Discovery Process in a Family Law Matter

From Clicklaw Wikibooks

The discoveryA step in a court proceeding in which a party may demand that the other party produce specific documents and submit to a cross-examination on oath or affirmation outside of court before trial. This process is regulated by the rules of court. The purpose of this step is to encourage the settlement of court proceedings and to make sure that each party knows what the other party's case will be trial. See "examination for discovery." process involves learning about (or discovering) the other partyIn law, a person named as an applicant, claimant, respondent or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."’s caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.". It allows each party to learn about the information and evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." that the other party intends to use at trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." (for example through receiving documents from the other party and asking the other party questions about their case) and the arguments the other party intends to make at trial to support the position(s) they are taking.

The discovery process is an important process because it allows you to collect the information you need to assessTo determine the value or amount of something. A lawyer's bill may be ''assessed'' by a registrar to determine the actual amount the client should pay. See "appraisal." the strengths and weaknesses in both your case and the other party’s case. This helps to assess your chances of success at trial and to formulate any settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer." offers you wish to make. It is a good idea to consult a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." as you begin the discovery process as a lawyer can provide advice about what you need to disclose to the other party, what you need to prove in court for your case to be successful, and what you need to know about the other party’s case.

The Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

The discovery process is more extensive in the Supreme Court than in the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a court proceeding. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction.". This means that there are more hoops to jump through in Supreme Court, but there are also more means to extract information and documents from the other side.

Financial Statements

If a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. involves a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. for spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., child supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses., the division of propertySomething which can be owned. See "chattels" and "real property." or the division of debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed., each party must prepare and file a Financial StatementA legal document required by the rules of court in which a party to a court proceeding involving child support, spousal support, the division of property or the division of debt must describe their income, expenses, assets and liabilities under oath or affirmation. See "affirm," "oath," and "perjury." (see Rule 5-1 of the Supreme Court Family Rules. A Financial Statement sets out a person's income, expenses, assets (property) and liabilities (liabilities) and is sworn under oathIn law, a guarantee of the truth of a statement secured by one's faith in a god, and the prospect of torment in the afterlife in the event the promise is falsely made. Someone making an affidavit will often give their evidence in that affidavit under oath; a witness giving oral evidence will often give their evidence in court under oath. See "affidavit," "affirm," "perjury" and "witness." or affirmation, just like an affidavitA legal document in which a person provides evidence of certain facts and events in writing, as if the evidence was given orally in court. Affidavits must be notarized by a lawyer or notary public who takes the oath or affirmation of the person making the affidavit to confirm the truth of the affidavit. Affidavits are used as evidence, just as if the deponent, the person making the affidavit, had made the statements as a witness. See "deponent" and "witness.", before a lawyer, notary publicA person authorized to administer affirmations and oaths, and to execute or certify documents. All lawyers are notaries public in addition to being barristers and solicitors. See "barrister and solicitor.”, or court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. clerk.

Rule 5-1(11) of the Supreme Court Family Rules requires that Financial Statements be filed and served upon the other party within a 30 day time frame as follows:

(a) if the disclosing party's obligation arises because of a claim they made, they must file and serve those documents within 30 days, or such other period as the court may orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration.", after service of the document in which the claim is made;

(b) if the disclosing party's obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." arises because of a claim made by another party and the disclosing party resides in Canada or the United States of America, the disclosing party must file and serve those documents within 30 days, or such other period as the court may order, after service of the document in which the claim is made (If the disclosing party lives somewhere other than Canada or the US, the timeframe is extended to 60 days).

There is no fee for filing your Financial Statement but do remember that the registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed; a courthouse. will keep the original so you will want to make and keep at least two additional copies (one for you to keep and one to give to the other party).

Financial Statements are very important in family law proceedings. The portions about income (and in many cases expenses) are critical for determining child support and spousal support, and, unless there are appraisals or other documents that establish value, the portions about assets and debts may be used to determine the value of an asset and the amount owing on a debt. Since Financial Statements are sworn statements, someone making a Financial Statements can find their credibility being challenged if the numbers don't make sense, if they are overblown or understated, if they omit critical information, or if they are outright fabrications.

