Skip to content

Posts tagged ‘Family Court’

Wednesday’s Video Clip: The family courts and rules – The basics


 

Wednesday’s Video Clip: The family courts and rules – The basics

Most people will have no reason to become familiar with the workings of the Ontario Family Law system. Exposure to the justice system is usually a result of necessity, such as a separation or divorce, with its resulting property, support and child custody issues. As a result, most people do not know how the Family Court system works.

This video will provide a brief and basic review of the Ontario Family Courts, and the Rules that people are expected to follow.

First let’s start with the Family Law Courts:

In Ontario, and there are essentially three different courts that can hear Family Law matters:

• the Superior Court of Justice;

• the Ontario Court of Justice; and

• the Family Court branch of the Superior Court of Justice.

The court that will hear your particular Family Law dispute will depend on the location, and the nature of the dispute.

The Superior Court of Justice is the general court within the province; Family Law matters are just one of a broad array of legal topics that are heard before it. It decides disputes involving divorce, division of property, child and spousal support, and custody and access.

The Ontario Court of Justice hears disputes that fall under most provincial family-related legislation. These include disputes relating to custody, access, child and spousal support, adoption and child protection applications. This court does not hear divorce matters (which are federal) or matters relating to the division of property.

Finally, the Family Court branch of the Superior Court of Justice (sometimes referred to as the Unified Family Court) has been set up in 17 locations across the province of Ontario. Since Family Law in Ontario consists of matters governed by both federal and provincial laws, and since this branch of court is authorized to hear both, it is accordingly called a “unified” court. Accordingly, in regions where the Family Court branch exists, the court hears all family law matters, including divorce, division of property, child and spousal support, custody and access, adoption, and child protection applications.

Next let’s look at the Family Law Rules

All court proceedings – whether federal or provincial – are subject to specific court rules that govern the procedure before the court. All Family Law proceedings in Ontario are governed by a single set of Family Law Rules. the Family Law Rules set out the following:

• those specific Acts and Courts to which the Family Law Rules apply;

• the consequences of not following the Rules or obeying an Order;

• where (in what court and region) a case or application may be started

• how and when documents are to be served;

• which matters are subject to the Mandatory Information Program• the rules relating to Financial Statements;

• the procedure around Case Conferences and Offers to Settle;

• the obligations surrounding disclosure of documents, questioning witnesses, and admission of facts; and

• the rules relating to costs;

There are specific Forms in the Family Law Rules. These include the specific Forms to be used in an Application relating to a divorce, Financial Statements and a form to calculate Net Family Property.
The Mandatory Information Program is discussed by our associate lawyer Wendy in another one of our law videos.

We hope you have found this video helpful. If you require further information about the family court or the rules of the court please give us a call or visit our website at www.russellalexander.com

 

The Top Five Things NOT to Expect from Family Court

 

The Top Five Things NOT to Expect from Family Court

This week, I wanted to briefly dispel some of the common misconceptions about what happens in Ontario Family Court – and in particular, what NOT to expect from the legal process.

1) Don’t expect to have your legal matter heard immediately.  

There may be great benefit to having matters adjudicated promptly and to having the parties’ affairs quickly wound up – especially in acrimonious family litigation, where emotions run high.  However, the Ontario legal system is saturated with unavoidable delays.    Litigants can expect to wait many months or even years to have their matters finally resolved, and this will be exacerbated when one or both parties take a highly adversarial stance in the litigation, injecting numerous interim motions and other steps which may prolong the process even further.  

Remember:  even at the best of times, the legal process takes time.  

2) Don’t expect to have your matter decided right away, either.

Unless there is an emergency situation (for example in cases where there is an urgent motion brought in connection with the custody or care of any children of the marriage), decisions of the court will not be made immediately at the hearing.

Rather, after hearing the parties, the court may take some additional days or weeks to render a decision, and to produce formal written reasons where necessary.

3) Don’t expect any hand-holding by the Judge.  

