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==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 ''[http://canlii.ca/t/fzqb3 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 ''[http://canlii.ca/t/1dn7f Cunha v Cunha]'':
<blockquote>"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."</blockquote>
<blockquote><blockquote><blockquote><tt>(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</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) all other documents to which the party intends to refer at trial</tt></blockquote></blockquote></blockquote>
As you'll learn in the rest of this section, there are even more rules about discovery and disclosure in the BC Supreme Court 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, as do the ''[Child Support Guidelines]''. 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===
<blockquote><blockquote><tt>(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.</tt></blockquote></blockquote>
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''.
<blockquote><tt>(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:</tt></blockquote>
<blockquote><blockquote><tt>(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.</tt></blockquote></blockquote>
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:
#deciding that the party who failed to provide the required information is in contempt of court; and,
#awarding costs in favour of the other party.
Often, court orders respecting child or spousal support will also include terms setting out timelines for the disclosure of certain information between the parties.
===The ''Family Law Act'' and the Child Support Guidelines===
That's a heavy hammer.
=== Financial Statements ===
If a court proceeding in the BC Supreme Court 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, 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://canlii.ca/t/8mcr Supreme Court Family Rules] requires that Financial Statements be filed and served upon the other party within a 30 day time frame as follows:
</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). When you bring your Financial Statement to the registry for filing, bring all of your copies, and the registry should stamp the first page of each copy.
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.
The form you must use is Form F8, set out in the Supreme Court Family Rules.
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. If you think your income will change in the near future, you should consider providing an explanation on the first page of Form F8 (see paragraph 2).
* '''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 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, including:* the last three years' worth of tax returns (what's required is copies of the complete T1 general income tax and benefit returnthat was sent in to the CRA, 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,(attach all that apply)
* 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.
=== Discovery of documents & lists of documents ===
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 harmful 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:
Each party is also entitled to ask for copies of the documents listed on the other party’s list of documents (see [http://canlii.ca/t/8mcr 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 can be a helpful 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 to ''impeach'', or in other words to 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 sometimes 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 truth - if you consistently tell the truth, then the transcript of your examination will not be helpful to the other side in damaging your credibility.*Listen carefully and patiently 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.