Preparing for and Going to Trial in Provincial Court

From Clicklaw Wikibooks

If you are unable to settle your case to your satisfaction, you will need to go to trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction.".

Preparing for and going to trial is the most complex part of the court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.. Both steps require careful planning and organization as well as being mindful of the deadlines set out in the rules of courtThe guidelines governing the court process and the conduct of litigation generally. The rules of court are particular to each level of court. (the Provincial Court (Family) Rules), some of which a full month before the trial date.

There are also many rules about what evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." 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 CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." (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 CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.".

The Judicial Case Manager will schedule the trial date after receiving direction from a judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. to do so following the parties’ first appearance in court, attendance at the family case conference or another hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence.". You should contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." 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 advanceIn family law, this usually refers to one party obtaining a share of the family property before the property has been finally divided by court order or the parties' agreement. of the actual deadline. The main deadlines in a Provincial Court proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." are as follows:

30 days: Service of expert report or summary of expert

evidence on other partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant." (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 motionIn law, an application to the court for an order, usually brought after the commencement of a court proceeding but before its conclusion following by trial or settlement; an interim application. See "action," "interim application" and "order." for permission to do so (Rule 11(2))

7 days Service of subpoenaA legal document, issued by a court or by a party pursuant to the rules of court, which compels a person to attend court to give evidence as a witness, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court. See "contempt of court," "evidence" and "witness."

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 childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.".

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 parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." 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 orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration.".

While the appointed person’s recommendations are not bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." on the court, the recommendations are often very persuasive at trial and therefore often assist in moving settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer." discussions forward.

For more information on these types of reports, see the following sections of this website:

Consider expert evidenceOpinion evidence given by an expert at trial, in an affidavit or in a report. Opinion evidence is a statement about what a witness thinks or believes, rather than something personally known as a fact, and is generally not admissible at trial except when the opinion is provided by an expert. A person presented as an expert witness must be approved by the court as a qualified expert in his or her field. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists. See "evidence" and "witness."

Expert evidence is a form of opinion evidenceEvidence given orally at trial or in writing in by affidavit concerning a witness' convictions, feelings or views on something. Opinion evidence is inadmissible except when the opinion is offered by an expert. See "affidavit," "evidence," "expert" and "witness." 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 opinionIn law, a lawyer's advice to his or her client; a lawyer's analysis of a legal problem; the views of an expert as to a matter at issue in an action. See "expert evidence.") 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-examinationThe portion of a trial where a party asks questions of a witness presented by the other party in order to challenge the witness’s recollection and truthfulness. The questions asked of the witness must be relevant to the issues and may be leading, that is, the question may suggest the answer. See "examination-in-chief," "evidence," and "leading question." 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 costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees.", 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 lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor.". The lawyer would likely also be able to help you with choosing an expert and preparing the instructionsIn law, the directions given by a client to his or her lawyer about the conduct of his or her affairs or a court proceeding. to the expert.

Attend a trial preparation conference (TPC)

Parties heading to trial are usually required to attend a trial preparation conference (except if a 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 TPC) . The trial preparation conference is a short court hearing with a judge to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.

There is no specific time frame for scheduling a trial preparation conference nor are they mandatory.

There is no specific rule as to what parties need to bring to the trial preparation conference, but each party should:

  • Prepare a summary of the issues and that party’s position about each issue;
  • Be aware of the evidence that party intends to use at trial, including:
    • the documents (including expert reports, if any) that party intends to rely upon at trial;
    • the witnesses (names and contact information) that party intends to call at trial, and a time estimate for each witnessA person with person knowledge of things; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."testimonyEvidence given by a witness in court or in an affidavit under witness' oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath" and "witness.";

At the trial preparation conference, the judge may do one or more of the following (see Rule 8(4) of the Provincial Court (Family) Rules):

