Questioning in Family Law: Unlocking the Evidence Vault

Questioning in family law serves multiple purposes. It is designed to obtain necessary information, assess credibility, and build a foundation for impeachment.  This process can occur both at the trial or arbitration stage and at the interim stage.

Understanding the Purpose of Questioning

The primary goal of questioning is to gather essential information that may not be easily obtainable through other means. This information can be vital for ensuring fairness in the proceedings and making informed decisions, both substantively and procedurally.  

Questioning helps in assessing the credibility of witnesses and determining the reliability of their testimony prior to trial.

When and How Questioning Occurs

Questioning of the parties is permitted by the Family Law Rules, although it is not necessary in every case.  Questioning is important for spousal support and trust claims, and certain property and parenting cases.  Questioning gives rise to undertakings, a more in-depth tier of disclosure.  If undertakings are not produced, adverse inferences can be drawn by the trier of fact. 

In Ontario, questioning a non-party witness before trial is rare and permitted only in specific, limited situations. The court may grant leave under Rule 20(5) of the Family Law Rules when three criteria are clearly satisfied: the information is necessary for fairness, is not easily obtainable by other means, and the examination will not cause undue delay or expense 

Arbitration proceedings follow their distinct procedural framework under the Arbitration Act, but the same underlying principles of fairness, efficiency, and necessity guide decisions on non-party examinations 

The Role of Cross-Examination

Cross-examination is an integral part of questioning, challenging the testimony of witnesses and uncovering inconsistencies or biases.  This process is essential for building a strong case and ensuring that the evidence presented is reliable and accurate.

Conclusion

Questioning in family law is a powerful tool that can unlock crucial evidence and ensure fairness in the proceedings. By understanding its purpose and the role of cross-examination, family law lawyers can effectively utilize questioning to build a strong case and achieve favorable outcomes for their clients.