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Family Law Rules – Rule 23: Evidence and Trial

Angela Princewill

November 21, 2015

RULE 23:  EVIDENCE AND TRIAL

TRIAL RECORD

23. (1) At least 30 days before the start of the trial, the applicant shall serve and file a trial record containing a table of contents and the following documents:

1. The application, answer and reply, if any.

2. Any agreed statement of facts.

3. If relevant to an issue at trial, financial statements and net family property statements by all parties, completed not more than 30 days before the record is served.

3.1 If the trial involves a claim for custody of or access to a child, the applicable documents referred to in rule 35.1.

4. Any assessment report ordered by the court or obtained by consent of the parties.

5. Any temporary order relating to a matter still in dispute.

6. Any order relating to the trial.

7. The relevant parts of any transcript on which the party intends to rely at trial.

8. Any evidence that is the subject of an order made under clause 1 (7.2) (g).  O. Reg. 114/99, r. 23 (1); O. Reg. 202/01, s. 6 (1, 2); O. Reg. 6/10, s. 8 (1, 2); O. Reg. 69/15, s. 9 (1).

RESPONDENT MAY ADD TO TRIAL RECORD

(2) Not later than seven days before the start of the trial, a respondent may serve, file and add to the trial record any document referred to in subrule (1) that is not already in the trial record.  O. Reg. 114/99, r. 23 (2).

SUMMONS TO WITNESS

(3) A party who wants a witness to give evidence in court or to be questioned and to bring documents or other things shall serve on the witness a summons to witness (Form 23) by special service in accordance with subrule 6 (4), together with the witness fee set out in subrule (4).  O. Reg. 114/99, r. 23 (3); O. Reg. 322/13, s. 13.

WITNESS FEE

(4) A person summoned as a witness shall be paid, for each day that the person is needed in court or to be questioned,

(a) $50 for coming to court or to be questioned;

(b) travel money in the amount of,

(i) $5, if the person lives in the city or town where the person gives evidence,

(ii) 30 cents per kilometre each way, if the person lives elsewhere but within 300 kilometres of the court or place of questioning,

(iii) the cheapest available air fare plus $10 a day for airport parking and 30 cents per kilometre each way from the person’s home to the airport and from the airport to the court or place of questioning, if the person lives 300 or more kilometres from the court or place of questioning; and

(c) $100 per night for meals and overnight stay, if the person does not live in the city or town where the trial is held and needs to stay overnight.  O. Reg. 114/99, r. 23 (4).

MEANING OF “CITY OR TOWN”

(4.1) For the purposes of subrule (4), a municipality shall be considered a city or town if it was a city or town on December 31, 2002.  O. Reg. 92/03, s. 2.

CONTINUING EFFECT OF SUMMONS

(5) A summons to witness remains in effect until it is no longer necessary to have the witness present.  O. Reg. 114/99, r. 23 (5).

SUMMONS FOR ORIGINAL DOCUMENT

(6) If a document can be proved by a certified copy, a party who wants a witness to bring the original shall not serve a summons on the witness for that purpose without the court’s permission.  O. Reg. 114/99, r. 23 (6).

FAILURE TO OBEY SUMMONS

(7) The court may issue a warrant for arrest (Form 32B) to bring a witness before the court if,

(a) the witness has been served as subrule (3) requires, but has not obeyed the summons; and

(b) it is necessary to have the witness present in court or at a questioning.  O. Reg. 114/99, r. 23 (7).

INTERPROVINCIAL SUMMONS TO WITNESS

(8) A summons to a witness outside Ontario under the Interprovincial Summonses Act shall be in Form 23A.  O. Reg. 114/99, r. 23 (8).

SETTING ASIDE SUMMONS TO WITNESS

(9) The court may, on motion, order that a summons to witness be set aside.  O. Reg. 114/99, r. 23 (9).

ATTENDANCE OF A PRISONER

(10) If it is necessary to have a prisoner come to court or to be questioned, the court may order (Form 23B) the prisoner’s custodian to deliver the prisoner on payment of the fee set out in the regulations under the Administration of Justice Act.  O. Reg. 114/99, r. 23 (10).

CALLING OPPOSING PARTY AS WITNESS

(11) A party may call the opposing party as a witness and may cross-examine the opposing party.  O. Reg. 544/99, s. 9.

ATTENDANCE OF OPPOSING PARTY

(11.1) A party who wishes to call an opposing party as a witness may have the opposing party attend,

(a) by serving a summons under subrule (3) on the opposing party; or

(b) by serving on the opposing party’s lawyer, at least 10 days before the start of the trial, a notice of intention to call the opposing party as a witness.  O. Reg. 544/99, s. 9.

OPPOSING PARTY DISOBEYING SUMMONS

(12) When an opposing party has been served with a summons under subrule (3), the court may make a final order in favour of the party calling the witness, adjourn the case or make any other appropriate order, including a contempt order, if the opposing party,

(a) does not come to or remain in court as required by the summons; or

(b) refuses to be sworn or to affirm, to answer any proper question or to bring any document or thing named in the summons.  O. Reg. 114/99, r. 23 (12).

