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

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=== Discovery of Documents & Lists of Documents ===
=== Discovery of Documents & Lists of Documents ===
Rule 9-1 of the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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 [http://canlii.ca/t/8mcr 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:
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
:(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.
:(2) all other documents to which that party intends to refer to at trial.
(see Rule 9-1(1) of the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules]).  
(see Rule 9-1(1) of the [http://canlii.ca/t/8mcr 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.
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.
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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).   
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 [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules] defines “document” as:
It is important to understand that the term “document” is not restricted to paper documents.  Rule 1-1(1) of the [http://canlii.ca/t/8mcr Supreme Court Family Rules] defines “document” as:
<blockquote><tt>'''"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.</tt></blockquote>
<blockquote><tt>'''"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.</tt></blockquote>



Revision as of 17:42, 13 June 2017

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[edit]

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[edit]

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[edit]

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).

Each party is required to keep their list of documents up-to-date. Rule 9-1(6) states:

(6) If, after a list of documents has been served under this rule,
(a) it comes to the attention of the party serving it that the list is inaccurate or incomplete, or
(b) there comes into the party's possession or control a document that could be used by any party at trial to prove or disprove a material fact or any other document to which the party intends to refer at trial,
the party must promptly amend the list of documents and serve the amended list of documents on the other parties.

Each party is entitled to ask that additional documents be produced if they think that there are documents or categories of documents missing from the list of documents provided by the other party (see Rule 9-1(7) & (8)) The request must be in writing. If the party faced with the request for additional documents does not provide the requested documents (and an amended list of documents listing the additional documents) within 35 days of receiving the request, the party making the request can make an application to the court (see Rule 9-1(9) & 10). This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.

Each party is also entitled to ask for copies of the documents listed on the other party’s list of documents (see Rule 9-1(13)) and to ask to inspect (to view) the originals of the documents listed on the other party’s list of documents (see Rule 9-1(12); also Rule 9-1(14)). If the party wants copies of any of the listed documents, that party is required to pay for the copies in advance of receiving them (see Rule 9-1(13)).

If there are documents that are necessary to prove or disprove a fact at trial but are not in the possession or control of either party, then either party may make an application to the court for the production of copies of the documents by a person or organization or business who is not a party to family law proceeding (which application must be served on the person or organization or business sought to produce the documents) (see Rule 9-1(15). For more information on the process for bringing interim applications, see Interim Applications in Family Matters.

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 Discovery[edit]

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:

  1. 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;
  2. 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;
  3. 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
  4. 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.

The examination for discovery of each party is limited to 5 hours (see Rule 9-2(2) of the 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. 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. 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: