Often in Family Law proceedings clients feel bogged down by requests to produce documents. Clients have at times expressed to me a dissatisfaction with having to produce bank statements for past years, attachments from income tax returns, documents that are not easily obtainable or papers that may have existed in the past but may take some work to retrieve. So what do you have to produce in your Family Law proceeding and why?
The obligation to produce financial disclosure is imposed by the Family Law Rules and by the Child Support Guidelines (CSG). The requirement to prove income is found in Rule 13 which deals with the production of Financial Statements and the requirement to “attach any documents to prove the party’s income that the Financial Statement requires”. Your Financial Statement will not be accepted for filing by the Court unless it is accompanied by proof of your current income, a copy of your notices of assessment and any notices of reassessment for each of the past three taxation years. Where the notices of assessment and reassessment are unavailable, an Income and Deductions printout from the Canada Revenue Agency for each of those years must be produced, whether or not an income tax return was filed.
If the other party believes that your income statement does not contain enough information for a full understanding of your financial circumstances, under Rule 13(11) the other party can ask you to give them “any necessary additional information”. The other side has to ask you directly for that information and if it is not provided by you within seven days, they can seek a Court Order that you provide the information.
Rule 19 deals with disclosure of documents and allows either party to view and / or copy any documents mentioned in the Application, Answer, Reply, Notice of Motion, Affidavit, Financial Statement or your Net Family Property statement. Under this Rule you can request an affidavit of documents from the other party and they can request one from you. This Affidavit of Documents must list every document relevant to every issue in the case that is within the party’s control or available to the party upon request. All documents that you list must be made available to the other party for viewing and copying. In some circumstances a court order may also be obtained compelling a third party (someone other than the spouses in most cases) to disclose documents and, if that third party is a corporation controlled by one of the parties, the corporation may be required to file an affidavit of documents.
The Child Support Guidelines Section 21 also sets out an extensive list of documents that the parties must provide in determining child support and this list is often used as a reference for required disclosure even when someone is seeking spousal support even where there are no children or grown children.
So the question is…when have you produced enough documentation to satisfy the Rules and the Guidelines?
The goal in family law is to promote and obtain fair resolution of family matters; providing full and frank disclosure is seen as a primary means to that end. Sometimes however, parties use the exercise of asking for production in attempts to extend , delay or frustrate the family law proceeding. The Courts have held that the disclosure process cannot be used to cause delay or used in an attempt to reap tactical advantage. Courts must look at whether the burden of providing some particular documentation is too great in the circumstance and in relation to the value that particular document or documents will have in the resolving the dispute or determining entitlements. Judges have also said that in looking at requests for disclosure there must be an element of proportionality, common sense and fairness. It has even been opined that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful.
So where to draw the line? It may be best to think about putting all your cards on the table in order to try to reach an agreement in your family, but if the requests keep coming and they don’t seem to make sense , you can say enough is enough.