Preparing for and Going to Trial in Supreme Court
If you are unable to settle your case to your satisfaction, you will need to go to trial.
Preparing for and going to trial is the most complex part of the court proceeding. Both steps require careful planning and organization. You also need to be mindful of the many deadlines set out in the rules of court (the Supreme Court Family Rules), some of which arise months before the trial date.
There are also many rules of evidence, like what evidence is allowed and how evidence is presented in court. The law of evidence is beyond the scope of this chapter. A good general summary is found in Proving Your Case in Supreme Court from the Justice Education Society of BC, although you should be aware that this resource is not specific to family law. It talks about the Supreme Court Civil Rules rather than the Supreme Court Family Rules. Another useful resource of theirs is Trials in Supreme Court, although apply similar caution because it references the civil set of rules rather than the family rules of court.
- 1 Preparing for trial in the Supreme Court
- 1.1 Preparing for trial
- 1.2 Scheduling a trial
- 1.3 Consider amendments to pleadings before filing the Notice of Trial
- 1.4 Consider a Section 211 (Parenting Capacity) report or a Views of the Child report
- 1.5 Consider expert evidence
- 1.6 Expert evidence about financial issues
- 1.7 Expert evidence about other issues
- 1.8 Retaining the expert
- 1.9 Court application if parties can’t agree or additional experts necessary
- 1.10 Court-appointed experts
- 1.11 The expert’s report
- 1.12 Schedule and attend a trial management conference (TMC)
- 1.13 File and serve a trial record
- 1.14 File and serve a trial certificate
- 1.15 Update Form F8 Financial Statement
- 2 Preparing evidence for trial
- 3 Conducting the trial in Supreme Court
- 4 Resources and links
Preparing for trial in the Supreme Court
There are two available types of trial in Supreme Court—a regular trial (which is the type you see on TV and in the movies with cross-examination of witnesses and lawyers making legal arguments) and a summary trial (which is trial where each witness's evidence is introduced by affidavit).
Summary trials can seem like a good option because they often mean fewer days in court, often don’t involve cross-examination of the parties, and therefore are often easier and less expensive for the parties. However, summary trials are not suitable for all court proceedings; they are suitable only where there is enough clear (i.e. not conflicting) evidence for the judge to make a decision.
The factors a court will consider in deciding whether a summary trial is appropriate include:
- the complexity of the matter,
- any urgency and prejudice likely to arise by reason of delay,
- the cost of taking the case forward to a regular conventional trial in relation to the amount involved,
- the course of the proceedings,
- whether credibility is a critical factor in the determination of the dispute,
- whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and
- whether the application would result in litigating in slices (see Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 BCLR (2d) 202 (CA)).
Summary trials are more common where lawyers are involved, and rare if both parties are self-represented.
Summary trials are governed by Rule 11-3 of the Supreme Court Family Rules and are not subject to all of the rules and procedures described in the rest of the section below.
Summary trials must be heard at least 42 days before the scheduled trial date (see Rule 11-3(3) of the Supreme Court Family Rules) and a summary trial application must be set for hearing in accordance with Part 10 of the Supreme Court Family Rules.
Preparing for trial
Rule 14 of the Supreme Court Family Rules deals with trial procedures in Supreme Court.
Again, preparing for trial requires careful planning and organization as well as being mindful of the many deadlines set out in the rules of court. All deadlines count back from the 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 (but not only) deadlines in a Supreme Court proceeding are as follows:
|84 days:||Service of expert report on other party (Rule 13-6(3)).|
|42 days:||Service of expert report in response to other party’s expert report (Rule 13-6(4)).|
|28 days:||Attendance at a trial management conference (Rule 14-3(1)).
NOTE: There is a further deadline to file and serve on all other parties a Trial Brief in Form 45 at least 7 days before the trial management conference (Rule 14-3(3)).
|28 days:||Updated Form F8 Financial Statement must be filed and served on the other party at least 28 days and no later than 63 days before the start of the trial.|
|21 days:||Notice of Objection to other party’s expert report must be served (Rule 13-6(10)).|
|14-28 days:||The Trial Record must be filed and served on the other party (Rule 14-4(3)) or trial date will be lost.|
|14-28 days:||The Trial Certificate must be filed and served on the other party (Rule 14-5(2)).|
|7 days:||Any plans, objects or photographs to be relied upon at trial must be available for inspection by the other party (Rule 14-7(10)).|
|7 days:||Service of subpoena & witness fees on any witnesses (Rule 14-7(32) & (34) & Form F23).|
Before triggering any of these deadlines, however, you’ll need to schedule the trial date.
Scheduling a trial
The usual practice is for the claimant to schedule the trial, but the respondent is also able to do so. Given that the availability of trial dates varies from registry to registry (and there may be no available dates for many months), you may want to schedule the trial at the judicial case conference or as soon as possible after it.
