Reopening a Family Law Trial

Some family law cases proceed without a hitch. The court expects all parties to complete their case before the decision-making process. 

All parties should be able to present their case within two stages, which are the preliminary hearing and the trial. Once the judge has issued a verdict, a party may appeal the decision if they find the ruling unsatisfactory.

What is uncommon, however, is the practice of reopening a family law trial, which is also true for courts in Ontario. The judge has to conduct a rigorous assessment to determine if the case warrants reopening.

What factors does a judge need to consider? What do you need to prepare? Here’s what you need to know about reopening family law cases. 

Reasons to Reopen a Family Law Trial

A family law trial takes place after the preliminary hearing. When your case reaches the trial stage, the court deems that there is sufficient evidence to support it.

Upon reaching the trial stage, you may choose to hire a lawyer or you can represent yourself. You do not need a lawyer for family court, but retaining one would make the process a lot easier to handle.

The court will examine the initial evidence presented in the preliminary hearing. The parties will also be able to call witnesses who would undergo examination in chief and cross-examination.

After the parties make their arguments, the judge will render a  verdict. Family law cases do not have a jury; rather, the judge will decide the case based on the evidence before the court, precedence, the Family Law Act and the Family Law Rules.

This is usually how a trial ends. However, some cases may warrant a reopening. A primary reason for reopening a case is the introduction of new evidence in the late stages of a trial. This new evidence must not constitute a rebuttal testimony.

This may occur:

• after the presentation of evidence, but before the delivery of the official judgment. 
• after the delivery of the official judgment, but before its entry.
• after the entry of the official judgment.

Nonetheless, succeeding in reopening a family law case is not easy. It is a significant step that, as the Supreme Court of Canada clarified in 67122 Ontario Ltd v Sagaz Industries Canada Inc (Sagaz), judges should take “sparingly and with the greatest care.” Judges make their decisions after careful deliberation and scrutiny and they do not easily retract them.

Evidence Presented in a Reopened Trial

When a party presents evidence for reopening a case, the court will have to screen its viability. According to Scott v Cook, which was confirmed in Sagaz, there are two main factors that a judge considers before approval:

• The first is whether the evidence presented would have altered the court’s decision. In other words, if the litigating party presented it during the trial, would it have changed the outcome?
• The second is whether the proposing party exercised due diligence in uncovering necessary evidence. Why wasn’t the new evidence discovered sooner? Did they exhaust all possible avenues for finding relevant evidence for the trial?

If the evidence is cogent and fits these criteria, the court is likely to grant the request. But, if the court sees that the new evidence is too complex for reopening, a second trial would be more likely.

The Ontario Family Courts

Despite COVID-19 restrictions, the Ontario Court of Justice remains operational. They continue to hear family court cases under their jurisdiction.

If your family law case is about to go to trial, here are some guidelines to consider:

• Virtual courts. Due to the pandemic, some in-person court hearings have transitioned to virtual courts. Depending on the situation, the hearings may be entirely virtual or partly in-person.
• First appearance. Virtual conferences are still the avenue of choice for First Appearances or First Court Dates before a clerk or judge. 
• Family Law Rules. The court still applies Family Law Rules for the steps you need to take for your specific case. 
• Witnesses. Subpoenas or any correspondence concerning upcoming court dates usually contain contact information. If you are a witness and have inquiries or concerns, you may reach out to the specified contact person. If there is none, you can contact the courthouse by email or telephone.
• Online submission of documents. Aside from in-person submissions, you can also submit documents online in two ways:
• through the Family Submissions Online portal
• through email addressed to the courthouse

The pandemic has brought about unique conditions, and because of this, Ontario family courts are using alternative avenues whenever possible. 

• Protecting yourself. To protect everyone’s health, courts have set relevant measures in place. These include:

• physical distancing of two meters apart

• sanitizing stations

• regular and intensified disinfection

• physical barriers

• mandatory wearing of face masks.

• Going to court. ‘Going to court’ now includes digital spaces. Some court hearings now occur through video conferencing. Courts also encourage filing documents and requirements via email or online portals.

• Entering the court. Before entering the courthouse, staff will first ask a few questions. First, they will inquire about your purpose for physically going to court. Whenever possible, they will suggest electronic ways to handle business. If you need to file some documents, they might ask you to consider filing them online. If your visit is necessary, they will provide you with a face mask if needed. Staff will also inquire about your physical condition and assess if you are fit to enter. They may also ask to screen your belongings.

• Being in the courtroom. The courts have modified room layouts to encourage physical distancing. This practice extends to all areas within the courthouse. Some closed areas, like washrooms,  might enforce limited occupancy to prevent crowding.

Get all the help you need when reopening a trial by scheduling a consultation with family law lawyers from Gelman & Associates.

Pro Tip

It is helpful before trial to know a little bit about the law of each point you are trying to prove. If your case involves custody, you should know the basics of what the judge is looking for to prove that what you want is in your child’s best interests.

Contact Gelman & Associates Today

Reopening a family law case needs you to take a lot of things into account. You will need to assess the quality of your evidence, as well as the appropriate avenues to make your case.  

If you want to take that step in these trying times, feel free to contact our lawyers for a consultation.

Family law matters need not be as gruelling if you have the right team. Gelman & Associates has an expert team of family lawyers that can help.

A family law trial is not a walk in the park, so we pay attention to your well-being aside from your legal needs. Our lawyers will guide you through the process with patience and compassion. We do all this while making sure to protect your rights and interests.