1. How Does a Family Law Case Get to Trial?

2. What Happens Before the Trial Begins?

3. What Happens When the Trial Starts?

4. What Is an Opening Statement?

5. Giving Evidence at a Family Law Trial

6. What Is Cross-Examination?

7. How Are Documents Used at Trial?

8. What About Expert Witnesses?

9. What Happens If a Lawyer Objects?

10. What Happens When the Other Party Presents Their Case?

11. What Are Closing Arguments?

12. Does the Justice Decide the Case Immediately?

13. What Can a Justice Decide at a Family Law Trial?

14. What Happens After the Decision?

15. What About Legal Costs?

16. Is Trial Always the Best Option?

17. How Bridgestone Law Can Help

Introduction

For most families, going to trial is the final stage of a family law dispute after other attempts to resolve the outstanding issues have been unsuccessful.

A family law trial is a formal hearing before a Justice. Each party has an opportunity to present evidence, call witnesses, challenge the other party’s evidence and make legal arguments. After considering the admissible evidence and applicable law, the Justice makes a decision about the issues that remain in dispute.

Depending on the case, those issues might include parenting arrangements, decision-making responsibilities, child support, spousal support, division of family property or a combination of several issues.

Trials are very different from negotiations, mediation or settlement conferences. The parties no longer control the final outcome. Once the evidence and arguments have been presented, the Justice determines the disputed issues and the resulting decision may be binding on both parties.

Understanding how a trial works can help make the process less intimidating and demonstrate why careful preparation is so important.

How Does a Family Law Case Get to Trial?

Not every family law dispute needs a trial.

In fact, Alberta’s current family court process places considerable emphasis on resolving disputes before trial. The Court of King’s Bench Family Focused Protocol, which applies to family and divorce proceedings throughout Alberta, is designed to move families through a resolution-oriented process before unresolved matters proceed to trial.

Depending on the case, the parties may have participated in processes such as negotiation, mediation, Mandatory Intake Triage, a Settlement Conference or other forms of dispute resolution.

If the important issues cannot be resolved, the case may ultimately proceed toward trial.

Under the Family Focused Protocol, unresolved matters in the Regular Family Process may proceed to a Case Conference where a Litigation Plan is established to move the case toward final determination.

The Litigation Plan can address the steps that must be completed before trial. This can include disclosure, questioning, expert evidence, witnesses, outstanding procedural issues and other matters necessary to ensure that the case is ready to be heard.

By the time a matter reaches trial, both parties should have a clear understanding of what issues the Justice is actually being asked to decide.

What Happens Before the Trial Begins?

Trial preparation usually begins well before anyone enters the courtroom.

A family lawyer may need to organize years of financial records, correspondence, previous court orders, questioning transcripts, expert reports and other evidence.

The lawyer must also determine which witnesses are necessary and what evidence each witness can properly provide.

For example, a property dispute involving a privately held corporation may require financial records and expert valuation evidence. A parenting dispute may involve a very different collection of evidence relating to the child’s circumstances, the history of parenting arrangements and the parties’ respective proposals for the future.

Preparing for trial therefore involves more than collecting every document connected to the relationship.

The evidence must relate to the issues the Court is actually being asked to decide.

Your lawyer will also prepare you for giving evidence if you will be testifying. This can include reviewing important dates and documents, explaining courtroom procedure and discussing what to expect during both direct examination and cross-examination.

The purpose is not to memorize testimony. A witness is required to give their own truthful evidence.

What Happens When the Trial Starts?

At the beginning of the trial, the Court will generally confirm the parties, the issues that remain to be determined and any preliminary matters that need to be addressed.

The parties then present their respective cases.

The Alberta Rules of Court establish a general order for the presentation of evidence at trial. Unless the Court directs otherwise, the plaintiff may make an opening statement and then presents their evidence. The defendant may make an opening statement either before the plaintiff’s evidence begins or after the plaintiff has finished presenting their case, and then presents their own evidence.

The precise terminology and procedure can vary depending on how the family proceeding was commenced and any directions previously made by the Court.

What Is an Opening Statement?

An opening statement gives the Justice an overview of the case.

It can identify the issues that need to be decided, provide important context and explain the evidence the party expects the Court to hear.

An opening statement is not itself evidence.

For example, a lawyer might explain that the principal issues at trial are parenting time, the parties’ respective incomes for support purposes and division of a particular asset. The lawyer can then outline the evidence that will be presented regarding those issues.

