March 15, 2021 – Disclosure: Balancing Interests

“The new approach to fact finding under the Family Law Rules has been to make disclosure a given. Fact-finding is not to be a battleground. There ought to be an orderly, prompt request for disclosure with an organized speedy reply. The process is not to go on forever and the case is to move on because the facts point to a resolution or to the necessity of a trial. Obtaining the factual evidence is no longer a game of hide and seek.

The rules provide a number of tools to create this approach. Rules 19 and 20 set up the process. Sanctions for failure to comply with a disclosure order are found in Rules 1(8), 13(7), 14(23) and 19(10). These sanctions are severe. A litigant may find his or her pleadings struck and the case proceeding without his or her participation. The severity of the sanctions serves to emphasize the importance of disclosing the necessary information in a file quickly.

The courts must, however, be clear that the disclosure process cannot be used to cause delay or to reap tactical advantage. The court must consider the burden certain disclosure requests bring for the disclosing party. Is the probative value of the sought-after disclosure so great in relation to the difficulty of obtaining the disclosure that said disclosure would be ordered and sanctions imposed for failure to comply? How does the disclosure request fit into the overall context of the case? Is the issue for which disclosure is requested a central issue in the case? Or is it peripheral? Does the cost of obtaining the disclosure outweigh the value of the issue in the case?  Is there a more expeditious and cheaper way of getting the same information? As the case develops, is the disclosure still related to an important issue in the case? As always, the court must balance these competing interests to ensure fairness.”

        Chernyakhovsky v. Chernyakhovsky, 2005 CanLII 6048 (ON SC) at 6-8