Discovery and Disclosure in Family Law: Difference between revisions

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) they are taking.  

(a) if the disclosing party's <span class="noglossary">obligation</span> arises because of a claim they made, they 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;

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 their 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.

Each party must attach a number of important documents to their Financial Statements:

# 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),

# the party's three most recent paystubs, which should include their earnings to date for the year, or if the party isn't working, then their most recent WCB statements, social assistance statements, EI statements, or CPP disability statements,

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.

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:

:'''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;

:'''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.   

:::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 they do 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 the section [[Preparing for Trial in Family Matters |Preparing for Trial]]) in this chapter.   

This is another area where it would be good to seek independent legal advice before taking this step.

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]].

Documents received in the context of a legal proceeding are confidential and not to be disclosed or used for any purpose beyond the scope of the proceeding (i.e. you can't show them to friends or family or use them 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.

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. This 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:

* 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;  

* 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;

* 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

* 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 five 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.

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 is fully prepared for the examination for discovery.  In addition, while the evidence given at the examination for discovery does not determine the outcome of the court proceeding, it often has a significant impact on settlement negotiations after the examination for discovery. It can also have an impact on the trial itself.  

*Wear clean, neat, comfortable clothing.

*Treat all persons in the meeting room with respect.

*Consider this an important and formal occasion.  Avoid getting chummy with the opposing lawyer. Act professionally, as you would at a job interview.

*Tell the truth – the best questioner cannot touch a witness who is telling the truth.

*Listen carefully to every question in order to hear the entire question and ensure understanding of the question.

*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.  

*Ask for clarification if the person does not understand a question; the questioner will rephrase it.

*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”.   

*Answer only the question asked, and not volunteer additional information.

*Not exaggerate or understate the facts.  Avoid using the words “never” and “always”.

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]] in this section.

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 seven days in advance of the date scheduled for the examination for discovery (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), currently $.30 per km each way by road between their 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 currently $.30 per km each way from their residence to the departure airport and from the arrival airport to the place of the examination.

*specifically denies the truth of a fact or the authenticity of a document,

*sets out in detail the reasons why the party cannot make the admission, or

*states 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.

''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 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?]] in the ''How To'' part of this resource).  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 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 they object 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 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]] in this section.

The application materials must be served upon the proposed witness and part 10 of the Supreme Court Family Rules applies to the witness as if they were a party  (see Rule 9-4(4) of the Supreme Court Family Rules).   

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 last three years' worth of tax returns (what's required is the complete income tax and benefit return, not tax return summaries or informations),

# the party's most recent paystub, showing their earnings to date, or if the party isn't working, then their most recent WCB statement, social assistance statement, or EI statement, and

Financial Statements are very important in family law proceedings. The portions about income are critical for determining child support and spousal support, and the expenses portion must be carefully completed.  Since Financial Statements are sworn statements, someone making a Financial Statements can find their 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.