Difference between revisions of "Family Law Trials in Supreme Court"

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Family Law Trials in Supreme Court (view source)

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If you are unable to settle your case to your satisfaction, you will need to go to trial.   
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 ''[http://canlii.ca/t/8mcr Supreme Court Family Rules]'') some of which arise months before the trial date.   
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 ''[http://canlii.ca/t/8mcr 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. Although the law of evidence is beyond the scope of this chapter, a good general summary is found in ''[http://www.clicklaw.bc.ca/resource/2335 Proving Your Case in Supreme Court]'' (although be aware this references is not specific to family law, and talks about the Supreme Court ''Civil'' Rules rather than the Supreme Court ''Family'' Rules).
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 ''[http://www.clicklaw.bc.ca/resource/2335 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.


== Preparing for trial in the Supreme Court ==
== 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).
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 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.
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 factors a court will consider in deciding whether a summary trial is appropriate include:   
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*any urgency and prejudice likely to arise by reason of delay,  
*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 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,  
*the course of the proceedings,  
*whether the summary trial may create an unnecessary complexity in the resolution of the dispute and  
*whether credibility is a critical factor in the determination of the dispute,  
*whether the application would result in litigating in slices (see ''[http://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 B.C.L.R. (2d) 202 (C.A.)).
*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 ''[http://canlii.ca/t/1p6qn 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 more common where lawyers are involved, and rare if both parties are self-represented.   
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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 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 Family Court Rules (Obtaining Orders Other Than at Trial).   
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 [http://canlii.ca/t/8mcr Supreme Court Family Rules].   


=== Preparing for trial ===
=== Preparing for trial ===
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|-  
|-  
| 84 days:
| 84 days:
| Service of expert report on other party (Rule 13-6(3))
| Service of expert report on other party (Rule 13-6(3)).
|-
|-
| 42 days:
| 42 days:
| Service of expert report in response to other party’s expert report (Rule 13-6(4))
| Service of expert report in response to other party’s expert report (Rule 13-6(4)).
|-
|-
| 28 days:
| 28 days:
| Attendance at a trial management conference (Rule 14-3(1))
| 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))
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:
| 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
| 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:
| 21 days:
| Notice of Objection to other party’s expert report must be served (Rule 13-6(10))
| Notice of Objection to other party’s expert report must be served (Rule 13-6(10)).
|-
|-
| 14-28 days:
| 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
| 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:
| 14-28 days:
| The Trial Certificate must be filed and served on the other party (Rule 14-5(2))
| The Trial Certificate must be filed and served on the other party (Rule 14-5(2)).
|-
|-
| 7 days:
| 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))
| 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:
| 7 days:
| Service of subpoena & witness fees on any witnesses (Rule 14-7(32) & (34) & Form F23)
| 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.
Before triggering any of these deadlines, however, you’ll need to schedule the trial date.


=== Scheduling a trial ===
=== Scheduling a trial ===
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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.
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 F44 Notice of Trial|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).
In order to schedule a trial, you need to file a Notice of Trial in [[Form F44 Notice of Trial|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).
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.
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 [[{{PAGENAME}}#File and serve Trial Record|File & Serve Trial Record]]).
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 [[{{PAGENAME}}#File and serve Trial Record|File & Serve Trial Record]]).


=== Consider amendments to pleadings before filing the notice of trial ===
=== 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)).
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 ===
=== Consider a Section 211 (Parenting Capacity) report or a Views of the Child report ===
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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:
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:


<blockquote>
<blockquote><tt>(a) the needs of a child in relation to a family law dispute;
(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;
(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.
(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.
</blockquote>
</tt></blockquote>


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).   
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).   
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