Divorce and separation proceedings: How to choose and prepare your witnesses for the hearing

2) Determine who will testify in writing, remotely, or in person

The law allows certain persons to testify in writing before the hearing or remotely on the day of the hearing, for example, by videoconference.

You can use the written report of your expert witness to replace his or her testimony on the day of the hearing.

Please note that when you ask a witness to come to court, you must generally pay them for the time they spend in court and pay for their meals, transportation, and accommodation, if required.

To find out what rules apply to the people you wish to call as witnesses, ask a lawyer or visit a legal clinic.

3) Send your list of witnesses

You must provide the court and your ex with the list of witnesses you intend to call.

The procedure and deadlines for sending this information depends on the type of application you’re making (e.g., divorce, child support, claiming an amount of money, etc.) and the court hearing your application. Contact the office of the courthouse or a lawyer or visist a legal clinic for more information.

You need to provide one or more of the following for each of your witnesses:

• Their name
• The language they’ll testify in
• The approximate duration of their testimony
• The reason they’ve been called and the purpose of the testimony
• Whether they’re an expert witness

4) Call your witnesses

Witnesses are officially called to testify by a “subpoena”.

A subpoena is not mandatory, but it allows you to be better protected if a witness decides not to show up on the day of the hearing.

To send a subpoena to one of your witnesses, you must fill out the “Subpoena” form and have it signed by a clerk at the courthouse.

Subpoena (Call to appear as a witness) (SJ-282A) (Justice Québec)

You must then send this document to your witness by bailiff. With some exceptions, your witnesses must receive your document at least 10 days before the date of the hearing.

Will your hearing take place before the Small Claims Division of the Court of Québec?

In this case, the court clerk is responsible for calling witnesses once the hearing date has been set. Ask the clerk at the courthouse about the procedure and deadlines.

SJ-839A – List of witnesses to be summoned by the clerk (Justice Québec)

5) Prepare the examination of your witnesses

Preparing testimony is an essential step. Make sure you put in the time and effort required.

Prepare your questions

Start by going back to the list of things to be proven that you prepared when choosing your witnesses (see Step 1). For each witness, determine the facts you want them to testify about (e.g., the date of your separation, the fact that your ex committed adultery, the fact that your ex has undeclared income, etc.).

Remember that unless your witness is recognized as an expert witness, they can only testify about facts they personally observed.

Then formulate questions that will allow your witnesses to talk about these facts.

With few exceptions, you may not ask your witness leading questions, i.e., questions formulated to influence or suggest an answer.

Avoid questions that can be answered with “yes” or “no”, or those beginning with “Does...” or “Is it true that...”.

Instead, choose questions beginning with “who”, “what”, “where”, “how” or “why”, or ask witnesses to tell you about an event.

Remember, too, that your questions should focus on facts that are relevant to the dispute, i.e., that are relevant to the debate and help move it forward.

You don’t need to ask a ton of questions for testimony to be relevant. Limit yourself to questions that are necessary and for which you already know the answer to avoid surprises.

Anticipate other people’s questions

Think about the questions other parties, such as your ex (or his lawyer), might want to ask your witnesses.

By anticipating these questions, you'll be able to plan additional questions to ask your witnesses if needed to clarify certain points.

Practise questioning your witnesses

If possible, meet your witnesses before the hearing. This way, you can make sure they understand their role and inform them of the questions you want to ask them.

Practise questioning them and prepare them for cross-examination.

Invite them to take notes if it helps them feel less stressed.

Although witnesses are usually required to testify from memory, they can usually take notes with them to the hearing to refresh their memory if necessary.

6) Examine your witnesses on the day of the hearing

On the day of the hearing, witnesses are examined one after the other.

The examination of each of your witnesses will be divided into three parts:

1. Examination-in-chief: You’re the first person to question the witness you call.
2. Cross-examination: Once you've finished questioning your witness, the other parties can ask him or her questions. Unlike the examination-in-chief, questions asked during cross-examination can be leading questions.
3. Re-examination: Once the cross-examination is over, you can ask your witness new questions. Note that you can only ask your witness about new information he or she has revealed during cross-examination, or to explain answers to questions asked during cross-examination. The purpose of re-examination is not to ask questions you forgot the first time.

The judge can intervene at any time to ask the witnesses questions.

Your ex or his or her lawyer can also intervene to raise an objection, for example if he or she feels that your questions are irrelevant or that they suggest the expected answer.

Special measures to protect certain witnesses

The judge will put in place measures to protect certain witnesses, if necessary.

For example, if you’ve been indicted or are subject to an order in relation to domestic or family violence and wish to question your ex or a child. The judge may insist that you hire a lawyer to do so.