Part 9: Trial

This guide does not provide legal advice. It is recommended that all parties seek legal advice where possible.

Inside this guide

1. Information Before You Start Your Family Case
2. Starting a Family Case
   • General Application
   • Simple Application (divorce only)
   • Joint Application
3. Answers
4. Financial Disclosure
5. Filing Documents
6. Serving Documents
7. Required Steps
   • Mandatory Information Program
   • First Appearance
   • Conferences
8. Motions
9. Trial
10. Motions to Change a Final Order or Written Agreement

Ce guide est également disponible en français.

ISBN 978-1-4435-3510-6 (Print)

ISBN 978-1-4435-3511-3 (PDF)

A judge may order your case to go to trial if you and the other party can’t resolve the issues.

When you go to trial in family court, this means you and the other party have to appear in front of a judge in a courtroom, and present evidence to support your claims. At the end of the trial, the judge makes a court order telling you both what you have to do.

Rule 23 of the Family Law Rules tells you how to prepare for your trial and how to give evidence.

Going to trial involves a number of steps, including:

1. Scheduling the trial.
2. Preparing for the trial.
3. Calling witnesses.
4. Attending the trial.

Trials cost time and money. They can also be very stressful for you and your family. If you have children, it can be difficult to reach a good place to parent together after going through a trial. Remember when you go to trial it will be a third party that will make the important final decisions about your family.

For these reasons, it’s usually a good idea to take all reasonable steps to avoid a trial and for you and the other party to make your own decisions about your family and your future. Most family law cases are resolved without having to go to trial, but a small percentage must go to trial for a resolution.

Although you can represent yourself in court, you should speak to a lawyer who can help you understand your options, the steps that make the most sense in your case, your rights and responsibilities, and the legal consequences of your decisions. For more information on how to find a lawyer, please see A Guide to Procedures in Family Court, Part 1: Information Before You Start Your Family Case.

If you choose to represent yourself, you need to know that judges and court staff cannot give you legal advice. Only lawyers can do that. People who represent themselves are responsible for informing themselves about the law and the court’s procedures. You will be held to the same standard as people who have lawyers representing them.

Offers to Settle

You can make an offer to settle to the other party at any time during your court case. An offer to settle says what you are willing to agree to in order to resolve your case. Your offer to settle should be clear, reasonable, and fair. Offers to settle can help you come to an agreement with the other party, and they can also be used to request that the other party pay your legal costs.

You can’t show your offer to settle to the trial judge until after they’ve made their decision.

You can find more information about offers to settle in Rule 18 and Rule 24 of the Family Law Rules.

Scheduling a Trial

If a judge orders that a trial is required, the judge or the court clerk will set the trial date.

A trial may take less than one day, multiple days, or weeks, depending on factors like how complicated your issues are and the amount of evidence you have.

If you need an interpreter or any special arrangement because of a disability, ask for them well in advance of your trial date. You can speak with any court staff or the Accessibility Coordinator at the courthouse about what you need.

Learn more about court interpreters.

Preparing Your Trial Record

A trial record is a set of documents that is prepared to make sure everyone involved in the trial has all the information they need. (You cannot use the Continuing Record at trial instead of a trial record.) Rule 23 of the Family Law Rules tells you how to prepare a trial record.

If you are the applicant who started the case, you must:

1. Prepare the trial record for the case.
2. Serve the trial record on all parties in your case at least 30 calendar days before the trial starts.
3. File the trial record with the court at least 30 calendar days before the trial starts.

The trial record must include:

• A table of contents that lists all the documents you’re including in the trial record.
• A copy of the application that you filed with the court to start your case (Form 8 or Form 8A).
• A copy of the respondent’s answer (Form 10). This is the document that the other party filed with the court in response to your application.
• Any reply that you filed to the other party’s answer (Form 10A).
• Any agreed statement of facts.
• If relevant to an issue at trial, your and the other party’s most recent Financial Statements (Form 13 of Form 13.1), Certificates of Financial Disclosure (Form 13A), and Net Family Property Statements (Form 13B). These forms must have been completed within 30 days of you serving the trial record on the other parties in your case.
• Any assessment reports that the court ordered, or that you and the other party agreed to have prepared. These reports are usually completed by a mental health worker, a social worker, or a psychologist.
• Any report from the Office of the Children’s Lawyer (OCL). Sometimes the court needs independent information about a child’s needs, wishes, and interests and asks the OCL to help. Clinicians who work for the OCL can prepare reports for the court and help lawyers who are representing children.
• Any temporary order from a judge about a matter that has not been resolved on a final basis (for example, a temporary order for child support).
• Any order about the trial (for example, an order from a judge giving permission for a witness to give evidence in writing rather than attending the trial in person).
• The relevant parts of any transcript you intend to refer to at trial (for example, if the judge allowed you to question the other party on an affidavit they provided). Family court staff can help you get a transcript for your trial record.
• If your case is in the Superior Court of Justice or the Family Court Branch of the Superior Court of Justice, your completed Trial Scheduling Endorsement Form.

