Ontario Family Court Trials

If parents are not able to resolve differences over their child, their court case will ultimately go to trial.

During the trial, the judge will hear evidence from both parents, then make a final court order.

Trials are very rare. Most parents reach agreement and settle the case — either on their own or with the help of a lawyer or alternative dispute resolution professional.

Some trial procedures may vary by court and judge.

Preparing for trial

If you have a lawyer, they will make sure you're ready for trial.

If you're representing yourself, you'll need to do the following.

Step 1: Gather evidence

Evidence is the backbone of your case. It shows the judge why you should get the orders you're asking for. All evidence presented at trial must be relevant to an issue in your case. Start gathering it early so you're ready if you end up in a trial.

There are two types of evidence: exhibits and witnesses.

Exhibits (also called documents) can come in many forms, such as:

• Medical reports, criminal records and other official documents
• Photos and videos of you and your child
• Messages between parents
• Expense reports
• Parenting journal entries

Organize all your exhibits into a bundle called a document brief. You'll give this to the other parent as the trial approaches and to the judge on the day of the trial.

Witnesses are people who testify to what they know firsthand. The witness should be able to:

• Provide information that will help the judge make a decision.
• Support your case for the orders you want the judge to make.
• Give facts that go against the other parent's case.

There are lay witnesses and expert witnesses. Lay witnesses can be the parents themselves, family members, the child's coaches, etc. Expert witnesses are professionals (e.g., social workers) who give information that is outside of the knowledge of judges. Experts often prepare reports such as assessments.

Step 2: Schedule a trial date

Once the judge has determined that you need to go to trial, the judge or the court clerk will set the trial date.

A trial can last less than a day or multiple weeks depending on how many issues are at hand and the amount of evidence to be presented.

Step 3: Summon your witnesses

You will have to formally summon any witness you want to testify on your behalf.

To summon a witness who lives in Ontario, complete Form 23: Summons to Witness. Fill out Form 23A: Summons to Witness Outside Ontario if they live elsewhere. You'll file the original summons with the court.

A friend, family member or process server must serve the witness with a copy of the summons and the witness fee. Typically, this is about $50 for each day the witness will come to court or be questioned.

If the witness refuses to appear, the judge could issue a warrant for their arrest so they can be brought to court.

Witnesses who can't appear in court might be able to write an affidavit explaining their evidence or answer questions on the record outside of court. You will need to ask the court's permission to have your witness do either of these, and then you'll need to serve the affidavit or transcript to the other parent at least 30 days before trial.

Step 4: Prepare your trial record

The parent who started the case (called the applicant) must serve and file a trial record — a grouping of important documents from the case, organized with a table of contents. Rule 23 of the Family Law Rules explains how to prepare one.

They must serve the trial record to the other parent, then file it with the court. This must happen at least 20 days before the trial (or, if the trial is grouped with others into a trial sitting, at least 20 days before the sitting's start date).

If the respondent wants to add documents to the trial record, they must file them with the court and serve copies to the applicant at least seven days before the trial or trial sitting starts.

The trial record is different from the continuing record, which you'll have to update every time you file forms with the court.

Trial procedures

Arrive at least 30 minutes early so you can find your courtroom and check in. There will usually be a case event list near the courthouse entrance that lists the room where your trial will occur.

Trials are open to the public, so other people might be present. (You can ask the judge ahead of time for a closed trial in exceptional circumstances.) There won't be a jury.

Once in the courtroom, you'll check in with the court clerk when there's a break in the session. The court registrar, who sits near the judge in the courtroom, will collect any forms you want to give to the judge.

Lawyers question witnesses and present evidence on their client's behalf. Parents without lawyers do it all themselves.

The applicant has the floor first to make their opening statement — a brief overview of what they're asking for and the evidence they'll present. The respondent makes their statement after.

Next, the applicant questions their witnesses to try to get information that supports their claims. The respondent questions each of the applicant's witnesses as well.

After the respondent questions their own witnesses, the applicant also questions the witnesses.

Then the applicant can submit reply evidence in response to any information provided by the respondent or the respondent's witnesses. The respondent cannot.

Lastly, each parent gives a closing statement — a summary of their evidence and the laws that support their case. The judge could ask for a written statement instead of a verbal one.

The judge might make a decision shortly after the closing statements or at a later date. Parents will receive the judge's verdict in writing or return to court to hear it.

Courtroom etiquette

• Turn off your phone and other electronic devices.
• Don't eat or chew gum.
• Stand up when the judge enters or leaves the courtroom and when you're called to speak.
• Call the judge "Your Honour" or "Justice."
• Always speak to the judge, not the other parent (unless you're questioning them).
• Don't interrupt.
• Be mindful of your facial expressions.
• Avoid making gestures when the other parent says something you don't agree with.
• Don't argue.
• Pay attention to what is being said, and take notes.

Staying organized

Going to trial over decision-making responsibility and parenting time requires serious organization.

You'll need to present evidence, which could range from messages with the other parent to a calendar showing when you care for your child. You should also propose a parenting plan and schedule.

The Custody X Change app lets you create and manage all of these elements in one place.

With parent-to-parent messaging, personalized custody calendars, a parenting plan template and more, Custody X Change makes sure you're prepared not only for trial but for every step of your case.

Take advantage of our technology to get what's best for your child.