P. Right to Cross-Examine and Give Evidence

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 556-557

Page 556

See note ¹⁴⁰

A respondent in divorce proceedings, who has filed no answer but has filed a demand of notice on the question of the amount of support and the right of access to the children, is entitled to cross-examine the petitioner and give evidence that is confined to these issues. This is an established practice in Alberta.¹⁴¹Documents to be used for purposes of cross-examination should be made available to the other party’s solicitor prior to cross-examination.¹⁴²Pursuant to Rule 52(8) of the British Columbia Rules of Court, a discretion rests in the court as to whether or not to permit cross-examination on affidavits that have been filed on an application relating to child support. In exercising its discretion in accordance with proper principles, the court will consider whether there are material facts in issue, whether cross-examination is relevant to an issue that might affect the outcome of the substantive application, or whether cross-examination will serve a useful purpose in eliciting evidence that would assist in determining the application. Where there is a lack of objective evidence relating to the financial circumstances of one of the spouses, cross-examination of that party on his affidavit may be deemed appropriate in light of the interests of the child, in respect of whom the amount of support payable is disputed.¹⁴³Rule 56A.16(7) of the Newfoundland and Labrador Rules of the Supreme Court, which came into force on April 1, 2003, specifically states that a decision on an interim application is to be made "after reviewing the affidavits filed and hearing the arguments of the parties." The right to cross-examine at an interim hearing is an exception to the normal rule. Permission can be given, but the party seeking to cross-examine must satisfy the judge that there are cogent reasons for cross-examination. The scope of any cross-examination is circumscribed by the permissible contents of the affidavits filed in support of the application for interim support. Since the contents of affidavits are restricted to factual matters, so too is any permitted cross-examination. Cross-examination may be permitted (i) where there are major differences on relevant facts in the affidavits filed; (ii) where cross-examination is necessary to challenge facts, not reasoning, deposed to by a party and those facts are critical to a proper determination of the issue in dispute; or (iii) where it is necessary to elicit additional...