Bringing Witnesses and Evidence to an Ontario Family Trial

If your family case is going to trial in Ontario, you will need a plan for what you want the judge to hear and see. That means deciding which documents matter, who can speak to them, and how the day will run.

This article covers the general order of a trial, the deadlines for your documents, how witnesses are summoned, and what to ask a lawyer about the rules of evidence.

How an Ontario family trial runs

At an Ontario family trial, the applicant gives the opening statement and calls witnesses first, and the respondent cross-examines each one. The respondent then calls their witnesses, whom the applicant may cross-examine. The applicant may give reply evidence only on new issues, and closing statements come last, with the applicant going first.

A trial may take less than a day, several days or weeks. After closing statements, the judge either decides right away or reserves the decision to a later date. If it is reserved, you may need to come back to court, or you will be told in writing when it is available.

Documents and deadlines before trial

Before trial, each party files Form 17E (Trial Management Conference Brief) for the trial management conference. Once the court sets a trial date, the parties are expected to go ahead, and adjournments are allowed only in exceptional circumstances.

• The applicant must serve the trial record at least 20 calendar days before the trial starts.
• A respondent who adds documents must serve and file them at least 7 calendar days before the trial.
• A judge may order that most or all of a witness's evidence be given by affidavit.

Regional practice directions can add requirements for trial scheduling and briefs, so check with the court office handling your case.

Summoning witnesses

If a person will not attend voluntarily, you can summon them with a Form 23 summons. A party who summons a witness with Form 23 must pay the witness for every day the witness is required in court. Plan the cost and timing, and try to have witnesses called on the day you need them.

Where an order is sought that affects someone who is not a party, that person must be served by special service with the notice of motion, a summons (Form 23) and the witness fee. Special service has its own requirements, so ask the court office or a lawyer how it works in your case.

Using questioning before trial

Questioning takes place orally, under oath or affirmation, and the right to question includes the right to cross-examine. Outside child protection cases, a party can question another party only with consent or a court order. On a motion, the court may order questioning if it would be unfair to carry on without it, the information is not easily available another way, and it will not cause unacceptable delay or undue expense.

There is a different rule in child protection cases, where a party is entitled to information from another party as of right, by questioning, a Form 23 summons served by special service, or by affidavit or a request for information (Form 20). Also, a party may question only after serving and filing any required answer, financial statement or net family property statement.

What to do next

What the judge will accept as evidence depends on the kind of document, the witness and the issue, so it is worth getting advice on this point before trial. Judges and court staff cannot give legal advice, though Family Law Information Centres and duty counsel can help you understand the process.

• Mark your trial date and work backward from the 20-day and 7-day deadlines.
• Prepare and file Form 17E for the trial management conference.
• List each witness and what they can speak to, and decide who needs a summons.
• Budget for witness payment for every day a summoned witness is required.
• Organize your documents and make copies for the court and the other side.
• Practise your opening and closing statements, keeping the trial order in mind.
• Ask a lawyer which documents and witnesses are likely to be accepted.

Frequently asked questions