The evidence itself must still be properly introduced through witnesses, documents, admissions or other admissible evidence.

A well-prepared opening can help the Justice understand how the evidence that follows relates to the issues requiring a decision.

Giving Evidence at a Family Law Trial

Witness evidence is an important part of many family law trials.

A witness will generally swear an oath or make an affirmation before giving evidence.

When your own lawyer asks you questions, this is commonly referred to as direct examination or examination-in-chief.

Your lawyer will guide you through the relevant subjects so that you can provide your evidence to the Court.

In a parenting case, for example, you might be asked about the historical parenting arrangements, the child’s routine, important decisions affecting the child and the parenting arrangement you are asking the Court to order.

In a property or support case, the questions may focus more heavily on employment, income, assets, debts, financial transactions, property acquired during the relationship or other financial circumstances.

The Justice may also ask questions where clarification is required.

What Is Cross-Examination?

After a witness gives their evidence, the opposing party or their lawyer generally has an opportunity to cross-examine them.

Cross-examination can be one of the more challenging parts of a trial.

Unlike your own lawyer’s questions, opposing counsel may ask pointed or leading questions. They may challenge your recollection, suggest that events occurred differently, compare your testimony with documents or previous statements, or question the reliability of particular parts of your evidence.

This does not mean that a witness should become argumentative.

A witness should listen carefully, answer the question asked and remain truthful. If you do not understand a question, you can ask for clarification. If you genuinely do not remember something, you should not guess.

Documents and previous sworn evidence can also become particularly important during cross-examination. For example, if a witness gives an answer at trial that differs materially from evidence previously given during questioning, the earlier evidence may become relevant, subject to the applicable evidentiary and procedural rules.

This is one reason careful preparation before trial is so important.

How Are Documents Used at Trial?

Family law trials frequently involve documentary evidence.

Depending on the issues, relevant documents might include financial statements, tax returns, bank and investment records, employment records, corporate documents, property valuations, written communications, photographs or other records.

However, simply having a document does not necessarily mean it automatically becomes evidence.

Documents must be introduced in accordance with the applicable rules of evidence and court procedure. Questions may arise about authenticity, relevance, hearsay, privilege or whether the document is otherwise admissible.

Before trial, lawyers will often work to determine which documents can be admitted by agreement and which may require evidence from a witness.

Once a document is admitted as an exhibit, the Justice can consider it as part of the evidence in deciding the case.

This is one reason trial preparation involves carefully organizing the evidence rather than simply bringing every document accumulated during the family law proceeding.

What About Expert Witnesses?

Some family law cases require specialized evidence that falls outside ordinary knowledge.

An expert witness may be retained to provide an independent opinion within their area of expertise. Depending on the case, this could involve business valuation, income determination, pensions, real estate or another specialized issue.

Expert evidence is subject to specific procedural and evidentiary requirements.

Importantly, the role of an expert is not simply to advocate for the person who retained them. Under the Alberta Rules of Court, an expert's duty is to assist the Court impartially on matters within the expert's expertise.

An expert may prepare a written report and, where necessary, testify at trial. The opposing party may have the opportunity to cross-examine the expert and may also rely on expert evidence of their own.

Expert evidence can be particularly important where the outcome depends upon technical financial or valuation questions.

What Happens If a Lawyer Objects?

During a trial, a lawyer may object to a question, answer or proposed piece of evidence.

An objection is not simply an interruption or disagreement with what is being said. It raises a legal issue concerning whether particular evidence should be received or whether a question is proper.

The Justice decides the objection.

Depending on the ruling, the witness may be required to answer, the question may need to be rephrased, or the evidence may not be admitted.

Clients should allow their lawyer to deal with objections and wait for the Justice's direction before continuing with an answer.

What Happens When the Other Party Presents Their Case?

Both parties have an opportunity to present their evidence.

After the first party completes their case, the other party presents theirs. Their witnesses may give evidence and be cross-examined in the same general manner.

This means that a family law trial is not decided solely on which party tells the more compelling story.

The Justice considers the evidence that is properly before the Court, assesses the credibility and reliability of the witnesses where necessary, applies the relevant legislation and legal principles, and determines the issues that require a decision.

In some circumstances, additional evidence may be permitted after the other party's case, but this is governed by the applicable rules and the Court's directions.

What Are Closing Arguments?

Once the evidence has been completed, the parties generally make closing submissions.

Closing arguments are different from evidence.

