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Difference between revisions of "Trials and Provincial Court Family Law Proceedings"
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Trials and Provincial Court Family Law Proceedings (view source)
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==Items to consider before a trial== | ==Items to consider before a trial== | ||
Well in advance of your trial date, you should be thinking about what kind of evidence you will need at your trial to show the judge why the orders you want are the best orders. Depending on what issues you are going to trial about, you may need evidence about finances, children’s best interests, or even about what | Well in advance of your trial date, you should be thinking about what kind of evidence you will need at your trial to show the judge why the orders you want are the best orders. Depending on what issues you are going to trial about, you may need evidence about finances, children’s best interests, or even about what someone's income should be (for example, if the other party is arguing that you should pay support based on a higher income than you are earning, you may want evidence as to why the other party is wrong). Below are some ideas about what evidence you may need. | ||
Make sure you plan this all as soon as possible once you know your trial date! Some of these can take a long time — even several months — to gather and if you delay, you may not have the evidence at trial (and the trial may proceed anyway, especially if you had time to get this evidence and didn’t). | Make sure you plan this all as soon as possible once you know your trial date! Some of these can take a long time — even several months — to gather and if you delay, you may not have the evidence at trial (and the trial may proceed anyway, especially if you had time to get this evidence and didn’t). | ||
=== Consider a Hear the Child report, a | === Consider a Hear the Child report, a Views of the Child report, or a full Section 211 (Parenting Capacity) report === | ||
In family law matters where guardianship | In family law matters where either guardianship or the children's living arrangements are in dispute, third party reports can be instrumental and assist the judge in deciding what is in the best interests of each child. There are three main categories of reports to be considered: | ||
*the needs of a child in | * ''Hear the Child Reports'' — which provide insight into a child's views and preferences without offering an opinion on the child's needs or the context of their views. These are ''non-evaluative'', meaning they simply describe what a child says during an interview with a professional (e.g. a mental health professional, or a lawyer with special training). This type of report is useful for understanding what the child is expressing in their own words, but it does not provide an opinion about the child's maturity, or whether their words do or do not reflect their deeper preferences. Importantly, these reports do not offer any opinion or assessment on what the child needs, or what is in their best interests. | ||
*the views | * ''Views of the Child Reports'' — which go a step further by including the report writer's opinion on the child's views, which might be different from what the child simply says. These reports assess whether a child's expressed views align with their actual feelings, if the child understands the consequences of their wishes, and whether there has been any coaching in the opinion of the assessor. They are evaluative on these points, however they come short of offering an assessment about what the child ''needs''. | ||
*the | * ''Section 211 Reports'': which are comprehensive evaluations used when parents disagree about parenting arrangements. These evaluative reports go further than the other types, and provide recommendations on what the child needs, and what parenting arrangement is in the best interests of the child. They are also known as ''needs of the child assessments'' and are prepared by professionals like psychologists, some family justice counsellors, and trained social workers. These reports assess: | ||
**the child's views, if they are old enough to express them, | |||
**the child's needs, | |||
**the ability of the parents to meet the child's needs, | |||
**which specific arrangement is in the child's best interest. | |||
Depending on the | Depending on the type of report, a trained lawyer, social worker, clinical counsellor, family justice counsellor, or a psychologist may be appointed. A Hear the Child report only interviews the child, while most section 211 reports involve the appointed person conducting interviews with both parents as well as the children and may involve additional steps such as observing each parent with the children (either in each parent’s home or at the psychologist's office), conducting interviews with collateral witnesses, conducting psychological testing of the parents (if the person is a psychologist and qualified to do so), and then preparing a written report of the observations and opinions (if an opinion is asked for). Not all Views of the Child reports provide the report writer's evaluative opinion of what would be best for the children, so you will need to carefully consider what report you think you need. | ||
The cost of | The cost of reports can vary greatly, usually a few thousand dollars for interviews of the children only and a Hear the Child report. Views of the Child reports and Section 211 Reports are free if done by family justice counsellors, but this requires waiting. These publicly funded reports are available through the province but are less extensive, often take longer to prepare, and require a court order. Publicly funded reports do not provide the psychological testing. Privately prepared Views of the Child reports range from a few thousand dollars to generally not more than $10,000. For full Section 211 Reports prepared by private professionals, very few cost less than $15,000. $20,000 is a more realistic expectation, and still a considerable number cost $30,000 or more (for a more extensive assessment and report). | ||
If the other party doesn't want a report (or doesn’t want to pay for a report), you will need to apply to court for an order that a report be conducted. Apply to court for this using the Application About a Case Management Order (Form 10) and make sure you have as much information as possible: who you want to write the report, how much it will cost and how you think it should be paid for, and what the timelines are. If you want a publicly funded report, you will need to apply to court using the Application About a Case Management Order even if you and the other party agree that this report should be done. See the section on [[Interim Applications and Provincial Court Family Law Proceedings]] in this chapter for more details on applications for ''case management orders''. | If the other party doesn't want a report (or doesn’t want to pay for a report), you will need to apply to court for an order that a report be conducted. Apply to court for this using the Application About a Case Management Order (Form 10) and make sure you have as much information as possible: who you want to write the report, how much it will cost and how you think it should be paid for, and what the timelines are. If you want a publicly funded report, you will need to apply to court using the Application About a Case Management Order even if you and the other party agree that this report should be done. See the section on [[Interim Applications and Provincial Court Family Law Proceedings]] in this chapter for more details on applications for ''case management orders''. | ||
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If you are attending a TPC, you ''must'' fill out, file and serve on the other party a Form 22 Trial Readiness Statement at least 7 days before the TPC. | If you are attending a TPC, you ''must'' fill out, file and serve on the other party a Form 22 Trial Readiness Statement at least 7 days before the TPC. | ||
== Preparing evidence for trial == | == Preparing evidence for trial == | ||
