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What is a trial and how do I prepare for one?

A trial is your chance to prove what you said and asked for in your court forms. You do this by presenting your evidence. Your evidence can be documents or witnesses that support your case or go against your partner’s case.

Judges are neutral and impartial. This means they don't take sides and can't give you legal advice.

Judges decide family cases on their own without a jury. They make decisions using the family law rules and laws and the evidence you give. They use a test called the balance of probabilities. This means that your evidence has to be more believable than your partner’s evidence.

There are Family Law Rules that tell you what is needed at every step in a court case. Rule 23 Evidence and trial tells you how to prepare for your trial and how to give your evidence.

This family law court process flowchart explains each step in a family law court case. It also tells you how to prepare for a trial.

You can talk to a lawyer who can explain the court process and help you through it. If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled" or "limited scope" services. This means you pay them to help you with part of your case.

If your income is low enough, you can also ask duty counsel questions about the trial process if they are available in your court location. These are private lawyers or Legal Aid Ontario staff lawyers who give legal help to people who appear in court that day without a lawyer. Duty counsel can't represent you at trial but may be able to help you with general questions.

If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.

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1. Prepare your trial record

Rule 23: Evidence and trial says you must use a trial record for your trial.

If you're starting a court case, you're called the applicant. Your partner is called the respondent. You're both known as the parties in your family court case.

At least 30 days before your trial date, the applicant has to serve the respondent with a trial record. It has to have:

The respondent can add to the trial record by serving and filing documents at least 7 days before the trial starts.

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2. Get your evidence together

Your evidence can be documents or witnesses that support your case or go against your partner's case.

Documents

The documents that you want to use as evidence at your trial must be originals and necessary and relevant to your case. Documents are called exhibits.

Examples of documents include bank account records, report cards, and real estate documents.

You have to give copies of these documents to your partner before your trial starts.

Witnesses

You need to make sure your witnesses come to court when you need them. If they are family members or friends, you may be able to rely on them to show up.

For other witnesses, you may want to issue a summons to them to come to court. A summons is a legal document that orders a person to come to court to give evidence, and to bring documents or other things to the hearing if needed.

To issue a summons you fill out Form 23: Summons to Witness and serve it on your witness. In it, you tell them the date and time you need them to come to court and the documents you want them to bring.

You must pay the witness $50 for each day they are needed in court and give them travel money. If they don't live in the city where the trial is being held, you also have to give them an allowance for meals and accommodation. These fees and expenses are listed in Rule 23: Evidence and Trial.

You should only call witnesses at your trial who:

  • have important information that will help the judge decide your case
  • can give evidence that support the orders you want the judge to make
  • have important information that goes against your partner's case

A witness can only give evidence about what they know, not what other people have told them. When as witness testifies about what other people have told them, this is called hearsay.

Expert witnesses

If your witness is an expert in a particular area that is an issue in your case and they have written a report, you need to give that report to your partner at least 90 days before the trial. For example, this could be a financial report about the value of your assets or a child assessment report.

An expert witness is the only witness who is allowed to give evidence based on their opinion.

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3. Learn about trials

Trials are usually open to the public. This means there may be other people in the courtroom when your trial is going on.

Your trial begins with a person in the courtroom, called a clerk, calling the court to order. This means the judge is ready to hear your case.

There are several steps in a family court trial. For example,

  • each party makes an opening statement
  • each party presents their evidence by using witnesses and documents
  • each party makes a closing statement
  • the judge makes a decision

You need to prepare the questions you want to ask your witnesses and your partner's witnesses. If you plan to give evidence as a witness, you should prepare what you will testify, and get ready to be cross-examined by your partner.

Special Arrangements

If you or any of your witnesses need an interpreter or any special arrangement because of a disability, you can ask for this at any stage in the court process.

You can speak with any staff member at court about what you need or you can contact the Accessibility Coordinator at the court where your case, motion, or trial is being held. More information on accessibility at Ontario’s courts is available on the Ministry of the Attorney General's website.

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Reviewed: 
August, 2016