In order to schedule a trial, you need to file a Notice of Trial in Form 44 in the registry where the court proceeding was started (or transferred). To do so, you will have to consider how many days of trial are needed to hear the evidence of all of the witnesses (both your witnesses and the other party’s witnesses, including both direct examination and cross-examination of each witness), as well as the summary of evidence and legal arguments presented by both parties (or their lawyers) at the end of the trial. You will then need to contact that registry to find out what dates are available for your trial. You should then contact the other party (or that party’s lawyer) to find out their availability. Once the date is confirmed and the notice of trial is filed, you must then promptly serve the notice of trial on the other party (see Rule 14-2(1), (3), and (5) of the Supreme Court Family Rules).
If you are served with a Notice of Trial and you are not available on the date(s) indicated, you must apply to the court within 21 days to have the trial rescheduled (see Rule 14-2(6) of the Supreme Court Family Rules).
In some cases, trial dates are discussed and agreed upon at the judicial case conference, but a notice of trial still needs to be filed in order to confirm the date with the registry.
If you are the party who has filed the Notice of Trial, you will also have to prepare and file a document called a trial record (as described below in the section File & Serve Trial Record).
Consider amendments to pleadings before filing the Notice of Trial
If you need to amend the claims set out in your Notice of Family Claim or Counterclaim, you should do so before you file the Notice of Trial. This is because Rule 8-1(1) of the Supreme Court Family Rules allows a party to amend their pleadings once without leave of the court as long as the amendment is done before the notice of trial is filed. Once the notice of trial is filed, a party (or their lawyer) can only make amendments with the agreement of the other party or an order of the court (Rule 8-1(1)).
Consider a Section 211 (Parenting Capacity) report or a Views of the Child report
In family law matters where guardianship and/or the children’s living arrangements are in dispute, one or both parties may request that a person be appointed to prepare a report pursuant to section 211 of the Family Law Act. That section empowers the court to direct a person approved by the court to conduct an investigation into:
(a) the needs of a child in relation to a family law dispute;
(b) the views of a child in relation to a family law dispute;
(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.
Depending on the scope of the assessment, a social worker or a counselor or a psychologist may be appointed. The section 211 assessment involves the appointed person conducting interviews with both parents as well as the children and may involve additional steps such as observing each parent with the children (either in each parent’s home or at the psychologist’s office), conducting psychological testing of the parents (if the person is a psychologist and qualified to do so), 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 thousand dollars for interviews of the children only to over $10,000 (and often considerably more) for a more extensive assessment and report. Publicly funded reports (free-of-charge) are available through the province, but are less extensive, often take longer to prepare, and require a court order.
While the appointed person’s recommendations are not binding on the court, the recommendations are often very persuasive at trial and therefore often assist in moving settlement discussions forward.
For more information on these types of reports, see the following resources under 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, the valuation of property (i.e.: the family home, a pension, a business, shares in a company), whether a party’s income earning capacity is impaired due to physical injuries or psychological conditions, the level of income a person is capable of earning (i.e. in their field of business or employment), and the like.
Rule 13 of the Supreme Court Family Rules applies to the use of expert evidence at trial.
If you intend to introduce expert evidence at trial, you must ask the expert to prepare a written report (see Rule 13-6 and 13-7 of the Supreme Court Family Rules). Do note that under Rule 13-2 of the Supreme Court Family Rules, the role of the expert is to assist the court, not to be an advocate for either party. The expert is required to certify to their understanding of their role under this rule in the written report that they are to prepare (see Rule 13-2(2) of the Supreme Court Family Rules).
Because expert reports have to be served on the other party at least 84 days before the trial date (see Rule 13-6(3) of the Supreme Court Family Rules) and can be expensive, it is important to consider early on in your case whether you will need expert evidence at trial. Also, because there are specific requirements about the use of expert evidence and the form it must take, if you think you might need an expert, this would be a good issue to talk to a lawyer about. The lawyer would likely also be able to help you with choosing an expert and preparing the instructions to the expert so that the report meets the requirements for use in court.
Expert evidence about financial issues
If either party wants to present expert evidence about a financial issue, that evidence must be presented to the court by means of an expert that you and the other party hire together (often referred to as a jointly appointed expert), unless the court orders or the parties agree otherwise (Rule 13-3(1) & (2) of the Supreme Court Family Rules). Once appointed, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules).
A financial issue is defined in Rule 13-3(1) as an issue arising out of:
- a claim to divide property, debt, or a pension (based either on the Family Law Act or what's called a FHRMIRA order (an order under the Family Homes on Reserves and Matrimonial Interests or Rights Act, or
- an unjust enrichment claim, or some other type of trust claim, for compensation or an interest in property.
