Going to Court
Printer-friendly versionThere is no real difference – both involve a structured court appearance involving the people named on the file (the ‘parties’) and their lawyers, if applicable, where evidence is presented in front of a judge in a courtroom. It is a called a ‘trial’ if it involves deciding the final outcome of court proceeding, such as a petition for divorce, or the final disposition of a child protection matter. Lawyers who appear in Supreme Court wear black robes when they are in court for a trial. It is a called a ‘hearing’ if it involves a contested application (one where the parties disagree about what should happen) or variation application for any other matter. Lawyers - do not wear black robes when they appear at a hearing.
If you are representing yourself in court, you will not wear robes, regardless of whether it is a hearing or a trial.
Going to court – hearings and trials
A hearing or trial should usually be the last resort for solving a legal problem, especially if the legal problem involves parenting. Some people want to have their ‘day in court,’ expecting that they will be allowed to stand in court and just ‘say their piece.’ Remember that what you see on TV is not usually the way courts and the legal system work in real life. There are rules that have to be followed about what you can say in court and what evidence you can present, and these rules will not be disregarded just because you may be representing yourself. People involved in a court case at a hearing or trial cannot just get up and talk when they want.
If you go to court, a judge must decide what to do in your case based only on the sworn evidence they hear or read in any affidavits filed, or any exhibits or reports that are taken as evidence. If you do not have a lawyer, you are still expected to know and follow the rules of the court about how to present your case. This can be confusing and stressful.
Sometimes court is necessary, for example, if the situation involves issues like violence, or if all other available methods of fixing the dispute have been tried. While going to a hearing or trial will allow a judge to make a decision in a case, it is important to realize that their decision is made using very specific, narrow legal rules in a very structured court setting.
When you go to court to have a judge make a decision in your case, you are giving someone else the power to make decisions that will impact your life, and perhaps your children’s lives. The judge hearing your case does not know you or your children personally, and can only make a decision based on the proper evidence put in front of them. Wherever possible, it is best that you and the other party or parent try to come up with an agreement that works for all of you, especially when it comes to parenting arrangements. The judge will do their best to make a decision that is in your children’s best interests, but sometimes neither parent may be happy with the result. Parents who can work together to come up with solutions are often the best people to create custom-made plans to parent their children, because they know their children best.
A judge cannot supervise the terms of an order or decide things like support or parenting issues on an ongoing basis. Judges will, most often, use the traditional custody/access language in making a decision and will base decisions about support on income information that is known at the time of the hearing. In the case of parenting issues, this can create inflexibility that may disadvantage both parents and children as the situation changes, as the order may no longer fit the new situation.
The court process also puts one person against the other and can increase hostility and resentment between the people involved. We call this legal process an ‘adversarial process.’
If a person representing themselves in court does not do a good job of presenting their case, or does not understand the law or legal procedures, then they run the risk that things may not go well at a hearing or trial. They may not be able to do anything about it afterwards as appeals can only be made under certain situations – they are not a second chance to present your case.
The judge will require the parties and any witnesses they are calling to file and exchange information before the hearing so that what is in dispute can be identified and an appropriate court time set. This may result in more than one court appearance and could involve delays if the parties are not ready.
Any person going to a hearing or trial should have legal advice, or better yet, legal representation. Talk to your local court about other ways you may be able to resolve your legal disputes aside from a hearing or trial, or click here.
Remember that a judge cannot act as a lawyer for either party and cannot fill in the gaps of your case for you. Self-represented people are supposed to know the law and legal rules. People can help themselves by learning more about the law, the rules and procedures to follow. Reviewing the links to other parts of this website may also be helpful. There is really no substitute for getting advice or representation from a lawyer. For information on how to get legal advice or find a lawyer, click here.
To watch videos about going to court, view Presenting your Case in Court and Your Day in Court. These videos apply to people going to court in the Supreme Court (Family Division) in Halifax, Sydney, or Port Hawkesbury, but may still be helpful to people going to court in other areas.
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).
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.
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.
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
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.
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.
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, in the Family Divisions in Halifax and Cape Breton, court staff can issue Directions to Disclose, and in some situations, will have conciliation 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.
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 Notice to File Financial Information or 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 Notice to File Financial Information or a Direction to Disclose, depending on which court you are dealing with). 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. In court cases that are in the Family Division, 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.
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.
No. You should not bring your children to court with you. The court has no child care for clients. Court staff cannot look after your child. Being in the court is upsetting for children. Children should not be put in the middle of disputes nor should they be aware of the details of the court case. It is also very distracting for parents to have their children with them in court. Parents cannot tend to their children’s needs and pay attention to the court process. Children get upset and bored when they come to the courthouse and can act up. This can be hard for other clients and for other cases in court. Please make other child care arrangements.
If you do not have witnesses, then you often can bring support person(s) with you. If you are going to a hearing or trial and you have witnesses, then the witnesses usually will be asked to stay behind in the waiting room at the court until they are called to give evidence in the court room. Keeping witnesses out of the court room until it is time for the witness to give their evidence is called ‘exclusion of witnesses.’
Generally, all family court matters are open to the public. However, it is always up to the judge to decide who is allowed in the courtroom.
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 can be confusing and are complicated. 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.
It is important that people put their best foot forward when going to court. Making a good impression with the person who is going to decide your case is important. Going to court is a serious matter. Your clothing and appearance should reflect this. If you look like you are taking your case seriously enough to dress cleanly and neatly then that is a good start. If you can dress like you are going to a business meeting, then that is even better. It may be that people who have to come to court cannot afford to buy the most appropriate clothing to wear. No one is expected to spend money they do not have on these things. Consider borrowing an outfit if you can or going to your local thrift store or bargain shop if that may help. Wearing a hat is not allowed in a courtroom.
NOTE: All court buildings in Nova Scotia are scent free. This means that anyone coming to the court, including staff members, are not to wear or use scents of any kind, including scented lotions, colognes/perfumes/body sprays, hair products, or other scented products. Many people are sensitive or allergic to these scents.
No. Water is normally provided for the people involved and their lawyers at the counsel tables in the courtroom. No other drinks or food of any kind is normally allowed unless special permission is given because of a medical condition, for example. Chewing gum is not allowed.
You can bring it in, but you have to turn all cell phones and other electronic devices, like iPods, off.
You are not allowed to bring any kind of recording devices in the courtroom. If your matter is in a courtroom, then it will be recorded by court staff on special equipment.
For more information on the rules about what electronics are allowed in the courtroom, click here.
What you call the judge will depend on what court you are appearing in. There are some basic rules to follow. Following the rules shows that you understand the respect that is to be shown to someone who is making a very important decision in your case. You are never to refer to the judge by his or her actual name. For example, do not call the judge John Smith or even Justice Smith, when you are in a court room. Judges of the Family Court are appointed (given jobs) by the Province. The Family Court is a ‘provincial’ court. Judges of the Supreme Court are appointed by the Federal government. The Supreme Court is a ‘superior’ court.
In the Family Court, the person who hears your case in court is called a judge. A judge is referred to as ‘Your Honour’ if you are speaking directly to the judge or as ‘His Honour’ (for a male judge) or ‘Her Honour’ (for a female judge) if you are speaking to someone else in court about the judge.
In the Supreme Court, and this includes the Family Division, the person who hears your case is called a justice. You would refer to the justice as ‘Your Lordship’ or ‘My Lord’ (for a male justice) or as ‘Your Ladyship’ or ‘My Lady’ (for a female justice).
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.
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.’
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.
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.
That will depend on the courthouse you are in. Many courthouses have intercoms (speakers for announcements). Court reporters will announce the case and what courtroom to go to. If not, then check with staff so that you will know their procedures.
That will depend on whether yours is the only matter being dealt with and whether the court is running on time or not. Court staff and judges try to be on time. Sometimes there are special situations that happen that delay cases or things go over time when it is not expected. Sometimes matters may be called to court early if a judge is ready sooner than expected.
In some courts, you may have to check in with court staff or Sheriffs, or you may have to go through an electronic search procedure (like at the airport) to be sure that no weapons or other inappropriate, or illegal, items have been brought into the courthouse. Be prepared to be searched and to have to wait in line if things are busy. Leave enough time for this when deciding how early to come.
Court staff will suggest that you come to court early so that you will be prepared for whatever happens. Use any extra time to review your notes or prepare for your case. You may even want to use the time to negotiate a solution to your case, if that is possible.
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.
There are different practices in different courts, but the general rule is the Applicant (the person who started the court application) and his/her lawyer sit at the table that is closest to the judge and the Respondent (the person responding to the application) and his/her lawyer sits at the table that is furthest away from the judge. Sometimes there are more than two people, or there may only be one table, so this rule cannot always be followed. Ask court staff if you are not sure.
This depends on the situation.
You must stay standing until the judge or court reporter tells you to sit down if the judge is present when you come into the courtroom. If the judge is not present when you come in, then you can sit, but when the judge comes in, you will be asked by the court reporter to stand. You stay standing until the judge or court reporter tells you that you can sit down.
The general rules around sitting and standing after that are fairly straightforward. If the judge stands, you stand. If you are supposed to be speaking, then you must stand to speak.
When the case is over and the judge stands, or if the judge stands to takes a break to leave the courtroom, then the court reporter will ask you to stand and confirm when you can sit at those times.
Speak clearly and with enough force that you can be heard. The microphones in the courtroom do not make your voice louder - they just record.
That depends. Usually the Applicant goes first. This can get tricky as people often have response applications or each may have an interim matter before the court, making one person an applicant for one part of a proceeding, but not for the other. If you are the applicant for the matter that is being heard in court at that time, then you normally will go first. If there are two interim matters before the court at the same time, then the person whose interim matter was filed first normally goes first. The judge will decide who speaks first if there is any confusion.
This depends on the courthouse, the number of courtrooms, and the number of Sheriffs who work at the courthouse you are going to. There will always be Sheriffs at every courthouse. They may be in and out of courtrooms, or may be in a courtroom for the entire hearing.
Let court staff know ahead of time if you need special arrangements to be made. For example, if you are fearful of the other person, then the court may be able to assign a Sheriff for your matter or take other steps to ensure that people are safe in the courthouse. It is important that people advise court staff if there are any Emergency Protection Orders (EPOs), other court orders, peace bonds, or other appearance conditions in place from other courts that affect the ability of people to have contact with one another. Family court staff do not have access to records from criminal court, and may not be aware that these things are in place, unless you tell them.
Yes. Basic rules of how people should behave properly in public apply. Be respectful of others, by remembering:
- Do not interrupt the judge, the lawyer or the other person when they are speaking. You will get your turn to talk.
- Try not to get angry. Do not yell at people. Put forward your points as calmly as you can.
- Do not argue with anyone in the courtroom, especially the judge.
- Tell the truth.
o You must take an oath (swear on the Bible) or affirmation (promise to tell the truth) when you give your evidence in court, so take it seriously. You could face serious penalties of ‘perjury’ for lying. If you lie once, the judge may not believe other things you say. The judge might make you pay costs to the other person for dragging them through court. Your case might not be successful if you are not believed. The penalties for perjury include jail.
Do not believe everything you have watched on television or in movies when it comes to what happens in court. Most of what you have seen on TV is not real and is done to make it look more exciting for the people watching the show. In family courts, cases follow a certain pattern in how they are presented. Cases need to be proven using what is called a ‘civil standard of proof.’ The standard of proof is proof on the ‘balance of probabilities.’ For example, you have to show proof to the judge that it is more likely than not that what you’re saying happened, happened the way you are suggesting it did.
There is a particular process to be followed when a matter goes to a hearing or trial. Different courts and judges may have slightly different ways of doing things or there may be events that take place that cause the judge to want to deal with other issues first before getting into the actual hearing or trial.
Before you start to prepare for a hearing or trial as a self-represented person, it is essential that you understand the reason why having a trial or hearing is so important. The process is meant to provide facts and information so that a judge can make a decision in the case. If a fact or document is not given or presented in evidence at the hearing or trial, then the judge cannot use that information or fact to base a decision on.
Here is some general information on how most cases proceed once the hearing or trial starts. This is an outline of the process. It is not meant to train people to be lawyers. It is meant to give self-represented people a sense of how things will work. Lawyers can help people develop their cases to present in court, or can be hired to do this part of the case.
The Applicant’s case
The Applicant (the person who started the court application) presents their case first (whether they have a lawyer or not).
The Applicant usually ‘gives evidence’ first and then each of their witnesses, in turn, gives their evidence. This process is often called ‘testifying’ or being ‘called to testify.’
‘Giving evidence’ means witnesses and parties have to take (go on) the witness stand to provide the facts of the case and any documents or physical evidence (like photos or reports) that they want to go into evidence. Evidence can be made up of verbal testimony, affidavits, expert reports, sworn documents, photos or other information that is properly presented to the court that people want the judge to know about so that the judge can make a decision using that information.
The process of ‘giving evidence’ may involve some or all of the following:
- the applicant and their witnesses give evidence separately (generally starting with the applicant)
o the court reporter gets each witness to swear or affirm to tell the truth at the start when they go to the witness stand and before they give their testimony
o witnesses have to be present in court to give evidence, except under very exceptional circumstances. If a person wanted to give evidence other than by being in court, then they would have to have made a special motion to the court beforehand to request this, in most cases. It is possible for both people to ‘waive’ their right to have the witness present and allow the witness’ affidavit to go into evidence (become part of the evidence the judge considers to decide the case) without ‘direct’ or ‘cross-examination.’
Direct Examination
The Applicant asks each of his or her witnesses open-ended questions to bring out the relevant and appropriate evidence that is within that witness’ personal knowledge. This is called ‘direct examination’ or ‘direct.’
- Witnesses are not allowed to give evidence about what they believe to have happened, what they think might have happened, or express an opinion about any matters that require an expert opinion, unless they have been qualified to give an opinion as an expert. In other words, witnesses have to have special knowledge and/or experience to give evidence about someone’s mental health diagnosis or medical diagnosis.
- Expert witnesses normally have to have submitted a written report and confirmation of their qualifications ahead of time. There are many court rules and evidence rules about experts.
The amount of direct examination that is allowed to be given may be limited if affidavits have already been filed. These issues are normally discussed at the time of any conference held before a hearing or date assignment conference held before a trial. If you have not had a conference, then you should ask at the beginning of the hearing what the arrangements will be. The amount of court time given to a case will often limit the amount of direct examination.
Questions asked in direct examination are not usually supposed to be ‘leading.’ This means that the person asking the question is not supposed to ask it in a way that gives away the answer to the person answering the question. An example of a way to ask a question in a non-leading way would be: ‘Where were you after dinner on the night of April 30, 2012?’ Asked in a leading way, the question might be: ‘You were at your wife’s home at 7 pm on April 30, 2012, weren’t you?’
Exhibits
Applicants can request that appropriate documents or materials be entered into evidence as ‘exhibits.’ This process must be done with each witness who has written documents or other materials that are important to the case. There are a number of special rules of evidence that apply to this process. Generally, the proposed exhibit has to be shown to the witness, who has to identify it (by answering who, what, when, where and why types of questions). A witness has to have personal knowledge of the item in question. For example, if you are wanting to put a photograph into evidence, then you may call the person who took the photo, ask them to identify who took it, when they took it, what they were taking a photo of and whether it represented what they were taking a photo of. They would also need to testify as to whether it had been altered in any way.
Make sure you have copies of exhibits for yourself, the other party, the witness and the judge.
The court reporter will take the proposed exhibit and mark it with a special stamp and label it with a letter or number to identify it. The original should be used in every case, whenever possible. You will leave the original exhibit with the court.
Normally witnesses’ affidavits have to go into evidence by this process too as filing them in the court file is not enough.
Cross Examination
After the Applicant and each witness for the Applicant gives evidence, the Respondent, or their lawyer, has a chance to ‘cross-examine’ each witness. The process of the Respondent asking the Applicant’s witnesses questions (or the Applicant asking the Respondent’s witnesses questions) is called ‘cross-examination’ or ‘cross.’ This usually happens immediately after the witness has given their ‘direct evidence.’ Sometimes cases have to break for lunch or go on longer than expected, so witnesses may have to come back to finish the process.
Questions in cross examination are asked in a different way than in direct examination. They are allowed to be leading. This is because you want to put a question to the witness in such a way so they will agree with what you are trying to say.
Your job in cross examination is not to have an argument with the witness. The witness always should have a chance to answer the question that is asked. Give the witness time to respond before moving on to the next question. The witness may ask you to repeat the question or for you to ask it in a different way if they do not understand what you mean.
Here are some tips:
- make sure that you know what the person is likely to say in responding to your question
- ask clear questions, so that the witness knows exactly what you are asking for
- do not string a bunch of questions together - break them up and ask them separately
- remember that judges may get as much of an impression of the person asking the question as they do of the person answering the question during this process
Doing a good cross examination is not easy. Most people need special training and experience to know what to do and how to do it well. Lawyers are specially trained to do cross examinations.
Multiple Witnesses
The Applicant may have more than one witness. In this case, the Applicant can decide in what order their witnesses will testify. If the Applicant has a lawyer, then the lawyer would ask the Applicant open-ended questions and go through their evidence. If the Applicant does not have a lawyer, then the Applicant must state his or her evidence. This does not mean that the Applicant just gets on the stand and gives a speech or talks about anything they want to talk about or gives a legal argument as to why the judge should see things their way. It means that the Applicant goes through the facts of the case in some logical order so that the judge becomes aware of all of the relevant information that is needed to deal with all of the issues before the court.
Re-direct
There is also a process called ‘re-direct.’ This is when the Applicant or Respondent gets to ask questions of one of their own witnesses after cross examination has taken place. There are very strict rules on when this is allowed and what can be asked. Generally speaking, the rules are made so that only new information that came out in cross-examination can be asked about in re-direct, not anything that you already dealt with in direct examination. It requires skill to do this well, and to know when it is ok to ask questions. Lawyers get special training on how to do this.
