Preparing for Trial

The following material provides some general information about trials. It is not a substitute for having the advice and assistance of a lawyer. See Getting Legal Help for information on finding a lawyer and for possible options if you cannot afford a lawyer.

There is a charge of $100 to book a trial and a cost of $100 per day of the trial. These fees are paid to the Registrar at the courthouse. The party that started the case pays the $100 per day fee.

Before Trial

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. The Resources section has information on where to find legislation and legal cases.

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.

Witnesses

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 custody and access order, a child or spousal support order and property orders can be found on this 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. See Evidence for more information about testimony.

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.

Documents

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.

Trial

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. See Evidence for more information about being a witness.

Both parties can ask that witnesses 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. Also, things that were not brought up in the witness’s testimony can be brought up in cross-examination, if they are relevant to issues in the case or to whether the witness is being truthful.

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. Evidence that the court does not allow is called inadmissible. 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.