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  • Going to trial

    Can someone please explain what happens at a trial?
    We have been to several settlement conferences and mediations and motion hearings, but never have we proceeded to trial.

    My understanding is that it is sort of like what one would expect from the name, in that each side is permitted to ask the other side questions.
    If so what can and cannot be asked??
    What has to take place as far as documents and filing and serving said documents prior to the trial?

  • #2
    FL,

    Each side would questions the respective witness's and perhaps the other side. The court will be observing the demeanor and observing the witness's to determine the truthfullness of same. As each and every witness and documents are examined the Judge will be making notes and forming an opinion. In climates of contradicted evidence, the court will have to listen to each side to form an opinion.


    lv

    Comment


    • #3
      Once a trial date is set by the court, can it be cancelled upon request of one of the parties?

      Comment


      • #4
        FL,

        The action can be abandoned by one or both of the parties, However the parties that initiates the abandonment of their claims may be faced with full costs incurred by the other party to date to defend the action.

        lv

        Comment


        • #5
          So we're dammed if we do and dammed if we don't.
          As I see it, the ex has two lawyers and we have none, who do you think will be stuck with costs if we go to trial?
          I think we should minimize the costs and call it quits before it gets too far.
          I mean the last judge made it perfectly clear that we were not going to win on any of the issues anyway.
          So why prolong it, and have the costs keep going up?

          Comment


          • #6
            If I could get a name of a lawyer that was willing to take a case last minute and simply show up and represent us that would be great.
            I began calling lawyers in Ottawa almost a year and a half ago, and it seems impossible to get someone that doesn't sound mousy or simply unwilling to take the case as they feel, “this is the most complicated case I have ever seen". Of course it's complicated, when you have an ex that is a lawyer represented by two lawyers, (and I doubt she pays them as the code of ethics suggests otherwise) it is going to be a complicated case. We have, to date, disproved *ALL* allegations false, yet for unknown reasons the judges have "ALWAYS" ruled in favour of the mother. Who in their right mind would take a case like that? They did read the records and saw our mountains of proof or only "I feel” and "I believe" written statements.

            HELP!!!!!!!!!!

            Comment


            • #7
              FL,

              You never had a motion so it is highly unlikely the court considered your evidence. It appears that the court will side with one party during a case conference but in essence the court is preserving the staus quo.
              I still think if you have a choice is to move with the trial. The court would have to consider your evidence to rebut the unfounded allegations and apply the best interest test and also the principle of maximizing contact unless substantial harm is a factor. If it is a significant factor, then the other party has the onus to prove such.


              lv

              Comment


              • #8
                So if I understand you correctly.
                You’re telling me that since the previous court appearance was for a settlement conference they (the court) wanted to maintain the status quo regardless of actual facts as the facts as presented were not formally entered/sworn.

                Also, I understand, that should we continue to trial as it were that the courts would be obligated to consider, well at least review, the evidence or lack there of on the part of the other party. If the other party cannot offer more than “her feelings” and “her beliefs” do you speculate that the courts will “weigh” on our side in light of the substantial evidence we can provide?

                Then why do lawyers run and hide if they see the mountain of evidence we have, and let me tell you, “mountain” is not an overstatement, as we have literally six, 5 inch binders of paper documentation just for the last 4 years, plus the many tape recordings and photographs of times the daughter visited etc.

                Hypothetically say the custodial parent proceeds to trial with her friends and family as “witnesses” to the daughter’s behaviour after visits. And other than physical people saying the daughter acted this way and such and such, offers a written account of the events without any other proof to support her claims, (to date during many motions she has not offered documented proof). Maybe she's holding out, shrugg. And we on the other hand have voice recordings of the custodial parent and how she talks to us and how she treats us. We also have the many telephone conversations of the daughter happily talking to not only dad but myself etc, and the many photos of the daughter with us, and the many binders of documents in the form of emails, registered mail, affidavits etc. to clearly document our account of events. Do you think things favour us? And would it look bad if all we could offer by way of witnesses are sworn statements from friends and family as we are all more than 12+ hours drive away (one way)? Would the court disregard the sworn statements as the other party could not question these people?

                Comment


                • #9
                  Fl,

                  You would have to seek leave of the court to have your witness's give their evidence by affidavit rather than oral.

                  The judgment of the issues would swing on the facts and evidence. Lawyers are most likely not interested in your case as most lawyers don't like to just become involved in the matter on the eve of trial.

                  One thing is certain, the Judge would have to consider your evidence or else whatever decision they held could be set aside on appeal on the grounds that the Judge misapprehended the evidence.

                  Do you ever notice why Judge's list the best interest test in custody adjudications - If they don't refer to such their decision could be set aside on Appeal.


                  lv

                  Comment


                  • #10
                    Originally posted by logicalvelocity
                    You would have to seek leave of the court to have your witness's give their evidence by affidavit rather than oral.

                    Please explain to me how someone would go about seeking leave of the court.
                    I have heard this term several times but have never been successful in finding out how to go about doing this.
                    Does this mean that the trial does not take place, or does this allow the apposing side the option to question or rebut the statements?

                    FL

                    Comment

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