Example: Parenting Time Distribution 

•  If your case revolves around having the majority of parenting time with your kids, you can provide the court with evidence that shows the history of your child’s/children’s care, the parenting styles, and the wishes of the children themselves (if they are old enough to provide input)

Example: Evidence that is not relevant 

• • Providing personal failings of your spouse, which can include their weaknesses, flaws, poor decisions, etc. These are not relevant unless you show how they directly affect the well-being of the child(ren).

What does it mean evidence must be “material”?

Evidence being “material” means that the evidence you provide must either prove facts or disprove them, therefore serving as a foundation upon which decisions are made. “Material” evidence is extremely important because it can affect the outcome of the case and can allow the court to make fair and informed decisions. An example of what material evidence in a divorce case might look like is shown below, along with an example of non-material evidence.

Example: Divorce

• In a divorce case, material evidence would be when you purchased your house; whereas, your spouse cheating on you is not material evidence to the case.

What is important to figure out for each piece of evidence (issue, evidence, specifics, relevance)?

• An evidence inventory worksheet needs to be filled out because it will help you keep track of all the evidence, specifics, relevance, and the issue itself.
• It’s very important to be organized and prepared. 

Below is a table outlining and explaining each section.

Table 1: Breakdown of Evidence and What is Needed on Inventory Worksheet 

Issue	It’s important to identify the issue and which category the evidence falls into. You need to explain what it is. The issue, for example, can be related to child custody, property division, etc. Identifying the issue makes it much clearer how the evidence you provide supports it.
Evidence	The evidence supports the issue/case that you provide.
Specifics	The specifics are details of the evidence you provide
Relevance	The relevance is how the evidence is important to your case. It must directly relate to the issue and must be able to support it

What are the three types of evidence? Explain each one.

There are 3 types of evidence. The first one is Documents. Second is Oral Evidence and third is Physical Evidence.

A. Documents 

• These can be either physical or electronic documents that are relevant to your case 
• Examples of documented evidence can include: contracts, bank account records, Marriage Certificate, Property Assessments, receipts, emails, pictures, videos, conversations, real estate documents, report cards, sound recordings, etc.
• These must be originals and are called Exhibits 
• The Exhibits are numbered for reference once they are logged into court.
•  Before the trial, you must provide your partner or the opposing party with copies of these relevant documents.
• It’s best to create a proper package which contains all the necessary documented evidence that you will submit at trial.
• This package is called a Document Brief. 
• Submitting documents as evidence at trial can be done under 2 conditions:
  1. You are interrogating and questioning a witness who can talk about a document
  2. You are acting as a witness and providing testimony about the document 

What do you need in order to enter things into evidence into court as an Exhibit?

To enter the evidence as an Exhibit, it’s important to present evidence in court you need to either have consent from the other party involved or, have a witness who can confirm and authenticate the evidence you provide and identify the thing. In other words, you need permission from the other party, as mentioned before, or you need to provide testimony from a witness who can verify the relevance of the evidence so it’s admissible. 

What does “identify the thing” mean?

 “Identify the thing” basically means is that the witness you call in court testifies under oath/affirmation that they created, witnessed, or possessed the thing and they recognize it.

What is done with each Exhibit?

Then you can show the opposing party the evidence and ask for the evidence to be entered as an Exhibit. Then it is up to the Judge to accept or deny the entry of such evidence. If the Judge accepts the evidence to be entered, the court clerk then assigns a number to it.

To have a written document entered as an Exhibit, which 3 things must you prove?

There are three things needed to prove that the written document can be entered as an Exhibit. 

• The first thing is that the written document needs to be accurate. 
• The second thing you need to prove is that the written document accurately reflects the facts and that it does not mislead or deceive in any way. 
• The third thing you must prove is that the written document can be verified. What this means is that any person, including the author or creator must be able to verify the written document under oath/affirmation.

B. Physical Evidence 

To have an object entered as an Exhibit, which 3 things must you prove?

There are three things needed to prove that the object can be entered as an Exhibit.

• The first thing is that you need to prove the objects relevance to the case/issue
• The second thing is that you need to prove that it is the original object so it can be verified as authentic or “real”. Real in terms of it being the original object which has not been changed or altered in any way that could mislead or deceive. 
• The third thing is that you need to be able to explain every event that has happened involving the object since you have obtained it

To have a photograph, videotape, audiotape or any other kind of recording entered as an Exhibit, which 3 things must you prove?

