The Best Option for You
If You Go to Supreme Court
I have decided to go to a full trial. What do I have to do?
A trial is a formal and structured court hearing, held in a courtroom, where you and the Defendant (or your lawyers) will each present your evidence. The judge will make decisions about the issues you and the Defendant cannot agree upon, based on your evidence, and these decisions will then be made into a final order. This order will tell you and the Defendant what you are to do about such issues as custody and access or child support.
Please note:
While the judge is responsible for making the final order, you or the Defendant - not court staff - are responsible for preparing it. You will need to take careful notes of what the judge decides (the order is in effect from this point on), then prepare and file the order, written in numbered paragraphs, with the court registry. If everything is correct, court staff will sign, stamp and enter the order on your court file.
At any time after your spouse has filed a Statement of Defence in response to your Statement of Claim you can choose to call the trial co-ordinator at the court registry where you filed your Statement of Claim to set a trial date. Because the trial co-ordinator will ask you for an estimate of how long the trial will take, you should talk to the Defendant before you call the courthouse to see if you can agree on an estimate - for example, half a day, one day, etc. (In making your time estimate, please keep in mind that a judge hears evidence for 4.5 hours per day.)
Once you get a trial date, you will then need to prepare a Notice of Trial (Form 35), file the original and three copies with the court registry (if you and the Defendant have not agreed on how long you think the trial will take, you will need to include both of your estimates), then deliver the notice to the Defendant within seven days of when you filed the notice with the registry. The fee for filing a Notice of Trial is $208.00.
If you are applying for spousal support and/or an order determining the division of property - and in most cases if you are applying for child support - you will have filed a Financial Statement (Form 89) earlier in your family law proceeding. If that Financial Statement was delivered to the Defendant more than 90 days before the trial date, you will need to deliver an updated Form 89 to the Defendant at least 30 days and not more than 60 days before the trial.
Next, not more than 30 days and not less than 14 days before the trial date, you must complete and file with the court registry:
- a trial record - see Rule 39 (11- 14) for what the record must include - and deliver a copy to the Defendant as soon as possible
- a trial certificate (Form 37) and deliver a copy to the Defendant as soon as possible (this certificate is essential, or you risk losing the trial date), and
- a List of Witnesses and Time Estimates, listing your witnesses and providing estimates for how long you think it will take for you (or your lawyer, if you have one) to question each of your witnesses (called "direct-examination"), and for the Defendant (or his/her lawyer) to question each of your witnesses (called "cross-examination"). The Defendant will also have to complete a List of Witnesses and Time Estimates.
Prior to your trial date, you and the Defendant will be required to attend a pre-trial conference, a meeting before a judge or master intended to make sure you and the Defendant are ready to present your case at a trial. At that time, you will usually be asked to exchange such information as your List of Witnesses and Time Estimates.
To make sure the Defendant produces all relevant information - such as financial records - at the trial, you may also want to complete, file and deliver a Notice to Produce (Form 39) to the Defendant at least two days before the trial (the Defendant may also choose to do this).
All numbered forms are available on-line.
Finally, if you and the Defendant are submitting more than six documents in total as evidence in the trial (these might include income tax returns, pension statements, etc.), you will need to prepare a document brief. It is best to prepare this with the Defendant if you can; if not, you can each prepare your own.
To prepare a document brief, collect your documents together, add page numbers, then prepare tabs to separate the documents and add an index listing each document by tab and page number. Bring the original and three copies of the document brief with you to the trial. The court clerk will file the original as an exhibit; the copies will be for you, the Defendant and the judge.
A Supreme Court trial is complex. We recommend you talk to a lawyer before your case goes to trial. You may also want to attend another trial before your own to get an idea of what will happen in the courtroom.
Important! You may want to call witnesses to speak on your behalf at trial. Make sure you notify them of the court date, or ask court staff about how to arrange for a subpoena if necessary - well in advance of your court date.
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