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{{JP Boyd on Family Law TOC|expanded = bcsc}}{{JPBOFL Editor Badge
{{JP Boyd on Family Law TOC|expanded = bcsc}}{{JPBOFL Editor Badge
|CoAuthor = [[Iris Turaglio]]
|CoAuthor = [[Iris Turaglio]]
}}If you are unable to settle your case to your satisfaction, you will need to go to trial.   
}}If you are unable to settle your case to your satisfaction, you will need to go to trial to get a ''final order'' from a judge.   


Preparing for and going to trial is the most complex part of the court proceeding. Both steps require careful planning and organization. You also need to be mindful of the many deadlines set out in the rules of court (the ''[http://canlii.ca/t/8mcr Supreme Court Family Rules]''), some of which arise months before the trial date. The purpose of the Rules is to make sure that the case is absolutely ready to go to trial well before the first day of trial. To make sure you do not miss any deadlines, review the deadlines summarized in the chart, below, as well as the Rules of Court that govern trials (Rule 14, see "Preparing for Trial" below) and create your own chart of the deadlines you must meet: this will help guide you on the steps you need to take well prior to the trial.
''Preparing for trial'' and ''conducting a trial'' are complex stages of litigation. Both require careful planning and organization. You need to be mindful of the many deadlines set out in the ''[https://canlii.ca/t/8mcr Supreme Court Family Rules]'', some of which arise months before the trial date. The deadlines are in place to get family law cases ready for trial long before day one of the trial itself. Review the Important Deadlines for Trial Preparation chart, below — as well as Part 14, Division 2 of the Supreme Court Family Rules which deals with Setting a Family Law Case for Trial — and begin to create your own notes or chart with a list of the deadlines. Starting your own list will help guide you on the steps you need to take well before the trial itself.  


There are also many ''rules of evidence'', like what evidence is allowed and how evidence is presented in court. The law of evidence is beyond the scope of this chapter. A good general summary is found in ''[http://www.clicklaw.bc.ca/resource/2335 Proving Your Case in Supreme Court]'' from the Justice Education Society of BC, although you should be aware that this resource is not specific to family law. It talks about the Supreme Court ''Civil'' Rules rather than the Supreme Court ''Family'' Rules. Another useful resource of theirs is [https://www.clicklaw.bc.ca/resource/1498 Trials in Supreme Court], although apply similar caution because it references the ''civil'' set of rules rather than the ''family'' rules of court.
In this section of the chapter we will talk about the difference between summary trials and regular trials, and describe trial preparation and the tasks required to meet the deadlines for regular trials. We will then discuss some of the basic aspects of conducting regular trial, and the rules under Part 14, Division 3 of the Supreme Court Family Rules.


== Two different trial options in the Supreme Court ==
There are many ''rules of evidence'', like what evidence is allowed and how evidence is presented in court. The law of evidence is beyond the scope of this chapter. You will want to expand your reading to include other resources, such as the ''[https://www.clicklaw.bc.ca/resources/memorandum-court-self-represented-litigants-trial-procedure-civil-and-family-cases Memorandum from the Court to Self-Represented Litigants: Trial Procedure in Civil and Family Cases]'' published by the BC Supreme Court, and also the ''Family Law Handbook'' which you can download from the [https://cjc-ccm.ca/en/what-we-do/initiatives/representing-yourself-court Canadian Judicial Council (CJC)]. There is an online guide called "[https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/schedule-and-prepare-your-supreme-court Going to trial in Supreme Court]" from the Justice Education Society which is another helpful resource for parties who have to schedule and prepare for a trial in the BC Supreme Court.


