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Family Law Trials in Supreme Court (view source)
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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. | 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 | === 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). | 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 Subpoena to Witness|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 | 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 Subpoena to Witness|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 [https://www.canlii.org/en/bc/laws/regu/bc-reg-169-2009/latest/part-7/bc-reg-169-2009-part-7.html 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: | The daily witness fee is $20 in addition to the travel costs of the party being examined as follows: | ||
#Mileage: | |||
#:(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: | |||
<blockquote> | |||
(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. | |||
</blockquote> | |||
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. | |||
=== Expert witnesses === | |||
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: | |||
<blockquote> | |||
(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. | |||
</blockquote> | |||
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 Notice to Cross-examine|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 Notice to Cross-examine|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. | |||
For more information about section 211 reports, see: | |||
[[How Do I Get a Needs of the Child Assessment?|How do I get a needs of the child assessment?]] | |||
[[How Do I Get a Views of the Child Report?|How do I get a views of the child report?]] | |||
=== 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 F47 Notice to Produce|Form 47]], and served on the other party at least 2 days before trial. | |||