Skip to content

Posts tagged ‘cross examination’

Ontario Judge Allows Family Law Litigant to be Cross-Examined via Skype

Ontario Judge Allows Family Law Litigant to be Cross-Examined via Skype

In an Ontario Court of Justice decision from just over a month ago, the court allowed the mother in a custody and access dispute to be cross-examined by way of Skype (a free software application that allows users to make voice and video calls over the Internet), because she had moved to another country and was financially unable to return to Canada to attend the trial.

The case involved a family law dispute with custody issues, in which the court had made various orders relation to the children, including one placing them in the custody of the mother. The father was not awarded custody or access but eventually – after he successfully completed treatment for substance abuse – he applied to vary the initial order to obtain access to the children and develop a relationship with them.

The father took the needed steps to try to find the mother to serve her with his application to vary. However, he was unable to find her, and she did not respond to any of the court documents that were part of his making the application. After following due procedure, the father obtained an order in the mother’s absence.

The mother eventually learned of the order, which she opposed (and in fact, she still resisted giving the father any access to the children whatsoever). It turned out that she had moved to Denmark with her new husband. Accordingly, she brought a motion for an order allowing and her new husband cross-examined by way of Skype. She claimed that she was financially unable to travel back to Toronto from Denmark for the trial (the costs of airfare was about $2,000), and that either she or her new spouse had to remain in Denmark in order to care for their children (which included his daughter from another relationship).

The father objected, claiming that the use of Skype would hamper the “ebb and flow of cross-examination”, and that it would be impossible for a judge to assess the mother’s demeanor and credibility from the answers obtained using this technology.
The court examined in detail the financial circumstances of the couple, including the new husband’s income in Denmark, his role as sole financial support for the mother and the three children of their blended union. The mother had not been able to find work in Denmark since moving there.

It also considered the operation of Skype, which the mother described as “a free computer program that allows people to make video conferencing calls over the internet in real-time for free. To make a video conferencing call, both parties only need a computer that is connected to the internet, a microphone, and a web camera (which many computers have built-in)….the connection between computers can remain open for hours without any charge. … Skype is well-known for its clear quality. … Skype video conference calling can now take place in high definition.”

From a legal standpoint, the court assessed the nature and features of Skype against the existing Rules of Civil Procedure relating to video conferencing, which it considered analogous. It also assessed the suggestion to use Skype against the requirements and objectives of the Family Law Rules, which included the desire to be fair to all parties, and to save time and expense.

In the end, the court had no concerns about the ability to assess credibility during a Skype session with the mother and her new husband, accepted their evidence relating to their constrained financial circumstances, and found that the overall balance of convenience – including the lack of prejudice to the father – favoured allowing the cross-examination via Skype to proceed.

For the full text of the decision, see:

Paiva v. Corpening, 2012 ONCJ 88   http://canlii.ca/t/fq6h9

Russell Alexander Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

 

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

 

 

Wife Tries to Drag Mother -in-Law Into Divorce Action

Wife Tries to Drag Mother -in-Law Into Divorce Action

In this matrimonial dispute, the wife took the unusual step of asking the court to add her mother-in-law as a full-fledged party to the litigation, to allow the mother-in-law to be verbally questioned, and to force her to produce certain business documents in her possession.

The background facts were fairly uneventful: the husband and wife had been married for 4 years, and had one child. The husband worked as a salaried employee in his mother’s company. Since their separation, there had been a great deal of friction between them and this resulted in extensive litigation in the Ontario family court.

However, the wife was having trouble getting satisfactory full disclosure from the husband in connection with his business and banking records, so she applied to the court to have her mother-in-law added as a full party to the proceedings, and to be permitted to question her verbally. She made this request under the Family Law Rules, which allow the court to order the addition of “any person who should be added as a party”.

The court considered its discretion under this Rule, the purpose behind it, and various prior cases which suggested that the mother-in-law should only be added in this case if the court was in a position if necessary to make some sort of court order against her (i.e. have authority to direct her conduct or sanction her).

In this case, the court speculated that the wife was possibly trying to add her mother-in-law as a means of leverage – that is, to secure the husband’s obligations to her for support and equalization. This was a serious misapprehension of the purpose and intent behind the specific Rule that allowed parties to be added, the court found. It disallowed the wife’s request.

The court also had serious reservations about allowing the wife to question the mother-in-law. It found that non-parties should generally be protected from the potentially intrusive, costly and time-consuming process of discovery which is otherwise a normal part of litigation for separated and divorcing spouses. It also observed that the wife’s questioning of the husband on a previous one-day examination for discovery had resulted in 145 pages of transcripts, and covered such topics as the diapering of their daughter. Out of concern that the wife’s oral questioning of the mother-in-law would similarly deviate from the relevant issues and would likely turn into a “lengthy and onerous process”, the court denied the wife’s application on this point as well.

(However the court did make a concession, by allowing the wife to pose questions to the mother-in-law in writing, provided that each of those questions was directly related to the answers given by the husband at his previous one-day discovery. The court noted also that the mother-in-law could appear at trial as a witness, in any event).

Finally, the court entertained the wife’s application to force the non-party mother-in-law to bring forward certain business-related documents in her possession. The wife was relying on a Family Law Rule that allows a court to do so in cases where it would be unfair to allow one of the parties to go on with the litigation without them. Here, the wife was asking for certain unspecified business documents pertaining to the mother-in-law’s company, in which the husband purportedly had no ownership interest and for which he was merely a salaried employee. Although she had already received some documents from the mother-in-law, the wife was suspicious that the husband was entitled to greater earnings from the business than he was claiming, i.e. that he was understating his income from that source. She pointed to the fact that his current lifestyle far exceeded the $60,000 in wages he claimed he was being paid by his mother.

After reviewing the evidence, the court declined this request by the wife as well. The test under the Family Law Rules for ordering the production of documents from a non-party was an objective one; the wife’s subjective suspicions and conjectures were not a sufficient basis upon which to make the order she was hoping for.

For a full-text of the court’s decision in Santilli v. Piselli can be found at http://bit.ly/hdkvRA

Further information on family law and related issues is also available on our main website www.russellalexander.com