Privileged documents
You do not have to provide privileged documents. In general, a document is privileged if it contains legal advice from a lawyer you have consulted for this family case. There are other documents that are privileged. You should speak to a lawyer to see if any of your documents are privileged and do not need to be disclosed.
- 9.1 Overview
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Throughout your case you must exchange with the other party all of the relevant documents related to the case and all of the information you have about the case. Trials are not run like card games where you cannot see what anyone is holding. Trials are the opposite. All the cards should be on the table and everyone should know everything everyone else knows.
In every family case, each party must be completely open and forthcoming about the information they have. There are two very important reasons for this rule. First, trials must be fair for everyone. Second, settlement is always preferable to trial, and the chances of settling a family law matter before trial is much higher when each party knows has all of the relevant information.
Discovery (sometimes called “disclosure”) is a legal process to obtain information. It means getting access to relevant information the other party has about the case. The basic rule is that you have to let each other know about all of the relevant documents, other records and information that you have that are related to any of the claims either of you has made. This means that if you have a document that is unfavorable but related to your claim, you must still let the other person know about it. If you do not share all of the relevant documents or information you have, the consequences can be serious. For instance, the court could make a judgement against you, or you could have costs awarded against you.
It is very important that you understand the rules about the kind of documents and information you must exchange. There are three common forms of discovery: disclosure, written discovery (interrogatories) and oral examination for discovery (sometimes called “questioning”). The type of discovery allowed in your case will depend on the jurisdiction you are in and the court your action is in. Check the Rules of Court and your local legal resources for assistance.
- 9.2 Financial Disclosure in Family Law
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Family Law processes try to promote a just and fair resolution of family matters. Full and frank financial disclosure is key to achieving that resolution. Generally, financial disclosure is required of one or both parties where there is a claim of child support, spousal support, or property division. Financial disclosure generally includes:
- Income tax returns.
- Notices of assessment and reassessment from the Canada Revenue Agency.
- Statement of earnings, payslip or a letter stating salary or wages.
- Financial statements if self-employed.
- Other information about your expenses, assets, and debts.
You should check your Rules of Court on financial disclosure to see what disclosure is required. You may be required to provide full and complete financial disclosure even if you are not going to court. If you do not share full disclosure when required, your family law agreement may be set aside. If you fail to provide financial disclosure when you go to court, a judge may order you to provide financial disclosure, impute an income (assume your income is a certain amount) and make support orders. The judge may also order you to pay the costs of the other party or find you to be in contempt of court.
- 9.3 General Disclosure
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You may be required to make a list of all relevant documents (sometimes called an “affidavit of records”) in your control and give a copy of your list to the other party. There is often a specific court form you must use for your document list. If the other party asks for them, you must give a copy of these documents to that party and allow them to look at the original document.
Privileged documents
There are some documents that you do not have to share with the other parties: these are called “privileged” documents. In general, a document is privileged if it contains legal advice from a lawyer you have consulted for this family case. There may be other documents that are privileged. You should speak to a lawyer to see if any of your documents are privileged and do not need to be disclosed.
- 9.4 Written Discovery
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The Rules of Court or a court order may allow another party to ask you to reply to a list of questions called interrogatories or written discovery. Interrogatories are written questions about the case that you have to answer in writing, under oath. Normally, you answer interrogatories by writing and swearing/affirming an affidavit.
You must provide your affidavit replying to the interrogatories within a certain number of days according to the Rules of Court.
You can refuse to answer questions that do not relate to the claim in the lawsuit. You can also refuse to answer questions that would require you to give privileged information. If you refuse to answer any of the questions in the interrogatories, you must explain why you are refusing.
- 9.5 Examination for Discovery / Questioning
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Some jurisdictions allow for discoveries. This means that you and the other party can make an appointment with a court reporter to ask each other questions under oath or affirmation before trial, at a meeting called an “examination for discovery” (also known as “questioning” and “examination for questions”). Examinations for discovery are not open to the public and happen out of court at the office of a court reporter or a lawyer for one of the parties. If none of these are available, you may need to rent a meeting room. A court reporter has special training and is certified by the court or government agency. The court reporter keeps / makes a written record (transcript) of all that is said during the discovery. They do not make decisions about your case.
The court reporter will ask the party who is being questioned to swear/affirm to tell the truth, and the party who is asking the questions will begin.
