Family Law Trial

Family law is very complex. If you can, it is extremely important that you hire a lawyer to ensure that your rights are protected. If you can’t hire a lawyer for your entire trial, you should consider consulting a lawyer for specific issues.

You can get referrals to a lawyer from the Law Society Referral Service at the Law Society of Ontario at 1-800-268-8326 toll free or 416-947-3330. The Referral Service will give you the name of a lawyer within or near your community. The lawyer will give you a free consultation of up to 30 minutes.

You may qualify for legal assistance from Legal Aid Ontario. You should know, however, that you must qualify financially in order to receive a certificate to hire a lawyer. Legal Aid Ontario also provides advice counsel at the family courthouses that may be able to give you some advice before you go to court. Legal Aid Ontario also provides duty counsel who may assist you on the days that you are scheduled to appear in court for case conferences or motions. Both advice and duty counsel will give you 20 minutes of free advice regardless of whether or not you are eligible for legal aid. However, they will not represent you in court at a trial, settlement conference or trial management conference.

If your case involves parenting time, decision-making responsibility or contact, your children are under the age of 18, and a judge needs independent information about a child’s needs, wishes and interests, the judge may ask for the involvement of the Office of the Children’s Lawyer. The Children’s Lawyer will decide if they can help. If they agree to help, they may assign a lawyer to represent your child, a clinician to write a report for the court, or they may involve both a lawyer and a clinician to represent your child. If a judge makes an order requesting help from the Children’s Lawyer, you and the other party will be required to complete a form, called the Office of the Children’s Lawyer Intake Form: Parenting and Contact Orders. You can find the form here: Office of the Children's Lawyer forms.

It is important that you are aware of the Family Law Rules and follow these rules during the trial. Rule 23 of the Family Law Rules is the rule for evidence and trial of a family law matter but there are other Family Law Rules that you need to be aware of when you represent yourself. The rules change often so it is important that you read them carefully and often.

Throughout this Guide, you will be given information about the Family Law Rules and the Family Law Rules forms. You can review the rules and the forms on the Ministry of the Attorney General’s website, or, go directly to the Family Law Rules and Family Law Rules Forms websites.

It is very important that you are aware of the relevant family law legislation that governs your case. The Family Law Act, the Children’s Law Reform Act and the Child Support Guidelines are the main pieces of family law legislation. Important changes to these Acts were made in March 2021. You may find more legislation at Ontario Laws.

A judge may order a focused hearing of your trial. In a focused hearing, the judge decides how evidence shall be presented and the time that you will be allowed to present it. The judge may order that you present all or most of your witnesses’ evidence by affidavit. The judge may also place time limits on how long you and your witnesses can give oral evidence and on how long any person can be cross-examined. Also, a judge may place page limits on affidavits and documents that can be presented at trial.

A focused hearing is ordered to save time and expense while dealing with your case justly.

At the trial management conference, you will have the opportunity to discuss with the judge your ideas about how the focused hearing should be conducted.

Offers to settle

Offers to settle are very important in family law cases. You or the other party may make an offer to settle to the other side at any time in the proceeding. An offer to settle can be about specific claims or all the claims in the case.

The offer to settle must be signed by you and your lawyer (if you have one).

The offer to settle may include a time limit. This means that you may state that the offer is no longer valid after a certain date and time. If you are including a time limit, make sure that it is part of your offer. If the offer to settle does not include a time limit, it remains valid until the judge gives a decision about the claim(s) in the offer.

The offer to settle must be kept confidential from the judge hearing the trial (or motion) until the judge has dealt with all the issues in dispute, except for costs.

To accept an offer, a party must serve an acceptance of the offer on the other party. The offer must be accepted before the judge begins to give a decision about the claim(s) in the offer.

