What Happenes At A Family Law Trial?
If you and the other party are unable to work out the different issues in your case during the case management process or if the issues are more complex, the judge may order your case to a trial.
Before heading to trial
If ordered to a trial, you can choose to represent yourself, although it is a good idea to have a lawyer assist you. A lawyer is better able to help you understand and navigate through complex issues, explain your rights and responsibilities, and explain the different court procedures to you.
Preparing for Trial
Prior to the start of trial, it is important to be well prepared. There are several documentation and preparation required. These include:
Firstly, if you are the applicant or moving party, under Rule 23 of the Family Law Rules, you are required to prepare, serve and file a trial record no later than thirty (30) days before the start of trial. If you are the responding party, you can add to the trial record no later than seven (7) days before the start of trial.
The trial record will include things such as:
- A table of contents;
- A copy of all pleadings (the application or motion, answer or response, and reply, if any);
- Any agreed statement of facts;
- If they are relevant to an issue at trial, financial statements and net family property statements for all parties, completed or updated not more than 30 days before the record is served;
- Any assessment reports;
- Any temporary order relating to a matter that has not been resolved;
- Any order relating to the trial; and
- The relevant parts of any transcript on which you intend to rely at trial.
Often aiding in presenting your evidence, usually particular persons(s) or documents may be needed. It is also important to understand there are several procedural rules to consider when arranging your witnesses such as compelling a witness to attend by using a Summons to a Witness.
In deciding who can be a witness, this can include anyone from expert witnesses to character witnesses. When using an expert witness there are also other special rules that need to be considered such as preparing, serving and filing an expert’s report, and meeting the threshold to be qualified as a an ‘expert’.
Book of Exhibits:
Admissible documents that are relevant to your case and that you plan to rely on in the trial will be compiled into a book and will be introduced at trial. These can include, copies of bank account statements, emails, text messages, and even pictures.
There are also several issues surrounding what types of documents are admissible. Therefore, it is important to have a lawyer’s assistance in preparing these documents and in understanding the applicable rules of evidence.
The Trial Itself
The judge appearing before your trial will not be the same judge you had at your case management conferences. This is due to the private nature of these discussions, given that the main purpose is to assist the parties in reaching a settlement and narrowing down the issues between the parties.
The judge alone without a jury will decide family cases and the trial will generally be open to the public to view unless the judge grants a closed hearing.
The length of a trial will vary depending on the number and complexity of issues. It can range from anywhere to a couple days to a couple weeks.
A trial is your opportunity to prove what you’ve said and asked for in your pleadings by using witnesses, including yourself, and other evidence, such as expert evidence. The judge makes a decision using a test called the ‘balance of probabilities’. This means that your evidence has to be more believable than your partner’s evidence.
On the first day, and before your actual trial starts, the judge deals with any preliminary or procedural matters raised by either counsel or self represented parties. After dealing with the preliminary/procedural matters, your case will follow these steps:
1. Opening statements
- Each party will have a chance to provide the judge with an overview of their case and the different issues they are claiming. An Opening Trial Statement will act as a brief summary of your case.
2. The Applicant gives their evidence
- The applicant will go first in presenting their case through witnesses and evidence;
- The applicant will usually be the first witness, this is referred to as examination in chief; and
- Calling any other witness(s) including expert witnesses.
- The Respondent will respond to the applicant’s evidence by way of cross-examination. Cross-examination will allow the responding party to question any witness’s testimony including the applicant.
4. The Respondent gives their evidence
- The respondent will then present their evidence in the same manner as the applicant.
- This includes calling the respondent as a witness for examination in chief and calling any other witness(s) including expert witnesses.
- The applicant will respond to the respondent’s evidence by way of cross-examination. Cross-examination will allow the responding party to question any witness testimony including that of the respondent.
6. Closing Statements
- After all the witnesses have been called and evidence has been presented, each party will end the trial by closing statements, summaries of the evidence heard, and the law and analysis of their position.
- Closing statements can be made orally or in writing and given to the judge prior to.
7. The Decision
- After closing arguments are done, the judge may be ready to make a decision right then and there.
- If the judge decides to ‘reserve’ the decision, this means that there will be no immediate decision. This is because they need more time to look through the evidence presented and review their notes. Thus, the parties may need to come back to court for the decision or you may be notified of the decision in writing.
8. Get your order
- Once a decision is made the parties will each receive their written court order stipulating the terms the judge has decided on.
How can we help?
Here at AP Lawyers, we believe it is important to have proper legal advice and assistance especially when your matter is one that heads to a trial. Given both the complexity of court procedures and being adequately prepared to present your case, it is vital you have legal assistance from an experienced and trained family lawyer.
We have lawyers specifically experienced in litigating family law matters at trial. Having a lawyer’s assistance can be extremely useful in providing you with the relief, comfort and confidence that you will be well prepared to successfully present your case in front of a judge.
What can we do for you?
- Help you in understanding the various court procedures specific to family law trials; including your rights and responsibilities and rules relating to evidence.
- Preparing and gathering all the necessary documentation (trial records, book of exhibits, expert report(s), etc.)
- Arranging and preparing witnesses (including witness preparation, gathering expert report(s) or supplementary report, if needed).
- Represent and advocate the issues of your case with the appropriate evidence.
- Provide you with guidance, assurance, and support throughout the entire trial process.
Recent Success Stories
G. v. A.
Following G & A’s separation, G retained the services of AP Lawyers for the purposes of trial preparation and attendance. G wanted assistance in preventing A from alienating G from the children’s lives, increase in access times, and unsupervised access to their children. A wanted to relocate to another province with the children and wanted G to have very minimal supervised access to the children.
At trial, Angela Princewill was able to get G unsupervised access and reasonable access to the children. Along with access, our lawyer was also able to significantly resolve other issues such as child support arrears and equalization in favour of G’s position.
M. v. A.
Following M & A’s separation, M retained AP Lawyers to help him negotiate more parenting time for the parties’ child. This matter went to trial because M wanted equal parenting time with their child and joint custody so he could be involved in making important decisions affecting the child. A wanted to have sole custody and only minimal access to M.
At trial, Angela Princewill was able to show that M is a loving, capable and experienced father, and that it was in the child’s best interest to spend maximum time with him. M was able to have both shared decision making and shared parenting time with A, on a graduated scale. Our lawyer was also able to resolve property and equalization issues in favour of M’s position.
Areas we serve
- Richmond Hill
- Kawartha Lakes
- Port Hope
- Port Perry