Discovery and Disclosure in Family Law

The discovery process involves learning about (or “discovering”) the other party’s case. It allows each party to learn about the information and evidence that the other party intends to use at trial (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) the party is taking.

The discovery process is an important process because it allows you to collect the information you need to assess 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 settlement offers you wish to make. It is a good idea to consult a lawyer 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 Court

The discovery process is more extensive in the Supreme Court than in the Provincial Court. 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 proceeding involves a claim for spousal support, child support, the division of property or the division of debt, each party must prepare and file a Financial Statement (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 oath or affirmation, just like an affidavit, before a lawyer, notary public, or court registry 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 he or she made, he or she 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;

(b) if the disclosing party's obligation 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 registry 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 his or her 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, account 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 hardship. 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 to their Financial Statements a number of important 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 three most recent paystubs, which should include his or her earnings to date for the yea, or if the party isn't working, then his or her most recent WCB statements, social assistance statements, EI statements, or CPP disability 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 property.

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 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.

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 material 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 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 action;

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 privilege 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 he/she does not intend to rely on it at trial (if the party does intend to rely on it, then it becomes expert evidence which is discussed in more detail in Preparing for Trial).

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 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).

A 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 at trial. See "examination for discovery."

In 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."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

Facts, or proof tending to support the existence 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."

The testing of the claims 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 decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

To determine the proper value or worth of something. A lawyer's bill may be assessed by a registrar to determine the actual amount the client should pay. See "appraisal."

A 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."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has 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."

A 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 family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

A 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.

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

Money 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.

Something which can be owned. See "chattels" and "real property."

A 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.

A 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. The Provincial Court Family Rules and the Supreme Court Family Rules each have a form called Financial Statement. See "affirm," "oath," and "perjury."

In 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. People making affidavits and giving oral evidence in court will often give their evidence under oath. See "affidavit," "affirm," "perjury" and "witness."

A legal document in which a person provides evidence of certain facts and events in writing. The person making the affidavit, the deponent, must confirm that the statements made in the affidavit are true by oath or affirmation. Affidavits must be signed in front of a lawyer, a notary public or a commissioner for taking oaths, who takes the oath or affirmation of the deponent. Affidavits are used as evidence, just as if the person making the affidavit had made the statements as a witness at trial. See "deponent", "affirm," "oath" and "witness."

A 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.”

A 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 mandatory direction of the court that is 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. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

A duty, whether contractual, moral, or legal in origin, to do or not do something. See "duty."

(1) A 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, or (2) a courthouse.

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

In the context of family law, this phrase comes up in Child Support Guidelines as well as applications to waive court fees. The term "undue" essentially means excessive, exceptional, or disproportionate. for example, if someone would have to sacrifice a reasonable expense in their life in order to pay the amount in question, this would be an undue hardship. In the Child Support Guidelines this term describes circumstances when payment of the table amount of child support would cause financial difficulty for either the payor or the recipient of support, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount."

In 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."

A parcel of land including any buildings on that land. See "chattel," "ownership" and "possession."

The right of a party to a court proceeding to look at and copy documents held by the other party that relate to any issues in the proceeding; part of the discovery and production process. See "disclosure" and "discovery."

In law, (1) 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 (2) a specific hearing or trial. See "action."

In 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."

In law, something that is relevant or important. A material fact, for example, is a fact relevant to a claim or a defence to a claim. See "claim," "evidence" and "fact."

The claims made by a respondent in a court proceeding against the person starting the court proceeding. The legal document required by the Supreme Court Family Rules in which a respondent sets out their counterclaims against a claimant, is a form called a Counterclaim. See "Notice of Family Claim" and "Response to Family Claim."

A 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.

In law, (1) 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, or (2) the client's right to have their confidential communications kept secret and protected from disclosure. See "lawyer."

Opinion evidence given by an expert at trial, orally, in an affidavit or in a formal 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."

In law, (1) a written argument, or (2) 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.