Discovery and Disclosure in Family Law

The discovery and 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 discovery and disclosure process is important because it lets you collect the information you need to assess the strengths and weaknesses in your case and in the other party’s case. This helps you to prepare for trial, assess your chances of success at trial, respond to any settlement offer you might get from the other party, and prepare your own settlement offer. It's a good idea to consult a lawyer as you begin the discovery and disclosure 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.

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 Supreme Court case of J.D.G. v J.J.V., "the goal of proper disclosure is to enable the parties to resolve their dispute." Justice Fraser was even more blunt, in his 1994 decision in a Supreme Court case called Cunha v Cunha:

"Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained [parties] simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done."

If you have a smoking gun that will devastate the other party's case, isn't it better to let everyone know about that as soon as possible so that you can resolve the case quicker and for less money than if you had to go to trial?

In family law, each side to a case has the same interest in finding out what each other's income is, knowing each other's physical and mental health, getting the likely sale price of the family home, and knowing how much money is in everyone's investment and RRSP accounts. The discovery and disclosure process is all about exchanging the information and documents necessary to understand each other's case. Even the court has an interest in making sure that each party understands every other party's case because of the administrative and other costs involved in running trials.

As a result, the Family Law Act and the rules of court, particularly the rules of the Supreme Court, are chock full of rules intended to speed the discovery and disclosure process, and automate as much disclosure as possible. For example, when someone starts a court proceeding asking for orders about child support, spousal support and the division of property and debt, Rule 5-1(11) requires them to file a Financial Statement in Form F8 within 30 days of filing the Notice of Family Claim. Rule 5-1(13) lets the other side ask for more details if the Financial Statement is vague, and a person filing a Financial Statement is under a continuing obligation to keep the information accurate and up-to-date under Rule 5-1(15). Likewise, Rule 9-1 requires someone who started a court proceeding to serve a List of Documents in Form F20 within 35 days of getting the other side's Response to Family Claim, and they are under a continuing obligation to keep the list accurate and up-to-date. Under Rule 9-1(1)(a), the List of Documents is supposed to list:

(i) all documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial

And all of this is automatic. The disclosure obligations described in these rules are triggered just because someone has started, or decided to defend, a family law court proceeding. They don't depend on someone making a request or otherwise asking nicely.

As you'll learn in the rest of this section, there are even more rules about discovery and disclosure that do require someone to make a request. They include rules that let a party ask someone questions under oath or affirmation outside the courthouse, rules that let a party require someone to answer questions in an affidavit, and rules that let a party get documents and other information from people who aren't even involved in the court proceeding! The discovery and disclosure process is a critical part of the litigation process that the court takes very, very seriously.

Rules about discovery and disclosure in the legislation

It's not just the rules of court that have rules intended to encourage the discovery and disclosure process. The Family Law Act and the Divorce Act talk about discovery and disclosure as well. If a party to a court proceeding isn't complying with their obligations under the legislation, you can apply to court for an order forcing them to comply.

The Divorce Act and the Child Support Guidelines

Because court processes are developed by the provinces and territories, the Divorce Act, a federal law, is pretty quiet about those things. It's not the job of the federal government to tell the provincial and territorial governments how to run their courts. However, the federal government does share jurisdiction over child support with the provinces, and section 7.4 of the Divorce Act imposes a duty on the people involved in a court proceeding to provide accurate information to each other and keep that information up to date:

A party to a proceeding under this Act or a person who is subject to an order made under this Act shall provide complete, accurate and up-to-date information if required to do so under this Act

That's important because section 26.1(1) lets the government makes regulations about how child support is calculated, including:

(h) respecting the production of information relevant to an order for child support and providing for sanctions and other consequences when that information is not provided.

And this is the "information" that a litigant can be required to provide under section 7.4. The details about what kind of "information" is relevant to an order for child support are listed in section 21 of the Child Support Guidelines, a regulation to the Divorce Act.

