Court Process

If you are unable to resolve your family law issues by agreement you may decide you need to start a court case. In most cases you will be required to participate in family dispute resolution to try and resolve your issues before you can proceed with a court case.

Whether you are being represented by a lawyer, using a lawyer for only some parts of your case, or representing yourself, some basic information about the process can be helpful. Below is a brief overview of the process. If you are not represented by a lawyer you should look at the information in Unrepresented Litigants. If you want to use the Form Wizard to make or respond to a court application create a free account to get started.

Parties who have applied to the court for a divorce, or a parenting order or support order under the Divorce Act have a legal obligation to:

• exercise their rights under a parenting order in a way that is consistent with the best interests of the child
• protect, to the best of their ability, the child from any conflict arising from the court proceeding
• try to resolve their issues using a family dispute resolution process unless it would be inappropriate to do this
• provide complete, accurate and up-to-date information when disclosure of information is required by law
• comply with any court order until it is no longer in effect

Although these duties are only set out in the Divorce Act, they generally apply to any family law case. For example, in some places in the province parties to any family law case must use a dispute resolution process. All parties are also required to provide accurate information to the court and to comply with all court orders.

In Saskatchewan family law cases are started with a Petition. The person who starts the case is called the Petitioner and the other party is called the Respondent. You can ask for a number of different orders with a Petition including divorce, parenting orders, support orders and property orders. In the Petition you also give the court some basic information about yourself and the other party including:

• where each of you live
• where each of you works and what you earn
• how long you have been together
• whether you have children and, if you do, how they are currently being supported and cared for

The Petition starts the case and lets the other party and the court know what is being asked for and why. The Petition only includes brief statements about why the party wants the orders requested. Nothing in the Petition is evidence that a court would base a decision on.

If the other party does not respond at all or agrees with what was requested, the court can make orders based on the Petition. If the other party doesn’t agree with what is requested under the Petition and responds voicing their disagreement or requesting different orders, the matter may ultimately need to go to trial.

A Petition only starts the case. If you need court orders in the near future you can ask for interim orders. This can be done after a Petition has been issued and served. If you are not the party that started the case with a Petition you must file an Answer and Counter-petition before you apply for interim orders. You request interim orders by filing and serving an Application for Substantive Interim Relief, an Affidavit and Draft Orders. The Application sets out what interim orders you want. The Affidavit provides the court with the evidence you have to support your case. The Draft Orders set out the orders you want the court to make. These cases are decided in Chambers. They can be decided on the parties’ Affidavit evidence only.

If your case is being heard in Regina or Saskatoon you cannot start an application for interim orders until there has been a Judicial Case Conference. You must participate in one before you serve and file your application, affidavits or any other material. You need to complete a Request for a Judicial Case Conference and serve it on the other party 3 days before you file it with the court. If the court determines that your case is ready for a Judicial Case Conference they will schedule one with a Notice of Judicial Case Conference. You need to serve this on the other party at least 7 days before the conference.

At the conference the parties meet with the judge and discuss matters such as identifying the issues, resolution options, ensuring that all required steps have been taken and whether the required documents have been filed. After the conference the judge can set a date for the application to be heard in chambers or make other orders including requiring another conference.

If you are served with family law court forms you have a number of options.

You can decide not to respond if you agree with what the other party is asking for. Depending on the case, even if you do not respond you may need to provide financial and property information. The court can then make orders based on the Petition and supporting documents.

You can respond with an Answer if you do not agree with what the other party is asking for but you do not want to ask for your own orders.

You can respond with an Answer and Counter-Petition if you disagree with the Petitioner receiving the orders they requested and you want to ask for your own orders.

If you have also been served with a Notice of Application, you respond by filing your own Affidavit with evidence to show the court why the other party should not get the orders they asked for and to ask for different orders.

If you started a case and the other party now agrees with the orders you want you can ask for consent orders. You can do this even if the other party responded to the case you started as long as they now agree.

If you started a case and the other party did not respond at all within the time allowed you can ask for uncontested orders.

A case still needs to be started to ask for uncontested or consent orders, but the parties do not need to appear in Chambers or have a trial. Instead once the case has been started the party seeking the consent or uncontested orders files the required information with the court. If you are asking for consent orders the other party will need to sign a draft of these orders indicating that they agree to the orders. Courts can however decide that they need the parties to appear even thought they are asking for consent or uncontested orders.

You can use the Form Wizard to apply for consent or uncontested orders.

Consent or uncontested orders can be requested for any family issue including support, parenting or the division of property. They are commonly requested when the only order the parties want is a divorce. Even though the parties do not appear in court to present their case, the court does not need to make the requested consent or uncontested orders, especially if the interests of children are involved. In fact courts cannot grant a divorce unless there is evidence that any children are adequately provided for financially.

Courts make decisions based on the law and on sworn testimony. Sworn testimony can be given in-person in court or in writing by Affidavit, depending on the situation. Courts can be faced with conflicting evidence about what has happened in a particular case. Some of the things that a court might consider in deciding between different versions of events include:

• Did the person giving the evidence contradict themselves by giving different accounts at different times?
• Is there detail to back-up what the person is saying?
• Is the person giving the evidence being evasive – i.e. attempting to avoid saying anything about certain issues?

When evidence is submitted to the court in the form of an Affidavit or in-person by a witness, the person giving the evidence must swear an oath or affirmation that they are telling the truth. The difference between an oath and an affirmation is that an oath refers to God. People can choose to take an oath or an affirmation depending on their personal beliefs. It is a criminal offence, called perjury, to knowingly make false statements after taking an oath or affirming to tell the truth.

Affidavits must be signed in front of a Commissioner for Oaths or a Notary Public, who will ask the person signing to take an oath or affirm that the contents of the Affidavit are true. The Commissioner for Oaths or Notary Public does not consider the content of the Affidavit or provide any advice about the case. You can look in the yellow pages to find a Commissioner for Oaths or a Notary Public. All lawyers in Saskatchewan are also Commissioners for Oaths and Notaries Public. They will charge a fee for their service. You can also take your court documents to the Court of King‘s Bench where you will be filing them and staff at the courthouse will provide this service for free.

Witnesses who appear in court will be asked to swear an oath or affirm to tell the truth before they begin their testimony.

Evidence to support your case is either given by Affidavit or as a witness in court, depending on the circumstances. In both cases the following are important points to keep in mind:

• Tell the truth – It is a criminal offence to knowingly make a false statement.
• Base your statements on personal knowledge - if you are a witness you can generally only testify about things you have personal knowledge of, not about things you heard about from someone else. In an Affidavit you can include things the other party told you. In an Affidavit you can also, in some cases, include something that someone other than the other party has told you. Generally you can only do this if the application is for a temporary, called interim, order. You must say in your Affidavit that your information is based on what someone else told you and you must believe the information to be true. You must also explain why you are including this information instead of, for example, getting that person to swear their own Affidavit.
• Include facts not opinions – Affidavits and witnesses provide the court with information about what has happened not about what the persons thinks or feels about what happened. If your Affidavit contains arguments or speculation the court can refuse to consider it. If you start arguing your case when you are being a witness the other side can object.
• Include all the relevant facts and don’t include information that is not relevant – If you include facts that are not relevant the court can refuse to accept all or part of your Affidavit. If you testify about things that are not relevant the other side can object.
• Be precise – avoid generalities and use names and exact dates. For example say “On November 1, 2013 John Smith left the children alone from 6 pm to 10 pm” instead of something like “he/she often leaves the children alone.”
• Make it easy to understand – when testifying or making an Affidavit use simple language and short sentences. Organize the facts (chronologically is usually best) so that your story is easy to follow.
• Keep it as short as you can – include all the relevant information without rambling or repeating.

