memo from superior court re: self representation

[fieldgrey]

At the beginning of my trial last Friday the justice began procedures by entering the first exhibit in the trial: a memorandum to self represented parties by the Superior Court given to any SRL. We were given 15 minutes to review it in adjournment.

This is a 9 page document outlining processes, expectations, and various rules for self representing at trial. I found it very helpful and wish I had it before trial. A quick search does not show it available on justice websites, so I have scanned it to a PDF and will email it to anyone who sends me an email address through forum private messaging.

FG

 

[WorkingDAD]

At most what I can do with it to reduce it to 257kb and split to 3 pages/ part. And one more just rename file by removing ".zip" at the end. I just put it to have biggest limit for file size.

EDIT:
OK I decided to go one more step so we all will have that file nice and crisp. So I OCRed scanned document what fieldgrey provided. Clean it up a little bit. Created PDF again. So I went down from 7mb to 78kb. Still too big for the forum. So I added ".zip" what you can take out after download and enjoy.

NOTE:
OCR is not always 100% perfect - if you will spot something let me know I will fix it...


Thank you, Fieldgrey.

Hi there,
I can't seem to be able to open the file no matter what program I use. Is there any other way you can post it or send it? I am representing myself and would love to arm myself with more knowledge before going blindly to a trial.

May be I explained not clear or may be I explained not clear )....
I will try again.

Forum has limits for file size what you attach to post .zip file can be up to 97.7 KB and .pdf file can be up to 19.5 kb. File what I did from fieldgray scan is 78 kb.

So to be able to post it on form I rename file so forum engine will think it .zip. Basically I just add ".zip" to the file name. After you download it or when you choose file name from Save as dialogue from your browser remove ".zip" from file name and live ".pdf" as extension only.

At the end you have to have file memorandum_for_trial_self_represented_ontario_ocr.pdf whith will be opened by Adobe Reader or any other application what capable of working with PDF format.

Good luck.

 

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SUPERIOR COURT OF JUSTICE MEMORANDUM FOR TRIAL
TO: The Self Represented Applicant or Respondent
INTRODUCTORY COMMENTS
[1] As a self-represented party, you must present your own case at trial. The purpose of this Memorandum is to set out some practical and procedural matters with respect to the trial process in order to assist you in representing yourself.
[2] In providing you with this Memorandum, the court does not assume any responsibility to provide you with legal advice. Similarly, the judge who will be conducting your trial will not be able to give you legal advice. The judge must not only remain impartial, but must also be seen by all of the other parties to be impartial.
[3] This Memorandum cannot possibly cover all the things you need to know about conducting a trial, nor can it begin to replace the advice and assistance that would be available to you if you had legal counsel. Accordingly, you are urged to obtain legal information and legal advice to the extent you are able.
[4] Although these comments are given to assist you in complying with the procedural and evidentiary requirements of the trial, you are fully responsible for the presentation of your case to the court. You cannot relieve yourself of this responsibility by simply relying on these comments or by relying on the fact that you are not represented by counsel.
[5] If you have questions at any time, you should let the trial judge know.
[6] All references in this memo to Rules are references to the Family Law Rules. Similarly, references to Forms, are Forms referred to in the Family Law Rules. Both the Forms and the Rules are available on the Ontario Superior Court Website:
http://www.ontariocourts.on.ca/scj/en/famct.
CONDUCT OF THE TRIAL: OVERVIEW
Burden of Proof
[7] If you are the applicant, the burden of proof will be on you to prove the claims in your Application. If you are the respondent, the burden of proof will be on you to prove any claims in your Answer. All claims must be proven on a balance of probability, i.e. greater than 50%.
Exclusion of Witnesses
[8] When the trial begins, if you or the opposing party asks the trial judge for an order excluding witnesses, the judge will likely grant the order. In that case, except for you and the opposing party, all other witnesses will be asked to stay outside the courtroom until they are called to give their evidence. This is done in order to ensure, as much as possible, that a witness does not change his or her testimony in response to hearing the testimony of some other witness.
[9] If such an order is made, you must not discuss any of the evidence given at the trial with any of your witnesses before they are called to testify. You must also ensure that your witnesses are aware of the order and do not discuss their evidence with anyone until after the trial is over.
Opening Statements
[10] At the start of the trial, the applicant is entitled to make an opening statement outlining the background to the applicant's claims against the respondent and a summary of the evidence that the applicant intends to call.
[11] After the opening statement of the applicant, the respondent may also make an opening statement, outlining the defence to the applicant's claims, the background to any claims being made against the applicant and a summary of the evidence that the respondent intends to call. A respondent may choose to wait to make an opening statement until after the close of the applicant's case.
[12] You are not required to make an opening statement. The choice of whether to make an opening statement will be solely up to you.
[13] You must not interrupt the other party's opening statement even if you disagree with parts of it.
[14] What is said in the opening statements is not evidence. If what you say in your opening statement is not borne out by the evidence that is subsequently presented, or is contradicted by that evidence, then what you said in your opening statement will be ignored by the trial judge. The sole purpose of an opening statement is to enable the trial judge to better follow the evidence as it is called.

