Proportionality is an important concept in life. The MacLean Family Law Group, Vancouver and Surrey family law lawyers, want you to know that the B.C. Supreme Court thinks so too, and that this thinking affects child custody, child support, spousal support, and property divison under the Family Relations Act and the Divorce Act.
The new B.C. Supreme Court Rules of Court deal explicity with proportionality, in Rule 1-3:
(2) Securing the just, speedy and inexpensive determination of a family law case on its merits includes, so far as is practicable, conducting the family law case in ways that are proportionate to
(a) the interests of any child affected,
(b) the importance of the issues in dispute, and
(c) the complexity of the family law case.
Fine words indeed. What do they actually mean to people involved in family law litigation?
The ends need to be proportionate to the time and expense taken to get there. You need to decide what you want to get, and how much you are willing to spend to get it. Do you want, for example, to run a 2 week trial and spend $60-$70,000 over 1 day of access? This may not be proportional. On the other hand, spending $10,000 on a s. 15 custody and access report which may help resolve matters may well be proportional, or $20,000 on a business valuation and guideline income for the purposes of child support, spousal support, or property division when one party is making hundreds of thousands of dollars. It’s important to keep your goals in mind–family law cases can take on a life of their own, and it’s easy to get caught up in the sometimes tit-for-tat nature of proceedings.
This can often come into play when one spouse believes the other is hiding income–if the other spouse is hiding $5,000 in income, how much are you willing to pay to uncover that? Further, there may be limits to how far a court is willing to let you go in order to uncover this, and they may be reluctant to order what they view as disproportionate disclosure.
In keeping with this, examinations for discovery (where a lawyer, outside of court, examines a party under oath) are limited to 5 hours in the new rules. However, in unusually complex cases involving lots of witnesses or lots of time, it is open to a lawyer to apply to the court for more time. If you have a six week trial, for example, a mere fives hours may be insufficient. On the other hand, if you have a 1 week trial, it will probably be plenty.
Under the old rules, a party could request disclosure which could lead to a level of near-harassment requests–anything which may, directly or indirectly, enable a party to advance their own case or damage the case. However, Master Baker, in a decision involving a personal injury case, noted that under the new Rules of Court, this kind of broad disclosure was not automatic. Parties are limited to disclosure which can prove or disprove a material fact. While other documents can be produced, Master Baker noted that the requesting party must:
…satisfy either the party being demanded or the court, if an order is sought, with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”, and again, there is no doubt that the new Rules have limited the obligation for production in the first instance to the first category that I have described and has reduced or lessened the obligation for production in general…
This important rule can help both lawyers and the courts move family files along more quickly and with less expense, helping to keep things proportional to the issues at hand without having to sort through reams of useless disclosure, only a small amount of which will actually be referred to at a trial.