When completing your financial statement:

  • Part 1 – Income should set out what you expect your income to be for the year you are completing the form. If you expect your income to remain more or less that same as last year, then use line 150 of your most recent income tax return; otherwise use your most recent statement of earnings from your employment.
  • Part 2 – Expenses records your monthly expenditures for you and anyone else in your household. If you share expenses with another person, you should indicate the portion of the expense that you pay. If you incur a particular expense annually, you should divide the annual amount by 12 and place the result of that division in the monthly column. If your expenses have changed since your separation or you expect them to change in the future, you should consider providing an explanation.
  • Part 3 – Property should set out a complete list of each and every asset and debt owned by each party and indicate in whose name each asset and debt is held. For bank accounts, investments, debts such as mortgages, lines of credit and credit cards, you should identify the financial institution, accountIn law, a lawyer's bill to their client or a statement; one person's recollection of events. number and balance as at a certain date. For vehicles, you should indicate the make, model and year.
  • Part 4 – Special and Extraordinary Expenses (if applicable) should set out a complete list of all of the special or extraordinary expenses incurred by each party for each child individually. These expenses should also be included in the expense portion in Part 2 of the financial statement.
  • Part 5 – Undue Hardship (if applicable) requires an explanation and relevant details of any factor causing undue hardshipA term used by the Child Support Guidelines to describe circumstances when payment of the table amount of child support would cause financial difficulty for the payor or the recipient, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount.". You should fill out only what applies to your situation.
  • Part 6 – Income of Other Persons in Household (if applicable) requires the name of any other persons in your household and their annual income in the space provided. It is helpful to also provide an explanation of that person’s relationship to you.

Each party must attach a number of important documents to their Financial Statements:

  1. the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return summaries or informations),
  2. all notices of assessment and reassessment received for the last three tax years,
  3. the party's three most recent paystubs, which should include their earnings to date for the year, or if the party isn't working, then their most recent WCB statements, social assistance statements, EI statements, or CPP disabilityIn law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority." statements,
  4. business records like financial statements and corporate income tax returns, if the party has a company, and
  5. the most recent BC Assessments for all real propertyA parcel of land and the buildings on that land. See "chattel," "ownership" and "possession.".

The form you must use is Form F8, set out in the Supreme Court Family Rules.

Discovery of documents & lists of documents

Rule 9-1 of the Supreme Court Family Rules sets out the entitlement to and requirements for production and inspection of documentsThe right of a party to a court proceeding to look at and copy documents held by the other party that relate to any matters at issue in the proceeding; part of the discovery and production process. See "disclosure" and "discovery." in a family law proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action.". It requires each party to prepare a list of documents that are relevant to the matters at issue in the proceeding and to produce and make available to the other party for inspection any such documents still in the party’s possessionIn law, the right to have the control and use of a thing. One can have a right to the possession of a thing without owning it, as in the case of a car lease, or ownership without possession, as in the case of a landlord who rents an apartment suite. See "ownership.".

Relevant documents that must be listed (and produced if possible) include:

(1) all documents that are, or have been, in that party’s possession or control that could, if available, be used by any party of record at trial to prove or disprove a materialIn law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact." fact; or
(2) all other documents to which that party intends to refer to at trial.

(see Rule 9-1(1) of the Supreme Court Family Rules).

A material fact is a fact that is directly relevant to the issues in dispute in the family law proceeding. For example, in a family law proceeding where spousal support is at issue, each party’s level of income and monthly expenses are material facts, and each party is required to list and make available documentation to support the amounts they cite for their income and expenses.

The Rule requires each party to list not only the documents in that party’s possession or control that meet the criteria of “being used to prove or disprove a material fact” or that the party “intends to refer to at trial,” but also any such documents that have previously been in party’s possession or control but are no longer so.

The Rule also requires each party to list not only the documents in that party’s possession or control (in the past or at present) that would assist that party’s case, but also any documents in that party’s possession or control (in the past or at present) that would assist the other party’s case (i.e.: be detrimental to one’s own case).

It is important to understand that the term document is not restricted to paper documents. Rule 1-1(1) of the Supreme Court Family Rules defines document as:

"document" has an extended meaning and includes a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device.