There are three things needed to have a photograph, videotape, audiotape or any other kind of recording

• The first thing is that you need to make sure that it is accurate 
• You must make sure that it represents all of your facts and does not mislead in any way or form. As an example, let’s say you have a video. It must not be editing in any way and must be the original
• The individual who has created the recording must be able to verify it under oath

Note: if for some reason you are unable to produce the original, you might be able to enter a copy, but that copy must be authenticated.

The steps involved to prepare document evidence?

Documented evidence has several steps that must be followed.

• The very first step is to gather evidence: Gathering evidence means to collect all the evidence that is relevant to your case. Some examples can be marriage certificates, receipts, bank statements, etc.
• The second step is organizing everything: You must organize all your evidence after collecting it. This can be properly done by using envelopes or containers to make sure everything is in place and order.
• Further, you can create a filing system that can help you organize all your documented evidence because you need to make sure that the evidence will correspond to what/when you argue an issue and or when the evidence is relevant. Each document must be analyzed to see how well it supports your case.

C. Oral Evidence

Explain what oral evidence is?

 Oral Evidence is evidence that has been verba;ly given to the court by an individual who is testifying. The individual must be 18 years or older and can be anyone including family, friend, or professional. 

Name the two types of oral evidence and explain.

There are 2 different types of oral evidence that can be presented to the court with the

• first one being when either party provides testimonies given under oath or affirmed in court.
• The second type of oral evidence is providing the testimony of a witness who is not either party and is summoned to court while they are under oath or affirmation.

What form does your testimony take if you are testifying?

Narrative, not question and answer

Can you argue your case and if not, when can you?

When you are testifying you will not be allowed to argue your case, but you will be allowed to answer any questions the judge or opposing counsel is asking you. You should prepare before you are brought to the stand to testify on what you are going to say and you should only discuss any details or facts that are related to your case. Make sure you are prepared and tell the truth. Make sure you are not lying when asked any questions and make sure you don’t talk about any legal issues and you cannot argue to the court why the court should rule in your favor in the case. The time you are allowed to make your argument is when the evidence portion of the hearing is done, and you and the opposing counsel are giving your closing arguments. 

What are the rules about you questioning your witness and the rules for the other party?

 Witnesses need to take oath or affirmation before they can provide testimony. When they arrive at court, since they are your witness, you can ask them questions first before opposing counsel gets to ask your witness questions. You can question your own witness, but when questioning, it is important to understand how to ask questions and which type of questions to ask. You must ask open-ended  questions. Open-ended questions basically refrain from implying specific answers. The opposing counsel will ask your witness leading questions. When the opposing party is done asking questions, you can ask your witness more questions after opposing counsel is done with their cross examination questions.  

What is cross examination?

Cross examination is when the opposing party asks your witness leading question to undermine their testimony and credibility.

What is perjury?

Perjury is lying under oath. Your witness cannot lie when asked questions. Lying would fall under perjury which can have consequences such as paying fines. Perjury can also lead to jail time. 

Do you have to call your witnesses? What are the downsides if you don’t?

There are cases where you might not call a witness to support your case because you believe that the opposing party will not be able to win or prove their case, but if you do not provide any witnesses a judge can make inferences about why you did not call them. 

What important traits must your witness have? credible, articulate, and sincere

The witness that you bring to court must be able to support your case with whatever evidence they present. In other words, they should be able to support and give strength to your case, which in turn will weaken the opposing counsel’s case. If there is documented evidence, the witness that is brought to court must be able to verify and authenticate the documents. Other forms of evidence that witnesses can provide is what they have seen or heard. An example would be that a witness can be brought in to provide evidence that they saw something which you cannot testify because that would be hearsay. But they can tell the court what they saw. You must make sure that  the witnesses you choose are credible and you need to make sure you tell your witness to tell the truth. You are allowed to review information with your witnesses and tell them what questions you might ask, and it is important that you understand and think about the questions that the opposing party and judge can ask them.

Should you serve all witnesses with a subpoena?

Yes. All witnesses should be served with a subpoena because if, for example, they don’t show up, they can receive a penalty or costs and the court can give you time to make them attend. 

What are the consequences of failing to show as a witness?

