Disclosure and Provincial Court Family Law Proceedings
The disclosure process is all about learning — or "discovering" — the other party's case. It's about getting information and documents from the other party that are relevant to the legal issues in a court proceeding, including the information and documents that the other side intends to use to prove their case at trial.
The process is crucial because it allows you to gather the information necessary to evaluate the strengths and weaknesses of both your case and the opposing party's case. This evaluation not only helps you prepare for trial, but also lets you gauge your chances of success. In addition, it positions you to respond effectively to any settlement offers from the other party and to craft your own. As you undergo this process, it's wise to consult a lawyer who can advise you on what must be disclosed to the other party, what you need to prove in court for your case to succeed, and what information to look for in the other party's case.
Introduction
In Canada, we don't litigate with cards up our sleeves. Instead, all of everyone's cards are on the table face up. This may not make a lot of sense right away, partly because of what we see in American movies and televisions shows, but the point is to cut through the bullshit to give each court proceeding the best possible chance of settling without having to go through a trial. As Justice Punnett said, in the 2013 BC Supreme Court case of J.D.G. v J.J.V., 2013 BCSC 1274, "the goal of proper disclosure is to enable the parties to resolve their dispute." While that was a BC Supreme Court case, the guiding principles of that case are influential in the Provincial Court too.
Providing relevant information in advance of trial makes it possible to settle a dispute without appearing in court. Hearings and trials are expensive, and not just for the parties. The government and even the court itself has an interest in encouraging settlement and reducing the administrative burden of holding hearings and trials in every family law case. The more each party understands their own case's strengths and weaknesses and the other party's case's strengths and weaknesses, the greater the chance that the two sides will find a reasonable compromise. The law makers and the court administration know this.
As a result, the Family Law Act and the Provincial Court Family Rules have parts intended to speed up the disclosure process, and automate as much disclosure as possible. For example, section 5(1) of the Family Law Act states that "a party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute." As another example, when someone starts a court proceeding asking for orders about child support or spousal support, , they must file a Form 4 Financial Statement along with their initiating Form 3 Application About a Family Law Matter. And when the respondent files their Form 6 Reply to an Application About a Family Law Matter, they too must file a complete Form 4 Financial Statement.
The Family Law Act and the Child Support Guidelines
The Family Law Act is a provincial law and says a lot about the discovery process. Section 5 imposes a duty on the people involved in a family law dispute applies to everyone who is involved in a family law dispute, not just people who are going to court about their family law dispute. This section says that:
(1) A party to a family law dispute must provide to the other party full and true information for the purposes of resolving a family law dispute.
(2) A person must not use information obtained under this section except as necessary to resolve a family law dispute.
Subsection (2) is pretty important. It's there to encourage people to comply with their obligation to produce documents and information in the disclosure process by letting them know that the person they give their documents and information is required to keep those documents and information confidential. Those documents and information may not be used for any purpose except for the family law dispute, which means that they can't be copied and be given to relatives and coworkers, they can't be stapled to telephone poles, they can't be posted on Facebook or Instagram, they can't be put up on someone's website, and they can't be emailed to journalists. Documents and information that are produced in the disclosure process are to be kept confidential!
However, the Family Law Act also goes a bit further. Under section 212(1), the court may make an order requiring a party to disclose documents and information at any time in a court proceeding, and under section 212(3):
(3) A person must not disclose information obtained under an order made under this section except
(a) as necessary to resolve a family law dispute, and
(b) in accordance with the order.
The hammer shows up in section 213, which lists the penalties a court may order against someone who fails to comply with either an order made under section 212 or a disclosure obligation in the Provincial Court Family Rules, including where the person produced documents and information that are "incomplete, false or misleading:"
(1) This section applies if a person
(a) fails to comply with
(i) an order for disclosure made under section 212, or
(ii) a requirement to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, within the time or in the manner required by the order or Rules, or
(b) provides information that is incomplete, false or misleading.
(2) In the circumstances set out in subsection (1), the court may do one or more of the following:
(a) make an order under section 212;
(b) draw an inference that is adverse to the person, including attributing income to that person in an amount that the court considers appropriate, and make an order based on the inference;
(c) require a party to give security in any form that the court directs;
(d) make an order requiring the person described in subsection (1) to pay
(i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or the incomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution,
(ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure, or
(iii) a fine not exceeding $5 000;
(e) make any other order the court considers appropriate.
That's a heavy hammer.
Finally, Federal Child Support Guidelines apply to a family law case in Provincial Court involving the Family Law Act — even though the Guidelines technically come under the Divorce Act, and even though the Provincial Court cannot hear Divorce Act claims under that act. This is because section 8 of the Family Law Act Regulation makes reference to the Guidelines, and adopts them for use in the provincial legislation. The adoption of the Guidelines includes its rules for disclosing financial information under section 21, as well as the penalties for not providing this information under sections 22, 23, and 24 of the Guidelines.
The Provincial Court Family Rules
The discovery process is less extensive under the Provincial Court Family Rules than it is in the family rules of the BC Supreme Court. As a result, while there are fewer hoops to jump through to get to trial in Provincial Court, you also have fewer ways of getting information and documents from the other side.