Generally speaking, it is always best to have competent legal representation when attending Family Court.   Although the Ontario justice systems does allow for litigants to be self-represented, the decision to go this route is fraught with inherent risks and pitfalls.  True, a court may be a little more understanding and patient with those litigants who choose to represent themselves, but the court has no positive obligation to do so, and certainly is not obliged to step in and help such a party conduct his or her side of the litigation, to give instruction on the relevant legal principles, or to help develop a litigation strategy.

4) Don’t expect TV-grade courtroom drama.

For those who have no regular exposure to the legal system, there may be common misconceptions about how that system works, usually formed from watching movies and television.   However, the truth is that in Ontario (and in virtually all jurisdictions), the real-life court process simply does not involve high-drama tactics such as lawyers brow-beating witnesses during abusive cross-examinations, or dramatic last-minute courtroom entrances with “surprise” witnesses who save the day for the underdog litigant.  

In reality, the court process is well-established, plodding, and rigorously-defined:  it involves certain procedural steps and requirements, strict adherence to laws and civil practice rules, .and sometimes tedious documentary review and other processes.

5) Don’t expect everything to go your way  

The resolution of family law disputes is complex, and involves not only the application of established legal principles and laws, but also the consideration of facts and various interests of the affected parties.  (For example, where there are children involved, the best interests of the child will generally govern the court’s determination).  

Therefore – as with all litigation – the outcome of any family law matter can go one of many different ways, and is not always solely dependent on the sheer strength of the parties’ respective legal positions in the technical sense.  

This may come as a particular surprise to those spouses whose temperament is of the “all-or-nothing” variety, and who have dug in their heels to insist the matter be resolved by a court rather than through alternative dispute resolution methods such as mediation or arbitration.  For such people, the eventual court-imposed outcome is not always to their liking.  This is always the risk that has to be taken when going to court.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.

 

 

A Couple of Cases on Costs

A Couple of Cases on Costs

In todays’ Blog we briefly touch on two cases that concern costs awards in family law litigation.  As you may already know, costs orders are made by a court in accordance with its overall discretion; however, they are often – though not always – awarded to the successful party at trial or on a motion.  Essentially, they are a means for having the unsuccessful party pay for at least some of the litigation costs incurred by the party who emerged victorious in court.

With that said, here are a couple of interesting cost-related questions:  

1) Who gets costs if both parties disobey the court?

In Vickers v. Vickers, the court as part of a divorce action ordered the spouses to agree upon and retain: a) a “certified real estate valuator” to appraise their matrimonial home, and b) a real estate agent to sell it.  The court also ordered the house to be listed for sale by a certain date.  

However, the spouses deliberately did not comply with the court’s order: instead they mutually agreed to dispense with the services (and cost) of a “certified real estate valuator,” since they felt that they could obtain a valuation from the experienced real estate agent(s) they were planning to hire.  

Unfortunately, this plan to use real estate agents did not play out as intended; after obtaining several different assessments the parties were unable to agree on a single valuation figure.   Indeed, a full year after the court’s order, the house had still not been listed.   The matter came back before the court; after devising a formal plan to eliminate the valuation stalemate, the court addressed the costs question as follows:

Neither party complied diligently with the Order, with the result that the disposition of the home and its contents and, therefore, the resolution of the property issues in the proceeding, has been delayed.  …

d)  Costs

This motion was made necessary, in large part, by both parties’ non-compliance with the Order dated January 7, 2011.  In these circumstances, it is appropriate that each party bear his or her own costs of the motion.

2) Must a party make an offer that he or she knows will be rejected?

Next, a case called Mudronja v. Mudronja deals with an interesting question:   Is a party to family litigation obliged to make a formal offer to the other party, even if he or she knows that the offer will be turned down?  
The answer, apparently, is “yes”.  Moreover, in these kinds of circumstances the fact that a party made a sure-to-be-rejected offer is still a prime factor in awarding costs.  The court in this case wrote:

There were no Offers to Settle made in connection with these motions.  Eddy says he did not make an Offer because the relief sought by the Respondent was so clearly unreasonable that no Offer to Settle other than a consent to dismissal would have made any sense, and, in addition, would have been an Offer that would never have been accepted.

