Questioning In Family Law Proceedings

Family Law practice very often overlaps with or has criminal law aspects to it.

One common example is where a party incurs criminal charges that are entirely relevant to issues pertaining to parenting, such as drug or drinking & driving related criminal charges. Such charges may understandably call a party’s ability to provide adequate care for a child into question. These issues very often become contentious and conflicting Affidavit evidence will require Questioning on Affidavits in order to test that evidence.

Importantly, neither the Canada or Alberta Evidence Acts, nor the Charter, provides immunity to a party who has been charged criminally, from answering questions about those charges, so far as those questions are relevant to a family law issue such as parenting. In fact, both the Canada Evidence Act (sections 5(1) and 5(2)) as well as the Alberta Evidence Act (section 6) specifically provide that no witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate that witness.

While the legislation does provide that those answers obtained in, for instance, a family law proceeding may not be utilized in other proceedings (such as criminal proceedings, aside from proceedings with respect to perjury or giving contradictory evidence) where the witness invokes the protection of the Evidence Acts and / or the Charter, the witness is compelled to answer the relevant questions and those answers are fair game in the context of that family law proceeding.

It is important to bear this in mind in preparing for Questioning in relation to a Family Law matters: Lack of understanding of the evidence legislation or the Charter itself could result in unexplored areas and a failure to obtain key evidence, speaking to the best interests of the child or children involved.