Questioning in family law cases

Many family lawyers like to do Quesioning under the Family Law Rules. It is akin to doing an Examination for Discovery under the Rules of Civil Procedure.

The question for practioners is whether it is really worth it considering the expense associated with it? What are the parameters? Can not documentary disclosure be sufficient as are affidavits in the action? Is it really necessary to put the parties to the expense or can the information be elucidated at trial.

So let us say for argument sake we need to do the Questioning..how to conduct an effective questioning is the key.

I have done some that take more than a day and I still do not feel like I have all of the necessary information to move forward.

It seems to this writer that the Questioning really falls into 2 categories; the custody/access issues and of course the dreaded financials. I find that counsel needs all of the financials before going into the examination especially a sworn financial statement and a net family property statement.

If we are talking about a business owner I need on top of the personal returns the corporate returns with all of the schduelds, slips and attachments.

It is important to note that the schedules are particulalry important to question on for the purposes of determining what assets are being deducted because they should be added back for income purposes.

I find the most diffculy questioning is trying to peg a farmer down for income purposes...it seems as though the income is often tailored to meet the fiscal years income statement as opposed to real income earned. One needs to find out what assets are being depreciated, when the crops are sold, whether there are futures contracts or whether the crops are stored to be sold on consignment terms.

The other difficult income earner to peg down is the sales person or independant contractor who gets to deduct a lot of expenses from their income. Determining these expenses are important and asking for an undertaking to get the information.

Undertakings are key to the effective use of questioning. Without getting an undertaking for key information a very important reason to question is lost.

I find that older more experienced lawyers often try to deny providing an undertaking for information that I know I am entitled to. I found if you ask the opposing side for their reason for a refusal you will be given the information.

In the end, the effectiveness of the questioner will determine whether it goes well or is a complete waste of time.

Anyone with a war story to post, it is always appreciated.

Spousal Support Advisory Guidelines the new norm?

The recent Ontario Court of Appeal decision in Fishers v. Fisher, 2008 ONCA 11 (C.A.) is in this writer's opinion a ground breaking family law case. 

It is an important read for all of those counsel that practice family law in Ontario and deal with spousal support cases. 

The Court reviewed the trial decision on spousal support including the time-limited nature of the Order, failing to take into account the Spousal Support Advisory Guideline (SSAG), not making the award of support retroactive to the interim order and reducing the quantum of support on account of the husband's obligations to his second family. 

There is a very good review in this case of the principles of spousal support including : (1) compensatory support; (2) needs-based support; (3) time limited versus indefinite support: (4) review Orders and their scope and appropriateness; and (5) most importantly the applicability of the SSAG.

It now appears law in Ontario to use the SSAG as the starting point in the normal, run-of-the-mill spousal support case. All practitioners are well advised to get the software which allows for running the calculations as you can bet your bottom dollar that the opposing counsel will very likely have their numbers. It would in this writer's opinion tend towards negligence if one is not running the numbers early on in a case to see the client's exposure to pay or the recipient's spouses entitlement. 

The Court does advise that the SSAGs are not appropriate in every case and provides a whole host of situations when they would not apply. But for the most part, the Court adopts that the SSAGs provide an appropriate range so as  to provide stability and predictability of support awards that are in line with the jurisprudence in Ontario and the Divorce Act. 

On the one hand the Court of Appeal in Fisher makes the road way easier for family law lawyers; but on the other hand, if the calculations are not really apt for the situation at hand, it could be more difficult to convince the bench to move away from the SSAG in the circumstance. 

I would appreciate anyone's comments on their experience with the SSAG. 

The Fisher case may be found at

http://www.ontariocourts.on.ca/decisions/2008/january/2008ONCA0011.pdf