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

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* Part 9 — Procedures for Obtaining Information and Documents
* Part 9 — Procedures for Obtaining Information and Documents


Before looking at these Parts and the specific disclosure rules, it's worth noting the objectives of the BC Supreme Court Family Rules. Rule 1-3, is titled "Object of Rules". If you read this rule, you will learn that:
Before looking at these Parts and the specific disclosure rules, it's worth noting the objectives of the BC Supreme Court Family Rules. Rule 1-3, is titled "Object of Rules". It basically says:
* The court wants to help parties resolve the legal issues in their case fairly.
* The court wants to help parties resolve the legal issues in their case fairly.
* The court wants to reduce the negative impact that litigation has on children.
* The court wants to reduce the negative impact that litigation has on children.
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* The court wants family law cases to be determined on their merits, but in a just, speedy, and inexpensive manner.
* The court wants family law cases to be determined on their merits, but in a just, speedy, and inexpensive manner.


You might be surprised to learn that the court's objective is ''not'' to hold trials and have judges read absolutely every scrap of evidence, even though more evidence must be better for determining the "merits" of a case. In fact, judge-imposed outcomes, lengthy trials, and cases with lots and lots of evidence actually go against the core objectives of the Supreme Court Family Rules:
The court's objective is ''not'' to hold trials and have judges read absolutely every scrap of evidence, even though more evidence must be better for determining the "merits" of a case. This is important to keep in mind when talking about disclosure obligations.
* If a judge renders a decision, even if it's a fair one, it means the parties have failed to resolve their own legal issues — and a fair settlement is better than a fair decision from a judge
* If the parties are in trial, it means the children have undergone a longer period of stress while waiting for the litigation to conclude — and a timely settlement is better for children than a long, drawn-out trial.
* If the parties are arguing in court, they are in probably high in conflict and low in cooperation — whereas parties who separate but are still able to negotiate reasonable compromises are going to find it easier and less stressful to move forward as co-parents.
* If every legal issue is being argued at trial, no matter how minor, and every fact is being disputed with lengthy and redundant evidence, then even if the ''merits'' of each party's case is being painstakingly revealed, clearly there is something wrong, slow, and expensive about the process — and unless the case is very complicated, the parties are very wealthy, and there is something much larger at stake, then there should be a method for resolving the dispute that is more proportionate.


The part about resolving cases in a "just, speedy, and inexpensive" manner, raises an important principle, namely ''proportionality'', and Rule 1-3(2) explains this:
In fact, relying on judges to solve everything, going through lengthy trials, and insisting on lots and lots of evidence usually goes against the core objectives of the Supreme Court Family Rules. Some thoughts to consider:
<blockquote><tt>Proportionality</tt></blockquote>
* If a judge has to give a decision, even if it's a fair one, it means the parties have failed to resolve their own legal issues &mdash; and a fair settlement or compromise that the parties control is better than a fair decision from a judge
<blockquote><blockquote><tt>(2)Securing the just, speedy and inexpensive determination of a family law case on its merits includes, so far as is practicable, conducting the family law case in ways that are proportionate to</tt></blockquote></blockquote>
* If the parties can only resolve things in court, it means the children undergo a longer period of stress waiting for the litigation to conclude &mdash; and a timely settlement is easier on children than a long, drawn-out litigation.
<blockquote><blockquote><blockquote><tt>(a)the interests of any child affected,</tt></blockquote></blockquote></blockquote>
* If the parties are arguing in court, they are in likely high in conflict and low in cooperation &mdash; parties who separate but are still able to negotiate reasonable compromises are going to find it easier and less stressful to move forward as co-parents and as happier people.
<blockquote><blockquote><blockquote><tt>(b)the importance of the issues in dispute,</tt></blockquote></blockquote></blockquote>
* If every legal issue is being argued at trial, no matter how minor, and every fact is being disputed with lengthy and redundant evidence, then even if the ''merits'' of each party's case is being painstakingly revealed, clearly something is wrong, slow, and expensive about the process &mdash; even if the case is very complicated, the parties are very wealthy, or there is something much larger at stake, keep the demands for documents and other information proportionate to the legal issues.
<blockquote><blockquote><blockquote><tt>(c)the complexity of the family law case.</tt></blockquote></blockquote></blockquote>
What you can take from this, in terms of the disclosure and discovery process, is that while complete disclosure is important under the Supreme Court Family Rules, you should keep in mind that the courts expect parties to be reasonable with what documents they produce or ask for, avoid unnecessary conflict, and keep the idea of proportionality in mind.  


There are some critical rules in the Supreme Court Family Rules to know about right away. Everything in Part 5 of the rules is essential for understanding financial disclosure, while Rule 9-1 is essential because it explains procedures for disclosing and inspecting documents. These rules are important because:
The part about resolving cases in a "just, speedy, and inexpensive" manner, raises an important principle, which is ''proportionality'', and Rule 1-3(2) explains this:
<blockquote><tt>'''Proportionality'''</tt></blockquote>
<blockquote><blockquote><tt>(2) Securing the just, speedy and inexpensive determination of a family law case on its merits includes, so far as is practicable, conducting the family law case in ways that are proportionate to</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(a) the interests of any child affected,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(b) the importance of the issues in dispute,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(c) the complexity of the family law case.</tt></blockquote></blockquote></blockquote>
 
What you should keep in mind, when it comes to disclosure and discovery under the Supreme Court Family Rules, is that while disclosure is important, the courts expect parties to be proportionate when they produce or demand documents, and that they avoid unnecessary conflict.
 
That being said, let's consider the critical rules you should know about right away.  
 
Everything in Part 5 of the Supreme Court Family Rules is essential for understanding financial disclosure, while Rule 9-1 is essential because it explains procedures for disclosing and inspecting documents. These rules are important because:
# they apply early on in the litigation process, and  
# they apply early on in the litigation process, and  
# they impose automatic obligations that are triggered when a party decides to defend against a party's claims.
# they impose automatic obligations that are triggered when a party decides to defend against a party's claims.


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 is 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.  
Rule 9-1 is highlighted in particular, not because the rest of the rules in Part 9 are not important, but because Rule 9-1 comes into play immediately. It is 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.  


====Rule 5-1 - Financial Statements====
====Rule 5-1 - Financial Statements====

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