Discovery and Disclosure in Family Law: Difference between revisions

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.

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 [http://canlii.ca/t/8mcr 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.   

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 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.

* '''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.

# 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),

# all notices of assessment and reassessment received for the last three tax years,

# 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,

# business records like financial statements and corporate income tax returns, if the party has a company, and

# the most recent BC Assessments for all real property.

:(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).  

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 list of documents ([[Form F20 List of Documents |Form F20]]) is divided into 5 parts:

:::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;

:::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 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.   

:(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.