(1) A spouse who is applying for a child support order and whose income information is necessary to determine the amount of the order must include the following with the application:

(a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years;

(b) a copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years;

(c) where the spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration;

(d) where the spouse is self-employed, for the three most recent taxation years

(i) the financial statements of the spouse’s business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length;

(e) where the spouse is a partner in a partnership, confirmation of the spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;

(f) where the spouse controls a corporation, for its three most recent taxation years

(i) the financial statements of the corporation and its subsidiaries, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;

(g) where the spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and

(h) in addition to any income information that must be included under paragraphs (c) to (g), where the spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.

(Under section 21(2), this rule also applies to people who are being asked to pay child support.)

Under section 25 of the Guidelines, each person who is obliged to provide this "information" is under a continuing obligation to provide it, and must do so "on the written request of the other spouse" not more than once each year after a child support order is made. The potential penalties for not providing this information are found in sections 22, 23 and 24 of the Guidelines, and include the judge:

1. making orders that the party provide the required information;
2. making an adverse inference against the party who failed to provide the required information, in other words, making assumptions that are against the interest of that party, like that they have more income than they say they do;
3. deciding that the party who failed to provide the required information is in contempt of court; and,
4. awarding costs in favour of the other party.

The Family Law Act and the Child Support Guidelines

The Family Law Act is a provincial law, and accordingly says a lot more about the discovery and disclosure process. Section 5 of the Family Law Act imposes a duty on the people involved in family law dispute that's pretty similar to the duty imposed by section 7.4 of the Divorce Act, except that this duty 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 discovery and 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, Twitter 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 discovery and 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 prescribes the penalties a court may impose when someone fails to comply with either an order made under section 212 or a disclosure obligation in the Provincial Court Family Rules and the Supreme Court Family Rules, including by providing 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, the Child Support Guidelines are adopted for the purposes of the Family Law Act by section 8 of the Family Law Act Regulation. That includes the financial information that must be produced under section 21 of the Guidelines, discussed above, as well as the penalties for not providing this information under sections 22, 23 and 24. It's safe to assume that all of the Guidelines apply to court proceedings under the Family Law Act just as they do to court proceedings under the Divorce Act.

The Provincial Court

The discovery process is less extensive in the Provincial Court than it is in the 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.

The information in this section does not apply to family law cases in the Victoria or Surrey registries of the Provincial Court. Those cases are managed under the Early Resolution Model, which is governed by special rules. For more information about the Early Resolution Model, read the resources published by the BC Government.

Financial Statements

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 — the Provincial Court Family Rules say that each party must prepare and file a Financial Statement in Form 4.

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 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 Financial Statements:

1. their personal tax returns for the last three tax years;
2. all notices of assessment and notices of reassessment they've received for the last three tax years;
3. 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,
4. if they have a company, business records like corporate income tax returns and corporate financial statements.

(Note that when the form 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 Financial Statement should be filed at the same time as the applicant's Application to Obtain an Order or the respondent's Reply. You will need to file the original, which the registry will keep for the court file, and three copies. The registry will stamp all of the copies; you'll keep two for your records and provide the other copy to the other party.

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 are now a standard part of a family law matter in Provincial Court. At these early, informal conferences, a judge or family justice manager has an opportunity to review what's missing in terms of undisclosed evidence, and make case management orders 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 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 the orders about 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, such as exchanging documents and information, or organizing experts' reports. The rules around discovery and disclosure are at Rule 112:

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.

More information about trial preparation conferences can be found later in this chapter, in the section Trials in the Provincial Court.

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 Supreme Court Family Rules). A Financial Statement sets out a person's income, expenses, assets (property) and 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 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;

(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 Statement 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.

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 the 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 expenses 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, and debts such as mortgages, lines of credit and credit cards, you should identify the financial institution, account number, and balance as of 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 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),
• 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.

The form you must use is Form F8, set out in the Supreme Court Family Rules.

