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 as well as being 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 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 Supreme Court Family Rules)
- 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’ evidence is introduced by affidavit).|
Summary trials are appealing because they can often be dealt with in fewer days of court time, 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 sufficient evidence before the court 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 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 B.C.L.R. (2d) 202 (C.A.)).
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 Rules) and a summary trial application must be set for hearing in accordance with Part 10 of the Supreme Court Rules (Obtaining Orders Other Than at Trial).
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 1st day of trial (not the last or any day in between) and should be considered well in advance of the actual deadline. The main (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) and conducting interviews with collateral witnesses, and then preparing a written report of the observations and opinions (if asked that an opinion be provided).
The cost of such a report can vary greatly from a couple or a few thousand dollars for interviews of the children only to over $10,000 (and often considerably more) for a more extensive assessment and report. Publicly funded reports (free-of-charge) are available through the province but are less extensive, often take longer to prepare, and require a court order.
While the appointed person’s recommendations are not binding on the court, the recommendations are often very persuasive at trial and therefore often assist in moving settlement discussions forward.
For more information on these types of reports, see the following sections of this website:
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 person is capable of earning (i.e.: in their business or their field of 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 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 as an issue arising out of:
(a) a claim for division of property and debt or division of a pension under the Family Law Act or out of an application for a "FHRMIRA order" (which means an order made under the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) or under a First Nation's law made under that Act);
(b) a claim for an interest in property based on unjust enrichment or other trust claims, or
(c) a claim for compensation based on unjust enrichment.
(See Rule 13-3(1) of the Supreme Court Family Rules).
This means that if you want an expert opinion about an issue that meets the definition of “financial issue” and the other party doesn’t, you may have to make an interim court application to get the expert evidence that you need to go to trial. One option is to offer to pay the full cost of the report up front, but on a “without prejudice” basis so that a judge may later consider whether the other party should contribute to the cost of the report as well (usually after the judge has made his/her decision).
Each party has the right to cross-examine a joint expert at trial (Rule 13-4(10) of the Supreme Court Rules).
Each party is required to cooperate with the jointly appointed expert and to produce in a timely manner all relevant documents and information to the jointly appointed expert (Rule 13-4(9) of the Supreme Court Rules).
Expert evidence about other issues
If either party wants to present expert evidence on any other issues (ie: 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
The expert will need to be retained by way of a letter of instruction or retainer letter. If the expert accepts the retainer or instructions, it is likely that the parties will be required to pay a retainer to the expert right away and before the expert gets started on the report.
If the expert is retained by both parties, the parties must then reach agreement about the following issues:
(a) the identity of the expert; (b) the issue in the family law case the expert opinion evidence may help to resolve; (c) any facts or assumptions of fact agreed to by the parties; (d) for each party, any assumptions of fact not included under paragraph (c) that the party wishes the expert to consider; (e) the questions to be considered by the expert; (f) when the report must be prepared by the expert and given to the parties; (g) responsibility for fees and expenses payable to the expert.
(See Rule 13-4(1) of the Supreme Court Family Rules). That agreement must then be put in writing (in the form of a letter to the expert or an agreement between the parties and the expert) (See Rule 13-4(2) of the Supreme Court Family Rules) and the expert must consent the appointment reflected in the agreement.
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) of the Supreme Court Family Rules). 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) of the Supreme Court Family Rules). 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) of the Supreme Court Family Rules). Other factors that the court may consider include:
(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.
(see Rule 13-4(8) of the Supreme Court Family Rules).
This chapter discusses the process for bringing interim applications in 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 of the Supreme Court Family Rules.
The expert’s report
There are specific requirements for an expert’s report is set out in Rule 13-6 (1):
- must be signed by the expert;
- must include the certification required under Rule 13-2(2); and
- must 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 his or her 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 his or her 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 him or her 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) of the Supreme Court Family Rules), 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 to provide to the other party, upon request, the following information:
(i) any written statement or statements of facts on which the expert's opinion is based; (ii) a record of any independent observations made by the expert in relation to the report; and (iii) any data compiled by the expert in relation to the report; (iv) 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 his or her 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. The party receiving the request must respond promptly to it (see Rule 13-6(8) of the Supreme Court Rules).
A party who intends to use an expert’s report at trial is responsible for notifying the expert (1) of the trial date as soon as possible after the trial date is scheduled or the expert retained, whichever is later, and (2) that the expert may be required to attend trial for the purpose of cross-examination (See Rule 13-6(9) of the Supreme Court Rules).
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) of the Supreme Court Family Rules).
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 s/he is available by telephone to speak with their lawyer if instructions are needed during the TMC) . The trial management conference 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 trial management conference 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 trial management conference (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 trial management conference, the judge or master may consider and make orders about the following issues (see Rule 14-3(9)):
(a) direct the parties to attend a settlement conference;
(b) amendment of pleadings within a fixed time;
(c) a plan for how the trial should be conducted;
(d) admissions of fact at trial;
(e) admission of documents at trial, including:
- (i) agreements as to the purposes for which documents may be admitted, and
- (ii) the preparation of common books of documents and document agreements;
(f) imposing time limits for the direct examination or cross-examination of witnesses, opening statements and final submissions;
(g) 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;
(h) directing that evidence of witnesses be presented at trial by way of affidavit;
(i) 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;
(j) directing that the parties present opening statements and final submissions in writing;
(k) adjournment of the trial;
(l) directing that the number of days reserved for the trial be changed;
(m) adjourning the trial management conference;
(n) directing the parties to attend a further trial management conference at a specified date and time; and
(o) 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 Trial Management Conference, 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 Trial Management Conference.