Rule 9-1 of the Supreme Court Family Rules requires each party to produce a list of their relevant documents (referred to as a “list of documents”) (see Rule 9-1(1) of the Supreme Court Family Rules). The list of documents must be in Form F20 and provided to the other party within 35 days after the close of the pleadings (which is usually the date of service of the response, with or without a counterclaim).

The list of documents (Form F20) is divided into 5 parts:

Part 1: Documents that are or have been in the listing party’s possession or control and that could be used by any party at trial to prove or disprove a material fact;
Part 2: Other documents to which the listing party intends to refer at trial;
Part 3: Documents that relate to a matter in question in the actionA court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.;
This includes any documents that were listed in response to a demand under Rule 9-1(8) of the Supreme Court Family Rules (described below) and an documents produced in response to a court order under Rule 9-1(11) of the Supreme Court Family Rules (also describe below) that have not already been listed;
Part 4: Documents for which privilegeIn law, the duty a lawyer has to keep their client’s information confidential, including communications between the lawyer and client and advice given to the client; the client's right to have their confidential communications kept secret and protected from disclosure. See "lawyer." from production is claimed.
There may be documents that are privileged from production, meaning that the party does not have to produce them to the other side in the family law proceeding.
For example, if a party consults a lawyer for independent legal advice (at any time before or during the proceeding) that communication is privileged and does not need to be produced.
Similarly, if a party consults an expert, such a business valuator or an actuary, that party does not need to produce notes or other documents relating to the advice received if they do not intend to rely on it at trial (if the party does intend to rely on it, then it becomes expert evidenceOpinion evidence given by an expert at trial, in an affidavit or in a report. Opinion evidence is a statement about what a witness thinks or believes, rather than something personally known as a fact, and is generally not admissible at trial except when the opinion is provided by an expert. A person presented as an expert witness must be approved by the court as a qualified expert in their field. In family law, experts typically called to give evidence include accountants, business valuators, doctors, and psychologists. See "evidence" and "witness." which is discussed in more detail in the section Preparing for Trial) in this chapter.

This is another area where it would be good to seek independent legal advice before taking this step.

For each part of the list of documents, a party is required to:

  • number each document,
  • indicate the date of each document,
  • provide a briefIn law, a written argument; a memorandum of law. A brief is usually presented to a judge as a summary of an argument or the law on a particular issue. Curiously, briefs are rarely brief. description of the document (it is also helpful to include the number of pages of each document),
  • indicate whether the document is still in that party’s possession, and
  • indicate the date on which the document is being listed (this is helpful when new documents are added and lists are updated throughout the proceeding).

Each party is required to keep their list of documents up-to-date. Rule 9-1(6) states:

(6) If, after a list of documents has been served under this rule,
(a) it comes to the attention of the party serving it that the list is inaccurate or incomplete, or
(b) there comes into the party's possession or control a document that could be used by any party at trial to prove or disprove a material fact or any other document to which the party intends to refer at trial,
the party must promptly amendTo change or alter a pleading or document that has already been filed in court or given to the other party. The resulting document is a separate document from the original and is called, for example, the "amended Notice of Family Claim" or the "amended separation agreement." the list of documents and serve the amended list of documents on the other parties.

Each party is entitled to ask that additional documents be produced if they think that there are documents or categories of documents missing from the list of documents provided by the other party (see Rule 9-1(7) & (8)). The request must be in writing. If the party faced with the request for additional documents does not provide the requested documents (and an amended list of documents listing the additional documents) within 35 days of receiving the request, the party making the request can make an application to the court (see Rule 9-1(9) & 10). This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.

Each party is also entitled to ask for copies of the documents listed on the other party’s list of documents (see Rule 9-1(13)) and to ask to inspect (to view) the originals of the documents listed on the other party’s list of documents (see Rule 9-1(12); also Rule 9-1(14)). If the party wants copies of any of the listed documents, that party is required to pay for the copies in advanceIn family law, this usually refers to one party obtaining a part of the property at issue before the property has been finally divided by court order or the parties' agreement. of receiving them (see Rule 9-1(13)).

If there are documents that are necessary to prove or disprove a fact at trial but are not in the possession or control of either party, then either party may make an application to the court for the production of copies of the documents by a person or organization or business who is not a party to family law proceeding (which application must be served on the person or organization or business sought to produce the documents) (see Rule 9-1(15). For more information on the process for bringing interim applications, see Interim Applications in Family Matters.

