Interim motions are almost always determined on affidavit evidence, that is, the sworn written statements of the parties and their witnesses. Occasionally, there will be cross-examinations taken on the affidavits, or examinations of third parties, but these are done in lawyers' offices, usually, and the judge will only be referred to the printed transcript.

 

Expungement of Improper Material in Affidavits

The court has developed a special practice in family law matters to scrutinize the quality of the material that is presented to the court on interim motions. These are referred to as Motions to Expunge or Motions to Strike.

Reasons for striking material are commonly that it is hearsay, argument, scandalous and/or vexatious, inadmissible evidence, such as evidence of conduct in a support case, or privilege. Other grounds may apply. Motions to Expunge out all or part of an affidavit are submitted to a Master of the court by way of special motion.

These are dealt with as desk or paper motions, that is, without the appearance of lawyers, or oral argument. Counsel submits his or her argument in writing and opposing counsel responds, both submissions to be within strict time limits set out in the Rules. The Master, who adjudicates the issue in the absence of counsel, will release a decision and the clerk will literally black out the offensive material, or remove the whole document from the court file, if so orders, so that it is not seen by the judge. Costs in the range of $200.00 to $300.00, or more, will often follow to the successful party. An appeals lies to a judge of the court.

For more on this, check the section on Motions to Strike in the Interim Motions article.

 

Pre-Trials

Pre-trials have been replaced by Case Conferences, except in Child Welfare proceedings and a few other instances. .

Before a matter can be set down for trial, the parties must attend a Pre-trial Conference with their counsel. The parties file Pre-trial Briefs setting out the issues, their respective positions and perhaps how they would be prepared to resolve the case.

The pre-trial judge will attempt to assist the parties to resolve the disclosure and other procedural issues and will often express an opinion on the merits of the issues as described by the parties or their lawyers.

The process is "without prejudice", that is, counsel and the parties, who are encouraged to participate, are free to discuss matters candidly without fear that it will be used against them at a trial. Because the judge is disqualified from being the trial judge, he or she is in a good position to mediate a reasonable resolution. Some judges are more active than others who, recognizing the limitations of the process, prefer to let the parties have "their day in court". Pre-trials are often adjourned, the judge remaining "seized" of the matter, as the parties move the matter towards a trial or a mediated resolution.

See our office memorandum on Case Conferences.

 

Case Management Conferences

The provisions for Case Conferences will apply in most divorce and separation cases. See Queen's Bench Rule 70.24(1).  The court has published a Practice Directive which summarizes the provisions.

A Case Conference is quite similar to a pre-trial. The process is begun at the request of either party or upon the setting down for hearing of an Interim Motion. If no Case Conference is held within 200 days of the originating process, the court will issue a notice of dismissal which will be effective 30 days after the date of the notice.

The parties each file a Case Management Information Statement which sets out the issues as settled so far and details of the remaining issues.

After the Case Conference, the judge will issue a Case Conference Memorandum setting out those matters that were agreed upon, such as the terms of any order or issues agreed to, any directions given, and articulating the issues of for trial. The practice is that no trial dates are granted without a Case Conference.

The judge at Case Conference, who will not be the trial judge, as with a judge at pre-trial, has strictly limited legal powers at a Case Management Conference, but depending on the judge may exercise considerable persuasive efforts to bring a matter to a mutually agreeable conclusion.

For more information see our office memorandum respecting Case Conferences.

 

Court Orders

As part of the process of attempting to establish a process whereby court orders will be prepared in the court room, the court has started to require that Orders be drafted in the proposed forms. These forms will eventually be enacted as part of the court rules. Counsel's use of the clauses is an essential part of the process of arriving at the wording of standardized clauses. The most recent version of the approved clauses can be found at the government court registry site.

 

Examinations for Discovery

An examination for discovery is one of the more important tools in the litigator's arsenal. It is an opportunity to ask the other side questions under oath and to require the production of relevant documents. Discoveries usually take place in a lawyer's boardroom and are attended by the parties and their counsel. A court reporter transcribes the proceedings verbatim and produces a transcript which can be used at the trial.

The purposes of Discovery are to help each side determine the case that has to be met at trial. It is an opportunity to bind the opposing party to their version of the facts and to elicit agreement on those facts which are not in dispute, eliminating the tedious need to prove various elements of the case. The transcript is used to "read in" questions and answers as part of one's case at trial or to cross-examine at trial where an inconsistent version of the facts is being given.

Discovery is usually preceded by Discovery of Documents.

 

Cross Examinations on Affidavits

Cross-examinations on affidavits are similar to Examinations for Discovery, but there are critical differences.

They are used in the course of interim motions where the parties will file affidavits in support of the motion. Cross-examinations on affidavits are a means of providing the court with evidence that rounds out, contradicts or otherwise challenges the affidavit evidence. In theory, the entire cross-examination transcript is filed in evidence, but in practice the judges don't read the entire volume, only those questions and answers to which they are specifically referred.

The court rules are rather strict with respect to cross-examinations on affidavits as these are usually perceived to be of little use and/or as tactical rather than effective. The party calling for the cross-examination is required to pay the up-front cost of both parties' copies although the court may adjust that at the hearing.

 

Discovery of Documents

Each side has the obligation to inform the other of the documents in his or her possession relevant to the issues before the court, and this will include all relevant documents not only those helpful to the side's case. In particular if you plan to rely on a document at trial, it must be listed in your affidavit of documents. The documents listed must be available for inspection by the other side on reasonable notice. See our firm's Memorandum Re: Affidavit of Documents.

 

Costs

"Costs" ordered by a court at the end of a motion or trial are the court's way of expressing approval or disapproval of one party or the other's conduct of the litigation. Costs usually "follow the event", that is, that the winner gets his or her costs, although not always. The costs awarded by a court, except in extremely unusual circumstances do not amount to an indemnity of one's legal costs, but merely a contribution.

While costs are always in the discretion of the court, usually they are awarded in accordance with the tariffs set out in the Queen's Bench Rules. The tariffs break down proceedings into classes, (Class 1 to Class IV) depending on the amount of money involved, and the steps in a proceeding. Custody cases are deemed to be Class II.

The award of costs can be significantly affected by the existence of Offers to Settle. An Offer to
Settle is a formal document, but the court will also consider less formal binding offers. Offers are not disclosed to the court until after the court has rendered its decision. If, at the end of the motion or trial, the court is informed of an offer that was less favourable to the successful party than its order, that party can be awarded double costs.