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Jan 2, 2019

What are Family Law Examinations for Discovery in BC and How to Prepare?

Jan 2, 2019

What are Family Law Examinations for Discovery in BC and How to Prepare?


Family Law Examinations for Discovery or depositions in BC are examinations under oath of a party by the opposing counsel or party.  They occur prior to your family law trial. Questions are asked and documents requested from the examined party. The Examination is transcribed by court a reporter. The transcripts can be used in court to rely on a statement or discredit the examined party.

To find the agencies that offer services relating to family law examinations for discovery and for timelines on when to complete them, click here.

Purpose of Family Law Examinations for Discovery

The purpose of Family Law Examinations for Discovery (“XFD”) or depositions in BC are to allow one party of the litigation to:

  1. ask questions,
  2. request documents,
  3. obtain information,
  4. discredit the examined party,
  5. see if the witness is a truthful person,
  6. See what the witness will be like in a court room and at trial. It is very important to get a feel of a witness’s body language and tone to see what a judge would think of that person.
  7. Use the transcripts of the XFD at trial to prove something to the judge.

How do Family Law Depositions Feel?

Honestly, terrible for most people in family law cases. They are exhausting, adversarial, combative and negative. Many lawyers use XFDs to scare a person and make them feel like they wouldn’t win at trial. It is the lawyer’s job to advocate for the opposite of your interests, so Examinations really are not for the faint of heart.

You will feel exhausted and defeated at the end of the day. You will probably need a stiff drink or a long nap, and wonder what you did to get here. It is normal to feel these feelings. Most people do not come out of Family Law Examinations for Discoveries jumping up and down with joy. That is why we at YLaw try to minimize the acrimony by settling our cases instead of having the client spend thousands of dollars on these negative experiences. But hey, sometimes they are absolutely necessary when litigation is the only way to go.

The ‘Don’ts’ of Family Law Examinations for Discovery

From the time the opposing lawyer asks their first question until the time they are finished, the party being examined cannot talk to their lawyer about their case.  If you are the person being examined, your opportunity to ask questions of your lawyer is before the Examination starts and not during the Examination. 

This is because you are not allowed to speak about your evidence with your lawyer or anyone else during the XFDs. You can only ask questions which are not related to your evidence, such as “what time do we come back from the break”? etc.

A Day in Family Law Examinations for Discovery

  • At the beginning, the person giving evidence is asked to swear or affirm.  Swearing is religious, affirming is not, but it makes no functional difference.  Both are binding oaths.
  • After that, there are usually some soft questions—you will be asked to identify yourself as the Claimant or Respondent in Supreme Court Action No. X, birthdate, age, names and birthdates of children, if any, and the like. 
  • Then the lawyer gets into more substantive questions or issues at dispute. The lawyer may make requests for documents, or for a party to inform themselves about any information they cannot remember.  The lawyer may put documents to the person and ask them questions about it.  The lawyer may ask questions about affidavits or financial statements or correspondence.

How Long Are Family Law Examinations for Discovery?

In a family law case, a full day Examinations for Discovery can last up to 5 hours, including the short breaks.  There are usually two 15 minute breaks, one in the morning, one in the afternoon, and a 1.5 hour break for lunch.  The parties can agree to shorten these breaks.

You cannot be examined for more than 5 hours unless you consent to further Examination or the other party obtains a court Order.

Usually,

  1. Examinations for Discovery start at 10 a.m.
  2. First 15 minute break is around 11 a.m.
  3. Lunch is between 12:30 to 2 p.m.
  4. Second 15 minute break is around 3 p.m.
  5. Examinations end at 4:30 p.m.

How to Prepare for Family Law Discoveries in BC?

You should prepare by:

  1. fully reviewing your affidavits and ensure your answers to the questions at the Examinations do not contradict what you have stated in your affidavit or financial statement.   After all, both are done under oath and you are swearing to the truth of what you say or write. So do not contradict yourself.
  2. Some questions may be objected to by your lawyer. But the scope for objections at Examinations for Discovery is much more limited than it is at trial. Some grounds for objection to questions from the opposing lawyer are as follows:
    1. Question is irrelevant;
    2. There are two questions in one sentence;
    3. Question is asking for expert opinion.

Your lawyer may choose not to object for various reasons—for example, a question may be irrelevant. But the opposing lawyer has limited time and if they want to use it up on irrelevant questions, they’ll have less time for the things that actually matter.

Tips on Your Family Law Discoveries in BC:

  1. You cannot object to questions. Only your lawyer can if you are represented. 
  2. Take your time answering questions. Do not rush to answers. It is never a good idea. There is no rush.
  3. If you do not understand the question or wish it to be repeated, please ask for clarification or for it to be repeated. 
  4. If you do not know the answer, do not guess.  The other lawyer will ask you to inform yourself at a later time, and you will likely be obliged to do so.
  5. Do not become combative with opposing counsel.  It will likely sound horrible when read out loud from a transcript to a judge in Court.
  6. Do not answer questions with questions. You are not allowed to ask questions at depositions. You can only answer them.
  7. Answer yes or no or “I don’t know”, do not shake your head or say “uh huh.”  What gets created is a transcript based on the audio, and no one can hear you shaking your head.  Also, be aware that tone is also not conveyed in the transcript.
  8. Let the person asking questions finish speaking before you answer.  Then, take a breath, take sometime, and begin your answer.  This does two things:
    1. It makes sure you’re answering the question they’ve asked, as opposed to the one you think they’re going to ask; which may result in giving them valuable and unintended information.
    2. The breath in between gives you an opportunity to gather some thoughts and gives your lawyer a chance to make an objection if they’re going to—once you’ve started talking, it may not be possible to undo whatever has been said or done. Take as much time or breaths to answer a question.

Document Disclosure at Family Law Depositions:

It is important that you make sure that document requests leading up to the Examinations are fulfilled as promptly as possible. If significant relevant documents are missing, the other side may want to do a second Examination based on those additional documents, which can be inefficient and expensive for all involved.

If you have any questions or concerns with regard to the XFD, please do not hesitate to contact us. We usually have a meeting with the client in the days prior to the XFD to prepare ourselves and for the questions being asked.

Examination of the Opposing Party

If it is the other person’s Examination for Discovery in British Columbia, you will be able to talk to your lawyer throughout.  While your lawyer will have many questions they want to ask, you are always the best source for facts on your file and you may have some ideas for follow-up questions. 

Write notes to your lawyer as you hear the answers of the opposing party and help them ask important questions.

If there are particular areas that you would like addressed, please advise your lawyer in advance, as we usually spend a day or two before the XFD preparing our questions.

Examinations for Discovery should almost always be done by a lawyer. They are complicated, sensitive and can pose huge risks if the wrong answer is given or proper questions aren’t asked. 

Contact our award winning lawyers for a consultation by calling 604-974-9529 or get in touch.