If you do not subpoena your witness and they do not show up for some reason, the court will move to trial and you will not be able to provide sufficient evidence that you needed from that witness’s testimony, which can affect your case and weaken it.

How do you summon a witness in Ontario? Outside Ontario?

You can call a witness to support your case but this is optional. The process to call a witness requires the completion of a Summons to Witness form (form 23) if your witness lives and resides in Ontario. If your witness to your case is someone who is outside of Ontario, you must consequently fill out a different form: Summons to Witness Outside Ontario 23 A. 

What kind of service is necessary?

Summons to Witness if the witness lives in Ontario must be served on the witness using special service.

What is an expert witness?

An expert witness is someone who can give specialized information to the court that exceeds the judge’s expertise or knowledge. This can encompass many fields, one of them being finance where a financial expert would be an expert witness. They essentially provide additional information to the court on certain issues that aren’t general knowledge. These witnesses are and can give their opinions; whereas, witnesses are not allowed to; they are the only exception. 

Explain the 3 different types of experts.

There are three different types of expert witnesses. The first type of expert witness is a Litigation Expert.  A Litigation expert is an individual who has an area of expertise in litigation and is hired by one party involved in the legal proceedings, where they will give their expert opinion as evidence to support that party’s position in that case. The second type of expert witness is the Joint Litigation Expert. A joint litigation expert is someone who is hired by multiple parties rather than one, which is hired by a litigation expert, who provides their expertise and opinion rather than each party hiring their own separate expert.  The third type of expert is a Participant Expert. A Participant Expert is an individual who offers their opinion based on their involvement in the case. Their involvement could have been through training and experience in addition to their skills and knowledge.

What are the three things a judge will consider to determine that the witness is, in fact, a qualified expert

To determine whether an expert is qualified as an expert, judges look at factors such as education and other training, work experience, and research and publications.

What happens if a witness cannot attend trial?

If your witness is unable to attend the trial for any reason, you can ask the judge through a motion or conference to authorize them to use an alternative method to provide their testimony. This can be done by either responding to the questions before the trial starts and providing a transcript of their responses to use as evidence during the trial, or by providing their evidence as an affidavit, in which your witness needs to swear or affirm before a commissioner and file the affidavit before trial.

What are the witness fees?

You also need to pay the witness fee, for any of the witnesses you call and for each day they are in court. It is not necessary for them to answer questions on each day they are in court, but they still must be paid. The witness fee is based on distance.

For witnesses that reside in the same city as the court, the witness fees for each day are broken down into 2 sections: 1) $50.00 dollars 2) $5.00 The $50.00 portion of the witness fees is for the witness showing up to court everyday they are called and being questioned.This portion is paid regardless of the witness being questioned or not being questioned when they are in court. $5.00 portion of the witness fees is for travel. 

For witnesses that reside in a different area or city, but within 300 kilometers of the court , the witness fees for each day are broken down into 3 sections: 1) $50.00 2) .30 cents/km  3) $100.00.  The $50.00 portion of the witness fees is for the witness showing up to court everyday that is called and being questioned. This portion is paid regardless of the witness being questioned or not being questioned when they are in court. The 30 cent portion is per kilometer for travel. The $100.00 portion is for staying overnight and meals (if needed). 

If the witness lives far, meaning more than 300 kilometers, the witness fees for each day are broken down into 5 sections: 1) $50.00 2) cheap air ticket 3) $10.00/day (airport parking) 4) .30 cents/km 5) $100.00 The $50.00 portion of the witness fees is for the witness showing up to court everyday that are called and being questioned. This portion is paid regardless of the witness being questioned or not being questioned when they are in court.  A cheap air ticket must be provided, and $10.00 /day parking from the witnesses home to the airport and from the airport to the courthouse must be provided. The $100.00 portion is for staying overnight and meals (if needed).

Can you object to evidence?

During the questioning of witnesses, you have the right to object to the questions or the introduction of documents. You must stand up to object.

What is hearsay evidence?

Hearsay evidence is any statement, either written or oral, which is made by a third party. It is presented in court to prove the truth of a statement. This type of evidence is generally considered inadmissible.

What is the rule of exception? What criteria is used for evidence under the rule of exception?

The “twin criteria” of necessity and reliability is used to decide to admit hearsay evidence.