If you want an expert opinion about a financial issue, but the other party doesn’t, you may have to make an interim court application to get the expert evidence you need to go to trial. One option is simply to offer to pay the full cost of the report up front, but on a without prejudice basis. This keeps the option open for a judge, later on, to consider if the other party should contribute to the cost of the report as well (usually after the judge has made their decision).
Each party has the right to cross-examine a joint expert at trial, according to Rule 13-4(10). Also, each party is required to cooperate with the jointly appointed expert and produce to them all relevant documents and information (Rule 13-4(9)).
Expert evidence about other issues
If either party wants to present expert evidence on any other issues (i.e. medical issues, psychological issues, the earning capacity of a party or particular occupation), the parties can either present the evidence through an expert that the parties together retain or any party may retain their own expert (see Rule 13-3(3) of the Supreme Court Family Rules).
Retaining the expert
An expert is retained by way of a letter of instruction or retainer letter. If the expert accepts the job, the parties will probably be required to pay them a retainer right away, before the expert gets started on the report.
Before an expert is appointed, the parties must agree on the following:
- the identity of the expert,
- the issue in the family law case the expert opinion may help to resolve,
- any facts or assumptions of fact agreed to by the parties,
- any assumptions of fact one party wants the expert to consider, but which the other party disagrees with,
- the questions to be considered by the expert,
- when the expert's report must be prepared and given to the parties, and
- who is responsible for paying the expert.
See Rule 13-4(1).
That agreement must then be put in writing and signed by the parties (or their lawyers) and the expert.
Court application if parties can’t agree or additional experts necessary
If one party seeks an expert opinion about a financial matter but the other party will not agree or the parties cannot reach agreement about the terms of appointment (as required by Rule 13-4(1)), that party will need to make an application to the court to order a joint retainer (see Rule 13-4(3)). Any order appointing an expert or setting out the terms of the expert’s appointment must be promptly served on the expert.
As stated before, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5)). A party can apply to the court for permission to introduce the evidence of an additional expert at trial, but must do so within 21 days after receipt of the joint expert’s report by serving the application materials on all parties.
Parties also have the opportunity to apply to the court for an order allowing them to introduce the evidence of a further additional expert. The judge hearing the application will consider whether the evidence of a further additional expert is “necessary to ensure a fair trial” (see Rule 13-4(7)). Other factors that the court may consider are listed in Rule 13-4(8):
(a) whether the parties have fully cooperated with the joint expert and have made full and timely disclosure of all relevant information and documents to the joint expert,
(b) whether the dispute about the opinions of the joint expert may be resolved by requesting clarification or further opinions from that expert, and
(c) any other factor the court considers relevant.
The process for bringing interim applications is covered in this chapter, under the section Interim Applications in Family Matters.
The court can also appoint an expert on its own initiative (see Rule 13-5(1) of the Supreme Court Family Rules). The circumstances and process for the court to do make this type of order are set out in Rule 13-5.
The expert’s report
Rule 13-6(1) of the Supreme Court Family Rules states the specific requirements for an expert report if it's to be introduced as evidence at trial. An expert report must:
- be signed by the expert,
- include the certification required under Rule 13-2(2), and
- set out the following:
(a) the expert's name, address and area of expertise;
(b) the expert's qualifications and employment and educational experience in their area of expertise;
(c) the instructions provided to the expert in relation to the family law case;
(d) the nature of the opinion being sought and the issues in the family law case to which the opinion relates;
(e) the expert's opinion respecting those issues;
(f) the expert's reasons for their opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led them to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
The expert report must be served on the other party at least 84 days before the scheduled trial date along with written notice that the report is being served under Rule 13 of the Supreme Court Family Rules (see Rule 13-6(3)), except reports of court-appointed experts. This is the case even where there is a jointly retained expert; each party is still entitled to notice of the other party’s intention to rely on the report at trial.
If a party intends to introduce at trial an expert’s report that responds to another expert report, that party must serve a copy of the responding expert’s report on every party at least 42 days before the scheduled trial date.
Where one party has retained and served a report of its own expert, that party is required by Rule 13-6(8) to provide to the other party, upon request, the following information:
- any written statement or statements of facts on which the expert's opinion is based,
- a record of any independent observations made by the expert in relation to the report,
- any data compiled by the expert in relation to the report,
- the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming their opinion, as well as
- access to the contents of the expert's file relating to the preparation of the opinion set out in the expert's report.
A party who intends to use an expert’s report at trial is responsible for notifying the expert:
- of the trial date as soon as possible after the trial date is scheduled or the expert retained, whichever is later, and
- that the expert may be required to attend trial for the purpose of cross-examination (See Rule 13-6(9)).
If a party objects to another party’s expert report, that party must serve upon every other party a notice of any objection that party intends to raise about the admissibility of the report. That notice of objection must be served on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date (see Rule 13-6(10) of the Supreme Court Family Rules). If such notice isn’t given, then the objection will not be permitted at trial (unless the court otherwise orders) (See Rule 13-6(11)).
