questioning
What is questioning?
Each party is required to attend “questioning”, formerly known as discovery. This is a process where one party can question another party under oath about the issues in the case. It is a more formal way to gather evidence and can be used to prepare for trial. This is an out-of-court event where the lawyer asks the opposing party questions under oath to discover their case, obtain admissions, uncover the weaknesses in the opposing party case and test the witness’ credibility and reliability. A court reporter transcribes the questions and answers and then produces a transcript to use as evidence.
What does the right to question include?
The right to question includes the right to cross examine.
Which rule governs questioning?
Rule 20 governs questioning in Ontario family court which involves oral questioning of a party under oath or affirmation. A party is entitled to obtain information from another party about any issue in the case. Questioning can be used to gather evidence about each party’s position and help resolve issues before trial. While questioning is similar to testimony at trial, the questioning conducted before the hearing.
Is it automatic or do you need the court’s permission to question?
If it is not a child protection case, you must have the other party’s consent or court order. You can do a motion to obtain an order from the court under subrule (5). You must show that you will not get the information from other means and that it will not cause undue delay or expense. This is an important distinction between the Civil Rules of Procedure and the Family Law Rules: the Civil Rules establish a presumption that the parties can question each other whereas the Family Law Rules do not.
How do you inform the other party that you want to question them under oath?
If you need to conduct a more in-depth examination of the other party, you would arrange for questioning. This involves serving a Notice of Questioning detailing the time, date, place, and purpose to a party and conducting the questioning under oath or affirmation. A non-party would be personally served a Form 23: Summons to Witness.
Can you ask a party to bring a document to the questioning?
Under Rule 20(16), an order for questioning may also require the person to bring any document or thing that is relevant to any issue in the case and in the person’s control or available to the person on request.
How is the testimony recorded?
Questioning must be recorded by a court reporter, and you are responsible for booking and paying for them.
What are the problems with questioning?
Parties may be evasive or answer with a question.There is no supervision by a judge. You can go before a judge for a motion to compel answers. You can refuse to answer questions on the basis that the information sought is not material to the issues in the case. A very common response to questions is that they will take the question “under advisement”. The rules do not provide for this. Judges have ruled that these are really refusals to answer. They have threatened cost consequences.