Anonymous

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

From Clicklaw Wikibooks
no edit summary
Line 11: Line 11:
==Introduction==
==Introduction==


In Canada, we don't litigate with cards up our sleeves. Instead, 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 that the courts want to give each party the best possible chance of settling without having to go through a trial. The only fair way to do this is to ensure parties show what cards they are holding early on. 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):
In Canada, we don't litigate with cards up our sleeves. Instead, 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 television shows, but the point is that the courts want to give each party the best possible chance of settling without having to go through a trial. The only fair way to do this is to ensure parties show what cards they are holding early on. 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):


<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>"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>


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 the courts are interested in encouraging settlement and reducing the administrative burden of holding hearings and trials for every family law dispute. The better each party understands both their own case's strengths and weaknesses, ''and'' the other party's, the more likely they are to reach a reasonable compromise. The law makers and the court administration know this.
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 the courts are interested in encouraging settlement and reducing the administrative burden of holding hearings and trials for every family law dispute. The better each party understands both their own case's strengths and weaknesses, ''and'' the other party's, the more likely they are to reach a reasonable compromise. The lawmakers and the court administration know this.


As a result, the legislation and regulations &mdash; notably the Supreme Court Family Rules, ''[[Family Law Act]]'', ''[[Divorce Act]]'', and [[Child Support Guidelines]] &mdash; are full of mechanisms intended to speed up the disclosure and discovery process. A lot of the document disclosure rules apply automatically, and the court forms you must complete will include, or at least list, essential documents and evidence. When you need to dive deeper, the Supreme Court Family Rules set further procedures for demanding more documents and pre-trial discovery. You'll also learn about these in this section of the chapter.  
As a result, the legislation and regulations &mdash; notably the Supreme Court Family Rules, ''[[Family Law Act]]'', ''[[Divorce Act]]'', and [[Child Support Guidelines]] &mdash; are full of mechanisms intended to speed up the disclosure and discovery process. A lot of the document disclosure rules apply automatically, and the court forms you must complete will include, or at least list, essential documents and evidence. When you need to dive deeper, the Supreme Court Family Rules set further procedures for demanding more documents and pre-trial discovery. You'll also learn about these in this section of the chapter.  
Line 28: Line 28:


==Laws for disclosure in BC Supreme Court==
==Laws for disclosure in BC Supreme Court==
The Supreme Court Family Rules are extremely important for litigants. Key provisions in other legislation and regulations, notably the ''[[Family Law Act]]'', ''[[Divorce Act]]'', and the Child Support Guidelines, are also important because they add specific document disclosure requirements, allow judges to impose penalties for non-compliance, and reinforce confidentiality so that parties can safely share sensitive information with less fear that it will be used for inappropriate purposes or shared with others who are not involved in the litigation.
Litigants must become familiar with the Supreme Court Family Rules, especially Parts 5 an 9. Key provisions in other legislation and regulations, notably the ''[[Family Law Act]]'', ''[[Divorce Act]]'', and the Child Support Guidelines, are also important because they set out specific requirements for document disclosure, allow judges to impose penalties for non-compliance, and reinforce confidentiality so that parties can share information with less fear it will be used for inappropriate purposes or shared with others outside the family law case.


===The Supreme Court Family Rules===
===The Supreme Court Family Rules===
Line 46: Line 46:
* 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
* 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
* 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.
* 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.
* 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.
* If the parties are arguing in court, they are 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.
* 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.
* 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.


