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Limits on Questioning in Family Law Cases; Unrepresented Parties Take Note

Limits on Questioning in Family Law Cases; Unrepresented Parties Take Note

The Ontario Superior Court of Justice has recently released a decision outlining limits on Orders under the Family Law Rules allowing the questioning of one party by the other. The decision is particularly noteworthy because it serves as a cautionary tale for those parties to a family law dispute who are self-represented.

In Durbin v. Medina, the 56-year old husband and the 33-year old wife had two children, and had separated in September of 2010.   As part of their divorce proceedings the husband – who happens to be a family law lawyer – brought a motion to be allowed to question the wife, mainly in connection with her proposed parenting plan relating to the children.

Under the Family Law Rules, the court can make such an Order to allow a person (whether a party to the litigation or not) to be questioned by a party in certain circumstances, namely where:

1) it would be unfair to the party making the request to have to carry on with the case without it;

2) the information is not easily available by any other method;

3) the questioning will not cause an unacceptable delay or undue expense.

However, in this case the court found that none of the criteria had been met by the husband; in fact, it concluded that the husband’s motives for bringing the motion for questioning were “not plausible” and “call[ed] into question his litigation goals.”
In particular, the court found that there was no issue for which questioning the wife would advance the case, and that none of the husband’s potential topics for exploration – which the court called “minor irritants” – were necessary to ascertain the children’s best interests.

The court pointed out that under the Family Law Rules neither the parties nor their lawyers could obtain an Order to question the opposing side merely to “diminish, intimidate or attempt to embarrass a former spouse,” especially in cases where they hoped to parent the children in a co-operative manner.

As if to underline the point, the court also ordered that the husband pay $16,000 in court costs.

This ruling highlights 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 – as this decision illustrates – the Family Law Rules do not.   This distinction may come as a surprise, especially to unrepresented family law litigants who may assume that such an automatic right exists.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

For the full text of the decision, see

Durbin v. Medina, 2012 ONSC 640  http://canlii.ca/t/fps1n