“The test under Rule 19(1) and Rule 20(16) [of the Family Law Rules] is narrower than the “semblance of relevance” test traditionally applied given that the Rules require disclosure when the question or request for production is “relevant to any issue in the case” rather than the former, broader test of whether the question is one “relating to any matter in issue”: Ontario v. Rothmans Inc. [2011] O.J. No. 1896, 2011 ONSC 2504, para. 129; Eva v. Eva [2010] O.J. No. 2316, 2010 ONSC 2088, at para. 4. The focus on “relevance” as opposed to the “semblance of relevance” is also consistent with the primary objective of the Family Law Rules described in Rules 2(2) and 2(3), particularly on promoting the saving of expense and time.
Relevance depends on the facts in issue. For evidence to be relevant it must tend to “increase or diminish the probability of the existence of a fact in issue”. There is “…no minimum probative value required for evidence to be relevant.” R. v. Arp 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82, at para. 38.
Proportionality must be considered in assessing the appropriateness of a request for disclosure. In Boyd v. Fields [2006] O.J. No. 5762, at para. 12, Justice Perell stated:
Full and frank disclosure is a fundamental tenet 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 from the main issues and unduly occupy the trier of fact’s time and ultimately impair a fair trial. [Emphasis added.]
Referencing this approach, the Ontario Court of Appeal in Kovachis v. Kovachis, 2013 ONCA 663 (CanLII), [2013] O.J. No. 4954, at para. 34, stated:
Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: … . Disclosure orders must be fair to both parties and appropriate to the case. [Emphasis added.]
If a person being questioned refuses to answer a question, the court may, on motion, decide whether the question is proper and give directions for the person’s return to the questioning: see Rule 20(19).”