 

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Procedure for Introducing Evidence
[15] After the opening statements, the parties introduce the evidence that they each rely upon. Evidence may consist of testimony from witnesses or the introduction of documents. <O
[16] If you are the applicant, you will have the right to testify and call witnesses to give evidence in support of your case first. Once the applicant's case is closed, the respondent has the right to testify and call witnesses to give evidence in support of the respondent's case.
[17] During your evidence and the evidence of any witnesses that you call, you may produce documents that you or your witness are able to identify and those documents may be entered as exhibits in the trial.
[18] The opposing party may cross-examine each witness that you call. You will have the right to re-examine the witness to clarify matters raised by the cross-examination. You may not raise issues during re-examination that were not discussed by the opposing party during cross-examination.
[19] After your last witness has been called, you will close your case.
[20] In calling witnesses in support of your case, the process outlined in the section "Questioning Witnesses" below will be followed. The introduction of documents as exhibits is dealt with in the section "Documents as Evidence" below.
[21] If you decide to testify, it is customary for you to be the first witness called in your case. If you decide not to testify, you may still be called as a witness by the opposing party pursuant to Rule 23(11). You will be cross-examined by counsel for the other party or the party, (if that party is also self-represented). You will be required to answer all relevant questions subject to certain limitations.
[22] Before you testify, you will be asked to swear an oath or to affirm that you will tell the truth. If you deliberately lie under oath, you may be subject to a charge of perjury, which is a separate criminal offence that bears its own separate penalty.
[23] Because there will be no one in front of you asking questions during your examination in chief (see below under "Questioning Witnesses"), you must plan ahead what you will say. You must rely on your memory rather than reading a prepared statement of evidence. If you need to look at a document created at or about the time of the events in question, in order to remember details, you must first ask the trial judge for permission to do so. You will be required to tell the judge what the document is and why you need to look at it so that the judge can determine if it is permissible. If you want to ensure you do not forget to cover everything, a written outline of the topics that you want to testify about can be used, but you will have to show it to the trial judge and the opposing party first.
[24] If you testify you must be very careful to keep in mind the distinction between "evidence" and "submissions" (see section below entitled "Closing Submissions" for more detail). When in the witness box you must restrict what you say to what you personally saw, heard, did, received, et cetera. You cannot make submissions from the witness box. If you testify, once your evidence as a witness has been completed and you have left the witness stand, you can no longer give evidence without permission from the trial judge, unless you are entitled to give Reply evidence, as set out below.
[25] In summary, you will be heard by the trial judge in only two ways: either as a witness giving evidence from the witness box, or as a self represented party making submissions from the counsel table. You cannot combine the two and must at all times maintain this distinction.
[26] If you do not call witnesses and do not testify, then the decision of the trial judge will be based on the evidence introduced by the other party alone. However, the other party will likely ask the trial judge to use the fact you did not call evidence to conclude that the reason you did not testify or call a certain witness is because had you done so, the evidence given would not have been favorable to you.
Reply Evidence
[27] If the respondent decides to call evidence, after all the respondent's witnesses have been called, the applicant may, in certain limited circumstances, be permitted to lead further evidence to reply to and rebut the evidence that the respondent has introduced. Such evidence is strictly limited to the purpose of replying to evidence of the respondent and may not include evidence that should have initially been part of the applicant's case. If the respondent has made a claim against the applicant, the applicant will be entitled to call evidence to defend the claim in reply.
[28] If the applicant is permitted to call reply evidence, the same procedure will be followed as was used for calling other evidence.