Line 75: Line 75:
'''Parties asking for an order:''' If you are asking for orders about division of property and debt, spousal support, or (in some circumstances) child support, you must file and serve a Form F8 Financial Statement within ''30 days of filing'' your Form F3 Notice of Family Claim or Form F5 Counterclaim. If children primarily reside with you (i.e. not a ''split'' or ''shared'' parenting arrangement) and you are asking for child support in the basic ''table amount'' set by the [[Child Support Guidelines]] only (i.e. not seeking an order about section 7 expenses), then you do not need to file a Form F8. More often than not, however, the financial circumstances of a party &mdash; what they earn, what they own, etc. &mdash; is important information that the other party and the court needs to know.  
'''Parties asking for an order:''' If you are asking for orders about division of property and debt, spousal support, or (in some circumstances) child support, you must file and serve a Form F8 Financial Statement within ''30 days of filing'' your Form F3 Notice of Family Claim or Form F5 Counterclaim. If children primarily reside with you (i.e. not a ''split'' or ''shared'' parenting arrangement) and you are asking for child support in the basic ''table amount'' set by the [[Child Support Guidelines]] only (i.e. not seeking an order about section 7 expenses), then you do not need to file a Form F8. More often than not, however, the financial circumstances of a party &mdash; what they earn, what they own, etc. &mdash; is important information that the other party and the court needs to know.  


Here are some examples of when you need to file a Form 8 Financial Statement:  
Here are some examples of when you need to file a Form F8 Financial Statement:  
* If you are asking for spousal support
* If you are asking for spousal support
* If you are asking for division of property or debt
* If you are asking for division of property or debt
Line 156: Line 156:
====The ''Divorce Act'' and Child Support Guidelines====
====The ''Divorce Act'' and Child Support Guidelines====


Section 7.4 of the ''[[Divorce Act]]'' demands that parties (and also anyone subject to an order under the act) provide "complete, accurate and up-to-date information" when required to under the act itself.
Section 7.4 of the ''[[Divorce Act]]'' requires that parties (and anyone else subject to an order under the act) provide "complete, accurate and up-to-date information" when required to under the act itself.


Disclosure is not limited to financial documents. Disclosure should include documents and information relevant to any of the orders a party has requested under the ''Divorce Act'', such as divorce, parenting, child support, and spousal support. What you disclose depends on what orders any of the parties are requested in the BC Supreme Court action.
Disclosure is not limited to financial documents. You should include documents and information relevant to any of the orders a party has requested under the ''Divorce Act'', such as divorce, parenting, child support, and spousal support.


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]] (the "Guidelines"), which is a regulation under the ''Divorce Act'', which states that:
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]] (the "Guidelines"), which is a regulation under the ''Divorce Act'', which states that:
Line 270: Line 270:


====Overview of the Form F8====
====Overview of the Form F8====
In a Form F8 you provide the court and the other party with a picture of your finances. The parts about income (and in many cases expenses) are critical for determining child support and spousal support, and &mdash; unless there is more complete evidence in the form of appraisals or other independent documents that prove the value of real estate and other property &mdash; the part of the form relating to assets and debts may be used by the court to determine the value of an asset or the amount owing on a debt. It's important to take care when completing this form. Form F8s are ''sworn'' or ''affirmed'' by the party who prepares it, meaning they are giving their word that the information being provided is honest and accurate. Someone who swears or affirms a Form F8 one can find their credibility being challenged if the numbers don't make sense &mdash; overblown or understated &mdash; if critical information is omitted, or if there are outright fabrications in the statement.
In a Form F8 you provide the court and the other party with a picture of your finances. The parts about income (and in many cases expenses) are critical for determining child support and spousal support, and &mdash; unless there is more complete evidence in the form of appraisals or other independent documents that prove the value of real estate and other property &mdash; the part of the form relating to assets and debts may be used by the court to determine the value of an asset or the amount owing on a debt. It's important to take care when completing this form. Form F8s are ''sworn'' or ''affirmed'' by the party who prepares it, meaning they are giving their word that the information being provided is honest and accurate. Someone who swears or affirms a Form F8 can find their credibility being challenged if the numbers don't make sense &mdash; overblown or understated &mdash; if critical information is omitted, or if there are outright fabrications in the statement.


