Preparing for and Going to Trial in Provincial Court

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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).

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 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))

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 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 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 their 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.

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 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 witness’ testimony;

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 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 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 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.: 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 their case because 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)
  • 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 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 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 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,

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).

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, 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.

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 counsel). 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 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:

  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, 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 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 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.
  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 proof the applicant will be presenting.

(b) 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 (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 their 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.
  • 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


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


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