The Layperson’s Guide to Procedural Rules
If you represent yourself in court, it is important to know that clerks and judges cannot give you legal advice. Only a lawyer can provide legal advice. It is also your responsibility to inform yourself of the applicable legal principles and rules of procedure. In court, you will be held to the same standard as will lawyers.
You should be sure to read the Family Law Rules (contained in the Courts of Justice Act and available online) and follow them as applicable. Failure to follow the rules can result in an award for costs being made against you, or, if you willfully break the rules, in your claims being dismissed.
Below are general tips for conduct in court, and summaries of some of the relevant procedural rules that may apply to you.
A key element that is often overlooked is personal appearance. A good general rule is to dress the same way you would for a job interview. You do not want to distract the court from your argument with inappropriate attire.
Be on time, be prepared, and file any necessary documents on time. As indicated above, a judge can award costs against you if are wasting court time or unnecessarily prolonging litigation. It is best to arrive at least 15 minutes prior to your scheduled appearance. This will allow you to better acquaint yourself with the court environment and discuss any last minute details with your lawyer and/or the other side. When your matter is called, be sure to turn off your cell phone and dispose of any food, drinks or gum.
Although for any court appearances it is important to be on time, you should be aware that your matter will likely not be the only one scheduled with that judge at that time. Your matter may be first, or you may have to wait some time before the judge calls your case. You should plan accordingly, and not expect to be out of court immediately.
In the courtroom, the Applicant sits at the table to the right (to your right as you walk in the door), and the Respondent at the table to the left. When you first enter the courtroom, you should sit in the rows of chairs behind the table you will be sitting at when your matter is called. The judge will call each case in turn. When the judge calls your matter, you will move to the front of the room and sit at the table provided.
When the judge enters the courtroom, everyone present is expected to rise, and to remain standing until the clerk tells everyone to be seated. When the judge stands up to leave the courtroom, you should rise again, and remain standing until the judge has left the courtroom. If you enter the courtroom and the judge is already present, bow briefly to him or her. If you are leaving the courtroom while the judge is still seated, turn toward him or her and bow briefly before exiting.
The Applicant or moving party will speak first. Never interrupt the other party. Both parties will have a chance to speak, and to reply to anything the other party has stated. If you are the Respondent, you may wish to make notes while the other party is speaking so that you do not forget to address any issues that come up. When it is your turn to address the judge, you should stand. When addressing a judge, refer to him or her as “Your Honour” or as “Justice [last name].” The other lawyer can be referred to as “Mr. or Ms. [last name].”
Generally, at a hearing or case conference, you will present the arguments you are making in that case, and summarize the key facts that support your argument. Do not worry if you feel like you are repeating what you have already stated in the pleadings you filed with the court. While the judge will or should have read all the material you filed, he or she will want to hear your version of it and take the opportunity to ask you questions. This is your opportunity to give the judge a more personal and detailed sense of your perspective. You may wish to focus more on some aspects of your case than you did in your written pleadings, but you should make sure to at least mention all your main points.
Keep your comments focused on the matter at hand, and do not verbally attack the other party. If you remain calm and focused, you will be in the best position to present your case. This can be extremely difficult when emotions are involved and you are arguing matters of extreme personal importance, but you should keep in mind that the more emotional you appear (particularly if you get visibly angry), the more difficult it will be for the judge to absorb the content of your argument. Conversely, the more reasonable and balanced your arguments are, the more credible you will appear in the eyes of the judge. Your attitude and appearance carry significant weight when you are asking the court to make custody and access decisions.
If the judge asks you questions, which is likely, answer the questions directly and as well as you can. If you do not know an answer, do not be afraid to say so. A judge is generally questioning you simply to get more information and to better understand your position. Do not take the questions as criticism or an attack. Similarly, if the judge remains impassive while you are speaking, or appears not to be paying attention, do not be discouraged or assume he or she is not considering your arguments. Not all judges maintain eye contact or look to be actively listening while you are speaking. For example, the judge may simultaneously be looking up certain details in your case file while you are speaking.
At all stages, the goal of the court is to ensure a just resolution to the case, and to encourage settlement where possible. There are therefore provisions at all points in the process that aim to facilitate negotiation and settlement. For example, while a case conference is required for all cases where there are issues in dispute, either party may request an additional case conference at any time, to further discuss, narrow, and perhaps settle an issue without proceeding to trial.
If you begin your matter without a lawyer, and decide to retain a lawyer partway through the process, you can do so under Rule 4 by either simply bringing a lawyer to court with you to act on your behalf, or by filing a notice of change of representation (Form 4) and serving it on the other party.
Finally, keep in mind Rule 3, which specifies how to count days when the rules specify deadlines (for example with respect to filing, or making an offer). If the time period specified in the Rules is less than 7 days, you count only the days during which the court is open (not weekends or other holidays). For periods of time 7 days or longer, count all days.