Applications are heard in Chambers at the courthouse. Chambers is a courtroom. Family law applications are made with a Notice of Application or an Application for Variation. These documents will state the date and time that you need to appear in Chambers to make your case or say why the other party should not get what they are asking for. The court can decide Applications based on Affidavit evidence but in some cases they may decide they need to hear oral evidence. Several applications from different parties may be scheduled for the same time and place as your matter. The following are things to keep in mind if you need to appear in Chambers:

• arrive early – you will need time to go through security and find the right courtroom
• let the court clerk know you are there
• do not eat, drink or chew gum
• remove your hat
• turn off all electronic devices
• when the judge arrives the clerk will announce their arrival and everyone stands while the judge enters
• take a seat and wait for your case to be called by the clerk
• when your case is called stand up and move to the front of the courtroom and introduce yourself - the Applicant (the person who is applying to the court) introduces themselves first then the Respondent (the person who is replying to the application) introduces themselves
• remain standing while presenting your case
• address a male judge as “My Lord” and a female judge as “My Lady”
• if you are the Applicant give the judge a quick summary of what you are asking for and why, and answer any questions the judge has politely and briefly
• if you are the Respondent give the judge a quick summary of why you think the other party should not get what they are asking for, why you should get what you are asking for (if you are asking for your own orders) and answer any questions the judge has politely and briefly
• do not interrupt the other party
• do not argue with the judge
• the judge may make a decision while the parties are there or may choose to reserve judgment, which means they will make the decision later

Anytime before a trial is booked for a case either party can apply for a summary judgment. A court can grant a summary judgment if the court is satisfied that there is no genuine issue that needs to be resolved by a trial or if the parties agree to have their case determined by summary judgment. The parties file Affidavits that contain evidence to support the request or to show why the request should be denied. The parties also file briefs that outline their arguments to support their positions.

In deciding if there is an issue that needs to go to trial the court considers the evidence including the credibility of the parties.

If your case is going to trial there will first be a pre-trial conference. Both parties ask the court to book a pre-trial date when they are ready by filing a Joint Request for a Pre-Trial with the court. If one party will not agree to book a pre-trial conference the other party can book one if they are ready for one. To do this that party must provide the same information that is in the Joint Request Form and a certificate that confirms that the other party was asked to sign the Joint Request but did not sign it within 20 days or give a reason for not signing it.

Both parties must attend the pre-trial conference. The goals of a pre-trial conference are to:

• allow the parties to participate in a problem-solving process
• allow settlement options to be presented which would not necessarily be available at trial
• allow the parties to receive the benefit of a trial judge’s views on issues
• seek settlement of disputes without a trial to save time and costs for the parties and to improve the efficiency of the court system

It if is not possible to settle the case the pre-trial conference will be used to consider:

• identifying and simplifying the issues
• whether any of the court forms filed by the parties should be amended
• whether either party is willing to admit certain facts so they will not need to be proven at trial
• whether the parties are ready for a trial
• the possibility that some individual issues could be settled by agreement
• whether there is any agreement about the value of any property in dispute
• the actual trial time required
• the date for trial
• any other matters that may help resolve the case

The pre-trial conference is conducted by a judge who will not be the trial judge. Where no settlement is reached, discussions between the parties are privileged, meaning that things that are said can’t be brought up at trial. If the parties come to an agreement those documents can be used outside of the pre-trial conference.

At least ten days before the pre-trial conference both parties need to file a pre-trial brief and give a copy of it to the other party.

Form 1 is used for pre-trial briefs and it has 6 parts.

1. Summary of Facts: A summary of relevant facts including:

• names and birth dates of the parties and any children of the relationship
• date the parties started living together and/or were married
• date of separation
• date the petition was issued
• dates and details in point form of any interim court orders or
  agreements between the parties

2. Facts in Detail: A detailed discussion of the relevant facts including:

• where the parties resided
• the roles adopted by the parties during the relationship
• employment, training and educational background of the
  parties
• parenting responsibilities towards any children of the relationship
• information regarding the condition, means, needs and circumstances of the parties
• having regard to the factors for the best interests of the child, information regarding the condition, means, needs and circumstances of any children of the relationship
• information regarding any anticipated change in the condition, means, needs and circumstances of the parties and any children of the relationship
• information regarding any family property exemptions claimed, any change in the value of family property that is relevant, the proposed date for setting a value for family property and the basis for the proposed value of family property, unless the parties agree on the value
• information regarding the most recent settlement offers and counter offers that have been exchanged between the parties

3. Summary of the Issues: Identify the outstanding issues for which relief is being requested from the Court and for which no resolution has been reached prior to the pre-trial settlement conference.