With all due respect, the fact that an Offer might not be accepted is no reason not to make an Offer.  A reasonable Offer to Settle is a major consideration when deciding whether costs are awarded and if so, the scale of a costs award.

For the full text of the decisions, see:

Vickers v. Vickers, 2012 ONSC 973 (amending 2012 ONSC 847)  http://canlii.ca/t/fpvhn

Mudronja v. Mudronja, 2012 ONSC 3592  http://canlii.ca/t/frr0z

Additional reasons to:

Mudronja v. Mudronja, 2012 ONSC 2655  http://canlii.ca/t/fr5qn

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.

 

 

Father Obliged to Pay Child Support Even Where Undue Hardship Results – Duty to Support New Family Just One Factor


Father Obliged to Pay Child Support Even Where Undue Hardship Results – Duty to Support New Family Just One Factor

In a decision from earlier this year, the court confirmed that a father was still obliged to pay support for his two children from a first marriage even though:  1) he no longer had a relationship with them; 2) he had a new family (and two other small children) to support; and 3) the child support obligation would cause him undue hardship, in light of his difficult financial circumstances.

In a case called Espiritu v. Javinal, the husband and wife had two children together.   After they separated, the mother – who had a third child from a previous relationship — moved all three children with her to Manitoba.   The mother earned about $24,000 as a hairstylist plus another $9,000 in child support for the third child she had from the other relationship.

Meanwhile the father, who remained in Ontario, had embarked on a new relationship with another woman, and had two more children with her.  He was the sole support for this new family unit which consisted of his new wife, the two children, and his mother-in-law (who lived with them).   The father earned about 56,000 as a service technician, but this included significant overtime which was not reliably available to him in the future.

The mother applied to the Ontario court for an order for child support from the father, in respect of the two children they had together.

The court noted that on a straightforward application of the Federal Child Support Guidelines – without more – the father would be required to pay about $850 per month.   However, the father was asking for a deviation from this amount based on undue hardship, so the court was obliged to compare the household incomes of the parties.

First, the court considered the fact that the father’s had a new family to support.   Indeed, it accepted his claim that was struggling financially to support them, particularly since he had the added burden of having his mother-in-law living in the home.   He was heavily in debt, and owed considerable amounts to extended family members.  Admittedly, the father received a little assistance on car payments from his father-in-law from time to time, but these were not a regular part of his income.  And even if his new wife was able to return to the workforce in the future, her added income would be offset by day care costs, since the mother-in-law was not capable of looking after the children.

The court also made an interesting observation:  Since the father admitted that he did not in fact see his older two children anymore (the mother having apparently cut him out of their lives when she moved to Manitoba), his current debts and precarious financial situation were wholly unrelated to his prior relationship with the mother.   Furthermore, while the father may have had a moral obligation to support the mother-in-law, he did not have a legal one.  As such, the father’s dire financial scenario was essentially of his own making, and could not be the grounds for his “undue hardship” claims.

As such, there was no avoiding the conclusion that the father was legally obliged to pay child support for his two children of his first union; however, in determining the proper amount the court was entitled to consider all of the circumstances, including the father’s financial obligations to his new family.

Looking at the numbers, the father’s overall financial situation was not significantly worse than that of the mother:   He had a household of three adults and two children, with an income of $56,000 at his disposal.  She, on the other hand, had a household of one adult and three children, with an income of about $32,000.

In the end – and despite finding that he would endure financial hardship – the father was ordered to pay the mother child support.   However, in light of all the circumstances the court adjusted the amount to $400 per month.

For the full text of the decision, see:

Espiritu v. Javinal, 2012 ONCJ 13 (CanLII)   http://canlii.ca/t/fpmh9

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

 

 

No Jumping from Court to Court in Family Litigation

No Jumping from Court to Court in Family Litigation

“Pick a family court, and stick with it.”

That seems to be the advice from the Ontario Superior Court of Justice in a recent decision concerning the ability of family law litigants to have an Order made in one kind of family court, be varied in another.

