Divorce Trials And Court Battles

A divorce trial happens in Ontario as a last resort when both parties cannot come to an agreement. During the trial a judge will examine evidence from both sides, and make the final decisions on any unresolved issues like divorce, property, spousal support, and child support, based on the evidence presented at trial and the law.

 

Preparing for Trial – The Case Theory

The case theory is the connecting theme about what a person wants a court to order and why. For example, a stay at home parent may want primary care of the children, full child support, and spousal support, because that was what the parties did during the marriage and the belief that the situation should carry through post separation. Then all of the information they gather and present will be directed at proving this.

Lawyers begin preparing for trial with the filing of the first document with the court (Application or Answer). This document will reflect the case theory that will carry the party through to the end of trial.

With each court step in the contested divorce process, lawyers adjust what information they have and still need in order to prove their case theory.

In the months leading up to trial, lawyers review all of the information both parties have provided to determine what gaps still need to be filled by their clients to support that case theory, or presented to argue against the other side’s case theory.

At the beginning of the trial, the party’s case theory is presented to the Court, and the opposing side, through their Opening Statement.

 

Trial Record

A Trial Record is a mandatory part of the trial process in Ontario. At the Trial Management Conference, the details and timelines for the trial record will be discussed and endorsed in the Trial Scheduling Endorsement form. Your trial record must include:

• A table of contents
• The application you submitted to the court
• The Respondent’s answer
• Any reply that you filed with the court
• Any agreed statement of facts
• Financial statements, certificates of financial disclosure, and net family property statements
• Any assessment reports
• Reports from the Office of the Children’s Lawyer
• Any temporary or final orders related to the trial
• Relevant parts of transcripts you plan to refer to at trial

 

Opening Statement

An opening statement is a road map for the judge. It details what a party wants and the evidence they intend to introduce to prove to the court why that should be ordered

Evidence

At trial, both parties present evidence about why they should get what they want.

Evidence is a very technical matter with a whole body of law that covers it. Basic evidence parties present at trial are:

1. Testimony; and
2. Financial documents.

More complex issues can require more evidence such as:

1. Expert reports and oral testimony from the expert.
2. Parenting assessors.
3. Psychological Assessments.
4. Forensic Accountants.
5. Private Investigators.
6. Actuarial reports.

A significant part of the strategy for a trial is figuring out how to attack the other side’s evidence to make it less convincing to the Court.

Who goes first?

The Applicant presents their case first. The case presentation occurs in the following order:

1. Opening Statement
2. Any evidence the parties are jointly entering.
3. Oral Evidence from their Witnesses

Each witness is cross-examined by the other side with the opportunity for a “re-direct” by the first side.

Once the Applicant has entered all of their evidence, the Respondent goes. The Respondent has the choice of presenting their opening statement immediately after the Applicant’s opening statement, or at the beginning of the Respondent’s evidence. The Respondent then presents their witnesses for oral evidence, who are then cross-examined by the Applicant, and redirected (if required) by the Respondent.

Once all of the evidence has been presented, the parties present their closing arguments.

 

Closing Argument

A closing argument is the last kick at the can to convince the judge that the relief a party wants should be granted.

A good closing argument reminds the judge of the most important pieces of evidence a party has presented, and attacks the other side’s evidence. Most importantly, a closing argument ties ithe evidence presented to what the law is.

A winning argument is where a party’s evidence matches the law and the other side has not disproved it.

 

The Day of Trial 

Arrival

It’s best to arrive at least 30 minutes early to find your assigned courtroom and check in. Courthouses typically have a case event list near the entrance that will indicate the room number where your trial is scheduled.

Public Access

Divorce trials are generally open to the public, meaning others may be present during your hearing. However, in exceptional circumstances, you can request a closed trial by asking the judge beforehand. Note that there is no jury, decisions are made solely by the judge.

Courtroom Protocol

Upon entering the courtroom, you should check in with the court clerk at an appropriate time, typically during a break in the session. The court registrar, seated near the judge, will collect any forms or documents you wish to submit.