4. Argument: Details of the party’s position or argument with respect to the issues identified including:

• a detailed discussion of the relevant facts and points of law to be argued
• only the relevant portions of any legislation, rule of court, cases or other material that will be used to support the party's case

5. Conclusion: A concise summary of the relief requested.

6. Index to Tabs: A sequential list of the documents attached to the
pre-trial brief and the tab under which they may be found.

The pre-trial brief must also:

• clearly state on the first page the name of the party filing the brief
• include a summary of the evidence that the party is planning to use at trial
• If parenting of children is an issue, include a proposed parenting plan along with a proposal for decision-making with respect to the child or children
• include all documents, or legible copies of documents, intended to be used at trial that may be of assistance to the pre-trial judge in achieving the purposes of a pre-trial conference, including expert reports (parties can agree in writing that expert reports do not need to be included)
• include a proposal for settlement of the issues including any admissions of facts that the party wants to make just for the purposes of the pre-trial – not to be used at trial

If division of family property is an issue there are additional requirements. A property schedule must be included using Schedule A in the King's Bench Practice Directives.The Schedule must identify:

• each item of property
• the value of each item of property and the date of that value if not using the date of the application (the date of application is usually the date the Petition was issued)
• the value of any exemption being claimed for any item of property
• the proposed distribution of each item of property, including any exemptions or debts related to the property and how they will impact the distribution of the property
• whether there are any income tax consequences or other anticipated disposition costs
• if the value of any property, the amount of any exemption or the amount of any debt is not agreed upon, the documents (such as appraisals or bank statements) that support the proposed value

The following material provides some general information about trials. It is not a substitute for having the advice and assistance of a lawyer.

Before going to trial you need to look at the Rules of Court for conducting a trial in the Court of King’s Bench. You also need to look at family law legislation and case law so you can present your case to the court. You will also need to decide what evidence you are going to use to make your case to the court. At trial evidence is presented through witnesses and documents.

There are steps you can take to find out more about the other party’s case before you go to trial. You should already have documents such as the other party’s Financial Statement, if support is in issue, and Property Statement, if property is in issue.

If a Financial or Property Statement is required you can ask the other party to reply to up to 25 written questions relating to finances or property. The other party must then answer the questions in writing in the form of an Affidavit. If the other party objects to answering any of the questions the court can make a ruling about whether they must answer.

Another way to find out more about the other party’s case is to set up a questioning. At a questioning both parties, and their lawyers if they have them, meet with a court reporter. Each side can ask the other side to answer questions under oath about the dispute. The court reporter records the questions and answers.

Neither party can ask the other party any questions about parenting unless the court has given them leave to do this.

The parties can agree to have a questioning. If the other party will not agree you can apply to court to set up a date for questioning. Parties must pay a fee to have a court reporter present.

There are often people, including yourself, who have information that is relevant to your case. In deciding what witnesses you need to call to support your case, it is important to keep in mind the factors that the court considers when making the kind of order you are requesting. Information about what the court will consider when making a parenting order, a child or spousal support order and property orders can be found in those sections of site.

The court can disallow the testimony of a witness if what they are saying is not relevant to your case. Witnesses also need to speak to things that they have personal knowledge of. In most cases they cannot testify about things someone else told them – that other person would need to be called to testify personally.

Well before your trial date you will need to decide what witnesses you want to call to support your case. You should contact all your witnesses well ahead of time and let them know the date of the trial. People you want to call as witnesses may come voluntarily. If you think they may not appear you will need to serve them with a Subpoena. See Getting Witnesses to Appear for more information.