Form 4 Financial Statement
If a court proceeding involves spousal support or child support in any way — including claims to change an existing support obligation or cancel arrears of support that have accumulated &mdash the Provincial Court Family Rules say that each party must prepare and file a Form 4 Financial Statement.
Financial Statements require each party to describe their income, expenses, assets and liabilities. Each party must swear or affirm that what they've said in their Form 4 Financial Statement is true before a lawyer, notary public, or registry clerk, just like an affidavit. Each party must also provide a number of documents with their Form 4:
- their personal tax returns for the last three tax years;
- all notices of assessment and notices of reassessment they've received for the last three tax years;
- their most recent paystub showing their earnings to date, or another proof of their current income such as a letter from their employer or their most recent WCB statement, social assistance statement, or EI statement; and,
- if they have a company, business records like corporate income tax returns and corporate financial statements.
Note that when the Form 4 talks about "personal income tax returns," what's required is the Canada Revenue Agency's T1 Income Tax and Benefit Return, not a tax return summary or a tax return information.
The applicant's Form 4 Financial Statement should be filed at the same time as their Form 3 Application About a Family Law Matter. The respondent's Form 4 should be filed with their Form 6 Reply to an Application About a Family Law Matter. You will need to file the original, which the registry will keep for the court file, along with another copy so that you have a copy too (and so you can provide a copy to the other side).
Financial Statements are very important in family law proceedings. They are critical for determining child support and spousal support, and you mustn't take a casual "guesstimating" kind of approach to filling them out. You should expect that the other side will be reading your Financial Statement very carefully, and that you will find your credibility being challenged if the numbers don't make sense, if they're overblown or understated, or if they omit critical information. Now, to be fair, filling out this form can be difficult. The "expenses" part of the form is often the first time many people have sat down to work out what they spend in the average month on things like the cable bill, car insurance, dry cleaning, life insurance, hair cuts, and clothing. However, if the total of the "expenses" part is a lot higher than your total income in the "income" part, which it often is, I'm expecting to see a lot of debts in the "assets and debts" part of the form or I'm going to have a lot of trouble believing you!
Family Management Conferences
Family Management Conferences ("FMCs") are discussed in more detail in the section on Conferences and Provincial Court Family Law Proceedings within this chapter. FMCs are now a standard part of a case involving a family law matter in Provincial Court, and they happen early on. Disclosure issues is one of the things that can be addressed at this early meeting. The judge or family justice manager conducting the FMC has an opportunity to review what's missing in terms of undisclosed evidence. They can then make case management orders requiring further disclosure as appropriate. Judges can make more broad orders than family justice managers, but both have the power to order disclosure of information and exchange of evidence.
Rule 62 of the Provincial Court Family Rules says what a judge can include in a case management order. Rule 63 says what a family justice manager can include. These orders can be really important to promote settlement or help you prepare for trial, especially orders about Form 4 Financial Statements.
Family Settlement Conferences
The purpose of these settlement conferences is to help the parties reach an agreement, however these conferences can also be used to help prepare the parties for trial or a hearing. A judge at a family settlement conference can make an order under Rule 108(f) of the Provincial Court Family Rules for disclosure of information.
Trial Preparation Conferences
A judge who sets a court proceeding for trial may also set a date for a Trial Preparation Conference. Trial Preparation Conferences are short hearings before a judge in court to discuss how the trial will proceed and what, if any, additional steps must be taken to get the court proceeding ready for trial. These steps might include exchanging documents and information, or organizing experts' reports. Rule 112 of the Provincial Court Family Rules deals with what can happen at a Trial Preparation Conference, including the judge's orders and directions about:
(b) the evidence to be required at the trial;
[...]
(f) the filing and exchange of lists of documents;
[...]
(i) requiring that a party
(i) disclose information, including financial information, that may assist in readiness for trial,
(ii) allow inspection or copying of, or bring to trial, specified records that are or have been in the party's possession, power or control,
(iii) submit evidence by affidavit at the trial in accordance with any specific directions given by the judge, or
(iv) serve on each other party a written summary of the proposed evidence of a witness within a period, or by a date, specified by the judge;
This is just one of the reasons why it's important to prepare for Trial Preparation Conferences. By the time this conference rolls around, you should be well on your way to being ready for your trial. You should have organized all of the documents and information you're going to need to prove your case, including all of the documents and information that you need from the other party. If you need anything from the other side to help you prepare your case — from income tax returns, to bank statements, to report cards, to doctors' reports, to paystubs — this is the time to ask for an order that the other give you copies of those things.
Trial Preparation Conferences are discussed in the section on Conferences and Provincial Court Family Law Proceedings within this chapter.
Resources and links
Legislation
Resources
- Legal Aid BC's Family Law website:
- Complete a Provincial Court Financial Statement (Form 4), a step-by-step guide
- What is financial disclosure?, information page
- Preparing financial documents, information page from Provincial Court's website
- Legal Aid BC's Family LawLINE and duty counsel information page
Links
- J.D.G. v J.J.V., 2013 BCSC 1274
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Kendra Marks, 2 January 2025. |
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 JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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