To understand the decision, it’s important to understand how Family Courts are structured and organized in Ontario. This was succinctly summarized by the Court of Appeal in another case, decided in 2009, called Christodoulou v. Christodoulou:

There are three kinds of courts that hear family law matters in Ontario. The Family Court exists in some areas and combines the jurisdiction of the Ontario Court of Justice and Superior Court of Justice in relation to family law. That is, the Family Court hears all family matters where it exists. In other areas, the Ontario Court of Justice and the Superior Court of Justice each hear certain family matters. Only the Superior Court of Justice has jurisdiction to hear divorce applications and matters relating to property division. Only the Ontario Court of Justice has jurisdiction to hear child protection and adoption matters at first instance.

Turning back to the more recent decision: the case involved a husband and wife who had married in 1998 but separated 2.5 years later. They had one child, now 12 years old, who lives primarily with the mother. A separation agreement between the spouses obliged the husband to pay $100 per week in child support.

To finalize the matters between them, the wife then brought her claim to the Ontario Court of Justice to seek custody, child support, and certain related Orders. Those Orders were granted, and subsequent variations (for example, to allow the husband to have “reasonable computer and telephone” access to the child) were heard in that court as well.

However, in 2005, the wife took the next step and applied to the Ontario Superior Court of Justice for a divorce. This was granted to the parties on an uncontested basis. In the process of doing so – and this is an important point – she did not seek any Order for custody or child support.

If the wife had requested custody or child support, the Ontario Superior Court of Justice, which has jurisdiction over those matters if they are part of a divorce application, might have exercised that jurisdiction and granted the wife custody or child support pursuant to the provisions of the Divorce Act.

However, this is not how the wife chose to proceed. Her divorce petition did not request any corollary relief such as custody or child support, because she had already obtained an Order covering those matters from the Ontario Court of Justice. Nor did the wife object to having matters heard in that Court, even when she had an opportunity to do so as part of a variation application that was heard in 2006.

The divorce resulting Order reflected this, in that it was silent on these matters.

The wife then came back to the Ontario Superior Court of Justice, to obtain an “interim and permanent” Order for custody and child support, among other things.

The judge held that she was bringing her matter to the wrong Court. The jurisdiction in which the parties lived did not have a dedicated Family Court, so they had an option to start their litigation in either the Ontario Court of Justice, or the Superior Court of Justice. Having chosen the former, they were bound to keep their matter there; it was not now open for them to ask the Superior Court to step in for the purpose of varying the original Order. Based on a review of the statutes and cases, that Court did not have the jurisdiction to vary a final Order that had been made in the Ontario Court of Justice.

Simply put: a family law litigant of whatever type (i.e. whether married or unmarried) who wants to vary an Order can only go back to the Court that made it (or in some areas, go to the Supreme Court of Justice – Family Court, which is both courts in one). This effectively prohibits litigants from shopping around their family matters to various courts, re-commencing or re-litigating multiple actions in different courts, and trying to indirectly what cannot be done directly.

The Court dismissed the motion for summary judgment.

For the full text of the cases, see:

Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII)  http://canlii.ca/t/27swf

 
Houle v. Trottier, 2012 ONSC 786 (CanLII)  http://canlii.ca/t/fpwwl

 

 

Be Careful About Who Your “Friends” Are

Be Careful About Who Your “Friends” Are; Facebook as a Source of Evidence in Family Law: Part 4

In recent months I have written on a few occasions about the use of Facebook in family law matters, for example situations where one ex-spouse was using it to gather unflattering information about the other, usually as a tool in a custody dispute. Reference:

Facebook as a Source of Evidence In Family Law: Part 1

Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases

and

 Facebook as a Source of Evidence in Family Law: Part 3

The primarily lesson to be learned from those scenarios is that the social media-based access to our private lives that we give others can be used and misused in unanticipated ways.

Yet another illustration of this concept occurs came to my attention recently, in a situation involving a fellow lawyer whose imprudent choice of whom to “befriend” on Facebook led to the misappropriation and unauthorized use of pictures of himself.

The scenario was described by legal marketer Susan Van Dyke, whose client was a partner in a law firm. As a means of promoting himself and the firm, the lawyer created a Facebook profile and added many Friends to his list. Amongst them was a reporter.

This reporter happened to be doing some writing for the law firm’s media relations campaign, which included mention of this lawyer. However, the reporter was unsatisfied with the photograph provided by the lawyer’s publicist. The reporter then took it upon herself to “hunt for more interesting photos” on the lawyer’s Facebook profile. Fortunately, the photo that was eventually published to accompany the reporter’s written article was not an embarrassing one (it showed the lawyer standing next to a high-profile public person), but it was certainly not the one that had been approved and endorsed by the lawyer himself.

This incident shows the importance of taking care to ensure that the photos and other information we make available on social media sites such as Facebook, Twitter and even LinkedIn has been carefully vetted to ensure that it cannot embarrass us or harm our reputation. (And this includes not only those images that we upload ourselves, but also images posted by others in which we have been “tagged.”)

Migrating this to the realm of family law disputes, it easy to imagine an ex-spouse (or soon-to-be-ex) sifting through photos of the other spouse on Facebook, looking for images that are damaging to his or her reputation or legal position. Especially for an ex-spouse who is intent on painting the other spouse in an unflattering light in court (for example to gain leverage in a custody or access dispute, or to disprove the other spouse’s claims of physical inability to work so as to preclude an increased need for spousal support) Facebook and other social media sites are a free and fertile source of potential ammunition.

But whatever the unanticipated use might be, the bottom line is this: if an image or information has been posted, it available for public consumption and can be used against you, even by a friend, but especially by an ex-spouse or ex-partner.

Susan Van Dyke offers several “essential Facebook tips” to help avoid having information or photos misused in this way. These include:

1) knowing who your “Friends” are;

2) avoiding posting anything that can come back to haunt you;

3) checking your Facebook security settings;

4) scanning all social media sites for photos in which you are tagged (and requesting that they be removed if they are not flattering);

5) creating a separate Facebook page just for family and personal photos.

Facebook is here to stay — and with all of its unforeseen dangers. Those who are embroiled in family law disputes should be particularly vigilant about what information they are making available, and how it is being used.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at ww.RussellAlexander.com

Remember you can also visit us on Facebook at www.facebook.com/RussellAlexanderFamilyLawyers

More Changes to Family Law Procedure — Rules Relating to Experts

 

More Changes to Family Law Procedure  — Rules Relating to Experts

Back in September, I told you about a new initiative in Ontario New Process Mandatory for Divorcing Spouses in Ontario, reference http://bit.ly/q7VuCt  ,  which requires family law litigants throughout the province to attend a Mandatory Information Program.   This government initiative is intended to inform such individuals about various aspects of the litigation process, and applies to contested divorce and matters involving custody, support, and access. (It does not apply to uncontested divorce or consent orders which incorporate the terms of an agreement or prior court order).

The implementation of this Program was accompanied by other improvements to adoption procedure, and to family law procedure in connection with certain forms and court processes. While some of the changes will only affect and be of interest to the lawyers who represent family law clients in court, some of them are worth mentioning as they inform and impact individual litigants who want to have their legal positions on matters such as custody and support presented in the most effective manner possible.

In particular, changes to the Family Law Rules – which govern the procedure used during family law trials – have resulted in the introduction of Rule 20.1 which clarifies the duties of expert witnesses who appear as part of the trial process, including those experts hired by parties to give opinions on custody and access of any child of the marriage.

First of all, the new Rule stipulates that every expert:

• has a duty to provide opinion evidence that is fair, objective and non-partisan,

• must ensure that this duty prevails over any obligations to the party who retained the expert;

• must provide opinion evidence that is related only to matters that are within the expert’s area of expertise;

• must provide a report of the results of his or her inquiry;

• must file that report with the court and provide each of the parties with a copy.

In connection with the contents of an expert’s report, the Rules now mandate that every report must contain:

• the expert’s name, address and area of expertise;

• his or her qualifications (including his or her employment and educational experiences in his or her area of expertise);

• the instructions provided to the expert in relation to the family law proceeding;

• the nature of the opinion being sought from the expert, and each issue in the proceeding to which the opinion relates;

• the expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;

• the expert’s reasons for his or her opinion, including,

    • a description of the factual assumptions on which the opinion is based,
    •  description of any research conducted by the expert that led him or her to form the opinion, and
    •  a list of every document relied on by the expert in forming the opinion.