An offer to settle may be non-severable or severable. Non-severable offers are offers in which all or none of the terms in the offer must be accepted or rejected. A severable offer to settle means that you may choose to accept one or more terms of the offer and reject one or more terms of the offer. The advantage of a severable offer is that if you do better than the final decision on part of your offer that could have been accepted, you may be entitled to costs for that part. You should speak to a lawyer about any offer you make or receive before accepting or rejecting it. There may be costs consequences if a party does not accept an offer to settle and the party who made the offer obtains an order from the judge that is as favourable or more favourable than the offer. For this to happen, the offer must be signed, it must be made at least seven days before the trial, it must not expire or have been withdrawn before the trial begins and it must not have been accepted.

For more information about offers to settle go to rule 18 of the Family Law Rules.

Costs

Costs are also an important part of a family law case. A judge will decide if you and/or the other party should pay the legal costs of going to court. Under the Family Law Rules, the successful party is usually entitled to costs. The judge will consider several things when deciding if the successful party should receive costs, including whether the person has acted reasonably during the trial. In determining costs, the judge will also consider whether a party had made or accepted a reasonable offer to settle the case.

If a party does not appear at court or is not prepared at court, the judge may order costs against that party.

The amount of costs may range from a small amount of the costs to full recovery of the costs of the court process, including the trial.

Disability accommodation

All Ontario courthouses have accessibility coordinators for people with disabilities. If you have any questions about a courthouse’s accessibility features or if you or one of your witnesses needs accessible court services, contact the Accessibility Coordinator at the Courthouse. You should speak to the Accessibility Coordinator as soon as possible and as far ahead as possible before your case begins. You can obtain more information about courthouse accessibility on the Ministry of the Attorney General’s website at Accessibility.

Interpreters

If you or one of your witnesses requires an interpreter for a scheduled court date, immediately inform the judge as far ahead as possible and advise the court office where your case is scheduled to be heard. The Ministry of the Attorney General provides interpreters for those people who qualify for a fee waiver, are French-speaking or need visual language interpretation or if the Court orders an interpreter. You can find more information about interpreters on the Ministry of the Attorney General’s website at Get Court Interpreter.

IMPORTANT: If all or some of your trial is proceeding by video (e.g. Zoom), please read and follow the instructions found in the Remote Court Appearances Guide for Participants. This guide has information about how to participate in an online hearing, and what is expected of you as a court litigant.

Before you start a trial, you will have seen a judge several times. One of your appearances will be the trial management conference. The trial management conference is intended to get everyone ready for the trial. Before attending the trial management conference, each party will need to complete, serve and file Form 17E: Trial Management Conference Brief. There are timelines regarding when you and the other party need to serve and file your briefs and you can find these timelines under rule 17 of the Family Law Rules.

If you need an interpreter or accommodation for a disability at trial, make sure that you let the judge know about this at the trial management conference.

Also, if you want to use a medical or other professional report at the trial, you must confirm with the judge at the trial management conference that the report may be used at the trial.

For more information about these conferences, see the section on Trial Management Conferences.

Before your trial, you may be required to go to an Audit/Assignment Court. Here, a judge will confirm how the trial will proceed. This includes whether the trial will be heard remotely, in-person or a combination of remote/in-person, whether the relevant documents have been filed and to identify important dates and times, including the number of days that are required for the trial. You will also be required to discuss the documents that you would like to submit for trial.

Your witnesses

During the trial management conference, you will discuss your witnesses and their evidence with the trial management judge. At this conference, you must bring your list of witnesses, what you expect your witnesses to say, and the list of documents that your witnesses will bring with them to trial.

When you are preparing for trial and you want a family member or a friend to be a witness, you should ask the family member or friend to come with you. If you want to ensure that your family members, friends or other witnesses come to the trial as witnesses, you will have to fill out Form 23: Summons to Witness This form must be served on the witness and filed with the court. If you are using Form 23, you must pay your witness for every day that the witness is required in court. You will find the witness fee in rule 23 of the Family Law Rules (rule 23(4)). The witness fee must be served on the witness along with Form 23: Summons to Witness.