This is the opportunity for each party or their lawyer to explain what they say the evidence establishes, how the applicable law should be applied and what orders they are asking the Justice to make.

A lawyer may refer the Justice to important testimony, exhibits, admissions, legislation and previous court decisions.

Closing submissions can also address weaknesses or inconsistencies in the opposing party's case.

The objective is to connect the evidence heard during the trial with the legal result being requested.

Does the Justice Decide the Case Immediately?

Sometimes, but not always.

In some cases, the Justice may provide an oral decision after hearing the evidence and submissions.

In other cases, the Justice may reserve the decision. This means the Justice takes additional time to review the evidence, applicable legislation, case law and the parties' submissions before issuing a decision.

A reserved decision may later be provided in writing or otherwise released in accordance with the Court's process.

The time required will depend on the nature and complexity of the case.

Clients should therefore be prepared for the possibility that the trial will end without an immediate answer.

What Can a Justice Decide at a Family Law Trial?

The orders available depend upon the issues properly before the Court and the legislation governing the case.

For example, a Justice may be asked to determine issues concerning:

• parenting time;

• decision-making responsibilities;

• child support;

• section 7 special or extraordinary expenses;

• spousal support;

• family property;

• responsibility for particular debts;

• financial issues arising from the parties' separation; or

• other relief properly before the Court.

A trial can involve one narrow unresolved issue or several interconnected issues.

For parenting matters under the Divorce Act, the Court must consider only the child's best interests when making a parenting order. The legislation identifies a number of factors that may be relevant to that assessment, with primary consideration given to the child's physical, emotional and psychological safety, security and well-being.

Different legal tests apply to support, property and other family law issues.

What Happens After the Decision?

Once the Justice has decided the case, the decision must generally be reflected in a formal court order.

Depending on the judgment, the parties may then need to take additional steps to implement the result.

For example, they may need to begin following a new parenting schedule, adjust support payments, transfer property, refinance a home, divide investments or pensions, pay an equalization amount, or complete another requirement imposed by the Court.

Deadlines contained in the judgment or resulting order should be taken seriously.

Your lawyer can review the decision with you, explain your obligations and help determine what needs to happen next.

What About Legal Costs?

A trial can also result in a decision about costs.

Costs are separate from the substantive issues in the family law case. They concern whether one party should be required to pay an amount toward the other party's litigation expenses.

Under Alberta's Rules of Court, the Court has discretion regarding costs, subject to the applicable rules and legislation. The result of the proceeding can be an important consideration, but it is not necessarily the only consideration. The Court may consider matters such as the parties' conduct, unnecessary delay, failure to comply with court directions and reasonable settlement offers.

A costs award does not necessarily reimburse every dollar spent on legal fees.

Your lawyer can explain the potential costs consequences as the case develops and when settlement offers are being considered.

Is Trial Always the Best Option?

Not necessarily.

Some family law disputes genuinely require a Justice to make a final decision. This may occur where the parties have fundamentally different positions, important facts are disputed, complex legal issues require determination or reasonable settlement efforts have been unsuccessful.

However, trial also involves uncertainty.

Once a matter goes to trial, the final decision is placed in the hands of the Court. Trials can also require significant preparation, legal expense and time.

Settlement allows the parties to retain greater control over the result. It can also permit more flexible arrangements than might result from a contested trial.

For these reasons, preparing seriously for trial and continuing to consider reasonable settlement opportunities are not contradictory. A well-prepared case can put a party in a better position both at trial and during meaningful settlement discussions.

How Bridgestone Law Can Help

Family law trials require careful preparation long before the first witness enters the courtroom.

At Bridgestone Law, we assist clients in identifying the issues that actually require determination, organizing relevant evidence, reviewing financial disclosure, preparing witnesses, working with appropriate experts and developing a clear litigation strategy.

Where questioning has taken place, we can review the transcripts, undertakings and evidence obtained through that process as part of trial preparation. We can also assess documentary evidence, prepare examinations and cross-examinations, conduct legal research and develop opening and closing submissions.

Just as importantly, we can continue to evaluate reasonable opportunities for settlement as trial approaches.

If a negotiated resolution cannot be reached, our role is to ensure that our client understands the process, is properly prepared to give evidence and has their case presented to the Court as clearly and effectively as possible.

Bridgestone Law is a Calgary-based family law firm assisting clients with divorce, parenting, child and spousal support, family property, financial disclosure, settlement and family law litigation throughout Alberta.