Questioning and Examination in Ontario Family Court

If someone has told you that you will be questioned under oath in your family case, it is natural to feel nervous. Questioning is a formal way for one side to get information from the other, and it follows specific rules in the Ontario Family Law Rules.

This article explains what questioning is, when it is allowed, how it differs in child protection cases, and what applies when the person to be questioned is not a party. It is general information and does not replace advice on your case.

What questioning is

Questioning is sometimes called examination. Under Family Law Rules r. 20(1), it takes place orally, under oath or affirmation. That means you promise to tell the truth, just as you would in a courtroom. Under r. 20(2), the right to question includes the right to cross-examine.

In plain terms, the other side (or their lawyer) asks you questions, you answer, and your answers are recorded. The point is to learn facts and test them, which can help the parties understand the real issues and sometimes settle.

When questioning is allowed

Outside child protection cases, questioning is not automatic. A party can question another party only with consent or a court order.

If the other side will not agree, the party who wants questioning must bring a motion. On a motion, the court may order questioning if all three of these are true:

• it would be unfair to carry on without it;
• the information is not easily available another way; and
• it will not cause unacceptable delay or undue expense.

So a request to question you is not a guarantee that it will happen. If you receive one, you may agree, or you may decide that the court should consider whether the test is met. A lawyer can help you decide which approach makes sense.

There is also a preliminary requirement. Under r. 20(8), a party may question only after serving and filing any required answer, financial statement or net family property statement.

Child protection cases work differently

Child protection cases have their own rule. Under r. 20(3), a party is entitled to information from another party as of right. They can get it by questioning, by using a summons (Form 23) served by special service, or by affidavit or a request for information (Form 20).

Questioning people who are not parties

Sometimes the person with the information is not a party, such as an employer, a family member or a professional who holds records. The rules are stricter. An order affecting a non-party can be made only if that person was served by special service with the notice of motion, a summons (Form 23) and the witness fee.

If you are the non-party, this means you should have been served in a particular way. If you are unsure whether the papers you received meet that standard, speak with a lawyer before deciding what to do.

What to do next

Take any request for questioning seriously, because questioning takes place orally, under oath or affirmation. Judges and court staff cannot give legal advice, so look for it elsewhere. Legal Aid Ontario duty counsel can review your forms and explain the law, but cannot represent you in your court case. Duty counsel and advice counsel at family courthouses may also give 20 minutes of advice, whether or not you are eligible for legal aid. Availability varies by courthouse.

• Find out whether the request is by consent, by court order, or part of a child protection case.
• Check that your own required documents, such as an answer or financial statement, have been served and filed.
• Review your documents and the dates of key events before the day.
• If you are served with a summons as a non-party, check how it was served and whether the witness fee came with it.
• Answer truthfully and ask for clarification if a question is unclear.
• Talk to a lawyer before agreeing to questioning or opposing a motion for it.

Frequently asked questions