Documents received in the context of a legal proceeding are confidential and not to be disclosed or used for any purpose beyond the scope of the proceeding (i.e. you can't show them to friends or family or use them in another court proceeding), unless by order of the court or agreement between the parties. This is a serious obligation that each party has in relation to both the other party and to the court. If a party fails to honour this obligation, that party can be found to be in contempt of courtDoing something or failing to do something that impairs the administration of justice or respect for the court’s authority, such as bribing a witness, disobeying a court order, or misleading the court. Contempt of court can be a civil offence as well as a criminal offence..

Examination for discovery

Rule 9-2 of the Supreme Court Family Rules allows each party to a lawsuit to examine the other party under oath about the facts and matters in issue in the court proceeding. This step is called an examination for discoveryThe cross-examination of a party under oath or affirmation about the matters at issue in a court proceeding conducted prior to trial. An examination for discovery is held outside court, with no one in attendance except for the parties, the parties' lawyers and a court reporter. The court reporter produces a transcript of the examination, which may, in certain circumstances, be used at trial. See "discovery.". Examinations for discovery are not mandatory, but are an important step in the discovery process and are particularly important when the proceeding is going to trial for the following reasons:

  • an examination for discovery allows each party to gain detailed information about the other party’s case, including the names of potential witnesses, and to assess the strengths and weaknesses of the other party’s case;
  • the evidence of the party being examined is recorded and the party who conducts the examination for discovery may read into the record of the trial the answers given by the opposing party. Answers read into the record in this manner have the same effect as sworn evidence given by the opposing party at the trial;
  • as the evidence of each party being examined is recorded, if there are discrepancies or inconsistencies between that party’s evidence at the examination for discovery and that party’s evidence at trial, the discrepancies and inconsistencies can be used against the party at trial or undermine or impeach that party’s credibility; and
  • if the parties have lawyers and the lawyers have had minimal to no contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities." with the other party to date, an examination for discovery provides an important opportunity for the lawyer to assess how the other party will present at trial.

The examination for discovery of each party is limited to five hours (see Rule 9-2(2) of the Supreme Court Family Rules) unless that party agrees otherwise, and may be conducted anywhere the parties agree. It is often conducted at the office of one of the party’s lawyers, or at the courthouse, or at the office of the court reporter. All that is required is a private room in which the lawyer for one party may ask questions of the opposite party in the presence of the court reporter. The court reporter is not, in any sense, a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal., but a court official who has the power to administer oaths and is authorized to record verbatim evidence.

The ordinary procedure is for both the parties and their lawyers to attend. The court reporter administers the oath or affirmation and then transcribes the questions and answers. At the request of either party (and for a fee), the court reporter binds the transcript into a book which is available for the purposes of the trial.

Because the transcript of the examination for discovery that is prepared by the court reporter may be used at trial to provide evidence by the other party and to undermine the credibility of the party giving the evidence, it is important that a party is fully prepared for the examination for discovery. In addition, while the evidence given at the examination for discovery does not determine the outcome of the court proceeding, it often has a significant impact on settlement negotiations after the examination for discovery. It can also have an impact on the trial itself.

When attending to be examined for discovery, a party must bring all documents in that party’s possession or control which relate to the court proceeding.

Because the examination for discovery is one of the first opportunities to meet the lawyer of the other party, each party should strive to make a good impression. A party attending to examined for discovery should:

  • Wear clean, neat, comfortable clothing.
  • Treat all persons in the meeting room with respect.
  • Consider this an important and formal occasion. Avoid getting chummy with the opposing lawyer. Act professionally, as you would at a job interview.
  • Tell the truth – the best questioner cannot touch a witnessA person with direct, personal knowledge of facts and events; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence." who is telling the truth.
  • Listen carefully to every question in order to hear the entire question and ensure understanding of the question.
  • Speak clearly and loudly so that the Court Reporter can hear the answerIn law, response to an allegation of fact or to a claim. Usually refers to documents which reply to the allegations or claims made by the other party, such as a "Response to Family Claim" or a "Reply.", including saying “Yes” or “No”, instead of mumbling. The Court Reporter cannot transcribe a head nod or shake.
  • Ask for clarification if the person does not understand a question; the questioner will rephrase it.
  • Not guess or speculate. If a person cannot remember an answer to a question, simply say “I can’t recall” or “I can’t remember”.
  • Answer only the question asked, and not volunteer additional information.
  • Not exaggerate or understate the facts. Avoid using the words “never” and “always”.