If you did not start the case (in other words, if you are the respondent), you do not have to prepare a trial record. The other party will serve the trial record on you at least 30 calendar days before the trial starts. Once you’ve received the trial record, you can add any documents that you think are missing and update the table of contents. Any documents you add to the trial record must be served and filed at least 7 calendar days before the start of the trial.

Preparing Your Evidence

Generally, your evidence that you present to the judge at trial will be documents or witnesses. All evidence that you present at trial must be relevant to an issue in your case (for example, you may choose to submit pay stubs as evidence to help prove how much money you earn, which can be relevant to child support).

Documents

Documents submitted as evidence at trial are called exhibits, and must be originals. You can submit a document as evidence at trial when:

• You are acting as a witness and you speak about the document.
• You are questioning a witness who can speak about the document.

Copies of any document that you want to submit as evidence at trial must be given to the other party before trial starts. It’s best if you prepare a package of all the documents that you plan to submit at trial, which is called a document brief. You and the other party should share document briefs well in advance of your trial.

Witnesses

You might want to ask a witness to help you tell your side of the case to the judge. A witness can only give evidence about what they know, not what other people have told them.

How to Call a Witness

If you want to make sure that your witness will come to court to be available to the judge at trial, you must:

• Complete Form 23: Summons to Witness if the witness lives in Ontario or Form 23A: Summons to Witness Outside Ontario if the witness lives outside Ontario.
• Arrange for a friend, family member, or professional process server who is at least 18 years old to serve on the witness using special service:
  • a copy of the summons (Form 23 or Form 23A), and
  • the witness fee.
• File the summons (Form 23 or Form 23A) with the court.

A witness who has received a summons (Form 23 or Form 23A) must attend court to be available at trial. If a witness does not attend, a judge can issue a warrant for arrest to bring the witness to court.

If your witness cannot come to court, you can ask the judge at a conference or motion for an order letting the witness testify in another way, such as:

• Answering questions before the trial, and using the transcript as evidence
• Providing their evidence in an affidavit that they will need to swear or affirm in front of a commissioner for taking affidavits

This evidence must be served on the other party at least 30 calendar days before the trial starts.

Witness Fees

You have to pay any witnesses you call for each day they are needed in court. There are standard witness fees in Ontario. You must pay a witness for every day they come to court, even if they are not questioned.

If the witness lives in the same city or town as the court, for each day they are needed, you have to pay them:

• $50 for coming to court or being questioned.
• $5 for travel.

If the witness lives in a different city or town, but within 300 kilometres of the court, for each day they are needed, you have to pay them:

• $50 for coming to court or being questioned.
• 30 cents per kilometre, each way, for travel.
• $100 per night for meals and overnight stay, if needed.

If the witness lives 300 kilometres away or farther from the court, for each day they are needed, you have to pay them:

• $50 for coming to court or being questioned.
• the cheapest available airfare.
• $10 per day for airport parking.
• 30 cents per kilometre, each way, from the person’s home to the airport and from the airport to the courthouse.
• $100 per night for meals and overnight stay, if needed.

How to Call an Expert Witness

Generally, expert witnesses can give the court information that is outside the experience and knowledge of the judge (for example, financial experts or parenting time and decision-making responsibility assessors).

Rules 20.1, 20.2, and 20.3 of the Family Law Rules tell you about experts.

There are different types of experts, including:

• A litigation expert, who is engaged by one party to provide opinion evidence for the purpose of litigation in your case.
• A joint litigation expert, who is a litigation expert engaged by two or more parties in your case (rather than one party).
• A participant expert, who provides opinion evidence based on the exercise of their skills, knowledge, training, or experience while observing or participating in the events in your case. Unlike a litigation expert (including a joint litigation expert), a participant expert is not engaged for the purpose of litigation. For example, a doctor who treated your child at a hospital may be a participant expert regarding parenting time or decision-making responsibility issues.

If you want to call a litigation expert witness to give evidence on parenting time or decision-making responsibility issues, you must cooperate with the other party in your case and use a joint litigation expert (unless the court orders otherwise).