There are two available types of trial in Supreme Court—a ''regular trial'' (which is the type you see on TV and in the movies with cross-examination of witnesses and lawyers making legal arguments) and a ''summary trial'' (which is trial where each witness's evidence is introduced by affidavit).
==Trials versus summary trials in BC Supreme Court==


Summary trials can seem like a good option because they often mean fewer days in court, often don’t involve cross-examination of the parties, and therefore are often easier and less expensive for the parties. However, summary trials are not suitable for all court proceedings; they are suitable only where there is enough clear (i.e. not conflicting) evidence for the judge to make a decision.
The rules and deadlines in Part 14 of the Supreme Court Family Rules relate to regular trials, however there is another type of process called a ''summary trial'' which is dealt with under Rule 11-3. Whereas a ''regular trial'' is more like what you see on TV and in movies — with lawyers cross-examining witnesses — a ''summary trial'' involves the judge reading affidavit evidence and listening to the parties or their lawyers make their case based on the written evidence. Both regular trials and summary trials can result in a judge making final orders.  


The factors a court will consider in deciding whether a summary trial is appropriate include:   
Summary trials can seem like a good option because they often mean fewer days in court, often don't involve cross-examination of the parties, and are commonly easier and less expensive for the parties. They can be appropriate where there is enough clear (i.e. not conflicting) evidence for the judge to make a decision. But summary trials are not suitable for all family law cases.
 
The factors a court will consider in deciding whether a summary trial under Rule 11-3 is appropriate include:   
*the complexity of the matter,  
*the complexity of the matter,  
*any urgency and prejudice likely to arise by reason of delay,  
*any urgency and prejudice likely to arise by reason of delay,  
*the cost of taking the case forward to a regular conventional trial in relation to the amount involved,  
*the cost of taking the case forward to a regular conventional trial compared to the amount of money or wealth at stake,  
*the course of the proceedings,  
*the course of the proceedings,  
*whether credibility is a critical factor in the determination of the dispute,  
*whether credibility is a critical factor in the determination of the dispute, and
*whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and
*whether the summary trial may create an unnecessary complexity in the resolution of the dispute.
*whether the application would result in litigating in slices (see ''[http://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 BCLR (2d) 202 (CA)).


Summary trials are more common where lawyers are involved, but are also very useful for self-represented litigants because it avoids all the procedural steps and complexities of a trial (both leading to and during the trial).
Judges often refer to the older case of ''[https://canlii.ca/t/1p6qn Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.]'' (1989), 36 BCLR (2d) 202 (CA)), when explaining the test for whether a family law case is appropriate for summary trial. When some but not all of the issues between the parties might be appropriate for a summary trial, the courts can still be reluctant to hold a summary trial if it would result in "litigation by slices".


Specifically, summary trials are governed by Rule 11-3 of the Supreme Court Family Rules and are not subject to all of the rules and procedures described in the rest of the section below.  
Summary trials are more common where lawyers are involved, but they are also very useful for self-represented litigants to know about. They avoid much of the procedural steps and complexities of a trial (both preparing for trial, and conducting one). Specifically, because summary trials are dealt with under Rule 11-3 of the Supreme Court Family Rules (and by the way Part 11 is entitled "Pre-Trial Resolution Procedures"), they are not subject to all of the rules and procedures described in the rest of the section below.  


Summary trials must be heard at least 42 days before the scheduled trial date (see Rule 11-3(3) of the Supreme Court Family Rules) and a summary trial application must be set for hearing in accordance with Part 10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules].
If you are considering summary trial, note that:
* they must be heard at least 42 days before the scheduled trial date (see Rule 11-3(3)), and
* you must set one down for hearing in accordance with Part 10 of the [https://canlii.ca/t/8mcr Supreme Court Family Rules], and
* summary trials are a form of ''chambers proceeding'' under Part 10, so their process follows that of interim application under Rule 10-3 (except that the notice periods are longer).


Because summary trials are Chamber's applications, their process is the same as that of an interim application, save and except that the notice periods are longer. Information on how to conduct a summary trial can be found here _____
== Preparing for trial ==


=== Preparing for trial ===
[https://canlii.ca/t/8mcr#Part_14_Trial_Rules_414388 Part 14] of the Supreme Court Family Rules deals with trial procedures in BC Supreme Court.