• an acknowledgement of expert’s duty (relating to giving opinion evidence that is fair, objective and non-partisan) signed by the expert.

The changes relating to experts mimic those that are found in the Rules of Civil Procedure.  They do not apply to experts who are specifically appointed by the court to assist it in making custody and access assessments under the Children’s Law Reform Act, to expert assessments of children under the Child and Family Services Act, and to orders appointing the Office of the Children’s Lawyer in situations involving custody or access.

These changes to the Family Law Rules may seem overtly technical, but they are important because they guide and give format to the information that a family law litigant may put forth to the court via the opinion of a hired expert, on important matters such as custody and access of a child.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

Top 5 Things Self Represented Litigants should know about conducting a trial

Top 5 Things Self Represented Litigants should know about conducting a trial

 As a self-represented party, you must present your own case at trial. The purpose of this blog is to set out some practical and procedural matters with respect to the trial process in order to assist you in representing yourself.

In providing you with this information, we do not assume any responsibility to provide you with legal advice. Similarly, the judge who will be conducting your trial will not be able to give you legal advice. The judge must not only remain impartial, but must also be seen by all of the other parties to be impartial.

This initial blog cannot possibly cover all the things you need to know about conducting a trial, nor can it begin to replace the advice and assistance that would be available to you if you had legal counsel. Accordingly, you are urged to obtain legal information and legal advice to the extent you are able.

It is important to remember that you are fully responsible for the presentation of your case to the court. You cannot relieve yourself of this responsibility by simply relying on these comments or by relying on the fact that you are not represented by counsel.

If you have questions at any time, you should let the trial judge know.

All references in this blog to Rules are references to the Ontario’s Family Law Rules. Similarly, references to Forms, are Forms referred to in the Family Law Rules. Both the Forms and the Rules are available on the Ontario Superior Court Website: http://www.ontariocourts.on.ca/scj/en/famct.

So here we go, here’s our top 5 things you need to know about conducting your own trial:

1. Burden of Proof

If you are the applicant, the burden of proof will be on you to prove the claims in your Application. If you are the respondent, the burden of proof will be on you to prove any claims in your Answer. All claims must be proven on a balance of probability, i.e. greater than 50%.

 

2. Opening Statements

At the start of the trial, the applicant is entitled to make an opening statement outlining the background to the applicant’s claims against the respondent and a summary of the evidence that the applicant intends to call.
After the opening statement of the applicant, the respondent may also make an opening statement, outlining the defence to the applicant’s claims, the background to any claims being made against the applicant and a summary of the evidence that the respondent intends to call. A respondent may choose to wait to make an opening statement until after the close of the applicant’s case.

You are not required to make an opening statement. The choice of whether to make an opening statement will be solely up to you.

You must not interrupt the other party’s opening statement even if you disagree with parts of it.

What is said in the opening statements is not evidence. If what you say in your opening statement is not borne out by the evidence that is subsequently presented, or is contradicted by that evidence, then what you said in your opening statement will be ignored by the trial judge. The sole purpose of an opening statement is to enable the trial judge to better follow the evidence as it is called.

 

3. Procedure for Introducing Evidence

After the opening statements, the parties introduce the evidence that they each rely upon. Evidence may consist of testimony from witnesses or the introduction of documents.

If you are the applicant, you will have the right to testify and call witnesses to give evidence in support of your case first. Once the applicant’s case is closed, the respondent has the right to testify and call witnesses to give evidence in support of the respondent’s case.

During your evidence and the evidence of any witnesses that you call, you may produce documents that you or your witness are able to identify and those documents may be entered as exhibits in the trial.

The opposing party may cross-examine each witness that you call. You will have the right to re-examine the witness to clarify matters raised by the cross-examination. You may not raise issues during re-examination that were not discussed by the opposing party during cross-examination.

After your last witness has been called, you will close your case.

In calling witnesses in support of your case, the process outlined in the section “Questioning Witnesses” below will be followed. The introduction of documents as exhibits is dealt with in the section “Documents as Evidence” below.