The examination for discovery is in the nature of a cross-examinationThe portion of a trial where a party asks questions of a witness presented by the other party in order to challenge the witness’s recollection and truthfulness. The questions asked of the witness must be relevant to the issues and may be leading, that is, the questions may suggest their answers, such as "You didn't get home until 2:00am, did you?" See "examination-in-chief," "evidence," and "leading question.". Each party (or their lawyer) may ask open-ended questions (to obtain as much detail as possible) or leading questions in an attempt to obtain favourable admissions.

The lawyer for the party being examined may object to a question asked on the basis that the question is irrelevant to the case, or improper in form, or calls for privileged information. If the party asking the question disagrees that the question is inappropriate, that party can make an application to the court to require the other party to provide an answer. For more information on the process for bringing interim applications, see Interim Applications in Family Matters in this section.

To arrange an examination for discovery, you will need to coordinate available dates with the other party (and their lawyer if any) as well as the court reporting service (as listed in the phone book). Once you have an agreed upon date and place to conduct the examination for discovery, you will need to complete an appointment to examine for discovery (Form F21) and serve it on the other party, along with required witness fee, at least seven days in advance of the date scheduled for the examination for discovery (Rule 9-2 (12)). The appointment to examine for discovery (Form F21) does not need to be filed with the court, but a copy must be provided to the court reporter to confirm the appointment date. Schedule 3 of Appendix C of the Supreme Court Family Rules sets out the fees payable to witnesses. The daily witness fee at present is $20 in addition to the travel costsA calculation of the allowable legal expenses of a party to a court proceeding, as determined by the Supreme Court Family Rules. The party who is most successful in a court proceeding is usually awarded their "costs" of the proceeding. See "account, "bill of costs," "certificate of costs," and "lawyer's fees." of the party being examined as follows:

  1. If the party being examined lives within 200 km by road (including any ferry route), currently $.30 per km each way by road between their residenceThe geographic place where a person permanently lives. This is different from a person's "domicile" in that a person's residence is more fixed and less changeable in nature. A person's residence can also have an impact on a court's authority to hear and decide a legal action. See "domicile" and "jurisdiction." and the place of the examination (but no payment if the distance is less than 8 km); or
  2. If the party being examined lives more than 200 km away, the minimum return air fare by scheduled airline plus currently $.30 per km each way from their residence to the departure airport and from the arrival airport to the place of the examination.

To prepare for an examination for discovery, whether you are the party being examined or the party conducting the examination, it is a good idea to reviewIn law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support." the pleadings, the financial statements and the documents produced by each party to the court proceeding. If you are the party conducting the examination, it is a good idea to prepare an outline of the issues in the court proceeding and the questions you want to ask the other party about each issue. You may want to consult a lawyer about the types of questions you can and should ask, and any areas of concern about the case, including any information you think may be privileged.

After the examination for discovery is completed, you can order a transcript of the questions and answers (of either party) from the court reporting service (for a fee) for use at trial. The court reporting service will provide one original and as many copies as you request (usually one is enough unless there are more parties to the lawsuit than just the two spouses). If you use the transcript at trial, you will provide the original to the judge and use the copy yourself.

Notice to Admit

A Notice to Admit provides an opportunity for each party to obtain from the other party admissions about facts and the authenticity of documents in order to simplify the presentation of evidence at trial and to shorten the time necessary for the trial. In other words, once a fact or the authenticity of a document is admitted, it is no longer a contentious issue at trial. Notices to admit are not mandatory and are not used in every family law court proceeding.

Notices to Admit are governed by Rule 9-6 of the Supreme Court Family Rules. The form to be used is Form F24 and must be served on the other party (at that party’s address of service set out in their Notice of Family ClaimA legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief." or Response to Family ClaimA legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings."). Each fact that is sought to be admitted should be set out in a separate numbered paragraph. In the case of documents whose authenticity are sought to be admitted, each document sought to be admitted should be listed/described in a separate numbered paragraph and copies of the documents must be attached to the notice to admit (Rule 9-6(3)).

