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

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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.
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*[[Disclosure and Discovery in Supreme Court Family Law Proceedings|BC Supreme Court]] disclosure and discovery, or
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. 
*[[Disclosure and Provincial Court Family Law Proceedings|Provincial Court]] disclosure
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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 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 [http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/169_2009_00 Supreme Court Family Rules] requires that Financial Statements be filed and served upon the other party within a 30 day time frame as follows:
<blockquote><tt>
(a) if the disclosing party's <span class="noglossary">obligation</span> 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).
</tt></blockquote>
 
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.
* P'''art 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:
# 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 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,
# 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.
 
The form you must use is Form F8, set out in the [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html Supreme Court Family Rules].
 
=== 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. 
 
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 [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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 [http://canlii.ca/en/bc/laws/regu/bc-reg-169-2009/latest/bc-reg-169-2009.html 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>

Latest revision as of 19:45, 2 April 2025

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A step in a court proceeding in which each party advises the other of the documents in their possession which relate to the issues in the court proceeding and produces copies of any documents the other side requests before trial. This process is regulated by the rules of court, which put each party under an ongoing obligation to continue to advise the other of new documents coming into their possession or control. The purpose of this step is to encourage the settlement of court proceedings and to prevent a party from springing new evidence on the other party at trial.

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."

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