Questioning in Ontario Family Court: What Examinations Involve

If you've heard the term "examination for discovery" from a friend's civil lawsuit, family court's version, called questioning, works a little differently. It exists in family law too, but Ontario deliberately makes it harder to get to than in a typical civil case, because family court favours conferences and proportionality over automatic, wide-ranging discovery. Here's what questioning actually involves and how to prepare if you're facing one.

What Questioning Is

Questioning is the process of examining a party, or in limited circumstances someone else connected to the case, under oath before trial, outside the courtroom, with a court reporter recording everything that's said. It serves a similar purpose to discovery in a civil lawsuit: testing the other side's version of events and financial disclosure, and narrowing what's genuinely in dispute before trial.

Because it happens under oath, answers given during questioning carry real weight. They can be used later, including to challenge inconsistent testimony if someone's story changes by the time of trial.

Why It's Harder to Get in Family Court Than Civil Court

Unlike general civil litigation, where discovery is often close to an automatic right, questioning in family law cases is more tightly controlled. Ontario's family court process is built around resolving cases proportionately and moving them toward settlement through conferences, rather than allowing extensive, costly pre-trial discovery in every case. As a result, questioning typically requires either the parties' agreement or the court's permission, rather than happening automatically the moment someone asks for it.

The Typical Path to Questioning

1. Complete the required case conference

Family cases generally need to go through at least one case conference before questioning becomes available. The conference is where a judge helps identify what's actually in dispute and whether a full examination process is proportionate to the case.

2. Agree, or seek the court's permission

If the other side agrees, questioning can be scheduled by consent. If not, you may need to bring a motion asking the court for permission, sometimes called leave, to question the other party, explaining why it's necessary given the issues in your case.

3. Schedule and prepare

Once permission is in place, questioning is scheduled with a court reporter present. Both lawyers typically prepare in advance by reviewing the financial statements, affidavits, and disclosure already filed in the case.

4. Attend and answer under oath

You'll be asked questions by the other side's lawyer while under oath, with your own lawyer present. You can be asked to clarify, elaborate on, or explain inconsistencies in your prior sworn documents.

5. Use of the transcript

The resulting transcript can be referred to later, including at trial, particularly if someone's evidence at trial doesn't match what they said under oath during questioning.

How to Prepare If You're Being Questioned

• [ ] Review your own sworn financial statement and affidavits before the date
• [ ] Gather and review the documents you've already disclosed
• [ ] Meet with your lawyer beforehand to go through likely topics
• [ ] Answer only the question asked; don't volunteer extra information
• [ ] If you don't know or don't remember, say so rather than guessing
• [ ] Stay factual; questioning is not the place to argue your case

What Happens After Questioning Ends

Once questioning wraps up, the transcript becomes part of the record your lawyer can draw on heading into settlement discussions or trial. In many cases, questioning ends up narrowing the dispute — either because it clarifies a misunderstanding, exposes a document that was missing, or shows both sides that their positions are closer than they thought. It's not unusual for a case to move toward settlement shortly after questioning, once both parties have a clearer, sworn picture of where the other side actually stands.

Frequently asked questions