The party served with a Notice to Admit then has 14 days from the date of service to respond in writing to the Notice of Admit and if that party fails to do so, the fact or authenticity of a listed document is deemed to be admitted. If the party served with a Notice to Admit seeks to deny an admission (or otherwise oppose the facts or documents set out in the notice to admit) that party must provide to the other party a written statement which:

  • specifically denies the truth of a fact or the authenticity of a document,
  • sets out in detail the reasons why the party cannot make the admission, or
  • states that the refusal to admit the truth of a fact or the authenticity of the document is based upon grounds of privilege or irrelevancy or that the request is otherwise improper and set out in detail the reasons for the refusal.

(See Rule 9-6(2) of the Supreme Court Family Rules).

Where a party has unreasonably refused to admit the truth of a fact or the authenticity of a document specified in a Notice to Admit, the court may order the party to pay costs of the other party in relation to steps taken to prove the fact or the authenticity of the document, or can deprive the party of costs that party would otherwise be entitled to.

Once a party has made an admission (by way of a notice to admit or in a pleadingA legal document setting out either a claim or a defence to a claim prepared at or following the start of a court proceeding. In the Provincial Court, the pleadings are the Application to Obtain an Order and Reply. In the Supreme Court, the pleadings include the Notice of Family Claim, Response to Family Claim, Counterclaim, Petition and Response to Petition. See "action," "claim" and "Counterclaim."), that party cannot withdraw it without the consent of the other party or by court order (see Rule 9-1(5) of the Supreme Court Family Rules). Admissions can be used as evidence at trial or on an application to the court (see Rule 9-1(6) Supreme Court Family Rules).

Interrogatories

Interrogatories are a form of written questions posed by one party to the other party in an effort to obtain information without the fullness and formality of an examination for discovery. As Interrogatories can only be used with the consent of the other party or by court order (see Rule 9-3(1) of the Supreme Court Family Rules), they tend to be used less frequently than other manners of discovery but can be useful to obtain specific information or details such as dates or the sequence of events, account numbers or other particulars, information about a corporation or a business, and the like.

Interrogatories are to be prepared in Form F22 of the Supreme Court Family Rules. If the court orders the Interrogatories be answered or the other party simply agrees to answer them, then the other party has 21 days to deliver their replyIn law, an answer or rebuttal to a claim made or a defence raised by the other party to court proceeding or legal dispute. See "action," "claim," "defence" and "rebut." to Interrogatories (see Rule 9-3(4) of the Supreme Court Family Rules) and the reply must be in the form of an affidavit. (See How Do I Prepare an Affidavit? in the How To part of this resource). As a result, the party answering the Interrogatories is swearing (or affirming) to the truth of the answers and will need to see a lawyer, a notary public or a court registry clerk. Interrogatories and replies to Interrogatories are not filed with the court.

A party answering Interrogatories may object to one or more Interrogatories on the basis of privilege or on the grounds that it does not relate to a matter at issue in the court proceeding (see Rule 9-3(6) of the Supreme Court Family Rules). In such circumstances, the responding party should indicate in the responding affidavit that the party objects to a specific interrogatory and the basis for the objection. The responding party may also apply to the court to strike out the interrogatory if they object to it on the grounds that it will not further the object of the Supreme Court Family Rules. When making its decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact.", the court must consider any offer made by the party to make the admissions sought, to produce documents or to give oral discovery.

If a court application is made to compel one party to answer Interrogatories, the court may set conditions such as the number or length of Interrogatories or the issues or topics the Interrogatories may cover (see Rule 9-3(3) of the Supreme Court Family Rules.

Pre-trial examination of witnesses

If a party needs information from someone who is not a party to the court proceeding and there is no other way to get the information, that party can apply to the court for an order to allow a pre-trial examination of that witness. Be forewarned that the court may also order that the examining party pay the reasonable lawyer’s costs of the person relating to the court application and the examination. Due to the expense involved in making the court application and paying the witness’ legal fees, in practice this process is rarely used, but it is permissible under Rule 9-4 of the Supreme Court Family Rules. For more information on the process for bringing interim applications, see Interim Applications in Family Matters in this section.

