Before court: preparing your case & preparing yourself

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If your matter does go to a hearing or trial, there is a new workbook that can help you to prepare for court. The workbook is called 'Going to Court: Self-Represented Parties in Family Law Matters,' and you can find it here. The workbook contains information about preparing for court and how to present a case in court, as well as worksheets to help you prepare.

1. Can I call myself as a witness?

Yes. If you wish to take the stand to give testimony on your own behalf, you can do that. You should speak with a lawyer to see whether or not this is a good idea in your circumstances. Parties generally give evidence in most family law matters. You should talk to a lawyer, especially if you are also involved in a child protection proceeding, a criminal proceeding, or a contempt proceeding, as this may affect whether you’ll want to testify, or what may be done with your testimony.

Remember that the other party or their lawyer may wish to cross-examine you afterward, just like any other witness. You can be cross-examined on information contained in any affidavits you have filed, as well as the testimony you gave in court, or any other information or statements you have made.

If you plan on calling yourself as a witness, you should make a note of this on any witness lists you provide to the court beforehand.

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2. Why do I have to give copies of everything I file to the other person or their lawyer?

The rules of our court system say that parties to a court case have a right to be given information from the other party about the court case. This allows everyone to understand the details of the case and to respond to them. Each person has the same rules to follow so that both have a chance to prepare and respond. This is part of what we call ‘natural justice.’

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3. Why does the other person get served with notice of the court case?

This is another important part of our justice system. This allows people to prepare and respond to a court case so a judge can hear the case fairly. In some very special cases, notice times may be made shorter or may be delayed, but there are very few cases where no notice is given at all.

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4. I am representing myself in court - what do I need to know?

It is not recommended that people represent themselves in court, even though there are many situations where people do represent themselves. People who are considering doing this on their own should prepare as much as possible for what may happen in court. It is not possible to give information on every possible situation and scenario, but there are a few tips that may help you.

Before getting started, it is important for people to understand that there is a lot to know about court. Do not assume that you understand the law, the process, or the procedures involved. This is not the kind of information that people usually pick up in their everyday lives. People often get ‘advice’ or information from sources who do not necessarily know any more about court than you do. Just because a friend went through a situation that seems to be similar does not mean that yours will be dealt with the same way. Just because you have watched legal shows on television, does not mean that you will understand what to do in the courtroom.

At the very least, it is recommended that people get legal advice, even if they cannot get representation. Use other parts of this website to become as fully informed as you can about what to do in your case. Ask questions. Make an appointment with the Summary Advice Counsel at your local court if it is available, or try Legal Aid or the Lawyer Referral Service. For information on how to connect with these services, click here

Check to see if you have access to advice or representation through an Employee Assistance Plan too. Visit your local Family Law Information Centre. Check out the Legal Information Society of Nova Scotia’s resources. Watch Presenting your Case in Court and Your Day in Court. Visit your local courthouse to see if you can observe a real case (check with court staff to see if this is possible).

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5. What if English is not my first language, or I am hearing impaired, and need help?

Please talk to court staff right away. Interpreters can be hired by the court for most matters. Court staff will need to know what language and dialect may be needed. This includes people who are hearing impaired. Generally, if the court arranges the interpreter, then the court will pay for it.

For more information about interpreter services, please click here.

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6. Should I have a lawyer? Why?

Yes, if that is possible.

The law and the legal process are complicated. Each person is expected to know what they are doing when they go to court, even if they do not have lawyers. For example, people need to understand what information they need to prove their case, how they will go about getting this information, and how to present their case in court. People sometimes have expectations that court staff or the judge will look after everything for them. This is not the case.

Information is available to assist self-represented people (sometimes called ‘self-reps’), but doing the work and putting everything together is up to the person to do themselves.

You are not always the best person to judge how good a case you might have. Lawyers can give you an independent view of what to expect. People often feel that they are right, and think that they have a good case because they feel they are right. Feeling that you are ‘right’ and being able to prove your case when you go to court may be two very different things. Sometimes people are angry and want to use the court case to get back at the other person or make the other person pay for the pain they have caused. Using court cases to get back at the other person because you are mad at them can backfire and make the situation worse.

Lawyers are not emotionally involved in what happens in your case. That does not mean that lawyers have no emotions. It just means that they are able to look at the situation without thinking about it from an emotional point of view. This makes them more ‘objective’ or able to see the case for what it really is. Lawyers can help you sort out whether you have a good case to take to court or whether there are other ways to handle the situation instead of having a hearing or trial.  

Lawyers are helpful because they have special training in knowing the law, the procedures and how to present a case in court. Sometimes lawyers can be hired to do certain parts of your case. This is often referred to as ‘unbundling legal services.’ This means that you could do some of the work yourself and pay for the lawyer to do the most important work or to review what you have done. Talk to a family law lawyer about what services they may be able to offer you.

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7. What can I do to prepare my case for court?

Before a case goes to court, each person needs to understand several basic things:

  • the law
  • legal procedures
  • the facts of their case

Presenting a case requires people to be well-organized and alert, and to listen carefully and plan ahead. 

  • write things down
  • organize your thoughts
  • ask questions
  • do research
  • talk to a lawyer
  • observe a case in court, if that is possible in your area

Presenting a case in court starts well before anyone gets into a courtroom. People involved in a case going to court need to understand:

  • what facts or other information they need to prove
  • how they can prove the facts:

o   What information do you know or what have you seen?

o   What information do other potential witnesses know or what have they seen?

o   What information is in the hands of the other person or someone connected to that person?

o   Who has the documents or other physical evidence (photos, reports, records) that you need the judge  to see?

If the other person or someone connected to the other person has paperwork or records that you need for your case, then you must be sure to have asked for disclosure of it ahead of time. There may be several ways to get this information.

Lawyers can help people learn about how to do this. Court staff, in some situations, may also be able to ask for this information.

Some cases have conferences or conciliation meetings beforehand, depending on which court you are dealing with. Use these times to gather information to find out if you have a good case or if the other person has a good case. Make sure you use that time to ask for disclosure and information that applies to your case (is relevant). In some cases, you may have to make a special application to the court or go through other special court processes to ask for the information. These processes take time and must be dealt with well before the day you are going to a trial or a hearing. There will be more information about how to do this later in this section.

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8. Where do I start in preparing for a hearing or trial?

Develop a theory of your case first: What am I trying to prove? How do I go about proving it? Can I prove it?

Study the law. This includes reviewing the legislation (laws), the regulations and cases that have been decided dealing with your kind of legal problem and facts that are similar to your case. Make sure you are looking at Nova Scotia precedents (previous decisions) first as they are usually the most relevant, unless the case was heard in a higher court, like the Supreme Court of Canada. Ask a lawyer to do a legal brief for you or to give you advice about the important laws and cases that may be the most relevant to your case.

Remember that your job is to convince a judge to see things your way by:

  • presenting evidence to prove the facts of your case and
  • making a convincing legal argument to the court

o   use the evidence presented to convince the judge that the law is on your side, through legal arguments where you analyze the facts in your situation and show how the law applies to your situation in the way you think it does

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9. Where do most self-represented people go wrong?

A judge cannot fill in the blanks where you have missed presenting important information, and cannot assume that you meant to do or prove something you did not do or prove.

Self-represented people are often frustrated following court appearances as they do not know where things went wrong or what they could have done differently to change what happened. They often think that court staff did not help them enough to prepare or that the judge just was not listening to them. This makes people angry and frustrated.

Remember that you may only have one chance to do it right, so use that opportunity wisely by preparing carefully and getting legal advice. If you do not present your case properly then it may show in the end result. You are responsible for what you do before and during your court appearance. Judges and court staff cannot represent you or prepare your case for you. You have to put a lot of work into doing it right.

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10. What does it mean to 'prove facts' or 'prove my case'?

Judges at courts make decisions based on hearing ‘evidence’ in cases before them. Evidence can include things like:

  • information that witnesses and other people give in affidavits
  • information that witnesses and other people give at a hearing or trial in court (oral or verbal information given under oath, swearing or affirming that it is truthful)
  • documents, photographs, records, files, expert reports or other written papers presented or given in the court case.

In hearing court cases and making decisions, judges have to follow certain special rules, called ‘rules of evidence.’  Self-represented people and lawyers have to follow the same rules. The rules help judges decide whether to accept and believe the information presented in the case. 

If the judge has not heard or seen the information, or has heard or seen it but does not believe it to be true, then the judge cannot use that information to help them make a decision in the case or base their decision on. If the judge hears or sees the information and believes it, then we say that fact has been ‘proven.’

There is also another legal term that is used in hearings and trials, called the ‘burden of proof.’ This means that the person asking the court to find that certain information is correct and truthful must prove it (has the ‘onus’ on them to prove it). In other words, each person has to give information to the court about a certain fact and the information has to be believed before the judge will say the fact has been proven or that the person has passed the burden of proof. If a fact is proven then the judge can use it to make a decision about the legal problem before the court.

There may be hundreds of facts or pieces of information to look at in any court case. The judge has to be sure that there are enough proven facts dealing with each legal issue to make a decision. We call this the ‘the standard of proof.’  The amount of proof needed in a family law case is called proof on ‘a balance of probabilities’ (more probable or likely than not).

At the end of the case, the judge has to be able to ‘add up’ all the facts and then come to a decision of whether things have been proven and how much proof has been given. We usually call this process ‘weighing the evidence.’ Then they have to apply the law to the facts that have been proven.

Sometimes it is hard to know what the real facts are. Judges do not have the benefit of having seen or heard things first hand. Judges will also look at things like how people act in court, how they appear to have acted outside of court and how they answer questions, to help them decide whether people are being truthful.

All of these rules are in place for a reason. They have come into place over a long time with judges making decisions and governments making laws to try and make things fair. They are there to protect people and to make sure that cases are properly heard. If people could go into court and say anything they wanted and expect to be believed, then there would be no way for judges to decide what to do.

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11. Will court staff look after getting all the information I need to deal with my case?

No. Depending on the court you are dealing with, though, court staff may be able to do certain things to assist people to get certain kinds of information they need to deal with their case. For example, court staff may issue Directions to Disclose, and in some situations, will have conciliation or court-based ADR meetings. However, this will likely not cover all situations or get you all the information that you need for your case. Speak with staff at the court near you for what options might be available.

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12. How can I get the information I need for my case?

It can be hard to know how to get certain information. Check with court staff to see if what you are looking for is something that the court can request through a Direction to Disclose. Some options that may be open to people could include:

  • Requesting an Order to Disclose (Appear and Disclose)

o   Court staff may be able to ask for certain kinds of information to be filed by the other party as part of the court case (through a Direction to Disclose). Court staff, or a judge, may be able to grant an Order to Disclose or some other kind of order directing the person provide the information. Check with your local court staff about what can be done in your situation.

  • Requesting an Order to Non-party

o   Sometimes people, like employers, may have information that you may want for your case, like pay information for one of the parties involved. A court officer may be able to issue what is called an ‘order to non-party’ to get further financial information that is related to the case before the court.

o   These are only issued if the party who the information is about has not provided the information and the court officer has taken steps to get the information through both a Direction to Disclose and then an Order to Disclose (Appear and Disclose). Check with court staff about whether this option might be used in your case.

  • Having ‘discoveries’

o   In family law, discoveries are usually only held in divorce cases, if at all, unless a judge says otherwise.

o   ‘Discoveries’ are question and answer sessions held out of court. They are meant to give the people involved more information about the facts of the case. They may be used to gather documents or other physical information needed for a case. Having discoveries sometimes helps people to decide whether they should try to settle the problem without a hearing or trial or how well they might do if they go ahead and have the hearing or trial.

o   There are special court rules about whether you can have a discovery, when you can do these, and who you can ask to go to a discovery. Often you will need a judge’s permission to have a discovery. A discovery cannot be done after a certain point in the proceedings. 

o   Holding discoveries costs money. You have to hire a person with special training to record them (certified court reporters and transcribers). If you want a transcript of what happened (a written report about everything that was said and by whom), then an additional fee will be charged. Check under ‘transcription services’ or ‘discovery services’ in your Yellow Pages or search engine to find out more about them.

o   In certain cases, discoveries can be requested and booked by either of the parties. Depending on the situation, either of the parties or other witnesses with information that is ‘relevant’ (connected or related) to the court case can be discovered, if they are given notice. Discoveries are usually booked at times when both people agree so that it keeps the costs down and everyone is available to go. 

  • Preparing ‘interrogatories’

o   These are written questions done in a special form that are to be answered by the other party. They are to be used to ask questions that are relevant to the case.

  • Subpoenas

o   A subpoena is a court document that requires a person to give evidence at a court proceeding (usually a hearing or trial). For more information about subpoenas, click here.

  • Requesting an ‘Order for Production’

o   Sometimes a person in a court case may want to make a special motion or application to the court for an ‘Order for Production.’ An Order for Production is a court order that requires a named person to produce copies of certain documents or files. They are usually ordered when the information being requested has a special connection to the case. Often they deal with information that will be helpful to the court and the parties in having a better understanding about the situation. An example of something that could be ordered to be produced could be a medical record for one of the parties or for the child.

o   The documents or files produced as a result of the Order for Production are normally given to the court, but could be required to be given to one of the parties who would then reproduce the document or file for all of the other parties and the court.

o   The person being asked to produce the information, as well as all other parties to the court case, must be given notice of the motion requesting the Order for Production.

o   The person being asked to produce the information has the right to come to court and argue that the file should not be given out. Sometimes the records deal with very private or personal information. Special rules may apply to these cases and how the information can be disclosed, whether some information may be deleted or held back, and who can see the information.

The things listed above may be dealt with in your local court’s rules. You should see a lawyer if you have a situation where you think any of these might be needed. There may be other ways to get information too, but these are some of the most common ways that people gather information that may be relevant to the case but that they do not have in their possession.

Civil Procedure Rules

Family Court Rules

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13. How do I find case law? Can I do my own legal research?

You may be able to do some of your own legal research for your case, but be sure to have a lawyer review your research to make sure that what you have is accurate, up-to-date, and applies to your situation. The law is constantly changing. For example, you may have found a case from 5 years ago that closely matches your situation and want to bring that up in court, but there may have been other cases since then that decided something differently.

There are some online resources that may be helpful to you in looking up laws and cases, like the Canadian Legal Information Institute (CanLII). The National Self-Represented Litigants Project has a CanLII Primer that provides information about how to use the service and understand legal research principles. The Primer is available in English and French.

Be very careful of what you find online – there is some good information out there, but a lot of bad or inaccurate information too. There may also be a library near you that can help you with some legal research.

Remember that the law works differently in different places – for example, American law is very different from Canadian law. Certain laws are also different between each province and territory in Canada.

Generally speaking, the newer the case, and the higher the level of court, the more weight that particular case will be given by a judge. For example, if you can find a recent decision from the Supreme Court of Canada that relates to your case, that will probably be looked at better than an older case, or one from a trial-level court.

 

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14. Can I ask for information to be given when I go to court?

Yes, depending on the situation. If you are going to a docket appearance, conference, or date assignment conference, then these are usually the times when people should be asking for the other person to file all the information that is relevant to the case. Make sure you know what it is you are looking for. Write down notes so that you do not forget to tell the judge. The judge may be able to require the other person to provide the information.

Do not wait until your matter is already scheduled for a hearing or trial to ask for more information. It may be too late to get the information by that time.

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15. Do I have to call witnesses?

That will depend on the case. People may need to call a witness to:

  • give evidence to prove certain facts
  • to give first hand information about what they saw or heard that is relevant to the case
  • to give copies of documents, photos or other information to the court to prove certain facts.

People often make the mistake of thinking that the judge will already know certain information. People often will assume that they do not have to say certain things because the judge will just ‘get it’ or will just ‘know’ the other person is lying about something. Court cases do not work this way.

If you want the judge to decide that a certain thing happened, then you have to prove it through the evidence you present as part of your case in court. If the information is important to the outcome of your case, then you have to present the evidence to prove it. How you will do this will depend on the situation and what you are trying to prove.  These issues are complicated to explain in full. Every case is different and will require a different approach. Lawyers can help people sort out how to do this.

When you are preparing for court, you must think about what a ‘witness’ is. Witnesses may include anyone:

  • who knows something about your situation because they saw or heard something important, like a relative or neighbour
  • who has special knowledge about your situation because they are an expert, like a doctor or therapist who has been dealing with you or someone important to the case
  • who has certain documents or records that are important to the case, like a banker or employer.

There are special ‘rules of evidence’ that deal with what information people or witnesses can give in court cases and what judges are allowed to accept as evidence in any case. There are a lot of rules. They are complicated, and can be confusing.  For example, witnesses can only give evidence on what they personally saw or heard, or what they have on file from the records they keep. In most cases, the witnesses, including the parties, cannot give evidence about what someone else told them, unless the person who told them the information was one of the parties. If they do, then the other person can object to the information being accepted by the judge based on the ‘hearsay’ evidence rule. The person wanting the information to be heard then gets to say why the information should not be covered by the hearsay rule. The judge then decides if the information goes in as evidence or if it stays out. (There are other parts to the hearsay rule, but this gives you a general idea of what a rule of evidence is and how it works.)

The rules of evidence may be slightly different depending on whether your case involves a federal law (like the Divorce Act) or a provincial law (like the Maintenance and Custody Act). You will not know about many of these unless you get advice or do research. Lawyers take special training in evidence to learn all of these rules. Judges know the rules too and will apply them to your case, even if you do not know them.

The Canada Evidence Act

The Nova Scotia Evidence Act

The Nova Scotia Civil Procedure Rules

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16. Can I write directly to a judge?

In the Supreme Court, the rules of court state that you are never allowed to write directly to a judge unless the judge has specifically given you permission to do this in your case. There are very few situations where judges give that kind of permission. If in doubt, do not write to the judge, but to the court.

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17. What if my case has settled - should I still show up for court?

The court should be notified as soon as possible if a case settles. In some cases, the judge may wish to have a telephone conference in advance of the scheduled court date, to determine whether it is necessary for any of the parties to appear. It is normally recommended that people still come to court unless they have a signed order or agreement already prepared that settles the case. Check with court staff to be sure.

A lawyer can prepare the court order or agreement based on what the parties settled on. If the people involved do not have written confirmation of what they are agreeing to, then they will probably want to come to court.

The parties can appear in person so that they can put whatever agreement they have reached on the court record. By doing this, parties will be sure that the agreement reached can be made into a court order, that there is proof of what was agreed to and that the matter has settled. Sometimes a judge will want parties to appear because the judge may have questions about the details, or want to add in other clauses to make sure the court order can be enforced later on.

In some circumstances, the parties may be able to appear by way of a phone conference, if this is approved by a judge. It is important to confirm what has been agreed to, if people disagree after the fact about the details. It can take a lot of time to put a matter back on the court docket to have a hearing or trial when it has been taken off the docket, so be sure to look into your options before cancelling a court appearance.

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