Discovery of documents & lists of documents

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 at trial to prove or disprove a material fact.
2. All other documents to which the party intends to refer 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 a 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 of the 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 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 any documents produced in response to a court order under Rule 9-1(11) of the Supreme Court Family Rules (also described 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 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, in this chapter.

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 the family law proceeding. This type of application must be served on the person, organization, or business with the documents (see Rule 9-1(15)). For more information on the process for making interim applications, see Interim Applications in Family Matters, in this chapter.

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.

Examination for discovery

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 at 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.
• 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 their case 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.

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 prepared by the court reporter may be used at trial (as that party's evidence, and potentially to undermine the credibility of that party), it is important that the person giving the evidence 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.

When attending to be examined for discovery, a party must bring all the documents in their 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. If you are attending to be examined for discovery you should follow these tips:

• 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 you do not understand a question—the questioner will rephrase it.
• Do not guess or speculate. If you 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.
• Do not exaggerate or understate the facts. Avoid using the words “never” and “always”.

The examination for discovery is in the nature of a cross-examination. The examining party (or their lawyer) can ask open-ended questions (to obtain as much detail as possible), or ask leading questions in an attempt to obtain favourable admissions.

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 is currently $20, in addition to the travel costs of the party being examined:

• If the party being examined lives within 200 km by road (including any ferry route), it's $.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).
• 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.

To prepare for an examination for discovery, whether you are the party being examined or the party conducting the examination, it is a good idea to review the pleadings, the financial statements, and the documents produced by each party to the court proceeding. If you are the party conducting the examination, it is a good idea to prepare an outline of the issues in the court proceeding and the questions you want to ask the other party about each issue. You may want to consult a lawyer about the types of questions you can and should ask, and any areas of concern about the case, including any information you think may be privileged.

After the examination for discovery is completed, you can order a transcript of the questions and answers (of either party) from the court reporting service (for a fee) for use at trial. The court reporting service will provide one original and as many copies as you request (usually one is enough unless there are more parties to the lawsuit than just the two spouses). If you use the transcript at trial, you will provide the original to the judge and use the copy yourself.

Notice to Admit

A Notice to Admit provides an opportunity for each party to obtain from the other party admissions about facts and the authenticity of documents in order to simplify the presentation of evidence at trial and to shorten the time necessary for the trial. In other words, once a fact or the authenticity of a document is admitted, it is no longer a contentious issue at trial. Notices to admit are not mandatory and are not used in every family law court proceeding.

Notices to Admit are governed by Rule 9-6 of the Supreme Court Family Rules. The form to be used is Form F24 and must be served on the other party (at that party’s address of service set out in their Notice of Family Claim or Response to Family Claim). Each fact that is sought to be admitted should be set out in a separate numbered paragraph. In the case of documents whose authenticity are sought to be admitted, each document sought to be admitted should be listed and described in a separate numbered paragraph, and copies of the documents must be attached to the Notice to Admit (Rule 9-6(3)).

The party served with a Notice to Admit then has 14 days from the date of service to respond in writing to the Notice of Admit, and if that party fails to do so, the fact or authenticity of a listed document is deemed to be admitted. If the party served with a Notice to Admit seeks to deny an admission (or otherwise oppose the facts or documents set out in the Notice to Admit) that party must provide to the other party a written statement which:

• 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 sets out in detail the reasons for the refusal.

(See Rule 9-6(2) of the Supreme Court Family Rules.)

Where a party has unreasonably refused to admit the truth of a fact or the authenticity of a document specified in a Notice to Admit, the court may order the party to pay the costs of the other party in relation to steps taken to prove the fact or the authenticity of the document, or can deprive the party of costs that party would otherwise be entitled to.

Once a party has made an admission (by way of a Notice to Admit or in a pleading), that party cannot withdraw it without the consent of the other party or by court order (see Rule 9-1(5) of the Supreme Court Family Rules). Admissions can be used as evidence at trial or on an application to the court (see Rule 9-1(6) Supreme Court Family Rules).