 

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ClosingSubmissions
[29] After all the witnesses have been called, both parties will have an opportunity to address the trial judge to make submissions about what the trial judge's decision should be, based on the testimony that the witnesses have given and the contents of the documents that have been marked as exhibits. The applicant proceeds first, followed by the respondent. The applicant will have an opportunity to reply to submissions made by the respondent (this is different from "Reply Evidence"). You make your closing submissions from the counsel table.
[30] It is important to remember that it is not open to you during your closing submissions to refer to matters that have not been referred to in the evidence. The purpose of your submissions is to outline your claim or defence and to review the evidence that supports your claim or defence and to point out the shortcomings in the evidence led by the opposing party.
THE EVIDENCE AT THE TRIAL<O</O
Questioning Witnesses
[31] When witnesses are asked questions, certain rules have to be followed. One set of rules applies when you are asking questions of witnesses you have called. When a party questions a witness they have called, this is referred to as "examination in chief'. During the examination in chief of your own witnesses, you are not permitted to ask "leading" questions, unless you are questioning the witness about introductory things or matters that are not in dispute. A leading question is a question that suggests the answer within the question itself. For instance, the question "You did not go to the bank, did you?" is a leading question because it suggests its own answer; that the witness did not go the bank.
[32] Another set of rules applies when you are questioning witnesses that the opposing party has called. This is called "cross-examination". You may cross-examine the witnesses called by the opposing party, although there is no obligation to do so. In cross-examination you are entitled to put suggestions to the witness of what you want the witness to agree with (see above example of a leading question). Generally, the purpose of cross-examination is to test the credibility of the witness and to bring out evidence favourable to your defence.
[33] After a witness has been cross-examined, the party that called the witness may, but does not have to, ask additional questions to clarify or explain matters that have come up in cross-examination. This is called re-examination. When it is finished, the witness' evidence is complete.
[34] Examination in chief always comes first, then cross-examination and then any re-examination. The trial judge may then ask questions of the witness.<O</O
[35] It is important to note that questions asked in court are not evidence and do not form part of the evidence called at the trial. Only the answers to questions are evidence that the trial judge will consider.
[36] Whenever you ask the witness a question, you should allow the witness to finish his or her answer before asking the next question. A record is made of everything that everyone says. If two people talk at the same time, it makes it very difficult to obtain a true and accurate record of the testimony of the witnesses.
[37] Further information as to how to cross-examine a witness is set out below under the headings "Cross-examination" and " Prior Statements".

 

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Cross-examination
[38] As described above, you may cross-examine witnesses called by the opposing party. Cross-examination is an opportunity for you to ask questions that are intended to draw from the witness something relevant, something that is important in deciding the case and that is of use to your case against the opposing party.
[39] During the cross-examination, it may helpful for you to ask questions about:<O></O>
• the ability and opportunity that the witness had to observe the things he or she tells<O></O>
the court;
• the ability of the witness to give an accurate account of what he or she saw and heard; and
• whether the witness has any reason to be biased or prejudiced, or has an interest in the outcome of the case (note that this is obviously true for the applicant and the respondent).
[40] Cross-examination is not an opportunity for you to argue with a witness or give evidence yourself. You should put your view of the facts to the witness in the form of a question. For example, you may ask the witness, "Do you agree that I did not see the children during the month of July?"
[41] In fact, if you intend to contradict a witness by the evidence given by you or a witness you intend to call, you should put that evidence to the witness during your cross-examination so that the witness can give his or her version of the facts. If you fail to do this, the trial judge may give less weight to the evidence that you lead that contradicts the witness because the trial judge will not have an opportunity to hear what the witness would havf3 said about this contradiction.
Prior Statements
[42] Witnesses may have made sworn or unsworn statements at a prior time. For example, the parties will likely have sworn affidavits, including a financial statement and may have been questioned prior to trial. You may use these affidavits, financial statements and transcripts when you cross-examine the witness who made the statement.
[43] If the witness said something different in the earlier statement or sworn evidence than what the witness is saying at trial, you may cross-examine the witness on the prior statement. If the witness said something favourable about your case in a prior statement, you can ask about that. There is a procedure you must follow to do this.
[44] First ask the witness if the witness recalls making the statement, swearing the document in question or if they recall attending for questioning and answering questions under oath (whichever applies). Next, read the prior statement in the document or the questions and answers from the transcript to the witness. Ask the witness to confirm that the statement was made under oath (if applicable) and then ask if he or she recalls saying it, and ask if it was true.
[45] If the witness says the earlier statement was true, the earlier statement is evidence for the truth of that statement. If the witness says it is not true, then the earlier statement may be used only to assess the credibility of the witness, by showing that the witness said something different in the past.
[46] Do not try to prove a prior conflicting statement unless the contradiction in the evidence is serious.

