DOCUMENT DISCLOSURE IN VANCOUVER FAMILY LAW DISPUTES – EVERYTHING PLUS THE KITCHEN SINK
Lorne MacLean, Q.C. recently won another case for a very happy family client, in part, because of dogged focus on getting every key family law document from the Ministry of Children and Family Development, police, and school, relating to what the Court later determined to be an unfounded claim of sexual abuse. These documents disclosed critical evidence that allowed Mr. MacLean to successfully cross examine a number of witnesses.
What has to be disclosed in a Vancouver or BC family case?
Our top Vancouver, Surrey, Kelowna and Fort St John family lawyers are happy to meet with you to tell you what documents are key to document disclosure in your family law case.
Once originating pleadings (Notice of Family Claim, Counterclaim and their respective responses) have been exchanged and a Judicial Case Conference conducted, the usual next step in a family law proceeding is for parties to exchange documents, to be eventually relied upon at trial. The documents that each party is required to list and exchange at the other party’s request are wide-ranging: Rule 9-1(1)(a)(i) of the Supreme Court Family Rules requires that each party to a family law case must prepare a list of documents that lists “all documents that are or have been in the party’s possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact.”
In other words, there is a vast range of documents that can be deemed relevant to litigation, even if such documents pre-date the subject of the litigation. This is especially true in family law cases, as children are involved. If a party is seeking to have certain documents disclosed on the basis that it is relevant to parenting, it must be shown that those documents somehow are relevant to the other party’s ability to parent the children. For example, documents that pertain to a person’s criminal record may not be relevant to parenting, unless it can be shown that having a criminal record has a bearing on that person’s ability to parent (which in itself is a matter of some debate).
The issue of relevancy of documents was recently addressed in S.R.M. v. N.G.T.M., 2013 BCSC 719, a 2013 BC Supreme Court case where one party was seeking disclosure of the records of the other party’s psychologist, naturopath and general physician. The psychologist’s records, in particular, pre-dated the relationship by two years.
At the end of the day, the Master stated such documents were relevant, however each record was relevant to different degrees:
[22] In argument Mr. Hittrich emphatically submitted that not everything a person does is relevant to their role as parent. I can accept that, but it seems that a corollary may be: yes, but everything a person is can reasonably be relevant to their role and ability as parent. It is hard to imagine a task in life that draws on more aspects and facets of a person’s being than that of parent.
[23] Mr. Hittrich is also entirely correct to point out that the rules of disclosure for family cases are the same as those in civil cases. That can’t be disputed. What can be disputed is the degree of relevance that applies to each. The result in Kaladjian should not be surprising: it is likely less difficult to define and limit relevance in a discrete, one-time event between parties. It is a vastly more difficult task to set limits in a matrimonial case involving the complexities of a longstanding relationship, the multitude of claims, problems, and perspectives that such cases afford and, most importantly, the best interests of a child. I have no doubt, however, that the clinical records of Dr. Krause, discussing apparently the challenges of life, marriage, and parenting for S. and how she could deal with them, are relevant to the children’s best interest. As such Dr. Krause’s records will be produced in their entirety.
[24] None of this ignores or trivializes S.’s threat (para. 7, above) to end her therapy with Dr. Krause. That is a painful and difficult decision that she may have to make but, if so, I trust she will make it as a parent, and balance her concerns about continuing with Dr. Krause against her responsibilities as a parent.
[25] At this stage I am not satisfied that sufficiently wide relevance has been established for Drs. Daniel or Dahl. I accept that either may have been consulted for medical reasons entirely unrelated to the children and as such their records will be produced on a Halliday basis.
Relevancy of documents in a family law proceeding therefore covers a vast range of topics, and can delve quite deeply into a person’s history and personal information. The disclosure of those documents can be in different forms however (for example, in a redacted form) if deemed appropriate. Speak with a family lawyer at MacLean Law if you are seeking document disclosure or are requesting same for your family law proceeding. Call us across BC toll free at 1 877 602 9900 or contact us.
