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Cross Examination Best Practices in a Family Law Court: a two part series

Updated: Apr 11

One of Toronto’s most successful family lawyers recaps what composes a good cross-examination. This is the first of a two-part series.


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Photo #1 - Source: Unsplash.com

Gary Gottlieb has over 30 years of experience as a renowned a Toronto based family law trial lawyer. His cases take him from the Ontario Court of Justice to the Superior Court of Justice. In a recent speaking engagement, he outlined preconditions to a successful cross-examination. This piece will provide a summary of the tips mentioned. This will be a two part series on cross-examination.


Questioning at the beginning of the assessment

When examining an expert such as a Parenting Capacity Assessor, it is crucial, prior to commencing, to understand the scope and purpose of the assessment. This includes establishing the scope of the assessment project, and ensuring that the assessor stays within that scope. In the event that the assessor steps outside of the scope of the project or opines beyond their education, qualifications, or experience, they must be challenged. It is also essential to question the accuracy of the assessment if the assessor does not clarify the origin of the referral, the goal and purpose of the assessment, the origin of the data provided, and the explanation of the methods used. If these items are not addressed, the assessment could be seen as lacking specificity. Furthermore, if the underlying assumptions used to reach the conclusions are inaccurate or have changed since the report was made, the conclusions of the assessment should be challenged.


Photo #2 - Source: Law Temple Education

Challenging the reliability of the assessment

The validity of the assessment should be questioned if the assessor utilized materials that were not presented to the court, such as psychological or psychiatric reports, medical records, society records, and affidavits. If these materials are not presented, the value of the assessment could be diminished. It is also essential to challenge the report if it is largely based on rumors or unsupported claims. The facts underlying the expert’s judgment must be proven before it can be taken seriously. Additionally, the report should be disputed if it does not match up with the findings from the evaluation, or if it puts too much emphasis on the results from psychological tests and information from outside sources that were not presented in court.


Lastly, the report should be challenged if the examiner does not get the correct facts or uses unreliable sources. If the document fails to acknowledge the tension from the recent separation, the death of a child, mistreatment, or poverty, then it should be contested. If the conditions change, ask the evaluator to accept that better circumstances may lead to different conclusions about a parent's ability.


To reiterate, it is essential to question the assessment if the assessor is not following the standards of their training, expertise, or experience, or fails to explain the reason behind the referral, the purpose of the assessment, the origin of the information they are providing, or the techniques they use. It is also important to inquire about the assumptions made to reach the conclusions, whether the assessment was done correctly, and to raise doubts about the report if it is based on rumors or second-hand information. Furthermore, one should dispute the report if the results do not match the data, it centers too much on the outcomes of psychological tests and the data from people not present in the assessment, or if the assessor is not aware of pertinent facts or is using unreliable sources of information. Lastly, one should challenge the report if it does not take into consideration the outside stressors such as the break-up, abuse, or poverty.


Photo 1 Credit: Unsplash

Photo 2 Credit: Law Temple Education

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