Rule 9-4(3) of the Supreme Court Family Rules requires the party making a court application for a pre-trial examination of a witness to present evidence, in the form of an affidavit (see How Do I Prepare an Affidavit?), which sets out:

(a) the matter in question in the family law case to which the applicantA party who brings an application to the court for a specific order or remedy. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application." believes that the evidence of the proposed witness may be material,
(b) if the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and
(c) that the proposed witness
(i) has refused or neglected on request by the applicant to give a responsive statement, either orally or in writing, relating to the witness' knowledge of the matters in question, or
(ii) has given conflicting statements.

The application materials must be served upon the proposed witness and part 10 of the Supreme Court Family Rules applies to the witness as if they were a party (see Rule 9-4(4) of the Supreme Court Family Rules).

If the court makes the order requiring a witness to attend a pre-trial examination, the party who obtained the order must serve upon the witness a subpoenaA legal document, issued by a court or by a party pursuant to the rules of court, which compels a person to attend court to give evidence as a witness, and, sometimes, to produce a specific document. Failure to obey a subpoena may constitute contempt of court. See "contempt of court," "evidence" and "witness." in Form F23.

  • The subpoena may require the witness to bring to the examination any document in the witness’ possession or control relating to the matters at issue in the court proceeding and any physical object in the witness’ possession or control that the party contemplates introducing as an exhibit at the trial (see Rule 9-4(5) of the Supreme Court Family Rules)
  • The subpoena does not need to identify any specific document or category of document, but must identify any object to be produced (see Rule 9-4(5) of the Supreme Court Family Rules).
  • The subpoena must be served upon the witness to be examined at least 7 days before the date of the scheduled examination (see Rule 9-4(5) of the Supreme Court Family Rules).

The examination is in the form of cross-examination and may be cross-examined by all parties. The party who obtained the order conducts the first cross-examination followed by the other party/parties to the court proceeding and the first party may conduct a further cross-examination of the witness at the end (see Rule 9-4(8) of the Supreme Court Family Rules). Unless the court otherwise orders, the examination of the witness cannot exceed 3 hours in total as conducted by both/all parties (see Rule 9-4(9) of the Supreme Court Family Rules).

Many of the rules that apply to the examinations for discovery also apply to pre-trial examination of witnesses: Rule 9-2 (11), (15), (17), (18) and (21) to (24) (see Rule 9-4(10) of the Supreme Court Family Rules).

Physical examination & inspection

Rule 9-5 of the Supreme Court Family Rules allow parties to apply to the court for the following additional orders:

(a) Order for medical examination: The court may order a party to submit to an examination by “a medical practitioner or other qualified person” if the physical or mental condition of the party is in issue in a family law case (and may make an order re (see Rule 9-5(1) of Supreme Court Family Rules). The court can also order that the result of the examination be put in writing and copies made available to the parties, and make orders about who will pay for the examination and report-writing.
(b) Order for inspection and preservation of property: The court may order the production, inspection and preservation of property or authorize samples to be taken or observations be made of the property or experiments be conducted on or with the property if it considers it necessary or expedient for the purposes of obtaining full information or evidence.
(c) Orders for entry on landReal property; a parcel of real property and the buildings upon it. See also "chattel," "ownership" and "possession." or building: The court may authorize a person to enter on any land or building for the purpose of enabling any other order under this Rule.

So far as is practicable, examinations and inspections ordered under this rule apply to persons residing outside British Columbia (see Rule 9-5(6) of the Supreme Court Family Rules).

This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.

The Provincial Court

The discovery process is far less extensive in the Provincial Court than in the Supreme Court. This means that there are fewer hoops to jump through in Provincial Court, but there are also fewer means to extract information and documents from the other side.

Family justice counselor & Parenting After Separation

As indicated in the earlier sections about starting and replying to a court proceeding in a family matter, in certain registries of the Provincial Court, the parties must meet with a family justice counsellor, and, if children are involved, attend a Parenting After Separation program before you can take any further steps in your case. This may apply even if you are seeking a default judgmentA judgment obtained by a claimant following the respondent's failure to reply to the claimant's claim within the proper time from service. In the Supreme Court, a respondent who has been properly served with a Notice of Family Claim has 30 days to file a Response to Family Claim. Once those 30 days have elapsed without the response being served on the claimant, the claimant may apply to the court for a judgment in default. This is the basis for divorce orders made under the desk order divorce process. See "desk order divorce" and "Response to Family Claim.". The court clerk at your court registry will tell you what is needed. If necessary, the court clerk will refer you to the family justice counsellor and tell you where the Parenting After Separation program is offered.