(a) order a party to allow inspection and copying of records, specified in the order, that are or have been in the party's possessionIn law, the right to have the control and use of a thing. One can have a right to the possession of a thing without owning it, as in the case of a car lease, or ownership without possession, as in the case of a landlord who rents an apartment suite. See "ownership." or control or, if not in that party's possession or control, are within that party's power;

(b) order a party to serve on the other parties a written summary of the proposed evidence of a witness within a set time;

(c) if the judge determines that there are any pending applications relating to the case that have not yet been heard, order that those applications be heard at the trial preparation conference or be brought and heard within a set time;

(d) order the parties to file a statement of agreed facts, within a set time;

(e) discuss evidence that will be required and the procedure that will be followed at that trial;

(f) order a party to bring to trial a record, specified in the order, that is or has been in the party's possession or control or, if not in the party's possession or control, is within that party's power;

(g) grant permission to a party to submit evidence by affidavit at the trial, in accordance with rule 13 [concerning affidavits] and with any directions given by the judge presiding at the trial preparation conference;

(h) estimate the time required for a trial;

(i) set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;

(j) make any order or give any direction that the judge considers appropriate.

Preparing evidence for trial

A good starting point is to prepare a framework for the eventual argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of 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 applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application."’s claims are listed in the application to obtain or change an order and the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."’s claims are listed in the counterclaim. Consider the specifics of each order you want the court to make in relation to each claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. (and make notes where appropriate).
  • Know the Law: Then reviewIn law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support." the law to figure out what factors the judge will be considering when making his or her decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact.", 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.
  • Consider the Evidence: Then review the evidence you have to prove your case to make sure that you are including all the information the judge needs to know to be persuaded to make the orders you are requesting. You must also consider the form of the evidence and how you will present it to the judge (i.e.: presenting a document or having a witness testify).

Once you know where there are gaps in your evidence, you can figure out what further evidence you need. It is also useful to make note of where in the outline the evidence fits in and address that in your closing argument.

You should also consider whether there is any evidence that disproves an aspect of your case and any evidence you know (or even think you know) the other party has to prove his or her case because these factors should be taken into accountIn law, a lawyer's bill to his or her client or a statement; one person's recollection of events. when considering settlement options and positions at trial.

Put your outline (which at this point may be several or many pages already) into a three ring binder which will eventually become your trial binder. In the meantime, it will be a key organizational tool for preparing for trial and should include the following (each behind its own tab):

  • A prominent page (the first page or behind the first tab) which includes:
    • the trial date; and
    • a list of all the dates by which you must take specific steps in the court proceeding
  • Your outline;
  • A list of all the witnesses you intend to call to testify at trial, their address and phone number; you should later add a point form summary of the evidence you expect to receive from them as well as the date of trial you expect each to testify;
  • 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)
  • A section to include all court documents in date order (ie: the application to obtain an order, response etc)

Documents

Preparing your outline (as described above) will help you decide which documents you will want to present as evidence during the trial.

Once you have collected all of the documents you intend to use at trial, you will need to consider how you will prove each document in court (ie: through a witness testifying about the document or another means), unless the other party will simply agree to the document being used. This is a good topic to raise at the trial preparation conference described earlier in this section.

If you have many documents to use at trial, you should consider preparing a book of documents which will become an exhibit at trial. Start by organizing the documents in date order; then separate each document by numbered tabs to make them easy to find. If the documents are longer than one page, number each page of that document starting with page one. You will need to prepare an index of each document included in the book and the corresponding tab number for each. Again, it is useful to bring this list to the trial preparation conference and ask the other party to inform whether that other party has any objections to any of the documents.

In the days leading up to the trial, you will need to bind the documents (ie: use a binder or cerlox binding machine if you have accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." to one). Include a cover page that sets out:

  • the style of cause of the court proceeding (the names of the parties and court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. information as set out at the beginning of every filed document);
  • the titleIn law, a document demonstrating ownership of a thing. See "ownership." of the book: Book of Documents of the applicant/respondent (whichever applies); and
  • the names and contact information for each party or their lawyer if represented.

