Questioning a non-party witness can be a crucial means of gathering information before a family trial. The information being sought must be relevant and advance the issues in the case. However, there is no “right” to question a non-party, and the Family Law Rules require specific criteria to be met before an order for questioning can be made. Yet, in some instances, questioning can be essential to obtaining evidence and ensuring fairness.

Applicant Seeks to Question a Third-Party Psychiatrist

In Bonaparte v. Opthof, the respondent had a history of mental health struggles. The respondent’s counsel hired a psychiatrist to perform an independent medical examination on the respondent. The applicant claimed that the respondent’s mental health history and the conclusions in the psychiatrist’s report were relevant to the parenting issues in their case.

The applicant proceeded to bring a motion under Rule 20(5) of the Family Law Rules for an order to question the third-party psychiatrist. The applicant alleged that the psychiatrist’s report was based on an incomplete medical record and contained inaccurate information provided by the respondent. The applicant argued that it was essential to provide the psychiatrist with an opportunity to revise his opinion in light of the previously undisclosed information.

In the applicant’s view, questioning the psychiatrist would provide relevant information to the case, assist in the adjudicative process, and enable the parties to better understand the strengths and weaknesses in their respective positions. However, the respondent opposed the motion, claiming that other methods could obtain the information and that it would incur unacceptable expenses.

Family Law Rules Set Out Three Conditions

Rule 20(5) of the Family Law Rules provides that a court can order that a person, including a non-party, “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 that 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.”

All three parts of the test must be met by the party seeking the order. Additionally, in Birdi v. Birdi, Justice Emery explained that the threshold for a court to make an order for questioning is very low and that it can facilitate the fact-gathering process. In Birdi, the judge proceeded to identify some of the beneficial outcomes that questioning can provide, such as uncovering new facts, narrowing the issues in the case, testing the other party’s facts, including those related to credibility, and assisting the trier of fact and the adjudicative process generally.

Courts have also recognized that, in an adversarial system, questioning enables parties to assess the strengths and weaknesses in their case, which can lead to settlement discussions. However, in Resendes v. Maciel, the court explained that proportionality is necessary and that the Rules provide a process for obtaining relevant disclosure. The court also emphasized that courts must prevent parties from undertaking a “fishing expedition.”

Court Considers the Materiality of the Evidence Being Sought

In Bonaparte, the judge proceeded to apply the three-part test. Justice Kamal felt that it would be unfair for the applicant to continue the case without questioning the psychiatrist, as his evidence was material to the issues before the court. And in the judge’s view, preventing the applicant from obtaining that evidence would materially impact the determination of an issue. Moreover, it would be prejudicial for the applicant to proceed to trial without the information.

The judge also noted that the psychiatrist’s report was missing information, and the applicant sought to question the doctor to obtain some of the additional information. In the judge’s view, the applicant having that information would assist in narrowing the issues in the case, addressing credibility, and aid in settlement discussions. The judge felt that those objectives were consistent with the purposes of the questioning. Justice Kamal further explained that questioning the psychiatrist in advance of trial would ensure the case was not “litigation by ambush” as the parties were “entitled to know the full case before them”. Questioning would also provide an opportunity to obtain material facts before trial and “provide the parties and counsel with information necessary to consider the strengths and weaknesses of their case”.

It was also significant that there had already been numerous disclosure orders requiring the respondent to provide disclosure relating to her medical records, and these had not been complied with. This necessitated the applicant to wait before finally bringing the motion for questioning. For the judge, the applicant had exhausted all reasonable requests for disclosure, and the request for questioning was a last resort. Consequently, the applicant met the first part of the test.

Questioning Can Ensure That Cases Are Dealt With Justly

The second part of the test considers whether the information is available by other methods. On this point, the applicant claimed that questioning the psychiatrist would enable him to determine what information the psychiatrist relied on while providing an opportunity for the psychiatrist to qualify his opinion. The judge agreed that this information was not available by any other method. Conversely, the respondent argued that the records that the psychiatrist had relied on in producing his report had already been shared with the applicant’s counsel. Nevertheless, Justice Kamal felt that while the respondent had provided some information, it was insufficient given the nature of the psychiatrist’s evidence.

In Aslam v. Aslam, the court acknowledged that even if some information has been shared, questioning can still be ordered when the information provided is insufficient. That was relevant here, and the applicant met the second part of the test.

The third step weighs whether questioning will cause unacceptable delay or expense. In this instance, the applicant sought to question the psychiatrist for five hours. The judge found that this limited questioning would not cause a delay. He also cited Pizarro v. Kretschmann. That was a high-conflict case where credibility was an issue and a range of material facts were in dispute. The applicant in that case objected to a request for questioning, claiming that it would be expensive and cause undue delay. However, the judge permitted the questioning to proceed.

Credibility and Delay Are Also Key Considerations

Similarly, in Bonaparte, the psychiatrist’s credibility was a key issue in the case. For Justice Kamal, both the cost and time required to question him were proportionate to the issues in the case. And permitting the questioning was “consistent with the primary objective of the Family Law Rules set out in Rule 2, namely to ensure that cases are dealt with justly”. In Cohen v. Cohen Estate, when weighing whether to permit the questioning of a third party, the judge proceeded to order questioning on the basis that it was cost-effective, proportionate, and an efficient means for the parties to take pre-trial steps such as settlement discussions and trial preparation.

Similarly, in this instance, the judge found the same justifications arose. As the applicant met all three parts of the test, the psychiatrist was permitted to question the psychiatrist for a maximum of five hours.

Contact NULaw in Toronto for Experienced Representation in Family Law Disputes

If you are navigating a family law dispute and believe that a third party may hold crucial information, experienced legal guidance is essential. The team at NULaw in Toronto can help you assess whether questioning a non-party witness is available in your case, ensure the Family Law Rules are correctly applied, and take the steps needed to secure fair, complete disclosure. Contact us online or call 416-481-5604 to schedule a confidential consultation and discover how we can help you move your matter forward with clarity and confidence.