Schedule and attend a trial management conference (TMC)
Parties heading to trial are required to schedule and attend a trial management conference (unless the party has a lawyer in which case the party does not have to attend as long as they is available by telephone to speak with their lawyer if instructions are needed during the TMC). The TMC is a meeting with a judge or a master to discuss how the trial will proceed and what, if any, additional steps must be taken to ready the parties for trial.
The TMC must take place at least 28 days before the scheduled trial date, unless the court orders otherwise (see Rule 14-3(1) of the Supreme Court Family Rules).
Each party (or their lawyer if represented) is required to file and serve on all other parties a Trial Brief in Form 45 at least 7 days before the TMC (see Rule 14-3(3) of the Supreme Court Family Rules).
The trial brief must contain:
- A summary of the issues and that party’s position about each issue,
- A list of the witnesses that party intends to call at trial, including each witness’ address and an estimate of the time that witness will be on the stand answering questions by that party,
- A list of any expert reports that party intends to rely upon at trial,
- A list of the witnesses that party intends to cross-examine and the time estimate for each,
- A list of any orders already made in the court proceeding which may affect the conduct of the trial,
- A list of the documents and other exhibits that party intends to rely upon at trial,
- A list of the legal authorities that party intends to rely upon at trial,
- A list of the orders that party is requesting the judge to make, and
- That party’s time estimate for submissions (final argument) at the end of the trial.
At the TMC, the judge or master may consider and make orders about the following issues (see Rule 14-3(9)):
- direct the parties to attend a settlement conference,
- amendment of pleadings within a fixed time,
- a plan for how the trial should be conducted,
- admissions of fact at trial,
- admission of documents at trial, including:
- agreements as to the purposes for which documents may be admitted, and
- the preparation of common books of documents and document agreements.
- imposing time limits for the direct examination or cross-examination of witnesses, opening statements, and final submissions,
- directing that a party provide a summary of the evidence that the party expects one or more of the party's witnesses will give at trial,
- directing that evidence of witnesses be presented at trial by way of affidavit,
- respecting experts, including, without limitation, orders that the parties' experts must, before the service of their respective reports, confer to determine and report on those matters on which they agree and those matters on which they do not agree,
- directing that the parties present opening statements and final submissions in writing,
- adjournment of the trial,
- directing that the number of days reserved for the trial be changed,
- adjourning the TMC,
- directing the parties to attend a further TMC at a specified date and time, and
- any other matter that may assist in making the trial more efficient or aid in the resolution of the family law proceeding.
If a party (or that party’s) lawyer does not attend a TMC, the judge or master may proceed with the TMC without the party, adjourn the TMC to another date, and/or order the party to pay costs to the other party (see Rule 14-3(5)).
Rule 14-3 of the Supreme Court Family Rules sets out further information about the TMC.
File and serve a trial record
If you are the party who has filed the Notice of Trial, you are also required to prepare and file a trial record. The trial record must be filed and served on the other party at least 14 days, but not more than 28 days, before the first day of trial (see Rule 14-4(3) of the Supreme Court Family Rules).
The trial record must include:
- the pleadings (i.e.: the Notice of Family Claim and each Response to Family Claim, Counterclaim and Response to Counterclaim),
- any particulars served under a demand for particulars, together with the demand made,
- the most current Form F8 financial statement, if any, filed by each party, and
- any orders relating to the conduct of the trial.
Once you have collected these documents, you will need to arrange them into a bound book (such as a binder). The bound book should include:
- a cover with the style of cause; the title Trial Record, the names and contact information (addresses and phone numbers) of each party (or their lawyers if represented), and the date and place of trial in the bottom right hand corner,
- an index of the documents in the trial record, including the name and date of each document and on which page it can be found within the trial record, and
- page numbers on the top right hand corner of each document.
Once the trial record is complete, you will need to make two additional copies (or more if there are corporate or other respondents). You will then need to file the trial record (original and copies) with the registry and serve one copy on each party, saving one for yourself.
Further information about filing a trial record is set out in Rule 14-4 of the Supreme Court Family Rules.
File and serve a trial certificate
A Trial Certificate (Form 46) is a short document that provides notice to the court that you are ready to proceed with the trial as scheduled. It specifically sets out:
- that the party filing the form is ready to proceed with the trial as scheduled,
- that the party filing the form has completed all examinations for discovery,
- the current time estimate for the length of the trial, and
- confirmation that the trial management conference has been completed.
Both parties must file a Trial Certificate (see Rule 14-5 (1) of the Supreme Court Family Rules).
The Trial Certificate must be filed at least 14 days but not more than 28 days before trial and it is crucial that it is done within this timeframe (See Rule 14-5(2)). If no party files the Trial Certificate, the proceeding will be removed from the trial list and you will lose your trial date (therefore requiring you to reschedule the trial). Although the practice is for the claimant (or the party who filed the Notice to Trial) to file the Trial Certificate, if that party fails to do so, the other party can, in order to preserve the scheduled trial date.