You should only call witnesses who have information that will help the judge decide your case and is relevant to the orders that you want the judge to make at the trial. You may also call witnesses who have information that goes against the other party’s case.

It is important that your witness tells the truth. With some exceptions, the witness can only tell the court about evidence that they know themselves, not what other people have told them.

You should meet with your witnesses before the trial. You should tell them that they must tell the truth regardless of how the evidence may affect you.

Tell your witnesses to bring documents that support your case with them. If you use Form 23: Summons to Witness, you should list the documents that you want the witnesses to bring with them. Bring the original and at least four copies of the documents to court. The original document is the one that should be filed with the court.

Financial statements

If support or income is an issue at trial, before your trial, you must update your financial statements. Look at rule 13 – Financial Disclosure – of the Family Law Rules for the rule about updating your financial statements.

You must file and serve your last three tax returns, your last three notices of assessment (and re-assessments, if any) and your last three pay stubs from your employer.

If income is an issue, you may be required to bring relevant and necessary documents which support your income. If you are self-employed, you must file and serve your most recent statement of business affairs.

If you are not working, you should file and serve a detailed list of your job search efforts or provide information about why you are not working. The list of your job search should include the date that you submitted your applications, the name of the employers and the address and phone numbers of the employers and the date that they responded, if they did respond.

You must serve and file your updated financial statement 30 days before the start of your trial, or, when you have been notified to be prepared to have your trial heard. You only need to file an updated financial statement if:

1. The financial statement that you already filed is (or will be) more than 40 days old by the time your trial begins; or
2. Your financial situation has changed a lot between the time when you filed the most recent financial statement and the start of your trial.

If there are only small changes in your financial situation, then you can complete Form 14A: Affidavit General and explain what the changes are. You must have the affidavit commissioned before you serve a copy on the other party in your case and before you file it with the court. The affidavit and proof that you served it on the other party must be filed with the court at least 30 days before the start of your trial.

Documents

Documents that you want to use as evidence must be the original document, genuine, necessary and relevant to your case. They also must be true. The documents may include bank account records, report cards, real estate documents, etc. The judge will decide whether you will be able to use the documents at your trial. Be prepared to discuss your documents at the Trial Management Conference.

Be aware that just because you have these documents, that does not mean that they will be accepted at the trial.

If you are allowed to file documents by email or through the ministry’s online filing platform (Justice Services Online), you must keep a copy of your original documents if the judge needs to seem them at a later date.

It is important that you or one of your witnesses identify the documents that you will use at trial when you or your witnesses testify. For example, one of your witnesses might identify a letter that they received. Once the documents are identified as genuine by your witness, they must then be relevant and necessary to your case.

Do not forget that you must disclose all documents that you want to use at trial to the other party before the trial. If you do not disclose them, you will not be able to use them at the trial unless the judge tells you that you can use them. Rule 19 is the rule about document disclosure in the Family Law Rules.

Medical reports

In some cases, you may want to have a medical report as part of your evidence at the trial. There are specific rules regarding this. If you want a medical report as evidence in the trial, you must get your doctor to write and sign a report. You must then serve a copy of the report on the other party thirty (30) days before the trial. You must also get permission from the judge to file the report with the court at the trial management conference.

You can serve the other party with a Form 22: Request to Admit along with the doctor’s report when you give a copy of the medical report to the other party. If you do this, and the other party does not serve a Form 22A: Response to Request to Admit within 20 days, the facts in the Request to Admit are deemed to be true, and you may be able to avoid calling the doctor as a witness to tell the court that the report is real and written by the doctor.

For other professional reports, you should refer to the Ontario Evidence Act for the law regarding these types of documents. You can find the Ontario Evidence Act at https://www.ontario.ca/laws.

Trial record

Up until your trial, documents that you and the other party have filed would be put into a continuing record. You may not use the continuing record for the trial. Instead, you must prepare a trial record. You will find details about how to prepare a trial record in rule 23 of the Family Law Rules.

Please note that if you are the applicant, the trial record must be served on the other party and filed in the courthouse at least twenty (20) days before the start of the trial, or, the trial sittings you have been asked to be on stand-by for. If you are the respondent, you may add any documents that are not already in the trial record to the trial record and serve these additional documents on the applicant and file them with the court at least seven (7) days before the start of trial.

You should discuss your documents in your trial record during the Audit or Assignment Court.

Once the court sets a trial date, you are expected to go ahead with your trial. Asking the court to change a scheduled date is called an adjournment. Adjournments will only be allowed in exceptional circumstances. If you need to change the date of your trial, you need to fill out a form called a 14B Motion Form, serve it on all the parties and file it with the court. If the other party agrees with an adjournment, you can say this on the form. You should be aware that the judge may not agree to the adjournment even if the other party agrees to it. If the other party has not agreed to the adjournment, you or your lawyer must go to court on the date that was originally scheduled and explain why you need an adjournment. It is important that you know that a judge may order costs against you, or the trial may proceed without you, if you fail to appear in court on the scheduled day and time.

If there is an emergency that prevents you from attending court, contact the courthouse as soon as possible so that the court staff can tell the judge that there is an emergency and that you are asking for an adjournment.

If your trial will be held at the courthouse you need to bring the trial record and any documents that you added to the trial record with you to trial, including your updated financial statements. Look at rule 13 of the Family Law Rules for the rule about updating your financial statements.

If you are attending in-person, bring enough copies of every document with you to trial so that every person and the judge has a copy of them. The original should have been filed with the court. If the original was not filed with the court, bring it with you.

Bring several pens and lots of paper with you. Bring your witnesses with you.

• Always be respectful and polite to everyone in the courtroom, including the other party.
• Dress properly for court.
• When you address the judge, use either “Your Honour” or “Justice” before the judge’s last name. For example, you can say, ”Justice Smith” or “Your Honour”.
• You must stand when a judge enters or leaves the courtroom. When you are speaking to the judge, you should also stand.
• When you are speaking to a witness, you should use either “Mr.”, “Ms.” or “Doctor” and not use their first names. For example, you can say, “Mr. Smith” but not “Joe”.
• Court is usually open from 10:00 a.m. until 4:30 p.m. The court usually takes a break for lunch at 1:00 p.m. There will also be a break in the morning and in the afternoon. These hours may change. The judge will determine if your case starts earlier or later or ends earlier or later. Please make sure that you and your witnesses are on time for your trial.
• Make sure that you return to court on time after the breaks.
• You should take notes during court so that you may respond to any issues raised by the other party when it is your turn to speak to the judge.
• When you want to speak during the trial, talk to the judge. Do not talk to the other party. Do not interrupt when the judge or the other party is speaking. Only one person is allowed to speak at a time. If you disagree with something that the other party tells the judge, write it down. Do not speak to the other party and tell them that you don’t agree. The judge will give you time to disagree but only when it is your turn to speak.
• If you object to the other party’s questions to witnesses, besides writing down your objection, you should stand up. This tells the judge that you have something to say.
• However, don’t stand up if you disagree with the other party or the other party’s witnesses’ answers to questions or if you think that the other party or their witnesses are lying. Just write it down.
• If you can’t hear a witness, the other party, a lawyer or the judge, you should let the judge know.
• The judge cannot give you any legal advice because the judge must be fair and impartial when hearing the trial. You should consult a lawyer or duty counsel at your local courthouse. If you have any questions about court procedure during your trial, however, you may ask the judge.
• You may not record your trial unless you first obtain permission from the judge.
• There should be no surprises about the evidence at the trial!

In the courtroom, a judge sits on a dais. It is a platform that sits at the front of the courtroom. Also, there will be a court clerk and a court reporter in the courtroom. Please be aware that a family law case is open to the public. You may see people walking in and out of the courtroom. Also, please be aware that everything is recorded in the courtroom.

There are two tables in front of the judge for the applicant and the respondent. These are called counsel tables. Usually, the parties sit there with their lawyers. If you do not have a lawyer and you want to bring someone to sit with you at these tables, make sure that you ask the judge for permission to do this. However, if that person is going to be a witness, the judge won’t allow that person to sit with you. You should try to choose someone who is not going to be a witness.

It is very important that you and your witnesses show up on time for your trial. If you are attending your trial in-person, show up at the court room at least thirty minutes ahead of time. If you do not show up on time, the trial could go ahead without you.

You must prove your claims in your case. The judges use a test called the “balance of probabilities” to see if you have proven your claims. This means that your claim must be more probable (more than 50%) than the other party’s claims.

Excluding witnesses during a trial occurs when one or both parties ask the judge to order that all of the witnesses stay outside the courtroom until they are called to come into the courtroom and give their evidence. The request to exclude witnesses happens at the beginning of the trial and is done to ensure that a witness does not change his or her testimony after hearing another witness. If a judge decides to order that the witnesses be excluded from the courtroom, ensure that you do not speak to the witnesses about any of the evidence that has been presented at trial before they testify. You do not have to leave the courtroom when other witnesses testify even if you intend to testify yourself.

Most judges will require both parties to give an opening statement at the beginning of the trial. The purpose of an opening statement is to give the judge a roadmap of the issues and the evidence that you will be presenting to the court. It is not the time to give evidence. You should only give the judge a summary of what you will be doing and the orders that you want the judge to make.

The applicant (the party that started the case) gives their opening statement first. If you decide to give an opening statement, you should make it as short as possible. You should outline the orders that you want the judge to make, your most important issues, how you intend to support your claims, the witnesses who you will be calling, and the documents that you will be presenting to the court.

If you are the respondent, you may give your opening statement after the applicant’s opening statement or after the applicant has completed their case.

Do not be argumentative or dramatic during your opening statement. You want to be seen as reasonable and calm during your trial.

Do not interrupt the other party when they give an opening statement to the judge. You will be given a chance to present your case when it is your turn.

It is very important to remember that your opening statement is not evidence!

After your opening statement (if you choose to make one), the judge will start to hear evidence. Your evidence may come from you, your witnesses or your documents.

If you are the applicant, you will go first. You can call your witnesses or testify yourself. You must also produce your documents at this time for the witnesses to identify or that you may identify. These documents, which can include such things as affidavits (sworn statements), financial statements, letters, photographs, receipts, or reports, are called “exhibits”.

If you are the respondent, you will go after the applicant finishes giving their evidence to the judge. You can call your witnesses or testify yourself. You may also produce your documents at this time for the witnesses to identify or that you may identify. These documents, which can include such things as affidavits (sworn statements), financial statements, letters, photographs, receipts or reports, are called “exhibits”.

Every witness will be asked to swear an oath or affirm that they will tell the truth. Lying under oath is called “perjury” and is punishable by up to 14 years in jail.

Let your witness tell their own story. You can decide the order of your own witnesses.

If you decide to testify on your own behalf, usually you will be the first witness when it is your turn to give evidence. If you don’t testify on your own behalf, the other party may still call you as a witness for their case. If you testify on your own behalf, you may be questioned by the other party (questioning by the other party is called cross-examination).

The other party may cross-examine each of your witnesses. You may cross-examine each of the other party’s witnesses.

After the other party has cross-examined your witnesses, you may re-examine the witness to clarify matters raised by cross-examination. However, you may not raise new issues that were not raised during the cross-examination.

Once you or your witnesses testify, you can usually sit down.

There is a difference between expert witnesses such as doctors and therapists or counsellors and other kinds of witnesses such as friends and family. Expert witnesses can give an opinion based on their expertise. For example, they can give an opinion about a medical diagnosis. The judge will decide if your witness qualifies to be an expert witness. If you call an expert witness, before the trial, you must provide the expert witness’ resume, which includes their experiences and skills. The judge will usually set a timeframe of when this information should be filed with the court.