Family justice counsellors can provide information that may help to resolve the court proceeding; they can also serve as mediators if both parties are prepared to try mediationA dispute resolution process in which a specially-trained neutral person facilitates discussions between the parties to a legal dispute and helps them reach a compromise settling the dispute. See "alternative dispute resolution" and "family law mediator.".

The Parenting After Separation program is very useful to take, and you should seriously consider taking the course even if it isn't required in your court registry. The program is available online. The online course does not replace the need to attend an in-person course if that is otherwise required. You will have to file a certificate that you've completed the program.

First appearance

Parties to a court proceeding in Provincial Court are required to attend a first appearance which is scheduled by the judicial case manager and without consultation with the parties as to the date.

The judge at the first appearance (or any subsequent appearance) may do one or more of the following:

(a) make an order that all parties consent to in respect of all or any part of what is claimed in the application or reply;
(b) make an interim orderAny order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final order. See "application" and "interim application." under section 216 or 217 of the Family Law Act;
(c) if a party has failed to provide financial information in accordance with rule 4,
(i) make an order requiring the party to file that financial information within a set time,
(ii) draw an adverse inference from that failure and impute an amount of income to that party that the judge considers appropriate,
(iii) make an interim order under section 216 or 217 of the Family Law Act, and
(iv) if the judge considers that the circumstances justify it, make a final order;
(d) adjourn the case for a specified period of time that the judge considers appropriate;
(e) order a party to allow another party to inspect and copy records, specified in the order, that are or have been in that other party's possession or control or, if not in that other party's possession or control, are within that other party's power;
(f) set a date for a family case conference under rule 7;
(g) set a date for a trial preparation conference under rule 8;
(h) if the judge does not set a date for a family case conference or for a trial preparation conference, set a trial date for the matter or set a date for a trial that is restricted to issues defined by the parties;
(i) make a conduct order under Division 5 of Part 10 of the Family Law Act, including an order
(i) requiring the parties to participate in family dispute resolutionThe processes used to conclusively resolve legal disputes including negotiation, collaborative settlement processes, mediation, arbitration and litigation. within the meaning of the Family Law Act, or
(ii) requiring one or more parties or, with or without the consent of the childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."'s guardianA person charged with the legal care of someone under a legal disability. A term under the ''Family Law Act'' referring to a person, including a parent, who is responsible for the care and upbringing of a child through the exercise of parental responsibilities. See "disability," "parental responsibilities" and "parenting time.", a child, to attend counselling, specified services or programs;
(j) hear evidence and make an interim or final order for child or spousal support or for guardianship, parenting arrangementsA term under the ''Family Law Act'' which describes the arrangements for parental responsibilities and parenting time among guardians, made in an order or agreement. "Parenting arrangements" does not include contact. See "contact," "guardian," "parental responsibilities" and "parenting time." or contact with a child; or
(k) make any other order or give any direction that the judge considers appropriate.

Financial Statements

If a Provincial Court proceeding involves spousal support or child support, each party must prepare and file a Financial Statement. A Financial Statement sets out a party's income, expenses, assets and liabilities and is sworn on oath or affirmation, just like an affidavit, before a lawyer, notary public, or registry clerk.

Each party must attach to their Financial Statements the following documents:

  1. the last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return summaries or informations),
  2. all notices of assessment and reassessment received for the last three tax years,
  3. the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and
  4. business records like financial statements and corporate income tax returns, if the party has a company.

The form you must use is Form 4, set out in the Provincial Court (Family) Rules. The Financial Statement should be filed at the same time as the application or the reply. You will need to file the original (which the registry will keep for its file) and 3 copies (including all of the attachments), and then provide one copy to the other party.

Financial Statements are very important in family law proceedings. The portions about income are critical for determining child support and spousal support, and the expenses portion must be carefully completed. Since Financial Statements are sworn statements, someone making a Financial Statements can find their credibility being challenged if the numbers don't make sense, if they are overblown or understated, if they omit critical information, or if they are outright fabrications.

Resources and links

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