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

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.

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:

# that the expert may be required to attend trial for the purpose of cross-examination (See Rule 13-6(9) of the Supreme Court Family 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).

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).   

# 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

* imposing time limits for the direct examination or cross-examination of witnesses, opening statements and final submissions,

* 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

The trial certificate is a short document ([[Form F46 Trial Certificate|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.  

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.

# '''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).

# '''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).

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.

* 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  

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 [http://canlii.ca/t/8mcr 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

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);