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
The trial certificate is a short document (Form 46) that provides notice to the court that you are ready to proceed with the trial as scheduled. It specifically sets out that (1) the party filing the form is ready to proceed with the trial as scheduled; (2) the party filing the form has completed all examinations for discovery; (3) the current time estimate for the length of the trial; and (4) 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) of the Supreme Court Family Rules). 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 of the Supreme Court Family Rules.
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 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 cross-examined before trial.
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 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 his or her 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 (ie: presenting a document or having a witness testify).
Once you know where there are gaps in your evidence, you can figure out what further evidence you need. It is also useful to make note of where in the outline the evidence fits in and address that in your closing argument.
You should also consider whether there is any evidence that disproves an aspect of your case and any evidence you know (or even think you know) the other party has to prove his or her case because these factors should be taken into 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 (such as filing a 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; 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 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 the Discovery Process in Family Matters 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 (i.e.: a letter from a family doctor, dated …); it does not mean agreeing to the truth of its contents (i.e.: the diagnosis or prognosis within the letter from the family doctor);
- Ask the other party to agree to a form of document agreement which may include agreement 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 reach agreement 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 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) 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 entitles either party to require the other party to bring to the trial any document listed in the other party’s list of documents by service a notice in Form F47 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 that are relevant to the case and that are within the witness’ direct experience (in contrast to having heard information from another person who is not testifying).
Witnesses are generally not allowed to testify about their opinions, although there are exceptions to this general rule. One notable exception: a lay person is allowed to provide an opinion based upon personal observation of something that is commonly known (such as coming to the conclusion that it was raining outside because everyone who came inside was soaking wet). A second notable exception: an expert witness is allowed to provide an opinion based upon their specialized education, training, skills, certification 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 (Rule 14-7(32) & (34) of the Supreme Court Family Rules).
The daily witness fee is $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), $.30 per km each way by road between his/her 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 his/her 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, his or her education if relevant, and his or her relationship to the parties, and then move on to the focused areas of inquiry.
You can only ask your witnesses open ended questions, meaning questions that do not suggest the answers (those types of questions are limited to cross examination of the other party’s witnesses).
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 Rule14-7(52) about the use of transcripts of pre-trial examinations of witnesses) – although even then, the court retains the right to require the witness to attend the trial to testify in person (see Rule 14-7(40) of the Supreme Court Family Rules). Doing so may be appropriate in the following circumstances:
(a) Where the transcript evidence can be used to contradict or impeach the testimony of the person at trial; or
(b) It is necessary in the interests of justice for one of the following reasons:
- (i) the person is unable to testify due to death, age, infirmity, sickness or imprisonment;
- (ii) the person is out of the jurisdiction, or
- (iii) the person cannot be served with a subpoena.
Doing so also requires either 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: Interim Applications in Family Matters.
Do 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 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 Rules).
If the expert has been retained by one party:
(a) the party who retained the expert may conduct a direct examination of the expert which is limited to clarifying terminology in the report or to otherwise make the report more understandable (Rule 13-7(5) of the Supreme Court Family Rules);
(b) the other party is permitted to cross-examine the expert at trial provided that party gave the necessary notice of their intention to cross-examine the expert; and
(c) after the cross-examination, the party who retained the expert may be permitted to 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 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 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 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.
- 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
- 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 party’s 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 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 &/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 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 (ie: family, friend, counselor).
- For more tips on personal preparation to manage the trial process, see the Legal Services Society of British Columbia’s factsheets:
- 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:
(a) 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.
(b) Claimant’s Presentation of Evidence: The claimant (or claimant’s counsel) will then call each of his/her witnesses, including the claimant 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 claimant has finished presenting his/her witnesses and evidence, the respondent (or respondent’s counsel) is 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 claimant (or claimant’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 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; if the judge is 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; and
- When speaking to a witness, use Mr., Ms., or Dr. followed by their surname, rather than the witness’ first name (which is too casual);
- For more tips on conducting a trial in Supreme Court, see the Legal Services Society of British Columbia’s factsheet: Tips for conducting your Supreme Court trial.
Taxable costs and disbursements
There is a distinction between costs and disbursements. Costs are intended as a partial payment of the legal fees of the successful party. 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.
Both are dealt with in Rule 11-1 of the Supreme Court Family Rules. The usual rule is that the successful party will be awarded their taxable costs and disbursements on a "party and party" basis, but there are many exceptions.
An award of costs normally does not amount 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 his/her decision.
For more information about costs see the Legal Services Society of British Columbia’s factsheet on costs.
- Supreme Court Family Practice Directions
- Supreme Court Administrative Notices
- Supreme Court Trial Scheduling
- Supreme Court website
- Legal Services Society Family Law in BC website:
- Justice Education Society Website for BC Supreme Court
|The above was last reviewed for legal accuracy by Shannon Aldinger, June 15, 2017.|
|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.|