Further information about filing a Trial Record is set out in Rule 14-5.
Update Form F8 Financial Statement
Each party is required to update their Form F8 Financial Statement before trial.
The usual rule is that each party must file and serve on the other party an updated financial statement at least 28 days before trial (but not more than 63 days before the start of the trial). There is an exception for parties who have delivered their original Form F8 within 91 days before the start of the trial (see Rule 5-1(8) of the Supreme Court Family Rules).
If a party’s updated Form F8 Financial Statement includes material changes in that party’s financial circumstances since the initial Form F8, then the other party may seek a court order to allow that party to be cross-examined before trial.
Preparing evidence for trial
A review of all the rules of evidence is beyond the scope of this chapter. A good starting point for reviewing the rules of evidence is the Memorandum to Self-Represented Litigants on Trial Procedure and Evidence prepared by the Supreme Court.
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. Here is how you would begin:
- 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 claimant’s claims are listed in the Notice of Family Claim 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, the binder will be a key organizational tool for preparing for trial. It 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 plus a list of all the due dates for specific steps you must take in the court proceeding (e.g. filing the trial certificate, which if not done will cause you to lose your trial date),
- your outline,
- a list of all the witnesses you intend to call to testify at trial, their address and phone number (later add a point form summary of the evidence you expect to receive from each witness as well as the date you expect each to testify during trial),
- a page to list the documents you intend to rely upon at trial (this list will become the index to your book of documents discussed more below), and
- a section to include any other key documents such as a Notice to Admit or an offer to settle.
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. Consider doing the following:
- Ask the other party if they will agree to the use of the document for a specific purpose (i.e. in the case of an email exchange between the parties about special or extraordinary expenses, the fact that one party responded on a specific date).
- Ask the other party to agree to the authenticity of the document through the use of a Notice to Admit (see Discovery Process in a Family Law Matter, also in this chapter). Be aware that agreeing to the authenticity of a document means that you are agreeing that the document is what it looks to be (e.g. a letter from the family doctor, dated 11 March 2019). It does not mean you are agreeing to the truth of its contents (e.g. the diagnosis discussed in the doctor's letter).
- Ask the other party to come to a document agreement with you. This can cover on one or more of the following:
- the documents are all true copies of the originals,
- the documents were signed and dated as indicated on the documents,
- the documents were mailed, emailed, or faxed on the dates indicated on the documents, and
- the documents were all received by the recipient indicated on the documents.
Any agreements you are able to reach with the other party about the use of documents at trial should be noted in your trial preparation binder and told to the trial judge when the trial begins. If the other party won’t agreem about the use of documents at trial, this is a good issue to discuss at the trial management conference.
Once you have collected your documents for use at trial and you know how you intend to prove each one, you can start preparing your book of documents. Start by organizing the documents in chronological order (by date); then separate each document by numbered tabs to make them easy to find, and if the documents are longer than one page, number each page of that document starting with page one for each separate document (this is required by Rule 17-7(9) of the Supreme Court Family Rules). You will need to prepare an index of each document included in the book and the corresponding tab number for each.
It is also a good idea to prepare a joint book of documents where possible. A joint book of documents would include:
- all documents that both parties intend to rely upon at trial, and
- all documents that one party intends to rely upon at trial and to which the other party does not object.
The joint book of documents can then be entered as a single exhibit at trial. If there are some documents that one party wants to use in court but the other party objects to including them in the joint book of documents, then that party wishing to rely on the additional documents can prepare a separate and additional book of documents and will need to address each document separately at trial.
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 Claimant/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.
Also be aware of:
- Rule 14-7(10), which requires that all plans, photographs or objects for use as evidence at trial must be available for inspection by the other party at least 7 days before the start of the trial (unless the court orders or the parties agree otherwise). That means that you can’t leave it to the last minute to figure out whether you will introduce these types of evidence at trial.
- Rule 14-7(8), which entitles a party to require another party to bring any document listed in the other party’s list of documents to trial. This requires serving a Form F47 Notice to Produce on the other party at least 2 days before trial.
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 (or certain documents, such as something they signed) that are:
- relevant to the case, and
- within that witness’ direct experience (in contrast to hearsay — which is not allowed in general because it is indirect information from another person who is not testifying and cannot be cross-examined).
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, or experience.
Testifying in person
The usual rule is that witnesses are to testify in person at trial, although there are limited circumstances under which affidavit evidence or deposition evidence (Rule 14-7(40) to (45) of the Supreme Court Family Rules) or pre-trial examination of a witness may be allowed instead (discussed further below).