You should prepare and bring to court an original and at least three copies of your book of documents (more if there are more than two parties). The original will used to show to witnesses at trial (if their testimony requires it) and copies will be provided to the judge and each party.

Witnesses

You will need to consider whether you need anyone else to attend the trial to give evidence in support of your caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.". Witnesses should only be called to testify about facts that are relevant to the case and that are within the witness’ direct experience (in contrast to having heard information from another person who is not testifying).

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 affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.". 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 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 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, his or her education if relevant, and his or her 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 (those types of questions are limited to cross examination of the other party’s witnesses).

Expert witnesses

Preparing a cross examination of an expert is a lot like preparing for any other witness, except that it usually requires more specialized knowledge and therefore may require some research or even contacting another expert of a similar background for advice about areas of questioning.

For each expert witness, prepare a list of the issues that you need the expert to speak about in their testimony. Then make a list of questions to ask and review the questions with the expert before trial. You may have questions about their training and experience, about the process of information gathering they used to form their opinion, and the opinion itself.

Any party relying upon the expert report at trial will need to inform the expert of the trial date and when the expert is needed to testify.

Any party relying upon the expert report at trial will need to bring the original of any expert report to trial along with at least three copies. (If the expert’s resume or curriculum vitae is not already attached to the report, copies of will be required too). The original will be used for reference by the expert witness and the remaining copies will be distributed to the judge and all parties (or their counselA lawyer; the advice given by a lawyer to his or her client.). The expert report (and resume or curriculum vitae) can be included in any joint book of documents at trial or submitted it as a separate exhibit.

Section 211 reports

If a party wishes to challenge any of the facts or opinions in a Section 211 report, that party must do so by cross-examination of the report writer. There is no right of cross-examination of the report writer in Provincial Court; instead a party wanting to cross-examine the report writer must apply to the court for an order allowing the party to do so. The court application is made by notice of motion to a judge under Rule 12 and must be heard at least 14 days before the trial date.

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:

Use of physical objects

If you intend to use a physical object at trial, you will need to bring it to trial.

Final steps to prepare for a family law trial

There are a number of final steps to prepare for a family law trial:

  1. Book of Documents: If you haven’t already done so, prepare your book of documents. Informatio about doing so is set out earlier in this section under Preparing Evidence for Trial: Documents.
  2. Prepare Book of Authorities: This is a bound volume of the law that you intend to rely on at trial and should include copies of any statutes, regulationsA kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say as to what sort of regulations are imposed or input into the effect of those regulations. See "act." and case lawThe law as is established and developed by the decisions made in each court proceeding. See "common law." (collectively referred to as “authorities”) you intend to rely on at trial. Each authority should be placed behind a separate tab and an index listing each authority and its corresponding tab for easy reference during the trial. You will need to make enough copies for the judge, yourself and every other party (or their lawyer if they have one).
  3. Prepare an opening statement: This is a statement that is made at the beginning of each party’s case to give the judge some factual background about the case, an overview of the legal issues involved and the orders that party is asking for. If the parties have reached agreement on any issues, this should be communicated to the judge during a party’s opening statement. If there are “housekeeping issues” (such as an expert witness only be available to testify on a specific date), such issues should be raised at this time as well. A party’s opening statement should be consistent with a party’s closing argument.
  4. 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.
  5. Finalize preparation of direct examinations & cross examinations of witnesses.
  6. Consider preparing a chronology: Each party should also consider preparing a chronology of important events such as the birth dates of each party and child, the date of cohabitationLiving with another person, shacking up. Cohabitation in a "marriage-like relationship" is necessary to qualify as "spouse" under the ''Family Law Act''. See "marriage-like relationship" and "spouse.", the date of marriage, the date of separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.", the date of divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." (if applicable), and the dates of any other significant events such as moves, job changes, promotions, inheritances, gifts, diagnoses etc. for easy reference for the judge at trial. If you do prepare a chronology, be sure to bring copies for the judge, the other party (or their lawyer) and yourself.
  7. Prepare party’s own trial binder: Convert any trial preparation binder into a trial binder. Replace all documents with the following, each of which should be included behind separate tabs:
    • List of witnesses (with contact information for each) and anticipated trial plan/schedule (which is really just a best guess as to when each witness will testify and for how long)
    • Page to list exhibits as they are entered at trial – this will be an important reference during the trial and when you are preparing your final argument
    • Chronology, if one has been prepared
    • Opening statement
    • Direct examination of each witness that party intends to call (with each examination behind a separate tab)
    • Cross examination of each witness the other party intends to call (with each examination behind a separate tab)
    • Final argument/closing submissions
    • Miscellaneous notes/to do list – sometimes during a trial a judge will ask a party to do something during a court break or a party thinks of another idea to explore. It is helpful to have a place to list such miscellaneous items and thoughts that come up during trial in order to stay organized.
  8. Personal preparation:
    • Visit the courthouse to familiarize yourself with it (unless you know it well already), including checking the hours of operation, the location of the hearing list, the location of washrooms, and the availability of food at or near the courthouse (if you don’t plan to pack a lunch each day of trial).
    • Consider watching a trial as observation of the real thing is often the best education. Trials are open to the public and are generally in session from 9:30 am to 12:30 pm and from 2:00 to 4:00 pm each day.
    • Engage in self-care leading up to trial, including ensuring that you get enough sleep, that you are eating healthily and getting regular exercise, and that you have the emotional support that you need to help you through this process (i.e.: family, friend, counselor).

Conducting a trial in the Provincial Court

Trials of family matters in Provincial Court law proceedings are generally conducted in the following manner and order:

(a) Opening Statement of the Applicant: At the beginning of the trial, the applicant (or applicant’s counsel) usually has the opportunity to tell the court what the case is about and what proofEvidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See "evidence" and "premises." the applicant will be presenting.

(b) Applicant’s Presentation of Evidence: The applicant (or applicant’s counsel) will then call each of his/her witnesses, including the applicant him/herself, to testify and to introduce any applicable exhibits into evidence (ie: documents or objects). The respondent (or respondent’s counsel) will then have the right to cross-examine the witnesses.

(c) Opening Statement of the Respondent: After the applicant has finished presenting his/her witnesses and evidence, the respondent (or respondent’s counsel) is usually entitled to make an opening statement to the court.

(d) Respondent’s Presentation of Evidence: The respondent (or respondent’s counsel) will then be given the opportunity to call witnesses, including the respondent him/herself, to testify and to introduce any applicable exhibits into evidence. The applicant (or applicant’s counsel) will then have the right to cross-examine them.

(e) Argument: After the evidence is complete, both parties (or their lawyers) will have the opportunity to make submissions (arguments) about how the case should be decided. The applicant is given the opportunity to make submissions first, then the respondent, and then the applicant is often given a further opportunity to respond (briefly) to the submissions of the respondent.

Tips about etiquette at trial in Provincial Court

  • Always arrive early for court (15 minutes early is a good guideline) and return to the courtroom on time after breaks;
  • Stand up when the judge enters or leaves the courtroom and when you are speaking to the judge;
  • Refer to the judge as “Your Honour”;
  • Always be respectful to the judge and to everyone else in the courtroom, including the court clerk, the sheriff (if any) and the other party and counsel; and
  • When speaking to a witness, use Mr., Ms., or Dr. followed by their surname, rather than the witness’ first name (which is too casual);

No costs in Provincial Court

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 or expert’s attendance to pay the reasonable costs of the writer or expert’s attendance (Rule 11(8) of the Provincial Court (Family) Rules).

Resources and links

Legislation

Resources

Links


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