If you decide to testify, it is customary for you to be the first witness called in your case. If you decide not to testify, you may still be called as a witness by the opposing party pursuant to Rule 23(11). You will be cross-examined by counsel for the other party or the party, (if that party is also self-represented). You will be required to answer all relevant questions subject to certain limitations.

Before you testify, you will be asked to swear an oath or to affirm that you will tell the truth. If you deliberately lie under oath, you may be subject to a charge of perjury, which is a separate criminal offence that bears its own separate penalty.

Because there will be no one in front of you asking questions during your examination in chief (see below under “Questioning Witnesses”), you must plan ahead what you will say. You must rely on your memory rather than reading a prepared statement of evidence. If you need to look at a document created at or about the time of the events in question, in order to remember details, you must first ask the trial judge for permission to do so. You will be required to tell the judge what the document is and why you need to look at it so that the judge can determine if it is permissible. If you want to ensure you do not forget to cover everything, a written outline of the topics that you want to testify about can be used, but you will have to show it to the trial judge and the opposing party first.

If you testify you must be very careful to keep in mind the distinction between “evidence” and “submissions” (see section below entitled “Closing Submissions” for more detail). When in the witness box you must restrict what you say to what you personally saw, heard, did, received, et cetera. You cannot make submissions from the witness box. If you testify, once your evidence as a witness has been completed and you have left the witness stand, you can no longer give evidence without permission from the trial judge, unless you are entitled to give Reply evidence, as set out below.

In essence, you will be heard by the trial judge in only two ways: either as a witness giving evidence from the witness box, or as a self represented party making submissions from the counsel table. You cannot combine the two and must at all times maintain this distinction.

If you do not call witnesses and do not testify, then the decision of the trial judge will be based on the evidence introduced by the other party alone. However, the other party will likely ask the trial judge to use the fact you did not call evidence to conclude that the reason you did not testify or call a certain witness is because had you done so, the evidence given would not have been favorable to you.

 

4. Reply Evidence

If the respondent decides to call evidence, after all the respondent’s witnesses have been called, the applicant may, in certain limited circumstances, be permitted to lead further evidence to reply to and rebut the evidence that the respondent has introduced. Such evidence is strictly limited to the purpose of replying to evidence of the respondent and may not include evidence that should have initially been part of the applicant’s case. If the respondent has made a claim against the applicant, the applicant will be entitled to call evidence to defend the claim in reply.

If the applicant is permitted to call reply evidence, the same procedure will be followed as was used for calling other evidence.

 

5. Closing Submissions

After all the witnesses have been called, both parties will have an opportunity to address the trial judge to make submissions about what the trial judge’s decision should be, based on the testimony that the witnesses have given and the contents of the documents that have been marked as exhibits. The applicant proceeds first, followed by the respondent. The applicant will have an opportunity to reply to submissions made by the respondent (this is different from “Reply Evidence”). You make your closing submissions from the counsel table.

It is important to remember that it is not open to you during your closing submissions to refer to matters that have not been referred to in the evidence. The purpose of your submissions is to outline your claim or defence and to review the evidence that supports your claim or defence and to point out the shortcomings in the evidence led by the opposing party.

 

Summary

So that is our top 5 things you should know if conducting your own trial.  We hope this helps.  Also remember to consider whether or not witnesses at your trial should be excluded. 

When the trial begins, if you or the opposing party asks the trial judge for an order excluding witnesses, the judge will likely grant the order. In that case, except for you and the opposing party, all other witnesses will be asked to stay outside the courtroom until they are called to give their evidence. This is done in order to ensure, as much as possible, that a witness does not change his or her testimony in response to hearing the testimony of some other witness.

If such an order is made, you must not discuss any of the evidence given at the trial with any of your witnesses before they are called to testify. You must also ensure that your witnesses are aware of the order and do not discuss their evidence with anyone until after the trial is over.

Remember it is never a good idea to represent yourself.  Try to get some legal advice and assistance before chosing to conduct your own trial.

This blog was based in part on a hand out some Ontario Superior Court Judges provide to self represented litigants at the commencement of their trials.