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Family Law Rules – Rule 20: Questioning a Witness and Disclosure

Angela Princewill

November 14, 2015

RULE 20:  QUESTIONING A WITNESS AND DISCLOSURE

QUESTIONING — PROCEDURE

20. (1) Questioning under this rule shall take place orally under oath or affirmation.  O. Reg. 114/99, r. 20 (1).

CROSS-EXAMINATION

(2) The right to question a person includes the right to cross-examine.  O. Reg. 114/99, r. 20 (2).

CHILD PROTECTION CASE — AVAILABLE AS OF RIGHT

(3) In a child protection case, a party is entitled to obtain information from another party about any issue in the case,

(a) by questioning the other party, in which case the party shall serve the other party with a summons to witness (Form 23) by special service in accordance with subrule 6 (4); or

(b) by affidavit or by another method, in which case the party shall serve the other party with a request for information (Form 20).  O. Reg. 114/99, r. 20 (3); O. Reg. 322/13, s. 12 (1).

OTHER CASES — CONSENT OR ORDER

(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,

(a) with the other party’s consent; or

(b) by an order under subrule (5).  O. Reg. 114/99, r. 20 (4).

ORDER FOR QUESTIONING OR DISCLOSURE

(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense.  O. Reg. 114/99, r. 20 (5).

QUESTIONING SPECIAL PARTY

(6) If a person to be questioned is a special party, the court may, on motion, order that someone else be questioned in addition to or in place of the person.  O. Reg. 114/99, r. 20 (6).

QUESTIONING ABOUT AFFIDAVIT OR NET FAMILY PROPERTY STATEMENT

(7) The court may make an order under subrule (5) that a person be questioned or disclose details about information in an affidavit or net family property statement.  O. Reg. 114/99, r. 20 (7).

QUESTIONING OR DISCLOSURE — PRECONDITIONS

(8) A party who wants to question a person or obtain information by affidavit or by another method may do so only if the party,

(a) has served and filed any answer, financial statement or net family property statement that these rules require; and

(b) promises in writing not to serve or file any further material for the next step in the case, except in reply to the answers or information obtained.  O. Reg. 114/99, r. 20 (8).

NOTICE AND SUMMONS TO NON-PARTY

(9) The court may make an order under this rule affecting a non-party only if the non-party has been served with the notice of motion, a summons to witness (Form 23) and the witness fee required by subrule 23 (4), all by special service (subrules 6 (3) and (4)).  O. Reg. 114/99, r. 20 (9); O. Reg. 322/13, s. 12 (2).

PENALTY FOR FAILURE TO OBEY SUMMONS

(10) Subrule 23 (7) (failure to obey summons to witness) applies, with necessary changes, if a person summoned under subrule (9) fails to obey the summons.  O. Reg. 114/99, r. 20 (10).

PLACE OF QUESTIONING

(11) The questioning shall take place in the municipality in which the person to be questioned lives, unless that person and the party who wants to do the questioning agree to hold it in another municipality.  O. Reg. 114/99, r. 20 (11).

OTHER ARRANGEMENTS FOR QUESTIONING

(12) If the person to be questioned and the party who wants to do the questioning do not agree on one or more of the following matters, the court shall, on motion, make an order to decide the matter:

1. The date and time for the questioning.

2. The person responsible for recording the questioning.

3. The method for recording the questioning.

4. Payment of the expenses of the person to be questioned, if a non-party.  O. Reg. 114/99, r. 20 (12).

NOTICE TO PARTIES

(13) The parties shall, not later than three days before the questioning, be served with notice of the name of the person to be questioned and the address, date and time of the questioning.  O. Reg. 114/99, r. 20 (13).

QUESTIONING PERSON OUTSIDE ONTARIO

(14) If a person to be questioned lives outside Ontario and will not come to Ontario for questioning, the court may decide,

(a) the date, time and place for the questioning;

(b) how much notice the person should be given;

(c) the person before whom the questioning will be held;

(d) the amount of the witness fee to be paid to the person to be questioned;

(e) the method for recording the questioning;

(f) where necessary, that the clerk shall issue,

(i) an authorization to a commissioner (Form 20A) who is to supervise the questioning outside Ontario, and

(ii) a letter of request (Form 20B) to the appropriate court or authorities outside Ontario, asking for their assistance in getting the person to be questioned to come before the commissioner; and

(g) any other related matter.  O. Reg. 114/99, r. 20 (14).