Your friends and family cannot give an expert opinion.

There are very specific rules involved in questioning witnesses. First, the applicant will question their own witnesses (examination in chief), the respondent then cross-examines the same witness, and then the applicant can re-examine the witness. When it is the respondent’s turn, the questioning of witnesses will happen in the same order. When each of you finishes questioning the witness, the judge may ask questions of the witness, as well.

If you question a witness that you have called, this is called examination in chief. You may not ask “leading questions” in examinations in chief. Leading questions are questions that have the answer in the question – for example, a leading question could be, “The car was red, wasn’t it?”. If you ask questions that start with who, what, where, when, why, how, or please describe, it will help you to avoid asking leading questions.

When you question the other party’s witnesses, it is called cross-examination. You do not have to cross-examine a witness. However, if you decide to do this, you may ask leading questions. You should remember that the purpose of cross-examining a witness is to test the truthfulness of the witnesses’ answers and bring out evidence that is favourable to you.

During the cross-examination, you should ask questions about the witnesses’ ability and opportunity to observe the things that they are telling the court. As well, you can question the witness about their ability to give an accurate re-telling of what they have seen and heard and whether the witness has any reason to be biased or prejudiced or has an interest in the outcome of the case.

If a witness has made a sworn statement before the trial (called an affidavit) and is saying something different at the trial, you should cross-examine the witness about their prior statement. Also, if the witness has said something good about you in the prior statement, you should ask the witness about that, too. To do this, you should ask the witness if they remember making the statement and swearing that the statement was true. Then, you should read the prior statement. Ask the witness if the statement is true. If the witness says the statement is not true, this will show the judge that the witness is not believable.

After a witness is cross-examined, the party that called the witness may re-examine their witness. Re-examining a witness means asking the witness additional questions to explain answers that the witness gave during the cross-examination. This is not the time to introduce new issues that did not come up during the cross-examination or to bring up issues that you forgot. You may only ask the witness questions to clarify what they said during the cross-examination.

You should remember that questions are not evidence; rather, it is the witnesses’ answers to the questions that are evidence. Usually, witnesses can only testify about what they have personally seen, heard or did. There are some exceptions to this such as when a witness is an expert.

Always allow a witness to finish answering your question before you ask the witness another question.

Never argue with a witness.

During the questioning of witnesses, you have the right to object to the questions that the other party asks a witness or you can object to the introduction of documents that a witness has identified. If you object to a question or to the introduction of a document, stand up. The judge will ask you why you are objecting. The judge will listen to both you and the other party about the objection and will decide whether your objection is valid.

Since you are representing yourself at trial, the judge may ask you questions during the examination in chief. You should think about what you want to say. You should write it out before you come to the courthouse, but you should not expect to read your notes when you are a witness. If you made notes at the time that something occurred, you must ask the judge for permission to look at those notes. You will need to tell the judge why you need to look at these notes.

If you decide to testify yourself, you must only say what you personally saw, heard or did.

Once you have heard the other party’s argument, you may wish to reply to their evidence. This is not an opportunity to introduce new evidence. Instead, it is strictly to respond to the other party’s evidence. You should note that you or your witnesses may be cross-examined by the other party on your reply and on other evidence.

After all the witnesses have been called to testify, the judge will require that both parties make closing statements. During closing statements, you are allowed to address the judge and tell the judge what you believe the judge’s decision should be, based on the evidence – your witnesses and your documents. At this time, you may also point out the problems with the other party’s evidence.

The applicant makes his or her closing statement first. Then, the respondent makes his or her closing statements.

Your closing statement cannot include issues that have not been introduced by the evidence.

After the parties make their closing submissions, the judge will either make a decision or they will “reserve” their decision. When the judge releases their decision, they will explain what the decision is and why they chose to make their decision.