The Form F8's introductory pages give instructions and a space to list any significant changes that you may anticipate. These are followed by the form's various parts or sections, and you need to follow the form's instructions to know which ones apply to you:  
The Form F8's introductory pages give instructions and a space to list any significant changes that you may anticipate. These are followed by the form's various parts or sections, and you need to follow the form's instructions to know which ones apply to you:  
Line 280: Line 280:
# Part 6 - Income of Other Persons in Household
# Part 6 - Income of Other Persons in Household


The parts you need to complete depends on what orders are being asked for in the Form F3 Notice of Family Claim or the Form F5 Counterclaim.  
The parts you need to complete depend on what orders are being asked for in the Form F3 Notice of Family Claim or the Form F5 Counterclaim.  


Take the time to prepare your Form F8 carefully. It is absolutely one of the most important documents that you and the other side will file in court. Judges rely on the critical information it contains when deciding on orders, and the information you provide here will most likely be heavily scrutinized.  
Take the time to prepare your Form F8 carefully. It is absolutely one of the most important documents that you and the other side will file in court. Judges rely on the critical information it contains when deciding on orders, and the information you provide here will most likely be heavily scrutinized.  
Line 291: Line 291:
If the Form F3 Notice of Family Claim or Form F5 Counterclaim ask for orders about spousal support, child support (where this includes a claim for section 7 expenses, or in shared parenting arrangements), or the division of property, pensions, or debt, both parties must prepare and file a Form F8.  
If the Form F3 Notice of Family Claim or Form F5 Counterclaim ask for orders about spousal support, child support (where this includes a claim for section 7 expenses, or in shared parenting arrangements), or the division of property, pensions, or debt, both parties must prepare and file a Form F8.  


If a party is only asking for child support in the ''table amount'' (without section 7 expenses and for none of the other issues), and if the children reside primarily with that party, they do not need to file a Form F8 themselves. The other party (the would-be payor) is required to file one, however. The Form F8, has "Instruction for Completion" at page 1, which tells you in more detail if you have to complete a Form F8, although these instructions are just a summary of what the Supreme Court Family Rules require.
If a party is only asking for child support in the ''table amount'' (without section 7 expenses and for none of the other issues), and if the children reside primarily with that party, they do not need to file a Form F8 themselves. The other party (the would-be payor) is required to file one, however. The Form F8 has "Instruction for Completion" at page 1, which tells you in more detail if you have to complete a Form F8, although these instructions are just a summary of what the Supreme Court Family Rules require.


Most family law disputes in the BC Supreme Court require that you file a Form F8, so if you are uncertain whether you need to prepare and file one in court, [https://legalaid.bc.ca/services/family-law-legal-advice ask a duty counsel or call the Family LawLINE service].
Most family law disputes in the BC Supreme Court require that you file a Form F8, so if you are uncertain whether you need to prepare and file one in court, [https://legalaid.bc.ca/services/family-law-legal-advice ask a duty counsel or call the Family LawLINE service].
Line 359: Line 359:
Rule 5-1(11) of the Supreme Court Family Rules tells you when to file and serve your Form F8 (see the heading earlier in this section on "Rule 5-1: Financial Statements"). Basically, the rules say to serve the Form F8 within 30 days if:
Rule 5-1(11) of the Supreme Court Family Rules tells you when to file and serve your Form F8 (see the heading earlier in this section on "Rule 5-1: Financial Statements"). Basically, the rules say to serve the Form F8 within 30 days if:
* ''you served'' the other party with a Form F3 Notice of Family Claim or a Form F5 Counterclaim, and the orders sought require a Form F8, or
* ''you served'' the other party with a Form F3 Notice of Family Claim or a Form F5 Counterclaim, and the orders sought require a Form F8, or
* ''you received'' a Form F3 Notice of Family Claim or a Form F5 Counterclaim, and the orders sought require a Form F8.
* ''you received'' a Form F3 Notice of Family Claim or a Form F5 Counterclaim, and the orders sought require a Form F8.


If you live outside Canada or the US, however, the timeline changes to 60 days.
If you live outside Canada or the US, however, the timeline changes to 60 days.