Rule 14 of the Supreme Court Family Rules deals with trial procedures in Supreme Court: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/169_2009_02#part14
Again, preparing for trial requires careful planning and organization as well as being mindful of the many deadlines. All deadlines count back from the ''first'' day of trial (not the last or any day in between) and should be considered well in advance of the actual deadline.  The main (but not ''only'') deadlines in a Supreme Court proceeding are listed in the chart below. Note that reference to days in the deadline column refers to the ''minimum'' number of days from the date the trial starts (or other key date indicated). Unless a range of dates is indicated, you could perform some of these steps earlier.
 
Again, preparing for trial requires careful planning and organization as well as being mindful of the many deadlines set out in the rules of court. All deadlines count back from the ''first'' day of trial (not the last or any day in between) and should be considered well in advance of the actual deadline.  The main (but not ''only'') deadlines in a Supreme Court proceeding are as follows - NOTE: the "__ days", below, refers to the "minimum" number of days from the date of trial, meaning that you could perform some of them earlier than the dates (unless a range of dates is stated in the chart):


{| class="wikitable"
{| class="wikitable"
|-  
|+ Important Deadlines for Trial Preparation
! Deadline !! Step required !! Notes
|-
| 84 days:
| 84 days:
| Service of expert report on other party (Rule 13-6(3)) - see also Rule 13-6(8) about additional timeline if the other party asks for specific information/records and the reports was per Rule 13-3(3)(b) or 13-4(7).
| Service of ''expert report'' on other party (Rule 13-6(3)).
 
| See also Rule 13-6(8) about additional timeline if the other party asks for specific information/records and the report was per Rule 13-3(3)(b) or 13-4(7).
56 days (minimum):
|-
 
| 56 days (minimum):
Claimant must file Trial Brief (Rule 14-2.1(1)) - NOTE: if trial rescheduled for later than 6 months, new trial brief must be filed (Rule 14-2.1(8))
| Claimant must file ''trial brief'' (Rule 14-2.1(1)).
 
| If trial rescheduled for later than 6 months, new trial brief must be filed (Rule 14-2.1(8)).
49 days (minimum):
|-
 
| 49 days (minimum):
Respondent must file Trial Brief (Rule 14-2.1(2)) - see above note re. Rule 14-2.1(8)
| Respondent must file ''trial brief'' (Rule 14-2.1(2))  
 
| See above note (re: Rule 14-2.1(8)).
42 days (minimum):
|-
 
| 42 days (minimum):
Claimant may filed amended Trial Brief (Rule 14-2.1(3))- see above note re. Rule 14-2.1(8)
| Claimant may file amended ''trial brief'' (Rule 14-2.1(3))
| See above note (re: Rule 14-2.1(8)).
|-
|-
| 42 days:
| 42 days:
| Service of expert report in response to other party’s expert report (Rule 13-6(4)) - See above comment about Rule 13-6(8)
| Service of ''expert report'' in response to other party's expert report (Rule 13-6(4)).
 
| See also Rule 13-6(8) about additional timeline if the other party asks for specific information/records and the report was per Rule 13-3(3)(b) or 13-4(7).
42 days (minimum):
|-
If the trial is for longer than 15 days a Trial Management Conference ("TMC") MUST be scheduled to occur by at least 28 days before the first day of trial(Rule 14-3(1)  
| 42 days (minimum):
 
| File ''requisition for a trial management conference'' (TMC), if TMC is otherwise optional (Rule 14-3(1)(i)).
NOTE: if the trial is for 15 days or less, unless a judge has ordered one, you don't "have to" book a TMC but you CAN do so if you want to. Even if you simply choose to book one, you must comply with these deadlines.
| If you or the other side are self-represented, the trial is scheduled for more than 15 days, a judge has ordered a TMC, or the trial will be in French, the TMC will normally be required (see Rule 14-3(1)). If it is optional, you can still request one if you want to.
 
