When is questioning ordered in family law?

Overview

In certain circumstances the Family Law Rules allows parties to formally "question" each other, including the use of cross-examination, under oath prior to trial. The case law says questioning may help parties find new facts; test the facts of the other party, including matters of credibility; narrow the issues in the case; and in all respects, assist the trier of fact and the adjudicative process generally. Rule 20 of the rules provides all the relevant information. In child protection cases, questioning is a matter of right. In all other cases, the parties have to consent, or a motion must be brought in order to argue for questioning. The rules establish the parameters of questioning. The scope of this post will examine what a judge may consider on a motion for questioning.

Legislation

RULE 20: QUESTIONING A WITNESS AND DISCLOSURE

(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense.

…

(8) A party who wants to question a person or obtain information by affidavit or by another method may do so only if the party,

(a) has served and filed any answer, financial statement or net family property statement that these rules require; and

(b) promises in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained.

The case law on when and why

Birdi v Birdi, 2015 ONSC 1974 provides an overview of the when and why a court will order oral questioning under oath on motion. The court cites subrule 20(5), alluding to the legislative conditions that need to be fulfilled for questioning to be ordered: 1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it. 2. The information is not easily available by any other method. 3. The questioning or disclosure will not cause unacceptable delay or undue expense. These are necessary but not sufficient pre-conditions to questioning. The court also notes that the threshold requirements are low but as the legislation states, the court “may” order questioning. This means that the court still has discretion despite the legislative requirements being low:

19 Questioning is particularly important where there are competing affidavits that set out the conflicting evidence of the parties before the court. Justice Taylor in Lucas v. Lucas, [2009] O.J. No. 5012 (Ont. S.C.J.) describes the utility of questioning when dealing with "dueling affidavits" this way.

20 The threshold to meet for the court to make an order to permit questioning is very low. Bringing a motion to seek an order for questioning is often a matter of prudence for counsel in a case given the fractious nature of family law in today's world.

The court stated that questioning will generally be ordered unless a "mitigating reason stands out against the utility of questioning." For instance, questioning may not be necessary if all the relevant facts are already uncovered and there are no competing narratives. Given that the legislation says the court "may" order questioning, thereby connoting a level of discretion with the judge, when will they do so? The court in Birdi examined the actual purpose of questioning to get a better understanding of when it will be necessary:

29 It is helpful, if not constructive to consider the issue of questioning in terms of the functions it should provide. In my view, the purpose of questioning includes, but is certainly not limited to:

1. find new facts;

2. test the facts of the other party, including matters of credibility;

3. narrow the issues in the case; and

4. in all respects, assist the trier of fact and the adjudicative process generally.

30 It is often the case that questioning will reveal the truth behind statements given in an affidavit that would otherwise be accepted or rejected on their face. If there is a statement of fact that raises a question of credibility between one affidavit and another, the statement of fact goes untested and becomes an impediment to the orderly advancement of the litigation or the issue to which the evidence relates. Questioning supplements the evidence given by each party and other affiants who swear affidavits in support of or in response to a family law motion. Such evidence often assists the court in making appropriate temporary orders pending trial. It is often the temporary orders that are made that ultimately determine what issues remain left for the parties to litigate or to seek as a final order.

In ordering questioning in Birdi, the court said that it was necessary because there was information that the moving party needed from the other that could not be readily obtained any other way. And further, there was no evidence which would suggest that the questioning would cause unacceptable delay or undue expense:

34 Accordingly, I conclude that the applicant father has met each of the three parts of the test under Family Law Rule 20 (5) to permit questioning. It would be unfair to require him to carry on the case without giving him the ability to acquire evidence as to the issues pleaded, including the matters discussed above. Given the breakdown of the relationship with the respondent mother and the evidence she has given through her affidavit material on the present motions, the information the applicant father seeks is not easily available by any other method.

35 Last, I have no evidence before me that questioning will cause unacceptable delay or undue expense. The orderly conduct of prudent questioning that may cost $1,200 could save the parties on this application tenfold that amount they could easily incur by proceeding with the present and subsequent motions without seeking information in advance, to say nothing of the attendant risk of having to pay costs if unsuccessful. Questioning will allow counsel to advise the parties about their strengths and weaknesses so that they are better informed to decide whether to proceed with motions or to prepare with that evidence for trial.

Conclusion

Rule 20 of the Family Law Rules provides an overview of the important considerations regarding questioning. The bare minimum for questioning to occur is the following: 1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it; 2. The information is not easily available by any other method; and 3. The questioning or disclosure will not cause unacceptable delay or undue expense. Even still, the court is not compelled to order questioning but instead has discretion. The court may exercise their discretion when there is evidence to suggest that questioning would be helpful to expedite the case and when there is no compelling reason to suggest why it should not occur.