Difference between revisions of "Disclosure and Discovery in Supreme Court Family Law Proceedings"

The ''disclosure and discovery'' process is all about learning — or "discovering" — the other party's case. It's about exchanging information and documents with the other party that are relevant to the legal issues in a court proceeding, testing the strengths and weaknesses of the evidence that (whether that's documents or testimony) either side might use to prove their case at trial, and hopefully limiting the range of disputed facts so that parties and judges can focus their efforts.

The disclosure and discovery process is crucial because it helps you organize evidence prepare for interim applications and an eventual trial, but also lets you gauge your chances of success. In addition, it positions you to respond effectively to any settlement offers from the other party and to craft your own. As you begin the disclosure process, it's wise to consult a lawyer who can advise you on what must be disclosed to the other party, what you need to prove in court for your case to succeed, and what information to look for in the other party's case. If you do not have a lawyer, and your household income meets the [https://legalaid.bc.ca/services/do-i-qualify-advice eligibility criteria], [https://legalaid.bc.ca/services/family-law-legal-advice ask a duty counsel or call the Family LawLINE service] who may provide some advice.

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 BC Supreme Court case of ''[https://canlii.ca/t/fzqb3 J.D.G. v J.J.V.]'', 2013 BCSC 1274, "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 BC Supreme Court case called ''[https://canlii.ca/t/1dn7f Cunha v Cunha]'', 1994 CanLII 3195 (BC SC):

Providing relevant information in advance of trial makes it possible to settle a dispute without appearing in court. Hearings and trials are expensive, and not just for the parties. The government and even the court itself has an interest in encouraging settlement and reducing the administrative burden of holding hearings and trials in every family law matter. The more each party understands their own case's strengths and weaknesses ''and'' the other party's case's strengths and weaknesses, the greater the chance that the two sides will find a reasonable compromise. The law makers and the court administration know this.

As a result, the Supreme Court Family Rules and other regulations and legislation — notably the ''[[Family Law Act]]'', the ''[[Divorce Act]]'', and the [[Child Support Guidelines]] — are chock full of rules and forms intended to speed up the disclosure and discovery process, and automate as much document disclosure as possible.  

 

In addition to the disclosure requirements automatically placed on the litigants, there are further tools within the Supreme Court Family Rules that a party can use to go deeper. These let you demand documents or obtain information and answers from the other party. You'll also learn about these in this section of the chapter. There are even rules that let a party get documents and other information from people who aren't even involved in the court proceeding!

# The laws around document disclosure: what the Supreme Court Family Rules and legislation tell you about what documents you and the other party must automatically provide, and the conditions and consequences imposed on parties.

# The court forms for giving and getting document disclosure: learn about the forms needed to comply with the automatic document disclosure requirements, and how to complete them and keep them current.

# Pre-trial discovery: what are the court processes you can use to investigate the evidence, get sworn information from the other party (or a witnesses) before trial, obtain answers to questions, and even get admissions from the other party, so you can prepare for trial.

Let's look at where the laws around disclosure are written down. The Supreme Court Family Rules are extremely important. Key provisions in other legislation and regulations, notably the ''[[Family Law Act]]'', ''[[Divorce Act]]'', and the Child Support Guidelines, are also important to know about because they add specific document disclosure requirements, allow judges to order specific penalties for non-compliance, and reinforce confidentiality to ensure the documents parties share in litigation are not used for inappropriate purposes or disclosed to others who are not involved in the litigation.

We mention Rule 9-1 in particular, not because the rest of the rules in Part 9 are not important, but because Rule 9-1 comes into play right away and are not dependent on the decisions or trial strategy of either party. The other procedures in Part 9 are discussed further below, under the "Pre-trial discovery" heading.