Difference between revisions of "Trials and Supreme Court Family Law Proceedings"

}}If you are unable to settle your case to your satisfaction, you will need to go to trial.   

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.

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.

== Two different trial options in the 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).

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 factors a court will consider in deciding whether a summary trial is appropriate include:   

*the cost of taking the case forward to a regular conventional trial in relation to the amount involved,  

*whether credibility is a critical factor in the determination of the dispute,  

*whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and

*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).

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 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]. 

 

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 _____

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 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):

|-  

| 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).

 

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))

 

49 days (minimum):

 

Respondent must file Trial Brief (Rule 14-2.1(2)) - see above note re. Rule 14-2.1(8)

 

42 days (minimum):

 

Claimant may filed amended Trial Brief (Rule 14-2.1(3))- see above note re. Rule 14-2.1(8)

| Service of expert report in response to other party’s expert report (Rule 13-6(4)) - See above comment about Rule 13-6(8)

 

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)  

 

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.

 

 

| Attendance at a trial management conference (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)).

| 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))

| Notice of Objection to other party’s expert report must be served (Rule 13-6(10)).

| 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 Certificate must be filed and served on the other party (Rule 14-5(2)).

| Service of subpoena & witness fees on any witnesses (Rule 14-7(32) & (34) & Form F23).