deadlines in a Provincial Court proceeding are as follows:

30 days:	Service of expert report or summary of expert evidence on other party (Rule 11(3) & (4))
30 days:	Court ordered section 211 report to be filed and provided to all parties (Rule 11(1.1))
14 days:	Service of notice requiring other party’s expert to attend trial for cross examination (Rule 11(7)
14 days:	Party wanting section 211 report writer to attend trial must apply by notice of motion for permission to do so (Rule 11(2))
7 days	Service of subpoena

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, 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 (ie: 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.

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 his/her 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 about which to consult a lawyer. The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert.