Witnesses & Subpoenas
Witnesses are people who give evidence to the court so that the judge has information to make a decision. In most cases, witnesses give their evidence in the form of an affidavit. An affidavit is a written statement of facts relating to the issues being dealt with by the court in your case. Witnesses who file affidavits must be present at a hearing or trial to be cross-examined, unless a judge orders otherwise. This means they can be questioned by the other side, or the other side's lawyer, about the information they gave in their affidavit.
Witnesses may also give their evidence in the courtroom without an affidavit, if the judge allows. This means the evidence is given orally, on the witness stand.
Witnesses can be required to attend a hearing or trial if they are served with a subpoena. Talk to a lawyer to decide if you need to have any witnesses for your case and who you should ask to be your witnesses. If you don't have a lawyer, you are responsible for getting your witnesses to prepare affidavits, and you are responsible for preparing and arranging service of any subpoenas needed. You may also have to provide the court with a list of who your witnesses are, and briefly explain why they are being called as witnesses. These are sometimes called ‘will-say statements.’
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 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.
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.
A subpoena is a court document that requires a person to give evidence at a court proceeding. The subpoena tells a person that they must come to court for a certain date and time to give evidence to the court. They may be required to give evidence by:
- coming to court to answer questions, or
- by bringing documents or providing the court with documents, or
You may ask the court to issue a subpoena if a person or representative of an organization:
- refuses to come to court, or
- is unable of their own free will to come to court
and you need them, or documents they have, to prove your case.
The subpoena will require them to come to the court on a certain date. You will need to pay travel money to anyone you subpoena.
You should talk to the person you want to call to court to testify or to a representative of the organization that holds the documents you want to subpoena. Find out:
- if they have the desired documents
- how much it will cost to locate and copy the documents
- whether they will provide copies of the documents that you want without the need for a subpoena [note: even if they give you the documents without a subpoena, you may still need to subpoena the person or representative if you need them to testify, or to make sure the documents are admissible as evidence (accepted by the court)]
Based on this information, ask only for the documents you will need to prove your case. Avoid paying to have documents produced to the court that may be irrelevant and unhelpful. If you are unsure what will be relevant and helpful, or whether you should subpoena someone, you should speak to a lawyer.
Once you have gotten legal advice and identified the need to subpoena someone to come to court for your case, you must fill out the appropriate subpoena form. You can probably get forms from the court, or access them online. You can photocopy a blank form to make as many subpoena forms as you need.
Fill in the subpoena form with the required information. Make an additional 3 copies of the subpoena:
- one for the person being subpoenaed
- one for you, and
- one for the court
Take the original subpoena and the 3 copies to the court. A designated court officer must sign the subpoena before it is valid. If the subpoena follows the court's rules and the court officer is satisfied with it, they will sign it, and give you back the original and all of the copies except for one. This one will remain on the court file. This is called ‘issuing’ the subpoena.
Click here for information on using a subpoena in Family Court.
Subpoenas must be personally served on the person or organization that you are requiring to come to court. This means that you must arrange for someone, other than yourself, to hand-deliver the subpoena into the hands of the person being subpoenaed.
You cannot use registered mail or a courier, or fax the person who you have subpoenaed, when personal service is required.
Personal service means that a literate adult (a person over 19 who can read and write) must hand the documents to the person being subpoenaed. You cannot serve any documents, including subpoenas, relating to your own file.
It is best that a process server be hired to serve court documents whenever possible. Process servers are:
- trained to serve court documents
- used to dealing with parties who do not want to be served
- familiar with Affidavits of Delivery (see below)
You will have to pay for this service. Every process server will set their own fees, and how much you will pay will depend on things like:
- how far the server had to travel to serve the documents
how many attempts at service they had to make
- for example, how many times they had to go to the person’s home to try to serve them
You can look in the Yellow Pages or online under ‘Process Servers’ or ‘Bailiffs.’ If you have a lawyer, they may know a process server you can use.
In the Supreme Court, the original subpoena stays in the court file. The witness is given a certified copy of the subpoena.
In the Family Court, the server will bring the original subpoena with them to perform the service. This is because Family Court Rule 12.10 states that the original must be shown to the witness if they request to see it. The witness is given a certified copy of the subpoena. The original must be returned to the court file.
In some instances the subpoena may be delivered to the person’s address, if they have a designated address for delivery on the court file. This would rarely happen. If you are not sure whether there is a designated address for delivery on the file for the person being subpoenaed, check with court staff.
Court rules usually do not state a specific time by which subpoenas must be served. However, good practice is to have the subpoena served as soon as possible after it is issued by the court. If you do not give enough notice to the person being subpoenaed, you risk that the witness will ask to be excused from attending on that date, and your matter may be delayed.
Once the person being subpoenaed has been served, an Affidavit of Delivery must be filed by the person who did the service. The Affidavit of Delivery is a sworn or affirmed statement that tells the court that the party named on the subpoena was served, what they were served (in this case, a certified copy of the subpoena), where and when they were served, and by whom. This Affidavit must be sworn or affirmed in front of a lawyer or Commissioner of Oaths. This can usually be done at the court. If you arrange for a process server to do the service, the server will usually have someone in their office who will swear or affirm the Affidavit.
File the subpoena and Affidavit of Delivery with the court before or at the hearing date to prove that the witness, or the documents, or both, were subpoenaed.
Witness fees are now called ‘travel money.’ These are fees you must pay to the person you have subpoenaed to court. These fees must be delivered with the subpoena. The amount to be paid is outlined in the Nova Scotia Costs and Fees Act, and usually will include $5.10 per day in court plus 20 cents per mile (12 cents per kilometre), calculated one way from the witness’s home to the court. These monies are meant to help with traveling expenses to enable the witness to come to court. These fees are to be paid in cash.
A subpoena continues to be in effect until the end of the trial or hearing. This includes any adjournments - if the trial or hearing is held over to another date(s), the subpoena remains in effect for those dates.
The subpoena ends with the very end of the trial or hearing, or until one of the following occurs:
a) a judge excuses the witness from the subpoena;
b) the person who asked for the subpoena, or the court if they requested the subpoena, notifies the witness that attendance is no longer required;
c) counsel (the lawyer) who obtained the subpoena notifies the witness that the issues are settled and the trial or hearing is not going ahead.
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, or 'travel money,' 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. This may include, 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. You will go into the courtroom 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 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.’
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
- 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.
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.