Gathering Evidence for Your Case
There are many ways to gather evidence to present as part of your hearing or trial. How you may do this will depend on the type of case and what you are trying to prove. You should speak to a lawyer to find out the best ways to gather this evidence.
Some of the methods for gathering evidence listed here are not available at every court.
Direction to Disclose/Notice to Disclose
Both parties are usually required to file supporting documents that deal with the issues before the court. A Direction to Disclose or Notice to Disclose is the usual way that court officers require these supporting documents to be filed. This is a document issued by a court officer and sent to or served on the other party, telling them what they have to file, and by what date.
If one of the parties has not disclosed the right information as part of the Direction or Notice to Disclose, then they can be served with an Order to Disclose or an Order to Appear and Disclose. Talk to the court officer assigned to your file about this if you think one is needed.
Orders to Non-parties
Sometimes, the other party will refuse to provide information, even after they have been served with a Direction or Notice to Disclose and an Order to Disclose (Order to Appear and Disclose). You may request that a court officer grant an Order to Non-party, like an employer, to try and get the information needed. You will need to provide evidence in an affidavit to show what information you are looking for, who you believe has it, and why you think they have this information. A court officer will decide if an Order to Non-party can be issued.
Orders for Production
Court officers may not be able to ask for certain kinds of information to be filed as part of a Direction or Notice to Disclose. For example, they cannot ask for information to be filed that is very private or confidential (like information about a party’s mental or physical health). In those cases, you might need to file a Notice of Motion requesting that a judge require a non-party to file copies of certain information or produce a file that is relevant to your case. An Order for Production is often used to obtain relevant information or records held by someone else, usually a professional, like a doctor or psychiatrist. Talk to a lawyer if you think you may want an Order for Production to be granted in your case.
Parties sometimes hold Examinations for Discovery (Discoveries) where the parties are given an opportunity to question each other or each other’s witnesses, under oath, before a trial. The discovery allows the parties to narrow the issues and focus their trial on contested matters (those that the parties do not agree on). In family law, discoveries are normally only held in divorce cases, unless a judge orders otherwise. There are rules as to who can be required to attend and when the discoveries can be held. These sessions cost money. You will want to speak to a lawyer to decide if you are able to or need to hold discoveries, who you can ask to attend, and what to ask if you do have one. Discovery subpoenas need to be prepared by the parties and issued by the court to require attendance.
Parties sometimes use a special form of written questions, called interrogatories, instead of discoveries, to help them find out information that the other party has about a trial. You should get legal advice about using interrogatories.
Witnesses & Subpoenas
For some situations, you may want to call witnesses to give evidence in court as part of your case. You will usually use a subpoena to call a witness, to make sure they will come to court when you need them. Please see the Witnesses & Subpoenas section for more information.
Doing Your Own 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. 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.
There are a number of other ways that you can obtain information to present as part of your case before the court. Please speak to a lawyer about what approach is best for your case.