What will happen at my Provincial Court trial?
You may have questions about what's going to happen and what you need to do when you go to Provincial Court for your family law trial. Here is a description of what you can expect.
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The procedure at a trial is much more formal than at a Family Case Conference. Here are some tips on what to do and how to act:
- Arrive early.
- Wear clean, conservative clothes.
- If you're bringing witnesses to court, make sure that they arrive on time and are also dressed in clean, conservative clothes.
- Remember to bring your trial book and all your documents to court.
- Whenever you're speaking to a judge, remember to stand up. Speak in a loud, clear voice, and address the judge as "Your Honour."
- Stand up also when you're asking your witnesses questions.
At the beginning of a trial, it's usually helpful if the judge knows what you and the other party disagree about so that they can focus on these areas right from the beginning. At the trial:
- The applicant usually speaks first and says what the trial is about. This is just a brief summary of what they intend to prove and what they want the court to order.
- Next, the respondent speaks and gives a summary of what they intend to prove and what orders they want the court to make.
- You will likely disagree with things that the other party says in their opening statements, but you don't argue about it at this point.
You must prove your case by presenting evidence. The judge will only consider facts proven by the evidence. There are three ways to get evidence in front of the court:
- by having sworn witnesses testify about facts they have first-hand knowledge of (you can be a witness too),
- by using documents as evidence, introduced through a witness who can identify them, or with the agreement of the other party, and
- by having sworn expert evidence given by a properly qualified expert.
The applicant presents their evidence first. If you're the applicant, you can start with your own testimony or have your witnesses testify. Your goal is to present your case in a convincing and logical way, through your testimony and your witnesses' testimony.
The witnesses aren't allowed to hear the other witnesses' evidence. So all the witnesses have to wait outside the courtroom until it's their turn to testify. Make sure the judge knows there are witnesses outside and that they make an order to exclude all witnesses so they don't come in after the trial has started.
When each witness comes into the courtroom to testify, the clerk will ask if they want to take an oath on the Bible or to affirm. The witness is then "sworn" and can give evidence.
After each witness gives evidence, the other party gets a chance to cross-examine that witness. This cross-examination is when the truth of what each party is claiming and the credibility of the witnesses are tested.
People often think they need to use the cross-examination to somehow "break down" the witnesses and force them to admit that they're wrong. This is usually unrealistic. Cross-examination is used to try and weaken the other party's case by making the witnesses' evidence seem less believable or important. But it's usually not as dramatic as it is on TV.
Cross-examination is best used to bring out evidence the witness has that can help you get the orders you want. You might ask the witness about things they haven't told the court that would be helpful to you.
It's probably safest to ask only questions that you know the answers to in advance. The person you're cross-examining may not be sympathetic to your position and may do whatever they can to present you in the worst light possible.
After cross-examination, the judge may ask if there's "re‑examination" or "anything arising." This means that if a witness said something new while being cross‑examined that needs to be clarified, the other party may ask the witness a few more questions to clarify the new information. Re‑examination doesn't always happen.
Any documents that are going to be part of the trial must be entered into evidence. Documents are entered into evidence by:
- being identified by a witness, or
- with the agreement of both parties.
- Give the document to the clerk.
- Ask the clerk to mark it for identification and give it to the judge at the beginning of the testimony of the witness who will identify it.
- Once it has been identified, ask the clerk to mark it as an exhibit.
Receipts and other items about each of the party's finances are brought forward when that party is going to testify.
Tip: Make sure you know where to find everything that you're going to refer to at the trial.
After all the witnesses have testified for the applicant, the respondent's case begins. If you are the respondent, you present documentary evidence and witnesses in the same way as the applicant did.
After all the witnesses have finished, the judge will often take a break for a few minutes to give the parties a chance to collect their thoughts and look at any notes they have written.
At this time, the judge will ask for both parties to make any submissions that they have. This means that the judge is asking you for your comments about what you believe to be the most important pieces of evidence that you've presented in your favour. You can make comments about any witnesses who you think aren't telling the truth and how that affects the outcome of the case.
You may want to end your submissions by summarizing the orders you're asking for. This will:
- make it clear exactly what you're asking for, and
- direct the judge’s attention to each issue and how you want it resolved.
After the applicant makes their submissions, the respondent makes their submissions.
After that, the judge may ask if the applicant has any further comments or a reply to what was said by the respondent. Then the judge will either give a decision or tell the parties that the decision will be given at a later date.
For more information about preparing for or attending a trial, you can also read the Justice Education Society's Guidebooks for Representing Yourself. These online booklets are about how to represent yourself in a civil trial, but civil trials follow the same rules as family trials, so you may still find them helpful.
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