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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 form you must use is Form F8, set out in the Supreme Court Family Rules. | The form you must use is Form F8, set out in the Supreme Court Family Rules. | ||
=== Discovery of | === 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 documents in a family law proceeding. 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 possession. | Rule 9-1 of the Supreme Court Family Rules sets out the entitlement to and requirements for production and inspection of documents in a family law proceeding. 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 possession. | ||
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Documents received in the context of a legal proceeding are confidential and not to disclosed or used for any purpose beyond the scope of the proceeding (i.e.: showing to friends or family or using 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 court. | Documents received in the context of a legal proceeding are confidential and not to disclosed or used for any purpose beyond the scope of the proceeding (i.e.: showing to friends or family or using 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 court. | ||
=== Examination for | === 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, which 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: | 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, which 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: | ||
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=== Notice to Admit === | === Notice to Admit === | ||
A | 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 | 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 | 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; | # 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 | # Set out in detail the reasons why the party cannot make the admission; or | ||
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(See Rule 9-6(2) of the Supreme Court Family Rules). | (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 | 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). | 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). | ||
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=== Interrogatories === | === 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 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 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?]]). 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 | 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 he/she objects 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 | 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 | === 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]]. | 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]]. | ||
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Rule 9-2 (11), (15), (17), (18) and (21) to (24) (see Rule 9-4(10) of the Supreme Court Family Rules). | Rule 9-2 (11), (15), (17), (18) and (21) to (24) (see Rule 9-4(10) of the Supreme Court Family Rules). | ||
=== Physical | === Physical examination & inspection === | ||
Rule 9-5 of the Supreme Court Family Rules allow parties to apply to the court for the following additional orders: | 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. | :(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. | ||
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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. | 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 | === 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. | 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. | ||
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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. | 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 | === First appearance === | ||
Parties to a court proceeding in Provincial Court are required to attend a “first appearance” which is scheduled by the | 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: | The judge at the first appearance (or any subsequent appearance) may do one or more of the following: | ||
