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Difference between revisions of "Discovery and Disclosure in Family Law"
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Discovery and Disclosure in Family Law (view source)
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The examination for discovery of each party is limited to 5 hours (see Rule 9-2(2) of the [http://canlii.ca/t/8mcr 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 judge, but a court official who has the power to administer oaths and is authorized to record verbatim evidence. | The examination for discovery of each party is limited to 5 hours (see Rule 9-2(2) of the [http://canlii.ca/t/8mcr 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 judge, 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. | 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 fully prepared for the examination for discovery. In addition, while the evidence given at the examination for Discovery is not determinative of the outcome of the court proceeding it often has a significant impact on settlement negotiations subsequent to the examination for discovery and on the trial itself. | 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 fully prepared for the examination for discovery. In addition, while the evidence given at the examination for Discovery is not determinative of the outcome of the court proceeding it often has a significant impact on settlement negotiations subsequent to the examination for discovery and 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. | 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: | 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: | ||
:(a) Wear clean, neat, comfortable clothing; | |||
:(b) Treat all persons in the meeting room with respect; | |||
:(c) Consider this an important and formal occasion. Avoid “getting chummy” with the opposing lawyer. Act professionally, as you would at a job interview; | |||
:(d) Tell the truth – the best questioner cannot touch a witness who is telling the truth. | |||
:(e) Listen carefully to every question in order to hear the entire question and ensure understanding of the question; | |||
:(f) Speak clearly and loudly so that the Court Reporter can hear the answer, including saying “Yes” or “No”, instead of mumbling. The Court Reporter cannot transcribe a head nod or shake; | |||
:(g) Ask for clarification if the person does not understand a question; the questioner will rephrase it; | |||
:(h) 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”. | |||
:(i) Answer only the question asked, and not volunteer additional information. . | |||
:(j) 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. | |||
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]]. | |||
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 7 days in advance of the date scheduled for the examination for discovery ([http://canlii.ca/t/8mcr 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), $.30 per km each way by road between his/her 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 $.30 per km each way from his/her 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. | |||
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 [http://canlii.ca/t/8mcr 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: | |||
# Specifically denies the truth of a fact or the authenticity of a document; | |||
# Set out in detail the reasons why the party cannot make the admission; or | |||
# State 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 [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr Supreme Court Family Rules]). | |||
Admissions can be used as evidence at trial or on an application to the court (see Rule 9-1(6) [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr 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) [http://canlii.ca/t/8mcr Supreme Court Family Rules]) and the reply must be in the form of an affidavit LINK NEEDED TO TERM AFFIDAVIT. 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 [http://canlii.ca/t/8mcr 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 he/she objects to it on the grounds that it will not further the object of the [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr Supreme Court Family Rules]. For more information on the process for bringing interim applications, see [[Interim Applications in Family Matters]]. | |||
Rule 9-4(3) of the [http://canlii.ca/t/8mcr 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 LINK NEEDED, which sets out: | |||
<blockquote><tt> | |||
:(a) the matter in question in the family law case to which the applicant 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. | |||
</tt></blockquote> | |||
The application materials must be served upon the proposed witness and part 10 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] applies to the witness as if he or she were a party (see Rule 9-4(4) of the [http://canlii.ca/t/8mcr 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 subpoena in [[Form F23 Subpoena to Witness|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 [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr 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 [http://canlii.ca/t/8mcr 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 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. | |||
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 [http://canlii.ca/t/8mcr 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 [http://www.familylaw.lss.bc.ca/resources/fact_sheets/parent_after_separation.php 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. | |||
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 mediation. | |||
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 [http://parenting.familieschange.ca/ 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: | |||