COMMISSIONER’S DUTIES

(15) A commissioner authorized under subrule (14) shall,

(a) supervise the questioning according to the terms of the court’s authorization, these rules and Ontario’s law of evidence, unless the law of the place where the questioning is to be held requires some other manner of questioning;

(b) make and keep a copy of the record of the questioning and, if possible, of the exhibits, if any;

(c) deliver the original record, any exhibits and the authorization to the clerk who issued it; and

(d) notify the party who asked for the questioning that the record has been delivered to the clerk.  O. Reg. 114/99, r. 20 (15).

ORDER TO BRING DOCUMENTS OR THINGS

(16) An order for questioning and a summons to witness may also require the person to bring any document or thing that is,

(a) relevant to any issue in the case; and

(b) in the person’s control or available to the person on request.  O. Reg. 114/99, r. 20 (16).

OTHER RULES APPLY

(17) Subrules 19 (2), (4) and (5) (right to examine document and obtain copy, documents protected by legal privilege, use of privileged documents) apply, with necessary changes, to the documents mentioned in the order.  O. Reg. 114/99, r. 20 (17).

SCOPE OF QUESTIONS

(18) Unless the court orders otherwise, a person to be questioned may be asked about,

(a) the names of persons who might reasonably be expected to know about the claims in the case and, with the court’s permission, their addresses;

(b) the names of the witnesses whom a party intends to call at trial and, with the court’s permission, their addresses;

(c) the names, addresses, findings, conclusions and opinions of expert witnesses whom a party intends to call or on whose reports the party intends to rely at trial;

(d) if it is relevant to the case, the existence and details of any insurance policy under which the insurance company may be required to pay all or part of an order for the payment of money in the case or to pay back to a party money that the party has paid under an order; and

(e) any other matter in dispute in the case.  O. Reg. 114/99, r. 20 (18); O. Reg. 69/15, s. 8 (1).

REFUSAL TO ANSWER QUESTION

(19) If a person being questioned refuses to answer a question,

(a) the court may, on motion,

(i) decide whether the question is proper,

(ii) give directions for the person’s return to the questioning, and

(iii) make a contempt order against the person; and

(b) if the person is a party or is questioned on behalf or in place of a party, the party shall not use the information that was refused as evidence in the case, unless the court gives permission under subrule (20).  O. Reg. 114/99, r. 20 (19).

COURT’S PERMISSION

(20) The court shall give permission unless the use of the information would cause harm to another party or an unacceptable delay in the trial, and may impose any appropriate conditions on the permission, including an adjournment if necessary.  O. Reg. 114/99, r. 20 (20).

DUTY TO CORRECT OR UPDATE ANSWERS

(21) A person who has been questioned or who has provided information in writing by affidavit or by another method and who finds that an answer or information given was incorrect or incomplete, or is no longer correct or complete, shall immediately provide the correct and complete information in writing to all parties.  O. Reg. 114/99, r. 20 (21).

LAWYER ANSWERING

(22) If there is no objection, questions may be answered by the lawyer for a person being questioned, and the answer shall be taken as the person’s own answer unless the person corrects or changes it before the questioning ends.  O. Reg. 114/99, r. 20 (22).

METHOD FOR RECORDING QUESTIONING

(23) All the questions and answers at a questioning shall be recorded electronically or manually.  O. Reg. 114/99, r. 20 (23).

OBLIGATION TO KEEP INFORMATION CONFIDENTIAL

(24) When a party obtains evidence under this rule, rule 13 (financial disclosure) or rule 19 (document disclosure), the party and the party’s lawyer may use the evidence and any information obtained from it only for the purposes of the case in which the evidence was obtained, subject to the exceptions in subrule (25).  O. Reg. 114/99, r. 20 (24); O. Reg. 69/15, s. 8 (2).

USE OF INFORMATION PERMITTED

(25) Evidence and any information obtained from it may be used for other purposes,

(a) if the person who gave the evidence consents;

(b) if the evidence is filed with the court, given at a hearing or referred to at a hearing;

(c) to impeach the testimony of a witness in another case; or

(d) in a later case between the same parties or their successors, if the case in which the evidence was obtained was withdrawn or dismissed.  O. Reg. 114/99, r. 20 (25).

COURT MAY LIFT OBLIGATION OF CONFIDENTIALITY

(26) The court may, on motion, give a party permission to disclose evidence or information obtained from it if the interests of justice outweigh any harm that would result to the party who provided the evidence.  O. Reg. 114/99, r. 20 (26).

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