A witness is someone who can provide evidence to help a party explain their side of the case.

How to call a witness

If you want to make sure that your witness will attend your trial and be available to provide evidence, you must:

A witness who has received a summons (Form 23 or Form 23A) must attend the trial. If a witness does not attend, a judge can issue a warrant for arrest to bring the witness to court.

If your witness cannot attend, you can ask the judge at a conference or motion for an order letting the witness testify in another way, such as:

  • answering questions before the trial and using the transcript of their answers as evidence during the trial
  • providing their evidence in an affidavit that they will need to swear or affirm in front of a commissioner for taking affidavits and filing the affidavit before the trial

This documentary evidence must be served on the other party at least 30 calendar days before the trial starts.

How to call an expert witness

Generally, expert witnesses can give the court information that is outside the experience and knowledge of the judge (for example, financial experts or parenting assessors) to help the judge make a decision about the issues in the case.

See Rules 20.1, 20.2, and 20.3 of the Family Law Rules for more information about experts.

There are different types of experts, including:

  • A litigation expert, who is engaged by one party to provide opinion evidence for the purpose of litigation in your case.
  • A joint litigation expert, who is a litigation expert engaged by two or more parties in your case (rather than one party).
  • A participant expert, who provides opinion evidence based on the exercise of their skills, knowledge, training or experience while observing or participating in the events in your case. Unlike a litigation expert (including a joint litigation expert), a participant expert is not engaged for the purpose of litigation. For example, a doctor who previously treated your child at a hospital may be a participant expert regarding parenting issues.

Calling a litigation expert

If you want to call a litigation expert witness to give evidence on parenting issues, you must cooperate with the other party in your case and use a joint litigation expert (unless the court orders otherwise).

Before you call a litigation expert (including a joint litigation expert) to provide opinion evidence at trial, you have to:

  1. ask the expert to prepare and sign an expert report, which must meet the requirements in Rule 20.2 of the Family Law Rules
  2. serve and file a copy of the report at least six business days before your settlement conference

If the other party agrees to let you submit the expert report as evidence at trial, then you do not need to call the expert as a witness to give verbal evidence at the trial date. However, the other person is entitled to question (cross-examine) your expert at trial about their report.

If the other party does not agree to let you submit the expert report as evidence at trial, then you have to call the expert as a witness for trial. The expert’s verbal testimony is the evidence, and not their report (unless the trial judge decides otherwise).

Witness fees

You have to pay a fee to any witnesses you call for each day they are needed in court. There are standard witness fees in Ontario. You must pay a witness for every day they attend court, even if they are not questioned that day.

If the witness lives in the same city or town as the court, for each day they are needed, you have to pay them:

  • $50 for coming to court or being questioned
  • $5 for travel

If the witness lives in a different city or town, but within 300 kilometres of the court, for each day they are needed, you have to pay them:

  • $50 for coming to court or being questioned
  • 30 cents per kilometre, each way, for travel
  • $100 per night for meals and overnight stay, if needed

If the witness lives 300 kilometres away or farther from the court, for each day they are needed, you have to pay them:

  • $50 for coming to court or being questioned
  • the cheapest available airfare
  • $10 per day for airport parking
  • 30 cents per kilometre, each way, from the person’s home to the airport and from the airport to the courthouse
  • $100 per night for meals and overnight stay, if needed