“The Family Law Rules serve to provide consistency in the production of financial disclosure and to curtail demands that are unreasonable and disproportionate. There is no question that full and frank financial disclosure is required in family law matters. However, with ever-expanding requests for disclosure in family law matters, proportionality has become a fundamental principle that cannot be ignored. No procedural decisions should be made without specifically addressing the principle of proportionality, and without first considering whether the request is a deviation from the requirements of r. 13 of the FLR.
The FLR already mandate significant mandatory disclosure obligations. The pursuit of additional disclosure by regular motion is expensive and the costs of the motion may be disproportionate to the probative value of the disclosure that is obtained. Once comprehensive disclosure has been provided, the FLR were designed to address ongoing disclosure that is either irrelevant or disproportionate to the issues before the court.
In Boyd v. Fields 2006 CarswellOnt 8675 Justice Perell made the often-quoted statement “the fundamental question is whether the various items of information are relevant or whether they have a semblance of relevance having regard to the material issues in this case” (see para. 11).
More importantly, Justice Perell provided the following:
Full and frank disclosure is a fundamental tenant of the Family Law Rules. However, there is also an element of proportionality, common sense, and fairness built into these rules. A party’s understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact-finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact’s attention to the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial (see para.12).
The words of Justice Perell are to be used in conjunction with the primary objective rule under r. 2 (2)(2) to (5) of the FLR. The primary objective rule is to ensure that all cases are to be addressed justly including saving expense and time and dealing with the case in ways that are appropriate to its importance and complexity.
Rule 30.10 (1) of the Rules of Civil Procedure provides that the court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
a) The document is relevant to a material issue in the action; and
b) It would be unfair to require the moving party to proceed to trial without having discovery of the document.
Rule 19 (11) of the FLR provides as follows:
Document in Non-Party’s Control – If a document is in a non-party’s control, or is available only to the non-party, and is not protected by legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
a) Order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
b) Order that a copy be prepared and used for all purposes of the case instead of the original.
Rule 20 (5) permits a court to order disclosure from a non-party by questioning, affidavit, or by another method, if:
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- It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
- The information is not easily available by any other method.
- The questioning or disclosure will not cause unacceptable delay or undue expense.
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The Family Courts have adopted, to a large extent, the jurisprudence of r. 30.10 (1) of the Rules of Civil Procedure. (see: Himel v. Greenberg, 2010 CarswellOnt 8261, 2010 ONSC 2325). The factors to be considered in determining whether production should be ordered from non-parties under r. 30.10 (1) was set out by the Ontario Court of Appeal in Ontario (Attorney General) v. Stavro, CanLII 3509 (ONCA);
a) The importance of the documents in the litigation;
b) Whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the applicant;
c) Whether the discovery of the defendant with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the defendants;
d) The position of the non-parties with respect to production;
e) The availability of the document of their informational equivalent from another source which is accessible to the moving parties;
f) The relationship of the non-parties from whom production is sought to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true stranger to the litigation.
g) Relevance alone is insufficient to warrant production. To order production, the judge must be satisfied it would be “unfair” to the moving party to go on with the case without the document.
The onus is on the party requesting the non-party disclosure to establish that it would be unfair if he/she does not obtain the disclosure requested.
The rules are discretionary, and require the Court to consider the interests of all concerned in the exercise of its discretion, while being mindful that the underlying objective of the Family Law Rules is to resolve matters in the least contentious, least litigious manner possible. (see: Himel v. Greenberg at para. 25)