As with written discovery, you can refuse to answer questions that do not relate to a claim in your matter or that would require you to give privileged information.
The purpose of an examination for discovery is to find out what the other party will say at trial and what evidence they will present to the judge. Examinations for discovery can also be helpful to find out areas of agreement so the trial can be shorter and focus only on the facts and claims that are in dispute.
What to expect
- Examinations for discovery often have a time limit by law or by agreement (check your Rules of Court).
- When you examine the other side, you are responsible for making arrangements (room, booking the court reporter, paying the court reporter and the witness fee).
- Most discoveries begin by asking the person to swear or affirm that they will tell the truth.
- Then they are asked to state their name, address (if relevant), and occupation.
- You can ask questions about anything relevant or material to your case.
- The person you are examining is required to bring all of their relevant documents with them to the questioning.
- You can ask questions about documents you present to the other side, or about documents they have included in their list of documents.
- If they cannot answer a question during the Discovery, you can ask them to send you the answer by letter, often called an “undertaking”.
- You can also ask the person for the names and addresses of other people who might have relevant information.
You can get the transcript of the discovery of any other party, but generally only the questioning party can use it as evidence in court. But be aware that, depending on the length, these transcripts can be expensive. Therefore, be sure to take good notes while conducting a discovery and limit your questions to issues that will help you in the case.
Tips on conducting an examination:
- Prepare: It is a good idea to prepare a script of your questions (and potential follow-up questions) ahead of time and to organize the documents you will be presenting to the witness. Also, make sure you know your facts.
- Ask one question at a time: If you are asking multiple questions at a time, you will not know which question they are answering. It is better to break it down and ask shorter, more precise questions.
- Listen: Be sure to listen to the answers. Be flexible enough to deviate from your script to ask follow up questions when needed.
- Move on: Once you have a necessary admission, move on.
- Be courteous: Always be polite to opposing counsel and the person being examined.
Tips on answering questions at a discovery:
- Prepare: Before attending, familiarize yourself with the facts and review your documents. It is your responsibility to know the relevant facts of your case. You will be required to bring all of your relevant documents and other records with you to the questioning.
- Keep it short: Answer the questions asked and only the question asked, as briefly as possible – do not volunteer more information than necessary.
- Be honest: You must answer truthfully. Do not guess. If you do not know the answer, say so.
- Stay calm: Do not get upset.
- Be courteous: Always be polite to opposing Counsel and / or the person examining you.
- 9.6 Use of Disclosure / Discovery
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To Settle: You may gain information about the case the other side will present/answer, and insight about your own case, which will help you to decide what a fair settlement might be. Settlement is always a good option, so you should consider settlement possibilities after receiving disclosure or conducting discovery.
At Trial: Each party can use the documents and information they received from the other party at discovery as evidence during the trial. This includes the answers given in reply to interrogatories and the documents from each party’s list of documents.
You can also use a transcript from an examination for discovery of questions you ask of the other side. You may read into evidence the relevant parts of the discovery transcript of the opposite side as proof of the statement or to challenge the credibility of witness’ statement at trial. For example, if the other side is saying something different at trial than they did at their examination for discovery, you can use the transcript to ask why they are being inconsistent. You must read both the questions and answers from the transcript. Be mindful that any question and answer you read to the court becomes part of your case. So, you should avoid reading in parts of the discovery that are damaging or contradicting to your own case. You cannot read into evidence the answers you gave in discovery – you have to testify about that.
Fill out the Examination for Discovery Worksheet before you conduct one so you will not forget to ask any questions you want to ask.
- 9.7 Examination for Discovery Worksheet
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Go through the worksheet organizing your questions by topic. (For example, What I need to know about: value of home. Questions could include: Did you have the family home assessed? When did this assessment take place? Who conducted it? What did the assessment say about the value of the home?) (Note: if there is a document you do not have, request it so it is on the record in the discovery.) Bring this worksheet to the discovery so you can write quick notes in the response area and keep track of questions you want to ask and the answers that are given.
What I need to know: __________________________________________________________________________________
Question: __________________________________________________________________________
Response: __________________________________________________________________________
Question: __________________________________________________________________________
Response: __________________________________________________________________________
Question: __________________________________________________________________________
Response: __________________________________________________________________________
Documents I am requesting:
__________________________________________________________________________________