There may be a number of documents you want to use in court to support your case. In a family law case this could include financial documents such as Income Tax Returns, if child or spousal support is an issue, and things like any RRSP statements or mortgage documents for the family home, if property is an issue. You and the other party may agree before the trial to submit certain documents to the judge as evidence. These documents are then given to the court at the start of the trial and marked as Exhibits. Generally speaking any other document you want to submit must be submitted as part of a witness’s testimony and the court will then decide whether to admit the document.

You must give the other party copies of all these documents before the trial. You should have four copies of each document in court as well - one for you, one for the other party, one for the witness and one for the court.

Some documents can be submitted without calling a witness to testify about the document if the other party does not object. A medical report or an appraisal can be submitted without calling the doctor or the appraiser, unless the other party objects. You can apply to submit the report of an expert witness without calling the expert. An expert is different than other witnesses because they testify about their opinion, not just about the facts. There are very specific rules concerning expert witnesses, appraisals and medical reports. If you are going to use any of this kind of evidence you need to look at the Rules of Court.

The Petitioner presents their case first. The Respondent presents their case once the Petitioner is done. You present your case by calling your witnesses to the stand to testify. You can decide what order to call your witnesses and decide when you want to testify. You can testify at any time during your case but you can only testify once. When you are testifying it is important to remember that you cannot argue your case from the stand. Both parties can ask that witnesses that are not parties not be in the courtroom until it is their turn to testify. Once a witness takes the stand they will swear or affirm to tell the truth.

Whoever called the witness will question the witness first. This is called examination-in-chief. During the examination-in-chief you cannot ask a witness a leading question about anything that is in controversy. For example, if the witness’s identity is not disputed you could say “Are you John Smith?”, but you could not say “You saw Jane Smith leave the children alone didn’t you?” You would have to say something like “Describe what you saw on the evening of September 10th.” You also generally cannot ask the witness about things the witness does not have personal knowledge of, for example about something they only heard about from someone else but did not see or hear for themselves.

After the examination-in-chief the other party may cross-examine your witness. During cross-examination leading questions are allowed. The purpose of cross-examination is to test the observations, recollections and truthfulness of the witness. After the cross-examination the party who called the witness can re-examine the witness. However, re-examination can only be used to clear up things that were brought up in the cross-examination. It is not a chance to just generally get the witness to give more testimony or to cross-examine your own witness or ask leading questions.

Once both parties have called all their witnesses and cross-examination has finished, each party has a chance to make closing arguments to the court. The Petitioner goes first. Your closing argument should briefly summarize the evidence and explain why it supports the outcome you are requesting. Your argument itself is not evidence but must be based on the evidence that was presented to the court. You cannot refer to anything that the court ruled could not be used as evidence. You can refer to laws or cases that you think support your case. After hearing the closing arguments the judge will usually reserve their decision. The judge will then review the evidence and the arguments before making a decision.

The Rules of Court have a Tariff of Costs that sets out the costs for every step of a court proceeding. For example, there is a cost for issuing a Petition to start a family law proceeding. A court can order one party to pay all or some of these costs.

The court has a choice about whether to award costs but generally, for every step in a family law case, the party who is successful will be awarded costs. For example, if the parties ask for interim orders and the court decides to make the interim orders requested by one party, the court will also usually award that party costs. If the success of the application is divided, meaning that both parties got some of what they asked for the court can divide the costs between the parties.

In some situations the court may decide not to award the successful party costs or even order the successful party to pay the other party’s costs if the successful party acted unreasonably or in bad faith during the case. In deciding if a party acted unreasonably or in bad faith the court can consider things such as whether the party…

• unnecessarily lengthened the case or did things that were not allowed during the case
• refused to admit something that they should have admitted
• made an offer to settle and how reasonable that offer was
• withdrew their offer to settle or refused (an offer) to settle by the other party

Regardless of whether a party is successful or not, the court may also order costs against a party if the party…

• does not appear in court when required
• appears but is not prepared to deal with the issues
• appears but has not provided the other party with the documents they were required to give them before the court date