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 F23 and needs to be served personally on the witness at least 7 days before trial, along with the required witness fees which are set out in [Appendix C]—Schedule 3 (Fees Payable to Witnesses) of the Supreme Court Family Rules (See Rule 14-7(32) & (34)).
The daily witness fee is currently $20 in addition to the travel costs of the party being examined as follows:
- (a) If the party being examined lives within 200 km by road (including any ferry route and road tolls), currently $.30 per km each way by road between their residence and the place of the examination (but no payment if the distance is less than 8 km); or
- (b) If the party being examined lives more than 200 km away, the minimum return air fare by scheduled airline plus $.30 per km each way from their residence to the departure airport and from the arrival airport to the place of the examination.
- Reasonable allowance for meal expenses and, if the witness isn’t local and has to stay the night, a reasonable allowance for overnight accommodation. To figure out what is reasonable, call a few decent hotels in your area and consider including that information in a cover letter to the witness.
- Reasonable payment for the witness’ time and any expenses the witness incurred to prepare to give evidence (if the preparation is necessary). Basically you have to pay your witness their reasonable wage for missing work to testify.
If the witness then fails to show up at the trial, the witness can be charged with contempt of court (see Rule 14-7(38) of the Supreme 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 will 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 (those types of questions are limited to cross-examination of the other party’s witnesses).
Use of pre-trial examination or deposition
There are limited circumstances under which a witness may be able to testify before trial and have the transcript of their answers used as evidence at trial. See Rule 14-7(40) about the use of deposition evidence, and Rule 14-7(52) about the use of transcripts of pre-trial examinations of witnesses. Even when a transcript is allowed as evidence at a trial, the court can require the witness to attend and testify in person (see Rule 14-7(40)). Using a transcript as evidence at trial may be appropriate in the following circumstances:
- where the transcript evidence can be used to contradict or impeach the testimony of the person at trial, or
- it is necessary in the interests of justice for one of the following reasons:
- the person is unable to testify due to death, age, infirmity, sickness, or imprisonment,
- the person is out of the jurisdiction, or
- the person cannot be served with a subpoena.
Using a transcript requires the consent of both parties or an order of the court. For more information about making an application to the court for an order before trial, see the section in this chapter on Interim Applications in Family Matters.
Note that you can’t cherry pick the evidence from the transcript to introduce at trial. Rule 14-7(45) requires that depositions (whether by video or transcript) must be presented in full at trial. Rule 14-7(53) states that a court may consider the whole of the pre-trial examination and can direct that other related portions be introduced as evidence. Rule 14-7(56) allows a party to object to the admissibility of any question asked at a deposition or pre-trial examination of a witness even if the party didn’t object at the time to to the question was being asked.
If the expert has been jointly appointed, each party has the right to cross-examine that expert at trial (see Rule 13-4(10) of the Supreme Court Family Rules).
If the expert has been retained by one party:
- The party who retained the expert can conduct a direct examination (not a cross-examination) of the expert if it is limited to clarifying terminology in the report or otherwise to making the report more understandable (Rule 13-7(5) of the Supreme Court Family Rules).
- The other party can cross-examine the expert at trial (provided they gave the necessary notice of their intention to cross-examine the expert).
- After the cross-examination, the party who retained the expert may re-examine the expert on any new issues that were raised in the cross-examination.
Where an expert has been appointed by the court, a party wishing to cross-examine the expert at trial must serve notice on the expert and all parties. The notice is in Form F43 and must be served at least 28 days before the scheduled trial date.
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 them to speak about in their testimony. Then make a list of questions to ask and review the questions with the expert before trial if possible. 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 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 it 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) 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.
Each party has the right to cross-examine the person who prepared a report under section 211 of the Family Law Act provided that person provides the necessary notice. The notice of a party’s intention to cross-examine the report writer must be in Form F43 and be served at least 28 days before the scheduled trial date (see Rule 13-1(2) of the Supreme Court Family Rules).
Preparing to cross-examine a section 211 report writer is similar to preparing to cross-examine an expert.
Use of physical objects
If you intend to use a physical object at trial, you will need to bring it to trial.
You should also be aware of:
- Rule 14-7(10) of the Supreme Court Family Rules which requires that all plans, photographs, or objects for use as evidence at trial must be available for inspection by the other party at least 7 days before the start of the trial (unless the court orders or the parties agree otherwise). That means that you can’t leave it to the last minute to figure out whether you will introduce these types of evidence at trial.
- Rule 14-7(8) of the Supreme Court Family Rules which allows either party to serve a notice to require the other party to bring to the trial any physical object the party serving the notice is considering introducing at trial. The notice must identify the object, be in Form 47, and be served on the other party at least 2 days before 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. Preparation of a book of documents 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 (which are collectively called authorities) you intend to rely on at trial. Each authority should be placed behind a separate tab and you will need 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 positions taken/orders sought by that party. 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:
- Read Rule 14-7 carefully, and especially subsections (19) to (39) when it comes to witnesses.
- Are you certain your witnesses will show up? Should you be delivering a subpoena (in Form F23) by personal service more than 7 days in advance of when you want them to give testimony?
- Consider reading the part on "Witnesses giving evidence" in the Justice Education Society's guidebook, Trials in Supreme Court, as well as the Legal Services Society's information page "If you have to go to court", in particular the portions on sample questions to ask your own witnesses and on cross-examination of other witnesses under the section "Trials in Supreme Court."
- 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 by 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.
- Consider preparing a Scott Schedule: If either party has a lawyer and division of property and debt is in dispute, then the lawyer will also prepare a Scott Schedule. A Scott Schedule is a spreadsheet that lists all of the property and debt in issue, the value of each at various dates, and other useful information such as whether there are excluded property claims, that party’s position about what should happen with each property and debt, and the like. There is no requirement in the Supreme Court Family Rules that a Scott Schedule be prepared, but it is a useful reference tool at trial. If one party has a lawyer who prepares a Scott Schedule, the other party can review it carefully and make note of where that party disagrees with the information provided. If neither party have a lawyer and neither party prepares a Scott Schedule, the judge will likely use the parties’ financial statements as the main reference for financial information about property and debts.
- Prepare your own trial binder: Convert any trial preparation binder to your 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 and/or Scott Schedule, if either/both have 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).
- List of read-ins (from examination for discovery, pre-trial examinations of witnesses, or depositions, if any).
- 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:
- Familiarize yourself with court and court processes:
- 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 10:00am–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. from family, a friend, or a counsellor).
- For more tips on personal preparation to manage the trial process, see the Legal Services Society’s information page "If I have to go to court", and in particular the portions on "Coping with the court process", and "Preparing to attend a Supreme Court trial", both under the section on "Trials in Supreme Court".
- Familiarize yourself with court and court processes:
Conducting the trial in Supreme Court
Usual sequence of events
Trials of family matters in Supreme Court are usually conducted in the following manner and sequence:
- Opening Statement of the Claimant: At the beginning of the trial, the claimant (or claimant’s counsel) has the opportunity to tell the court what the case is about and what proof the claimant will be presenting.
- Claimant’s Presentation of Evidence: The claimant (or claimant’s counsel) will then call each of their witnesses, including the claimant themself, 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 claimant has finished presenting their witnesses and evidence, the respondent (or respondent’s counsel) is 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 claimant (or claimant’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 claimant is given the opportunity to make submissions first, then the respondent, and then the claimant is often given a further opportunity to respond (briefly) to the submissions of the respondent.
Tips about etiquette at trial in Supreme 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.
- If the judge is:
- a man, call him 'My Lord or Your Lordship, and if
- a woman, call her My Lady or Your Ladyship.
- 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).
For more tips on conducting a trial in Supreme Court, see the Legal Services Society's Family Law website's information page "If you have to go to court", under the section "Trials in Supreme Court", and the step-by-step guide "Schedule and prepare for your Supreme Court trial".
Costs and disbursements
After a judge has delivered the decision, a party can ask the court to provide a ruling on costs. This is where Rule 16-1 of the Supreme Court Family Rules becomes important, along with Appendix B with its schedule containing a tariff (with dollar values) for various litigation process steps. There is a distinction between costs for legal fees and disbursements. Both are dealt with in Rule 16-1. Costs awarded for legal fees are intended as a partial payment of the legal fees of the successful party. You will sometimes hear these referred to as taxable costs. Disbursements are the out-of-pocket expenses such as court filing fees, witness fees, traveling and subsistence expenses, experts' fees, fees for medical/legal reports, and the like.
The usual rule is that the successful party will be awarded their costs and disbursements, but there are many exceptions.
A typical award of costs rarely amounts to more than approximately 30% of a party's actual legal fees. Generally, most disbursements are recoverable, although there are some exceptions. A successful party can expect to recover about 80–90% of actual out-of-pocket expenses.
A party can ask the judge for a ruling on costs after the judge has delivered the decision.
For more information about costs, see the Legal Services Society's Family Law website's information page "If you have to go to court", under the section "Costs and expenses".
- Supreme Court Family Practice Directions
- Supreme Court Administrative Notices
- Supreme Court Trial Scheduling
- Supreme Court website
- Justice Education Society website for BC Supreme Court
- Legal Services Society's Family Law website's information page "If you have to go to court"
- Under the section "Trials in Supreme Court" see "Coping with the court process", and "Preparing to attend a Supreme Court trial", and the information pages on sample questions to ask your own witnesses and on cross-examination of other witnesses
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Shannon Aldinger and Julie Brown, June 12, 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."
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."
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."
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 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, 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, 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."
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."
A legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property, or the division of debt must describe their income, expenses, assets, and liabilities under oath or affirmation. See "affirm," "oath," and "perjury."
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."
The person who starts a court proceeding seeking an order for a specific remedy or relief against another person, the respondent. See "action" and "respondent."
The person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."
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; a courthouse.
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."
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."
A person licensed to practice law in a particular jurisdiction. See "barrister and solicitor."
To change or alter a pleading or document that has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "amended Notice of Family Claim" or the "amended separation agreement."
A legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief."
A legal document required by the Supreme Court Family Rules in which a respondent sets out a claim for a specific remedy or relief against a claimant. See "Notice of Family Claim" and "Response to Family Claim."
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."
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."
Something which can be owned. See "chattels" and "real property."
In family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property."
A lawyer or a person other than a lawyer who helps clients with legal issues; to argue a position on behalf of a client.
In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.
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.
A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.
A principle and remedy at law when money, services, or other benefits are unfairly received by one person at a corresponding loss to another person. See "constructive trust."
In law, a form of possession of property in which a "trustee" keeps and manages property for the benefit of another person, the "beneficiary," without owning that property and usually without acquiring an interest in that property other than as payment for their services. The trustee holds the property in trust for the beneficiary. See "constructive trust," "ownership," "possession," and "resulting trust."
In the context of negotiation or mediation, an arrangement that neither party will be able to use the content of the settlement discussions in a court proceeding. In the context of litigation, an arrangement that agreement to a certain order will not affect the legal rights of either party. In the context of a settlement proposal, a stipulation that the contents of the proposal may not be shown to the court until the court proceeding has concluded. See "consent order," "mediation," "negotiation," "offer to settle," and "settlement."
The act of hiring of lawyer; the money paid to a lawyer to secure their services; the terms and extent of a lawyer's services on behalf of a client.
A step in a court proceeding in which each party both advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any requested documents before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.
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 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."
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."
A provincially-appointed judicial official with limited jurisdiction, usually charged with making decisions before and after final judgment in a court proceeding, including the hearing of interim applications, the assessment of lawyers' bills, and the settling of bills of cost. See "interim application," "judge," and "jurisdiction."
In law, a written argument; a memorandum of law. A brief is usually presented to a judge as a summary of an argument or the law on a particular issue. Curiously, briefs are rarely brief.
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.
The suspension of a hearing or trial, usually when the hearing or trial cannot proceed on the date scheduled or because it cannot complete within the time scheduled, normally until a specific date.
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 legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim," and "pleadings."
The information at the top of a court form, such as file number, name of registry, title of the court, and the parties' names.
In law, a document demonstrating ownership of a thing. See "ownership."
A step in a court proceeding in which a party may demand that the other party produce specific documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be at trial. See "examination for discovery."
In law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact."
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 lawyer's bill to their client or a statement; one person's recollection of events.
A proposal made by one party to the other, prior to the trial of a court proceeding (or its conclusion) or the hearing of an application, setting out the terms on which the party is prepared to settle the trial or application. Offers to settle can have important consequences with respect to costs if the offer is close to what the judge decides following trial, but must be clear and precise, and contain certain language required by the Supreme Court Family Rules. See "costs."
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.
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."
Evidence of which a witness has no direct, personal knowledge. For example, evidence to the effect that “Pierre told me that Mitsou trashed the car” or "Mitsou told me she trashed the car" are both hearsay. Hearsay evidence is not usually admissible. There are a number of exceptions to the general rule against hearsay, the most important of which allows hearsay evidence in interim applications as long as the source of the hearsay information is identified. See "affidavit," "application," "evidence," and "witness."
The geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction."
Doing something or failing to do something that impairs the administration of justice or respect for the court’s authority, such as bribing a witness, disobeying a court order, or misleading the court. Contempt of court can be a civil offence as well as a criminal offence.
With respect to courts, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agency. See “constitution."
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."
In law, the delivery of a legal document to a party in a court proceeding in a manner which complies with the rules of court, usually by physically handing the document to the party and verifying their identity. Personal service is usually required for the proper delivery of the pleadings that are used to start a proceeding to ensure that the party is given proper notice of the proceeding and the opportunity to mount a defence. See also "ordinary service," "pleadings," and "service, substituted."
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."
A term under the Family Law Act referring to property acquired by a spouse prior to the commencement of the spouses' relationship and certain property acquired by a spouse during the relationship, including gifts, inheritances, court awards, and insurance proceedings. A spouse is presumed to be entitled to keep their excluded property without having to share it with the other spouse. See "family property," "gift," and "inheritance."
The cross-examination of a party under oath or affirmation about the matters at issue in a court proceeding conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers, and a court reporter. The court reporter produces a transcript of the examination, which may, in certain circumstances, be used at trial. See "discovery."
Evidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See "evidence" and "premises."
A mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration," and "family law arbitrator."