1. Why Is Questioning Used in Family Law?

2. Is Questioning the Same as Going to Court?

3. What Can You Be Asked During Questioning?

4. Do You Have to Prepare for Questioning?

5. What Happens If You Do Not Know the Answer?

6. Why Can Questioning Be Important?

7. What Happens Before Questioning?

8. What Happens on the Day of Questioning?

9. What Does Your Lawyer Do During Questioning?

10. What Is a Refusal?

11. What Happens to Undertakings After Questioning?

12. How Is the Questioning Transcript Used?

13. Can Questioning Help a Family Law Case Settle?

14. How Bridgestone Law Can Help

Introduction

If you have been told that you need to attend “questioning” as part of your family law matter, it is understandable to wonder what that means and what you should expect. Questioning is a formal process used to obtain information and evidence from another party before certain court proceedings or a trial.

In Alberta, questioning has historically been referred to as an examination for discovery.

During questioning, a person answers questions under oath or affirmation. The process generally takes place outside the courtroom, often at a court reporter’s office, a lawyer’s office, or another agreed location. A qualified court reporter records the questions and answers so that a written transcript can be produced.

A Justice does not ordinarily sit in the room and decide the case during questioning. Instead, questioning is an evidence-gathering process that can help the parties and their lawyers understand the evidence, identify information that is missing, narrow the issues in dispute, assess their respective positions, and prepare for settlement discussions or trial.

The Alberta Rules of Court contain detailed rules governing questioning. The precise procedure depends on the type of family law proceeding and the reason the questioning is being conducted. For example, questioning for discovery in an action is governed principally by Part 5 of the Alberta Rules of Court, while separate provisions apply when a person is being questioned on an affidavit filed in support of, or in response to, an application.

This distinction can be important. Your family lawyer can determine what type of questioning applies to your case, the permissible scope of the questions, and how the resulting evidence may be used.

Why Is Questioning Used in Family Law?

Family law disputes often involve information that is known primarily by one of the parties.

Consider a divorce involving a privately owned business. One spouse may have significantly more knowledge about the company's income, expenses, assets, corporate accounts, or transactions than the other spouse. Financial disclosure provides documents, but the documents may not answer every question.

Questioning gives the other party an opportunity to ask for explanations under oath.

The same principle can apply to parenting disputes. There may be conflicting evidence about parenting arrangements, important decisions concerning a child, communications between the parents, or events that one party says are relevant to the child's best interests.

Questioning can therefore be used to clarify evidence rather than simply relying upon competing written versions of events.

Under Part 5 of the Alberta Rules of Court, the purposes of the disclosure process include obtaining evidence, narrowing and defining the issues between the parties, encouraging early disclosure of facts and records, and assisting the parties in evaluating their positions and potentially resolving disputed issues.

Is Questioning the Same as Going to Court?

No.

Although questioning is a formal legal process, it ordinarily takes place outside the courtroom. A Justice is generally not present.

The people attending may include:

• the person being questioned;

• that person's lawyer;

• the lawyer conducting the questioning;

• the other party, where appropriate;

• a qualified court reporter; and

• an interpreter, if one is required.

The person being questioned is placed under oath or affirmation before answering questions.

The court reporter records the questions and answers word for word. Under the Alberta Rules of Court, oral questioning must be recorded in a manner capable of producing a written transcript.

The transcript can become important evidence as the case progresses.

What Can You Be Asked During Questioning?

The questions will depend heavily on the issues in the family law case.

In a financial dispute, questioning might address matters such as:

• employment income;

• bonuses and employment benefits;

• bank accounts;

• investments;

• pensions;

• corporate interests;

• business income and expenses;

• property owned before or during the relationship;

• debts;

• inheritances or gifts;

• transfers of money or property;

• tax returns and financial statements; and

• documents that appear to be missing from financial disclosure.

In a parenting dispute, the questions may instead focus on matters relevant to the parenting issues before the Court.

Questioning is not, however, an unrestricted opportunity to ask anything about the other person's life.