READING OPPOSING PARTY’S ANSWERS INTO EVIDENCE

(13) An answer or information given under rule 20 (questioning) by an opposing party may be read into evidence at trial if it is otherwise proper evidence, even if the opposing party has already testified at trial.  O. Reg. 114/99, r. 23 (13).

READING OTHER PERSON’S ANSWERS INTO EVIDENCE

(14) Subrule (13) also applies, with necessary changes, to an answer or information given by a person questioned on behalf of or in place of an opposing party, unless the trial judge orders otherwise.  O. Reg. 114/99, r. 23 (14).

USING ANSWERS — SPECIAL CIRCUMSTANCES

(15) Subrule (13) is subject to the following:

1. If the answer or information is being read into evidence to show that a witness’s testimony at trial is not to be believed, answers or information given by the witness earlier must be put to the witness as sections 20 and 21 of the Evidence Actrequire.

2. At the request of an opposing party, the trial judge may direct the party reading the answer or information into evidence to read in, as well, any other answer or information that qualifies or explains what the party has read into evidence.

3. A special party’s answer or information may be read into evidence only with the trial judge’s permission.  O. Reg. 114/99, r. 23 (15).

REBUTTING ANSWERS

(16) A party who has read answers or information into evidence at trial may introduce other evidence to rebut the answers or information.  O. Reg. 114/99, r. 23 (16).

USING ANSWERS OF WITNESS NOT AVAILABLE FOR TRIAL

(17) The trial judge may give a party permission to read into evidence all or part of the answers or information given under rule 20 (questioning) by a person who is unable or unwilling to testify at the trial, but before doing so the judge shall consider,

(a) the importance of the evidence;

(b) the general principle that trial evidence should be given orally in court;

(c) the extent to which the person was cross-examined; and

(d) any other relevant factor.  O. Reg. 114/99, r. 23 (17).

TAKING EVIDENCE BEFORE TRIAL

(18) The court may order that a witness whose evidence is necessary at trial may give evidence before trial at a place and before a person named in the order, and then may accept the transcript as evidence.  O. Reg. 114/99, r. 23 (18).

TAKING EVIDENCE BEFORE TRIAL OUTSIDE ONTARIO

(19) If a witness whose evidence is necessary at trial lives outside Ontario, subrules 20 (14) and (15) (questioning person outside Ontario, commissioner’s duties) apply, with necessary changes.  O. Reg. 114/99, r. 23 (19).

EVIDENCE BY AFFIDAVIT, OTHER METHOD

(20) A party may request that the court make an order under clause 1 (7.2) (i) permitting the evidence of a witness to be heard by affidavit or another method not requiring the witness to attend in person. O. Reg. 69/15, s. 9 (2).

(20.1) Revoked: O. Reg. 69/15, s. 9 (2).

CONDITIONS FOR USE OF AFFIDAVIT OR OTHER METHOD

(21) Evidence at trial by affidavit or another method not requiring a witness to attend in person may be used only if,

(a) the use is in accordance with an order under clause 1 (7.2) (i);

(b) the evidence is served at least 30 days before the start of the trial; and

(c) the evidence would have been admissible if given by the witness in court.  O. Reg. 114/99, r. 23 (21); O. Reg. 202/01, s. 6 (4); O. Reg. 69/15, s. 9 (3, 4).

AFFIDAVIT EVIDENCE AT UNCONTESTED TRIAL

(22) At an uncontested trial, evidence by affidavit in Form 14A or Form 23C and, if applicable, Form 35.1 may be used without an order under clause 1 (7.2) (i), unless the court directs that oral evidence must be given.  O. Reg. 114/99, r. 23 (22); O. Reg. 202/01, s. 6 (5); O. Reg. 6/10, s. 8 (3); O. Reg. 69/15, s. 9 (5).

EXPERT WITNESS REPORTS

(23) A party who wants to call an expert witness at trial shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25),

(a) at least 90 days before the start of the trial; or

(b) in the case of a child protection case, at least 30 days before the start of the trial.  O. Reg. 6/10, s. 8 (4).

SAME, RESPONSE

(24) A party who wants to call an expert witness at trial to respond to the expert witness of another party shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25),

(a) at least 60 days before the start of the trial; or

(b) in the case of a child protection case, at least 14 days before the start of the trial.  O. Reg. 6/10, s. 8 (4).

SAME, CONTENTS

(25) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The substance of the expert’s proposed evidence.  O. Reg. 6/10, s. 8 (4).

SUPPLEMENTARY REPORT

(26) Any supplementary expert witness report shall be signed by the expert and served on all other parties,

(a) at least 30 days before the start of the trial; or

(b) in the case of a child protection case, at least 14 days before the start of the trial.  O. Reg. 6/10, s. 8 (4).

FAILURE TO SERVE EXPERT WITNESS REPORT

(27) A party who has not followed a requirement under subrule (23), (24) or (26) to serve and file an expert witness report, may not call the expert witness unless the trial judge allows otherwise.  O. Reg. 6/10, s. 8 (4).

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