Difference between revisions of "Discovery and Disclosure in Family Law"

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 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 contact 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.

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:

*Tell the truth – the best questioner cannot touch a witness who is telling the truth.

*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”.   

*Not exaggerate or understate the facts.  Avoid using the words “never” and “always”.

The examination for discovery is in the nature of a cross-examination. 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.   

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 costs of the party being examined as follows:

# 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 residence and the place of the examination (but no payment if the distance is less than 8 km);  or

# 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 review 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.

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 Claim or Response to Family Claim).  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:

*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 pleading), 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).  

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 reply 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 decision, 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.

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:

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).   

* 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 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).   

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 land 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.

=== 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 [http://www.clicklaw.bc.ca/resource/1638 Parenting After Separation] program before you can take any further steps in your case. This may apply even if you are seeking a default judgment. 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.  

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 order 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 resolution within the meaning of the ''[[Family Law Act]]'',  or  

::(ii) requiring one or more parties or, with or without the consent of the child's guardian, 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 arrangements or contact with a child; or

:(k) make any other order or give any direction that the judge considers appropriate.