In Ontario family law, “Questioning” allows your lawyer to cross-examine your ex-partner under oath before a trial. This process forces them to answer difficult questions, uncover hidden financial assets, and provide legally binding promises (undertakings) to produce missing documents.
When a divorce turns highly contested, the truth often becomes buried under a mountain of contradictory affidavits and incomplete financial statements. If you suspect your former spouse is hiding cash income from their contracting business in Hamilton, or concealing real estate assets in Toronto, a standard court hearing often does not provide enough time to dig into the details. This is where the fact-finding process of Questioning becomes your most powerful legal tool.
Under Rule 20 of the Ontario Family Law Rules, Questioning (traditionally known in civil law as Examinations for Discovery) allows lawyers to interrogate the opposing party under oath outside of a courtroom. It is a critical step designed to prevent trial by ambush, ensuring both sides know exactly what evidence exists. This guide explains how to prepare for and navigate the Questioning process to protect your family law rights. 📍
Step-by-Step Process for Questioning in Ontario
Questioning does not take place in front of a judge. It usually happens in a formal boardroom at a court reporter’s office, or increasingly, via a secure Zoom video conference. Despite the more relaxed setting, the legal consequences are severe.
Step 1: Schedule the Notice of Examination
Before Questioning can occur, both parties must have fully exchanged their financial statements and documentary disclosure. Once disclosure is mostly complete, your lawyer will serve a Notice of Examination on the opposing party. 📅
This notice officially sets the date, time, and location of the session. If the opposing party refuses to attend after being properly served, your lawyer can file a motion to have their pleadings “struck out,” which could lead to you winning the case by default.
Step 2: Prepare Thoroughly with Your Lawyer
If you are the one being questioned, preparation is vital. You will spend several hours with your family lawyer reviewing every affidavit, text message, and bank statement you have filed.
Your lawyer will practice asking you tough questions about your parenting time requests, your income, and your household expenses. The golden rule of Questioning is to only answer the specific question asked-do not volunteer extra information, and do not guess. If you do not know an answer, it is legally acceptable to simply say, “I don’t know.”
Step 3: Attend the Questioning Session
On the day of the event, you, your lawyer, your ex-partner, their lawyer, and a certified court reporter will gather. You will be sworn in by the court reporter to tell the truth. 🗣
The opposing lawyer will begin asking you questions. Your own lawyer is there to protect you. If a question is entirely irrelevant to the family law case, or if it violates solicitor-client privilege, your lawyer will state an “objection” and instruct you not to answer. Every word spoken is recorded and transcribed into a written booklet.
Step 4: Manage Undertakings and Refusals
During Questioning, the opposing lawyer may ask for documents you do not currently have with you, such as a specific credit card statement from three years ago. Your lawyer will give an “undertaking.”
An undertaking is a strict, legally binding promise to look for the requested document and provide it to the other side within a specific timeframe. If your lawyer feels the request is abusive or irrelevant, they will issue a “refusal.” The lawyers can later argue before a judge about whether the refused documents actually need to be produced.
Step 5: Utilize the Transcripts at Trial
Once the session is over, the court reporter produces a certified transcript. This document is a powerful weapon. 📄
If your ex-partner changes their story at the final trial-for example, claiming they have no money, when during Questioning they admitted to owning a secret cryptocurrency wallet-your lawyer will read the transcript out loud to the judge to destroy their credibility.
How Much Does it Cost in Ontario?
Questioning is highly effective, but it is one of the most expensive steps in the family litigation process due to the intensive professional time required. 💵
- Court Reporter Fees: Booking a court reporter and boardroom typically costs between $500 CAD and $1,500 CAD for the day, usually split between the parties or paid by the party requesting the examination.
- Transcript Costs: Ordering the official typed transcript costs approximately $5 CAD to $8 CAD per page, easily totaling hundreds of dollars.
- Family Lawyer Fees: Preparation, attendance, and follow-up work by an experienced Ontario lawyer usually costs between $2,000 CAD and $6,000+ CAD per questioning session.
How Long Does the Process Take?
The duration of the actual event and the surrounding legal timelines can stretch out your case significantly. ⌛
The Questioning session itself typically lasts anywhere from half a day to a full day (up to 7 hours maximum per party under the rules). Following the session, parties generally have 30 to 60 days to fulfill all the undertakings (gathering the promised documents). The entire discovery phase can easily take 3 to 6 months to fully complete.
Frequently Asked Questions (FAQ)
Do I have to be in the same room as my ex-partner?
Generally, both parties have the right to be present. However, if there is a history of domestic violence or a restraining order in place, your lawyer can arrange for the Questioning to happen via Zoom, or mandate that the parties sit in separate rooms to ensure your physical safety.
What happens if I lie during Questioning?
Lying during Questioning is perjury, which is a serious criminal offence in Canada. Furthermore, if an Ontario family court judge discovers you lied under oath, your credibility will be ruined, and you will likely be ordered to pay thousands of dollars in the other party’s legal costs.
Can the lawyer ask me about my new romantic partner?
Only if it is legally relevant. If you are living with a new partner, their income may be slightly relevant to your household standard of living for spousal support calculations. However, your lawyer will aggressively object if the opposing counsel asks inappropriate, harassing questions designed merely to embarrass you.
Is Questioning mandatory for every divorce in Ontario?
No. If your divorce is amicable, or if both parties provide completely transparent financial disclosure upfront, Questioning is completely unnecessary. It is generally reserved for complex, high-net-worth cases, or high-conflict situations where one party is hiding information.
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