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.
In the courtroom
There is no real difference – both involve a structured court appearance with 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 a 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.
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.
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, matters in the Supreme Court and Supreme Court (Family Division) are open to the public. Matters in the Family Courts are usually not open to the public. However, it is always up to the judge to decide who is allowed in the courtroom. For more information, click here.
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.
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.
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.
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.
There are different practices in different courts, but the general rule is the applicant (the person who started the court application) and the applicant's lawyer sit at the table that is closest to the judge and the respondent (the person responding to the application) and the respondent's lawyer sit 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.
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 their 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, including 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).
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 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.
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 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, 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.’
The Applicant asks each of their 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?’
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 want 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.
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.
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 their 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.
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 their case once the Applicant and their witnesses have given their evidence. This follows the same basic process noted above.
Other important things to know
- 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 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
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 meant 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.
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.
Direct examination is when your lawyer is asking you, or one of your witnesses, questions when you are testifying in court. Direct examination also occurs when the other party’s lawyer is asking the other party, or one of their witnesses, questions in court. If you do not have a lawyer, then you would ask questions of your own witnesses when conducting a direct examination. Direct examination is sometimes just called ‘direct.’
For direct examination, it is generally not appropriate to ask questions that suggest the answer that you want. These are called leading questions. For example, you can say “What was she wearing?” but not “She didn’t have a winter coat or boots, did she?”
Cross-examination is when the other person (if they are self-represented) or their lawyer asks you, or one of your witnesses, questions in court. Cross-examination also occurs when you or your lawyer asks the other party, or one of their witnesses, questions in court. This is sometimes just called ‘cross.’
The general purpose of cross-examination is to point out any errors or inconsistencies in the other party’s testimony, or in the testimony of any witnesses testifying on behalf of the other party, and to try to show the court that the witness should not be believed.
You, and any of your witnesses, can be cross-examined not only on what is said in court, but also on anything that’s written in your affidavits, and any other relevant information.
Unlike with direct examination, it is appropriate during cross-examination to ask ‘leading questions’ that suggest the answer you want. For example, you may ask “She didn’t have a winter coat or boots, did she?” instead of “What was she wearing?”
You may be going to court as a witness either because someone asked you to testify on their behalf, or because you received a subpoena requiring you to testify at court. You should be paid witness fees along with the subpoena. These fees must be paid by the person who subpoenaed you, and should be paid to you in cash by the person serving the subpoena on you. For information about witness fees, click here.
If you were subpoenaed to go to court, you must show up for the dates and times indicated in the subpoena. The subpoena stays in place until either:
- the hearing is completely finished
- the judge releases you from the subpoena
- the person who subpoenaed you (or their lawyer) releases you from the subpoena (note: it is best to get the person or their lawyer to state in writing that they are releasing you from the subpoena, and for you to keep a copy of this statement. This statement should include details like your name, their name, the date and file number on the subpoena, and the date and time at which you are being released from your subpoena.)
If you are subpoenaed for a hearing or trial that is scheduled to last several days, you are expected to make yourself available for that whole time, until you have given your testimony and are released from the subpoena. You are expected to provide to the court any information being asked for in your subpoena (for example, any documents that the subpoena directs that you bring to court).
When you go to court as a witness, generally you cannot sit in the courtroom to observe or listen to what’s going on. As a witness, you will have to remain outside of the courtroom, going into the room only when you are called to testify. This is so that your testimony will not be influenced by other things being said in the courtroom.
When you enter the courtroom, you will be asked to go to the witness chair and to take an oath or affirmation. Taking an oath means that you will swear on a holy book (like the Bible), or make a solemn promise, called an ‘affirmation,’ that you will tell the truth in court. There can be serious consequences for lying under oath or affirmation – this is called ‘perjury.’
Ultimately, it is the judge’s job to determine whether the evidence you give in court is reliable, relevant, and trustworthy. If you are dishonest with even one small part of your testimony, the judge may then question whether the rest of your testimony is honest, or whether all of it is unreliable. It is your job as a witness to tell the truth, to the best of your ability, about everything you are asked.
The person on whose behalf you are testifying, or their lawyer if they have one, will ask you questions first. You are only to answer the questions you are asked to the best of your ability. When they are done asking you questions, the other person, or their lawyer if they have one, may cross-examine you. This means that they may ask you questions about anything you’ve said up to that point, or they may ask you about information you gave in your affidavit (if you prepared one).
In rare cases, the party on whose behalf you are testifying, or their lawyer, may ask you questions a second time, once your cross-examination is finished. This process is called ‘re-direct.’ There are special rules around when this can happen – usually, re-direct will only occur if new information came out while you were being cross-examined, and the person on whose behalf you are testifying needs to ask about this new information.
When you are done giving testimony and being cross-examined, you may be asked to leave the courtroom.
‘Hearsay’ is a written or verbal statement or piece of information given by a party or witness that they learned or heard from someone else. It is hearsay when a witness, in an affidavit or when giving evidence in court, repeats information given to them by another person, that the witness did not see or experience first-hand. Hearsay is generally not permitted to be part of the evidence the court relies upon, because the other party, or their lawyer, can’t cross-examine the person who actually heard or saw what happened.
Hearsay is generally not allowed in affidavits or when testifying in court; however, there are exceptions to the hearsay rule. In most cases, it is best to have the person who saw or heard what happened give the information instead.
Only a lawyer can tell you what you should or shouldn’t put in your affidavit or say in court, or who you should have as witnesses in your case. If you’re unclear about this rule, or think that some of your evidence may be considered hearsay, speak to a lawyer for advice.
If you are including a piece of information in an affidavit that you learned from someone else, it is important that you state from whom you received the information, and why you believe the information to be true.
Perjury is when someone who is giving evidence, either in an affidavit or in court, purposely doesn’t tell the truth. Perjury basically occurs when someone lies under oath or affirmation. There can be serious consequences for committing perjury, including criminal charges.
You should first talk to the person or lawyer who has subpoenaed you to see if the date and time of your testimony can be changed. If that is not possible, then you should contact the court. Only a judge can release you from your subpoena if the person or lawyer who called you as a witness is not prepared to do so. Disobeying a subpoena without permission could result in serious consequences for you, such as being arrested, fined, or found to be in contempt of court.
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. The basic rules of how people should behave properly in public apply in the courtroom. 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 other holy book) 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, and that it happened the way you are suggesting it did.