 

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Summoning Witnesses
[47] If you are concerned that any of your witnesses will not show-up at court, you should arrange to serve them with a summons (Form 23). You will need to provide the necessary witness fee in accordance with Rule 23(4). Once called to testify, each witness will take the witness stand and be sworn or affirmed. If the trial judge has made an order excluding witnesses from the courtroom until they testify, you must keep your witnesses out of the courtroom until they have given their evidence (as already stated, you must also not tell them about evidence already given during the trial).
[48] You should not call witnesses unless the evidence they can give the court will assist your case or contradict the opposing party's case.
[49] Always remind your witnesses to bring with them any documents or exhibits they might have relating to the case that you will want to enter into evidence when the witness testifies.
Documents as Evidence
[50] Documents that are admissible as evidence are tendered as exhibits during the trial. In very general terms, a document is admissible if it is relevant to the case and is proven to be genuine, i.e. it is what it appears to be, or it is introduced pursuant to an agreement reached beforehand by the parties. Ordinarily, any document sought to be put into evidence and marked as an exhibit must be identified by a witness under oath. Public records and the like are admissible in accordance with the provisions of the Ontario Evidence Act. You can find this statute on the Ontario E-Laws website: http://www.elaws.gov.on.ca/index.html
[51] You may use as evidence any documents that are admissible either when you testify or when you are questioning a witness who can identify and testify as to the nature of the particular document, for example, that it is a letter the witness received. If there is any dispute about the admissibility of a document, the trial judge will hear submissions and rule on the admissibility of the document. If you propose to present any documents in evidence, please bring the originals, if possible, as well as at least three copies.
[52] If you failed to disclose documents to the other party, refused to answer certain questions during any questioning before trial that was done pursuant to Rule 20, failed to correct answers given on any questioning before trial, or failed to serve an expert report (see "Expert Witnesses" below), you will not be permitted to provide the information refused, the corrections, or the documents or report not disclosed, as evidence in your case unless you are given permission by the trial judge to do so. The failure to disclose evidence before trial could result in a decision of the trial judge to prevent you from calling the evidence, or the trial could be adjourned, or you could be ordered to pay costs.
Reading Opposing Party's Answers into Evidence
[53] Pursuant to Rule 23(13), an answer or information given during or following questioning of a party, pursuant to Rule 20, may be read into evidence at trial if it is otherwise proper evidence, even if the opposing party has already testified at trial.

 

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Objectionsffice
[54] The trial judge is entitled to question the relevance of all evidence and to control any attempt to introduce inadmissible evidence.
[55] At any time during the questioning of witnesses by the opposing party, you have the right to object to the questions asked or to the introduction of documents put to the witness before they are marked as exhibits. If you object to a question, simply stand. When the trial judge calls upon you, state the reason for the objection. The trial judge will hear submissions from you and the opposing party about the admissibility of the evidence and the trial judge will make a ruling. If you object to a document being entered as an exhibit by the other party, the same procedure applies.
[56] It is the duty of the trial judge to decide, on the basis of the established rules of law, what evidence may properly be put before the court. Once the trial judge has made a ruling, it is final in the trial and you must accept it and not continue to argue about it.
Hearsay
[57] Normally, the only evidence a witness can give is what he or she personally saw or heard. Accordingly, it is important that you understand that you cannot give evidence or ask your witnesses to give evidence about what another person said if you are introducing that evidence for the purpose of proving the truth of the statement. This is known as hearsay evidence and it is generally not permitted, unless the other person who is alleged to have made a particular statement is the opposing party or a witness that will definitely testify at the trial.
[58] Hearsay evidence may be admitted if the evidence is necessary and reliable.
• "Necessary" means the evidence is not readily available; for example, the person who made the statement has died or is seriously ill.
• "Reliable" means the statement is trustworthy because of the circumstances under which it was made.
[59] There is an exception to the hearsay rule when the only purpose in introducing the statement of a person who is not going to testify is to prove that the statement was made, not that the statement is true. If that is the purpose of this evidence, let the trial judge know this when the evidence is introduced.
Expert Witness
[60] You may call experts to testify on any issue if you have complied with Rule 23(23) in giving notice. Unless the opposing party consents to the introduction of the expert report at trial, you will have to call the expert as a witness at trial.
[61] Expert evidence is usually introduced where the expert can provide information to the court, which is outside the experience and knowledge of the judge. Therefore, the expert must possess special knowledge that goes beyond that of an ordinary judge. The expert's opinion must also be related to a fact in issue that, as a matter of human experience, will assist this court in resolving these issues.
[62] An expert witness must first be qualified as an expert in his or her field, either because of his or her education and/or because of his or her experience and personal knowledge. If qualified, the expert will be permitted to express opinions in the field of his or her expertise. If you intend to object to the qualification of an expert witness, you should tell the trial judge. You will have an opportunity to cross-examine the expert on his or her qualifications and then to make submissions before the judge decides if the expert is qualified. If the judge decides that the expert is qualified, the expert will testify.
[63] An expert does not replace the function of the trial judge as the trier of fact. The expert cannot make decisions about the various claims.

