Preparing for and Going to Trial 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 these deadlines occur 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).
- 1 Preparing for trial in the Provincial Court
- 2 Preparing evidence for trial
- 3 Conducting a trial in the Provincial Court
- 4 Resources and links
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 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.
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 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:
|30 days:||Service of expert report or summary of expert
evidence on other party (Rule 11(3) & (4)).
ordered section 211 report to be filed and provided to all parties (Rule 11(1.1)).
of notice requiring other party’s expert to attend trial for cross-examination (Rule 11(7).
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:
- the needs of a child in relation to a family law dispute,
- the views of a child in relation to a family law dispute, or
- 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), 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.
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 How Do I? part of this resource:
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 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 11(3) of the Provincial Court (Family) Rules. You normally serve the other party with a written summary of the expert’s evidence at least 30 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 30 days before the report is introduced (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) and Rule 11(8) of the Provincial Court (Family Rules. 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 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 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)
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 they are 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 as a party you should:
- prepare a summary of the issues and your position about each issue, and
- be aware of the evidence you intend to use at trial, including:
- the documents (including expert reports, if any) you will rely upon at trial, and
- 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 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 possession 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 the 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 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).
- 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.
- 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. will you be presenting a document? getting a witness to testify?).
If you see possible gaps in your evidence, think about what further evidence you may 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:
- if there is any evidence that disproves any aspect of your case, and
- if there is any evidence that the other party could have that proves their case
These factors should be taken into account 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), and
- a section to include all court documents in date order (i.e.: the application to obtain an order, response, etc.)
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 (i.e.: 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 a 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 you whether they have any objections to any of the documents.
In the days leading up to the trial, you will need to bind the documents (i.e.: use a binder or cerlox binding machine if you have access to one). Include a cover page that sets out:
- the style of cause of the court proceeding (the names of the parties and court registry information as set out at the beginning of every filed document),
- the title 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 be used to show to witnesses at trial (if their testimony requires it), and copies will be provided to the judge and each party.
Do you need someone else's evidence to support your case? 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, 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 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).
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 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, 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 (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 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.
You can only ask your witnesses open ended questions, meaning questions that do not suggest the answers. Questions that suggest answers are limited to cross-examination of the other party's 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 about 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 this 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 counsel). The expert report (and resume or curriculum vitae) can be included in any joint book of documents at trial or submitted 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 the How Do I? part of this resource:
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:
- Book of Documents: If you haven’t already done so, prepare your book of documents. Information about doing so is set out earlier in this section under Preparing Evidence for Trial: Documents.
- 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, regulations, and case law (collectively referred to as authorities) you intend to rely on at trial. Each authority should be placed behind a separate tab and you need to provide 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).
- 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 being 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.
- 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:
- Are you relying on witnesses? Are you sure they will show up? Should you be delivering a subpoena? Form 15 needs to be served personally on the witness at least 7 days before trial.
- Write out questions you think you may want to ask.
- Consider reading Preparing for a Family Court Trial in Provincial Court (published by the Provincial Court), in particular the information on preparing for cross-examination.
- 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 cohabitation, the date of marriage, the date of separation, the date of divorce (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.
- 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 write down and list the exhibits when they are entered as evidence at trial (it 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.
- 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 9:30am-12:30pm and from 2:00pm-4:00pm 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:
- 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 proof the applicant will be presenting.
- Applicant’s presentation of evidence: The applicant (or applicant’s counsel) will then call each of their witnesses, including the applicant him/herself, to testify, and to introduce any applicable exhibits into evidence (i.e.: documents or objects). The respondent (or respondent’s counsel) will then have the right to cross-examine the witnesses.
- Opening statement of the respondent: After the applicant has finished presenting their witnesses and evidence, the respondent (or respondent’s counsel) is usually entitled to make an opening statement to the court.
- 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.
- 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.
- 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's, or expert’s attendance to pay the reasonable costs of the writer's or expert’s attendance (Rule 11(8) of the Provincial Court (Family) Rules).
- Provincial Court website
- Legal Services Society'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"
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Julie Brown, June 20, 2019.|
|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.|
Normally 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."
A 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. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family court proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
The 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 on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence," and "jurisdiction."
A 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.
The guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court.
Facts 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."
A person appointed by the federal or provincial government 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, subject to appeal.
In 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."
A 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."
In family law, this usually refers to one party obtaining a part of the property at issue before the property has been finally divided by court order or the parties' agreement.
In 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."
In 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."
The 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 questions may suggest their answers, such as "You didn't get home until 2:00am, did you?" See "examination-in-chief," "evidence," and "leading question."
In law, an application to the court for an order, usually brought after the commencement of a court proceeding but before its conclusion by trial or settlement; an interim application. See "action," "interim application," and "order."
A 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."
A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."
In 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."
A 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."
In 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."
A resolution of one or more issues 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 conclusion of trial. See "action," "consent order," "family law agreements," and "offer."
Opinion 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 their field. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists. See "evidence" and "witness."
Evidence given orally at trial or in writing by affidavit concerning a witness' convictions, feelings, or views on something. Opinion evidence is inadmissible except when the opinion is offered by an expert on a subject within their expertise. See "affidavit," "evidence," "expert," and "witness."
In law, a lawyer's advice to their 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" and "opinion evidence."
A 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 person licensed to practice law in a particular jurisdiction. See "barrister and solicitor."
In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.
A person with direct, personal knowledge of facts and events; 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."
Oral evidence given by a witness in court or in an affidavit under the witness's oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath," and "witness."
In 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."
In 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.
A party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court it also means the person who starts a court proceeding. See also "court proceeding," "application respondent," and "interim application."
The person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."
The assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.
In 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."
In 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 their 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."
In 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."
In law, a lawyer's bill to their client or a statement; one person's recollection of events.
Under the Divorce Act, the schedule of a parent's time with their children under an order or agreement. Access usually refers to the schedule of the parent with the least amount of time with the child. See "custody."
The information at the top of a court form, such as file number, name of registry, title of the court, and the parties' names.
A 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.
In law, a document demonstrating ownership of a thing. See "ownership."
A legal document in which a person provides evidence of certain facts and events in writing. The person making the affidavit, the deponent, must confirm the affidavit evidence is true by oath or affirmation. Affidavits must be signed in front of a lawyer, a notary public or a commissioner for taking oaths, who takes the oath or affirmation of the deponent. Affidavits are used as evidence, just as if the person making the affidavit had made the statements as a witness. See "deponent", "affirm" and "witness."
A lawyer; the advice given by a lawyer to their client.
A 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 right to a say in how or what regulations are imposed by government. See "act."
The law as established and developed by the decisions made in each court proceeding. See "common law."
Living with another person, shacking up, playing house. Cohabitation in a "marriage-like relationship" is necessary to qualify as a "spouse" under the Family Law Act. See "marriage-like relationship" and "spouse."
In 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 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."
Evidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See "evidence" and "premises."