The Respondent’s Case
The Respondent gets to present his or her case once the Applicant and their witnesses have given their evidence. This follows the same basic process noted above.
Other important things to know
Note taking
- One of the hardest things about doing a trial or hearing is that you have to take notes of what was said. If you do not, then you run the risk of not remembering what was said. You will also find it hard to ask cross examination questions, re-direct questions, or to make your argument in the summation at the end of the case.
Exclusion of witnesses
- Most witnesses should not be present when the Applicant or Respondent or other witnesses give evidence. This is so that they will not be influenced by the information given by other people. The process of asking witnesses to leave the courtroom until they are called to give evidence is called ‘exclusion of witnesses.’ You usually have to ask for this to happen.
Objections
- Objections to evidence, the way questions are being asked, or the answers that are given, can be made at any time by either person. This is done if one of the parties or the witness is not following the rules of evidence. Lawyers know the rules because of their training and experience. This is one of the most challenging areas for self-represented people as there are many rules that apply and it is often hard to know when to apply them. If a person does not object to a certain question or answer at the time that it is being asked or answered, then they cannot argue later on that the judge should ignore the question or answer. Judges will rule on objections at the time the objection is made, unless the situation is unusual.
- If you are making an objection, you must tell the judge what the objection is and what the exact problem is. You cannot just say that you object and give no reasons. You may have seen people do it like this on television, or in movies, but it is not the legal way to do it.
At the end of the hearing
Summations
At the end of the hearing or trial, the parties or their lawyers do what are called ‘summations.’ A summation is a legal argument given out loud (verbally) in the courtroom at the end of the case. In the summation, the parties or their lawyers review the evidence. They will tell the judge what they believe the evidence revealed about the facts of the case, trying to convince the judge that the evidence should be seen from their point of view. Then the parties will apply the facts to the law and make their legal argument as to what the judge should order and why. This is not the time to bring up something new – you cannot now bring up information that was not dealt with in the actual case. If it was not put into evidence, then you cannot refer to it when you are making your summation.
The Respondent generally goes first to present their summation if the Respondent has presented evidence. The Applicant will normally go second. Then the Respondent has a chance to do a further argument, called a ‘rebuttal.’ This is not mean to re-hash the whole argument made before, but to concentrate on the parts of the Applicant’s argument that the Respondent did not have a chance to respond to because they started the summation process.
Remember that you cannot interrupt the other person while they are speaking. You may have problems with something that they have said. If you do, keep notes while they are talking and deal with it in your own summation or rebuttal.
The judge may ask you questions when you give your summation or rebuttal argument. Do not argue with the judge. You can use the facts and the law to persuade the judge to see the case from your point of view. Judges sometimes ask questions so that they are sure they understand what you are trying to say. Do not assume that they are agreeing or disagreeing with you when they are doing this.
Legal briefs
In many cases, judges want people to exchange and file a written legal argument on a certain date before the case goes to court. The judge may also ask you to do this following the hearing or trial. A written legal argument is called a ‘legal brief’ or ‘brief.’ This brief sets out:
- what you expect the facts to be (or what they were stated to be in court)
- what the issues are and the legal argument, including what legislation (laws), rules or regulations you are referring to and any case law (previously decided cases that you are relying on to make your case).
Judges usually give directions about filing legal briefs when people go to a docket appearance, conference or date assignment conference. You should give copies of the cases you talk about in your legal brief to the court and the other party as well. A judge can ask for legal briefs to be done after the case finishes too. A lawyer can help people prepare these if requested.
Judges will often give decisions at the end of the hearing or trial by telling the people what the decision is (referred to as giving an ‘oral decision’). Sometimes they will ask for the parties to come back on another date when they will give the decision. Sometimes the decision will be done in writing and mailed to the parties (referred to as reserving decision and giving a ‘written decision’). It can take several months for a decision to be made in some cases, especially if the matter took several days to hear or the case is complicated.
If one of the parties involved has a lawyer, then the lawyer is usually, but not always, given the job of preparing the court order that sets out the details or summarizes the decision. If no one has a lawyer, then the court usually prepares the order and then sends it out in the mail. If the situation is urgent or an emergency, then the court may ask the parties to wait while the order is being prepared or to come back later on to pick it up.
The court automatically sends a copy of any court order that deals with child or spousal maintenance or support to the Maintenance Enforcement Program (MEP) for registration. This is required by law, under the Maintenance Enforcement Act.