Before you call a litigation expert (including a joint litigation expert) to provide opinion evidence at trial, you have to:

1. Ask the expert to prepare and sign an expert report, which must meet the requirements in Rule 20.2 of the Family Law Rules.
2. Serve and file a copy of the report at least 6 business days before your settlement conference.

If the other party agrees to let you submit the expert report as evidence at trial, then you do not need to call the expert as a witness to give verbal evidence. However, the other person can question your expert at trial about their report.

If the other party does not agree to let you submit the expert report as evidence at trial, then you have to call the expert as a witness. The expert’s testimony is the evidence, and not their report (unless the trial judge decides otherwise).

Attending the Trial

Judges make decisions about family cases, which means your case won’t have a jury. However, trials are usually open to the public, which means other people may be in the courtroom during your trial.

If you think you need a closed hearing, you can ask the judge to make an order at a conference or by filing a motion in advance of your trial. The judge will decide whether or not to grant your request.

Arrive Early at the Courthouse

You should arrive at least 30 minutes early at the courthouse on the day of your trial.

When you arrive, look for the name of your case or court file number on that day’s list of cases to be heard. The list is usually posted on a board near the entrance to the court or outside each courtroom. If you can’t find it, ask the court staff for help.

You should check in with the clerk when you find your courtroom. If court is already in session, wait to talk to the clerk until there is a break in the session.

How to Behave in Court

Generally, you should:

• Turn off your cell phone and all electronic devices.
• Stand up when the judge enters or leaves the courtroom and when you’re speaking to the judge.
• Refer to the judge as “Your Honour” or “Justice” and ask the judge for permission to speak before you begin speaking.
• Always speak directly to the judge, not to the other party (except if you are questioning the other party as a witness).
• During the trial, don’t interrupt other people except to object to an inappropriate question. If you want to make an objection, you should stand up and wait for the judge to ask you to speak. You should then say the reason for your objection. After hearing the other party’s response, the judge will decide whether your objection is valid.
• Don’t make faces or gestures when you disagree with something that another person says during trial.
• Don’t argue with the other party or the judge.
• Pay careful attention to what is being said. You can take notes while you are in court.
• Don’t eat food or chew gum. Only water is allowed in the courtroom.
• Any documents you wish to give to the judge must be handed to the court registrar (who sits in the courtroom near the judge during the trial).

Opening Statements

You and the other party in your case will have to give the judge a short overview of what you’re each asking for and what your evidence will be. These are called opening statements.

The applicant (the person who started the case) goes first. The respondent then gives their opening statements.

Presenting Evidence

After the opening statements, the parties present their evidence to the judge to support their claims.

You should have prepared a list of questions that you plan to ask each of your witnesses. This will help make sure that you don’t forget to ask about something important regarding your side of the story.

The applicant’s witnesses go first. The applicant will ask their witnesses questions to try to get information that supports their claims. After the applicant finishes questioning each of their witnesses, the respondent has a turn to ask questions to the applicant’s witnesses.

After both parties have questioned all the applicant’s witnesses, the respondent calls their witnesses. The respondent will ask their witnesses questions to try to get information that supports their claims. After the respondent finishes questioning each of their witnesses, the applicant has a turn to ask questions to the respondent’s witnesses.

After both parties have questioned all of the respondent’s witnesses, the applicant can submit reply evidence that relates to any new issue that was raised by the respondent’s witnesses. This cannot include evidence that should have initially been part of the applicant’s case.

Closing Statements

After all the evidence has been presented, you and the other party will summarize your evidence and the applicable laws to explain what you think the judge’s order should be. These are called closing statements.

The judge may ask you to give your closing statements verbally or in writing. If you give your closing statement verbally, the applicant will go first and then the respondent.

The Judge’s Decision

After closing statements, the judge may be ready to make a decision right away about the issues in your case.

If the judge does not make a decision right away, they may reserve the decision to a later date. This means that they need time to review the evidence. You may have to come back to court for the judge’s decision or you will be notified of the decision in writing.

You must do what the judge says in the court order.

Costs

After you receive the judge’s decision, you may be required to pay the other party’s legal costs for the trial and other steps in your case. Alternatively, the other party may be required to pay your legal costs.

Rules 17, 18, and 24 of the Family Law Rules tell you about costs.

There is a general presumption that the successful party is allowed to have their legal costs paid by the other party. Please keep in mind that you and the other party may have been successful in different ways. In these situations, the court may divide the costs, which means you both have to pay each other for different legal expenses.

You might have to explain why you are asking for costs either verbally or in writing, and give the judge a summary of your legal expenses. The judge will make a decision about who gets their costs paid by considering a number of things, such as:

• How reasonable each party was during the case.
• Any offers to settle that the parties made.
• How complex the issues were in your case.