 

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GENERAL CONDUCT IN THE COURTROOM
[64] In the courtroom, there are certain rules of conduct. When you address the court, you should refer to the trial judge as "Your Honour". Please stand whenever the judge enters or leaves the courtroom and when you are speaking to the judge.
[65] When you are speaking to any witness, you should address them as Mr. or Ms. or Dr. as appropriate. Do not use their first name.
[66] Please stand whenever you wish to speak while court is in session. You should address your comments to the judge and not to the opposing party. Do not interrupt when the trial judge or someone else is speaking. Only one person will be allowed to speak at a time. You will have an opportunity to respond if an issue arises that impacts on you.
[67] The court registrar is responsible for tracking all documents that have been marked as exhibits. Should you wish a copy of an exhibit, please ask the registrar.
Hours of Sitting
[68] Court is in session from 9:30 a.m. until 4:30 p.m. There is generally a break for lunch at 1 p.m. until 2:15 p.m. There will be a break in the morning and if needed, in the afternoon. These hours may change, depending on the discretion of the trial judge. Please be sure to come to court on time in the morning and after each break.
Note-taking
[69] You are encouraged to take notes about everything that takes place in the courtroom. You will probably prepare your cross-examination of a witness and your closing submissions on the basis of your notes.
Difficulties in Hearing a Witness
[70] If you cannot hear what a witness, the opposing party, counsel, or the trial judge says, you should let the trial judge know.
Further Assistance
[71] If you require further clarification on any matters discussed in this Memorandum, or any other matter relevant to the conduct of the trial, you may ask the trial judge. The trial judge will attempt to assist you to the extent that such assistance does not compromise trial fairness or the appearance of impartiality.
[72] A copy of this Memorandum will be marked for identification at the start of the trial and a copy will be given to the opposing party. The opposing party may, on notice to you, make any submission to the trial judge that they deem necessary to correct anything in this Memorandum that might be in error or that should have been included.

 

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Use of recordings as evidence

Use of recordings as evidence

Judges usually don't allow recordings as evidence in family court; it would be evidence in something serious like a murder trial but family court doesn't go there.

Example: If you had a recording of a conversation with the children.

What you do is swear an affidavit that the children's wishes are (such and such). Attach to the affidavit a short summary of what the children said that is relevant to the case. EVIDENCE MUST ALWAYS BE RELEVANT. After the summary you attach a transcript of the conversation. The transcript may be typed by you, but with a sworn statement from the notary that it is an accurate transcript of the recorded conversation.

You end up with:
- your sworn affidavit
- which is backed up by the summary
- which is backed up by the notary transcript
- which is backed up by the recording.

The judge will often read as far as the summary, they will generally not read the entire transcript, if the material is not disputed by the other party.

You present the transcript as evidence as part of your full disclosure, so that the other party may examine it and decide whether to challenge it. They may challenge it by saying it is not relevant, that it is out of context, that it was coerced, etc. However it's unlikely that they will challenge it's authenticity since you have the notarized transcipt and the original recording. So the affidavit will be accepted as factual, but they still may argue it's relevance.

And just to add, few if any divorce lawyers will go to this amount of trouble unless the evidence hugely important. If you think something is important and relevant, get the transcript ready yourself and write it all up and present it to the lawyer ready to go. The lawyer may still recommend that it is irrelevant.

We all think certain things are important but in reality other people look at it objectively and realize it makes little difference.