For discovery questioning under Part 5, Rule 5.25 provides that the person being questioned is required to answer relevant and material questions. Objections may be made on grounds including privilege, lack of relevance and materiality, or because a question is unreasonable or unnecessary. If an objection cannot be resolved, the Court can determine whether the question must be answered.

This is one reason having a family lawyer present during questioning can be particularly important.

Do You Have to Prepare for Questioning?

Yes.

Questioning should not be approached as an informal conversation.

Under Rule 5.23, a person being questioned under the discovery provisions must reasonably prepare and bring records likely to be required, subject to claims of privilege.

Preparation may include reviewing your pleadings, financial disclosure, important correspondence, previous affidavits, court orders, relevant financial records and the significant events in the case.

Your lawyer may also meet with you beforehand to explain the procedure and discuss the types of issues that are likely to arise.

Preparation does not mean memorizing answers.

If you genuinely do not remember something, it is generally better to say so than to guess. Your answers are being given under oath or affirmation and recorded.

A careful answer is usually more useful than a fast answer.

What Happens If You Do Not Know the Answer?

Sometimes a person cannot answer a reasonable question during questioning because they need to check their records or obtain additional information.

This may result in an undertaking.

An undertaking is generally a commitment to provide information or records after questioning. For example, if you are asked about an investment account and do not have the relevant statements available, an undertaking may be given to obtain and produce those records.

Undertakings should not be treated casually. They become part of the work that must be completed following questioning.

The Alberta Rules of Court specifically address undertakings and require responses within the applicable procedural framework.

Your lawyer can help determine whether an undertaking is appropriate, ensure that it is accurately recorded, and assist with gathering and producing the required information afterward.

Why Can Questioning Be Important?

Questioning can significantly change the direction of a family law case.

A document may look important until the person who created or relied upon it explains it. A financial transaction that initially appears suspicious may have a straightforward explanation. Conversely, questioning may reveal additional accounts, transactions, records, or information that require further investigation.

It can also expose areas where the parties actually agree.

That can help narrow the issues that ultimately require judicial determination.

For this reason, questioning is not simply about challenging the other party. Properly used, it is a tool for obtaining reliable information, understanding the case, narrowing the dispute, and determining what actually needs to be resolved.

What Happens Before Questioning?

Before questioning takes place, your lawyer will usually spend time preparing both the documents and you.

The preparation required will depend on the issues in the case. In a financial matter, this may involve reviewing income information, tax returns, bank and investment statements, business records, property documents, financial disclosure and other relevant records. In a parenting matter, preparation may focus more heavily on the parenting history, current arrangements, communications between the parents and the specific issues in dispute.

Your lawyer may also review the other party's disclosure and identify areas where information is missing, incomplete or requires clarification.

If you are the person being questioned, your lawyer will generally discuss the process with you beforehand. This can include reviewing important documents, identifying the major issues in the case and explaining how to answer questions accurately and appropriately.

The goal is not to rehearse or create answers. The goal is to ensure that you understand the process and are sufficiently familiar with the relevant information and documents.

What Happens on the Day of Questioning?

At the beginning of questioning, the court reporter will place the person being questioned under oath or affirmation.

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The lawyer conducting the questioning then asks questions, and the answers are recorded.

Questioning can feel considerably different from an ordinary conversation. Lawyers may ask very specific questions about dates, documents, transactions, communications or events. They may also return to an earlier subject to clarify an answer.

If you are being questioned, some basic principles can help:

• listen to the entire question before answering;

• answer the question that was actually asked;

• give truthful and accurate answers;

• do not guess if you genuinely do not know or remember;

• ask for clarification if you do not understand a question;

• allow your lawyer to make an objection before answering if necessary; and

• remember that your evidence is being recorded.

There is usually no benefit to arguing with the lawyer asking the questions. Questioning is an evidence-gathering process, not an opportunity to win an argument across the table.

What Does Your Lawyer Do During Questioning?

Your lawyer's role extends well beyond simply sitting beside you.

Before questioning, your lawyer can help you understand the issues, review important records and prepare for the procedure.

During questioning, your lawyer listens carefully to the questions being asked and can object where appropriate. Depending on the circumstances, an objection may concern privilege, relevance and materiality, or whether a particular question is unreasonable or unnecessary.