 
|-
|-
|28 days:
|28 days:
| Attendance at a trial management conference (Rule 14-3(1.1)).
| ''Attendance at a trial management conference'' (TMC) (Rule 14-3(1.1)).
NOTE: There is a further deadline to file and serve on all other parties a Trial Brief in Form 45 at least 7 days before the trial management conference (Rule 14-3(3)).
| There is a further deadline to file and serve on all other parties a ''trial Brief'' in Form 45 at least 7 days before the TMC (Rule 14-3(3)). <br/> You will also need to ensure in advance that the TMC is booked with [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Scheduling] at your registry location.
|-
|-
| 28 to 63 days:
| 28 to 63 days:
| Updated Form F8 Financial Statement must be filed and served on the other party at least 28 days and no later than 63 days before the start of the trial if a party has served their last F8 Financial Statement more than 91 days before the start of the trial (Rule 5-1(18))
| Updated Form F8 Financial Statement must be filed and served on the other party at least 28 days and no later than 63 days before the start of the trial.
| This is so that the court and the parties have updated information if any party served their last F8 Financial Statement more than 91 days prior to the trial start date (Rule 5-1(18)).
|-
|-
| 21 days:
| 21 days:
| Notice of Objection to other party’s expert report must be served (Rule 13-6(10)).
| ''Notice of objection'' to other party's ''expert report'' must be served (Rule 13-6(10)).
|
|-
|-
| 14-28 days:
| 14-28 days:
| The Trial Record must be filed and served on the other party (Rule 14-4(3)) or trial date will be lost. NOTE: EACH party that is seeking "corollary relief" under the Divorce Act (ie. if you are asking for more orders under the Divorce Act than simply an order for divorce) must also complete a Form F102, and a filed copy should be included in the Trial Record, meaning that it needs to be filed before the Trial Record is filed (see Rule 15-2.2)  
| The ''trial record'' must be filed and served on the other party (Rule 14-4(3)) or trial date will be lost.  
| Each party that is seeking "corollary relief" under the Divorce Act (ie. if you are asking for more orders under the Divorce Act than simply an order for divorce) must also complete a Form F102, and a filed copy should be included in the ''trial record'', meaning that it needs to be filed before the ''trial record'' is filed (see Rule 15-2.2).
|-
|-
| 14-28 days:
| 14-28 days:
| The Trial Certificate must be filed and served on the other party (Rule 14-5(2)).
| The ''trial certificate'' must be filed and served on the other party (Rule 14-5(2)).
|
|-
|-
| 7 days:
| 7 days:
| Any plans, objects or photographs to be relied upon at trial must be available for inspection by the other party (Rule 14-7(10)).
| Any plans, objects or photographs to be relied upon at trial must be available for inspection by the other party (Rule 14-7(10)).
|
|-
|-
| 7 days:
| 7 days:
| Service of subpoena & witness fees on any witnesses (Rule 14-7(32) & (34) & Form F23).
| Service of subpoena & witness fees on any witnesses (Rule 14-7(32) & (34) and Form F23).
|
|}
|}


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<blockquote><tt>(c) any other factor the court considers relevant.</tt></blockquote>
<blockquote><tt>(c) any other factor the court considers relevant.</tt></blockquote>
    
    
The process for bringing interim applications is covered in this chapter, under the section [[Interim Applications in Family Matters]].
The process for bringing interim applications is covered in this chapter, under the section [[Interim Applications and Supreme Court Family Law Proceedings]].


=== Court-appointed experts ===
=== Court-appointed experts ===
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The usual rule is that witnesses are to testify in person at trial, although there are limited circumstances under which affidavit evidence or deposition evidence (Rule 14-7(40) to (45) of the Supreme Court Family Rules) or pre-trial examination of a witness may be allowed instead (discussed further below).  
The usual rule is that witnesses are to testify in person at trial, although there are limited circumstances under which affidavit evidence or deposition evidence (Rule 14-7(40) to (45) of the Supreme Court Family Rules) or pre-trial examination of a witness may be allowed instead (discussed further below).  


You will need to contact each witness to ask them to testify.  If they won’t agree to testify or you are otherwise uncertain as to whether they will show up, then you will need to issue a subpoena to require them to testify.  A subpoena is in [[Form F23 Subpoena to Witness|Form F23]] and needs to be served personally on the witness at least 7 days before trial, along with the required witness fees which are set out in [Appendix C]—Schedule 3 (Fees Payable to Witnesses) of the Supreme Court Family Rules (See Rule 14-7(32) & (34)).   
You will need to contact each witness to ask them to testify.  If they won’t agree to testify or you are otherwise uncertain as to whether they will show up, then you will need to issue a subpoena to require them to testify.  A [[Form F23 Subpoena to Witness]] needs to be served personally on the witness at least 7 days before trial, along with the required witness fees which are set out in Schedule 3 (Fees Payable to Witnesses) of Appendix C to the Supreme Court Family Rules (See Rule 14-7(32) & (34)).   


The daily witness fee is currently $20 in addition to the travel costs of the party being examined as follows:
The daily witness fee is currently $20 in addition to the travel costs of the party being examined as follows:
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==== Use of pre-trial examination or deposition ====
==== Use of pre-trial examination or deposition ====


There are limited circumstances under which a witness may be able to testify before trial and have the transcript of their answers used as evidence at trial. See Rule 14-7(40) about the use of ''deposition evidence'', and Rule 14-7(52) about the use of transcripts of ''pre-trial examinations of witnesses''. Even when a transcript is allowed as evidence at a trial, the court can require the witness to attend and testify in person (see Rule 14-7(40)). Using a transcript as evidence at trial may be appropriate in the following circumstances:
There are limited circumstances under which a witness may be able to testify before trial and have the transcript of their answers used as evidence at trial. See Rule 14-7(40) about the use of ''deposition evidence''. See Rule 14-7(52) about the use of transcripts of ''pre-trial examinations of witnesses'' which was mentioned in the section on [[Disclosure and Discovery in Supreme Court Family Law Proceedings]]. Even when a transcript is allowed as evidence at a trial, the court can require the witness to attend and testify in person (see Rule 14-7(40)). Using a transcript as evidence at trial may be appropriate in the following circumstances:
# where the transcript evidence can be used to contradict or impeach the testimony of the person at trial, or   
# where the transcript evidence can be used to contradict or impeach the testimony of the person at trial, or   
# it is necessary in the interests of justice for one of the following reasons:
# it is necessary in the interests of justice for one of the following reasons:
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Preparing to cross-examine a section 211 report writer is similar to preparing to cross-examine an expert.   
Preparing to cross-examine a section 211 report writer is similar to preparing to cross-examine an expert.   


For more information about section 211 reports, see [[How Do I Get a Needs of the Child Assessment?]] and [[How Do I Get a Views of the Child Report?]] in the ''How Do I?'' part of this resource.
For more information about section 211 reports, see [[How Do I Get a Needs of the Child Assessment?]] and [[How Do I Get a Views of the Child Report?]] in the ''Helpful Guides & Common Questions'' part of this resource.


=== Use of physical objects ===
=== Use of physical objects ===
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* When speaking to a witness, use Mr., Ms., or Dr., followed by their surname, rather than the witness' first name (which is too casual).
* When speaking to a witness, use Mr., Ms., or Dr., followed by their surname, rather than the witness' first name (which is too casual).


For more tips on conducting a trial in Supreme Court, see the Legal Aid BC's Family Law website's information page [https://www.clicklaw.bc.ca/resource/4649 "If you have to go to court"], under the section "Trials in Supreme Court", and the step-by-step guide "Schedule and prepare for your Supreme Court trial".
For more tips on conducting a trial in Supreme Court, see the Justice Education Society's Family Law website's information pages on "[https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court Trials in Supreme Court]", and "[https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/tips-your-supreme-court-trial Tips for your Supreme court trial]", in addition to the step-by-step guide "[https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/schedule-and-prepare-your-supreme-court Schedule and prepare for your Supreme Court trial]".


=== Costs and disbursements ===
=== Costs and disbursements ===


After a judge has delivered the decision, a party can ask the court to provide a ruling on costs. This is where Rule 16-1 of the Supreme Court Family Rules becomes important, along with [http://canlii.ca/t/8mcr#Appendix_B___Costs__1266142 Appendix B] with its schedule containing a tariff (with dollar values) for various litigation process steps. There is a distinction between ''costs'' for legal fees and ''disbursements''. Both are dealt with in Rule 16-1. Costs awarded for legal fees are intended as a partial payment of the legal fees of the successful party. You will sometimes hear these referred to as ''taxable costs''.  Disbursements are the out-of-pocket expenses such as court filing fees, witness fees, traveling and subsistence expenses, experts' fees, fees for medical/legal reports, and the like.
After a judge has delivered the decision, a party can ask the court to provide a ruling on costs. This is where Rule 16-1 of the Supreme Court Family Rules becomes important, along with [https://canlii.ca/t/8mcr#Appendix_B___Costs__1266142 Appendix B] with its schedule containing a tariff (with dollar values) for various litigation process steps. There is a distinction between ''costs'' for legal fees and ''disbursements''. Both are dealt with in Rule 16-1. Costs awarded for legal fees are intended as a partial payment of the legal fees of the successful party. You will sometimes hear these referred to as ''taxable costs''.  Disbursements are the out-of-pocket expenses such as court filing fees, witness fees, traveling and subsistence expenses, experts' fees, fees for medical/legal reports, and the like.


The usual rule is that the successful party will be awarded their costs and disbursements, but there are many exceptions.   
The usual rule is that the successful party will be awarded their costs and disbursements, but there are many exceptions.   
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A party can ask the judge for a ruling on costs after the judge has delivered the decision.
A party can ask the judge for a ruling on costs after the judge has delivered the decision.


For more information about costs, see the Legal Aid BC's Family Law website's information page [https://www.clicklaw.bc.ca/resource/4649 "If you have to go to court"], under the section "Costs and expenses".
For more information about costs, see the information page "[https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/costs-and-expenses Costs and expenses]" from the Justice Education Society.


==Resources and links==
==Resources and links==
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===Legislation===
===Legislation===


* ''[http://canlii.ca/t/84d8 Supreme Court Act]''
* ''[https://canlii.ca/t/84d8 Supreme Court Act]''
* [http://canlii.ca/t/8mcr Supreme Court Family Rules]
* [https://canlii.ca/t/8mcr Supreme Court Family Rules]
* ''[http://canlii.ca/t/84h8 Court Rules Act]''
* ''[https://canlii.ca/t/84h8 Court Rules Act]''


===Resources===
===Resources===


* [https://supremecourtbc.ca/family-law/trial/your-day-court/your-day-court-introduction Family Trials] information page from Justice Education Society's Online Help Guide for BC Supreme Court
* [https://www.clicklaw.bc.ca/resources/memorandum-court-self-represented-litigants-trial-procedure-civil-and-family-cases Memorandum from the Court to Self-Represented Litigants: Trial Procedure in Civil and Family Cases], from the BC Supreme Court
* [https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court Trials in Supreme Court] information page from Legal Aid BC's Family Law website
* [https://cjc-ccm.ca/en/what-we-do/initiatives/representing-yourself-court Canadian Judicial Council (CJC)'s online guides], especially the ''Family Law Handbook''
** Under the section "Trials in Supreme Court" see "Coping with the court process", and "Preparing to attend a Supreme Court trial", and the information pages on sample questions to ask your own witnesses and on cross-examination of other witnesses
* [https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court Trials in Supreme Court] and [https://www.familylawinbc.ca/bc-legal-system/if-you-have-go-court/trials-supreme-court/schedule-and-prepare-your-supreme-court Going to trial in Supreme Court] information pages from Justice Education Society's Family Law website (previously Legal Aid BC's Family Law website), with sample questions for witnesses
* [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]


===Links===
===Links===
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* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/family_practice_directions.aspx Supreme Court Family Practice Directions]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [https://www.bccourts.ca/supreme_court/practice_and_procedure/administrative_notices.aspx Supreme Court Administrative Notices]
* [https://www.bccourts.ca/supreme_court/scheduling/ Supreme Court Trial Scheduling]




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