Interrogatories

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 Helpful Guides & Common Questions 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 court application is made to compel one party to answer Interrogatories, the court may set conditions such as the number or length of Interrogatories or the issues or topics the Interrogatories may cover (see Rule 9-3(3) of the Supreme Court Family Rules).

Pre-trial examination of witnesses

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’s 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.

Rule 9-4(3) of the Supreme Court Family Rules requires the party making a court application for a pre-trial examination of a witness to present evidence in the form of an affidavit (see How Do I Prepare an Affidavit?), which sets out:

(a) the matter in question in the family law case to which the applicant believes that the evidence of the proposed witness may be material,

(b) if the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness

(i) has refused or neglected on request by the applicant to give a responsive statement, either orally or in writing, relating to the witness' knowledge of the matters in question, or

(ii) has given conflicting statements.

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).

If the court makes the order requiring a witness to attend a pre-trial examination, the party who obtained the order must serve upon the witness a subpoena in Form F23.

• The subpoena may require the witness to bring to the examination any document in the witness’ possession or control relating to the matters at issue in the court proceeding and any physical object in the witness’ possession or control that the party contemplates introducing as an exhibit at the trial (see Rule 9-4(5) of the Supreme Court Family Rules).
• The subpoena does not need to identify any specific document or category of document, but must identify any object to be produced (see Rule 9-4(5) of the Supreme Court Family Rules).
• The subpoena must be served upon the witness to be examined at least 7 days before the date of the scheduled examination (see Rule 9-4(5) of the Supreme Court Family Rules).

The examination is in the form of cross-examination and the witness may be cross-examined by all parties. The party who obtained the order conducts the first cross-examination followed by the other party/parties to the court proceeding and the first party may conduct a further cross-examination of the witness at the end (see Rule 9-4(8) of the Supreme Court Family Rules). Unless the court otherwise orders, the examination of the witness cannot exceed 3 hours in total as conducted by both/all parties (see Rule 9-4(9) of the Supreme Court Family Rules).

Many of the rules that apply to the examinations for discovery also apply to pre-trial examination of witnesses: Rule 9-2 (11), (15), (17), (18) and (21) to (24) (see Rule 9-4(10) of the Supreme Court Family Rules).

Physical examination & inspection

Rule 9-5 of the Supreme Court Family Rules allows parties to apply to the court for the following additional orders:

• Order for medical examination: The court may order a party to submit to an examination by “a medical practitioner or other qualified person” if the physical or mental condition of the party is in issue in a family law case (see Rule 9-5(1) of Supreme Court Family Rules). The court can also order that the result of the examination be put in writing with copies made available to the parties, and can make orders about who will pay for the examination and report-writing.
• Order for inspection and preservation of property: The court may order the "production, inspection, and preservation of any property" and authorize samples to be taken, experiments to be conducted, or observations to be made about the property.
• Orders for entry on land or building: The court may authorize a person to enter on any land or building for the purpose of an order under Rule 9-5.

So far as is practicable, examinations and inspections ordered under this rule apply to persons residing outside British Columbia (see Rule 9-5(6) of the Supreme Court Family Rules).

This chapter discusses the process for bringing interim applications in the section Interim Applications in Family Matters.

Resources and links

Legislation

• Provincial Court Act
• Provincial Court Family Rules
• Supreme Court Act
• Supreme Court Family Rules
• Court Rules Act

Resources

• Provincial Court Family Practice Directions
• Supreme Court Family Practice Directions
• Supreme Court Administrative Notices
• Supreme Court Trial Scheduling

Links

• Provincial Court website
• Supreme Court website
• Provincial Court: Financial Documents for Family Court
• Justice Education Society: The Discovery Process in Supreme Court
• Justice Education Society's website for BC Supreme Court
• Parenting After Separation Handbook from Justice Education Society

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, April 19, 2020.

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.