Your lawyer can also help ensure that undertakings and refusals are accurately recorded and that the questioning remains focused on the legitimate issues in the proceeding.

If the other party is being questioned, your lawyer's role changes. Your lawyer may conduct the questioning and use the opportunity to obtain information, clarify the other party's evidence, investigate financial or parenting issues and identify evidence that may be important later in the case.

What Is a Refusal?

A refusal occurs when a question is not answered, usually because an objection has been made.

Not every refusal means that the question permanently goes unanswered.

After questioning, the lawyers may review the refusals and determine whether they can be resolved. In some cases, a party may ultimately agree to answer the question or provide the requested information.

Where the parties cannot resolve a refusal, it may be necessary to ask the Court to determine whether the question must be answered.

This is another reason the wording of questions and objections matters. The transcript creates a record of what was asked, what objection was made and how the issue was handled.

What Happens to Undertakings After Questioning?

The work does not necessarily end when everyone leaves the questioning room.

Any undertakings given during questioning must be reviewed and addressed. This may require obtaining bank statements, employment information, corporate records, tax documents or other records that were not available at the time.

The lawyer may prepare an undertaking chart identifying each undertaking, the information required, who is responsible for obtaining it and whether the response has been completed.

Responses should be accurate and complete. Simply producing a large collection of documents without determining whether they actually answer the undertaking may create further problems.

If an undertaking cannot be answered, the reason should be addressed appropriately rather than ignored.

How Is the Questioning Transcript Used?

The court reporter's record can be converted into a written transcript containing the questions asked and the answers given.

That transcript can become important as the case progresses.

For example, lawyers may review the transcript when preparing for settlement discussions, further applications or trial. Evidence given during questioning may also be relevant where a party later gives evidence that is inconsistent with an earlier answer, subject to the applicable rules governing the use of questioning evidence.

The transcript can also help identify admissions.

If a party clearly acknowledges a fact during questioning, that admission may help narrow what remains genuinely disputed between the parties.

For this reason, answers given during questioning should be taken seriously. What may feel like a relatively informal meeting outside the courtroom is still a formal evidence-gathering process conducted under oath or affirmation.

Can Questioning Help a Family Law Case Settle?

Yes.

Although questioning is often associated with preparing for litigation, one of its practical benefits is that it can help the parties better understand the strengths and weaknesses of their respective positions.

Before questioning, a dispute may be based partly on assumptions.

One spouse may believe the other is hiding income. A parent may believe that a particular event occurred in one way, while the other parent describes it very differently. There may be financial transactions that neither side fully understands.

Questioning can provide answers.

Sometimes those answers reveal additional issues that need to be investigated. In other cases, they resolve issues that previously appeared significant.

Once the parties and their lawyers have a clearer understanding of the evidence, meaningful settlement discussions may become easier. Resolving even some issues can reduce the time, expense and stress associated with continuing litigation.

How Bridgestone Law Can Help

Questioning can be an important stage of an Alberta family law proceeding. What is said during questioning, what documents are produced, what undertakings are given and how objections or refusals are handled can affect the case long after the questioning itself has concluded.

At Bridgestone Law, we can help clients prepare for questioning by reviewing the issues in dispute, organizing relevant disclosure, identifying important documents and explaining what to expect during the process.

Where we are conducting questioning, we can prepare strategically to obtain the information and evidence needed to understand the other party's position and advance the client's case. Where our client is being questioned, we can help protect the client's legal interests while ensuring that appropriate questions are answered accurately and completely.

We can also assist with the work that follows questioning, including undertakings, additional disclosure, transcript review, unresolved refusals and using the information obtained to prepare for settlement discussions or the next stage of the proceeding.

If you have been asked to attend questioning, or believe questioning may be necessary in your family law matter, obtaining legal advice before the questioning takes place can help you understand the process, prepare properly and avoid preventable problems.

Bridgestone Law is a Calgary-based family law firm assisting clients with divorce, parenting, child and spousal support, property division, financial disclosure and family law litigation throughout Alberta.