Disclosure in Family Law

Date: 25 Feb, 2021| Author: Fred Streiman

It is a capital mistake to theorize before one has data. Insensibly, one begins to twist facts to suit theories, instead of theories to suit facts”. Sherlock Holmes

While spoken by the famous detective, one finds that proving the validity of claims in family law is no different. Whether you are alleging the misuse of funds, additional income of your spouse, or deficiencies in the ability to parent, evidence to support your claims is always required. Those who have started the family law process will have already been introduced to the all-encompassing term of disclosure, which in the most general of explanations amounts to supporting documents.

In family law, courts have held that fact finding or the exchange and discussion of disclosure should not be a battle. The reason is a practical one. Both sides need to provide full information about the issues before an informed decision can be made regarding a settlement, or before a judge can make a reasoned decision on the merits of the case.

In fact, the exchange of information should be marked by an orderly prompt request for disclosure with an organized and speedy reply. To be frank, exchanging information should not be a drawn-out game of hide and seek. It is expected that requests for information may narrow in scope or give rise to further requests as information is exchanged. Parties should be aware that failure to provide disclosure or supporting documents to support their own claims could have dire consequences on their own case as well as their ability to participate in the proceedings overall.

If parties do not submit to the initial request and obligation to be forthcoming regarding their documents and relevant information, a procedural Order for disclosure may be made. That is an issued Order from the court compelling the production of documents or information required to move the matter forward. Once an Order is made, parties may find themselves in breach if they continue to withhold documents and information.

Rule 1(8) of the Family Rules provides:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

  1. an order for costs;
  2. an order dismissing a claim;
  3. an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
  4. an order that all or part of a document that was required to be provided but was not, may not be used in the case;
  5. if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
  6. an order postponing the trial or any other step in the case; and
  7. on motion, a contempt order. O. Reg. 322/13, s. 1.

Some of the most common consequences for failure to disclose or respond to a request for disclosure include:

  • having adverse inferences drawn against you; or in the worst case,
  • having your pleadings or other court documents struck from the record.

This means that the court can draw an inference in favour of the person making the request if you fail to provide information that could prove otherwise. This could also result in an imputing of income or in the dismissal of claim, depending on the issues at bar. The later relief of striking pleadings or documents is generally reserved for extreme cases. However, parties should be aware that the court is extremely critical of refusal to provide disclosure. Justice Myers has opened a very intriguing discourse by asking just how many orders does a party get to breach on top of ignoring the primary objective that requires early, voluntary and compete disclosure without an order even being made? She went on to state in Roberts v. Roberts 2015 ONCA 450, that,

“It is not the remedy that should be exceptional. Rather, it is the continued existence of cases with parties who ignore their disclosure obligations that ought to be exceptional. The remedy will become exceptional when the Rules are followed and enforced as written and as interpreted, that is once cases with non-disclosure issues are exceptional, then the need to consider striking pleadings for non-disclosure will be exceptional.”

All in all, it is best practice to review requests made for disclosure, assess the significance to the claims and the ability of each party to gather same, and provide it as soon as possible lest one loses the ability to argue your case at all by having your pleading struck from the record.

In family law, standard requests include Notices of Assessments, Income Tax returns, and bank statements that support the figures outlined in your sworn financial statement. Depending on the complexity of your matter, your personal circumstances, and the issues arising from the breakdown of your relationship, there is likely a lot more disclosure that needs to be provided in order to allow both sides to present their cases in a fair manner.

To find out what disclosure is necessary and relevant to your matter, speak with a family law lawyer regarding your case.