The disclosure dilemma in family law matters: A plea for balance
By Gary Joseph
We have lost our way in family law. Our obsession with disclosure has driven the cost of family law proceedings beyond the budget of most clients. In addition to the financial cost of this obsession, there exists the time investment and emotional toll that this never-ending paper chase entails.
This obsession took hold and gained momentum with the passage of the Child Support Guidelines in 1997. The determination of income being the pivotal factor in fixing child support has fueled a cottage industry of professionals whose “disclosure lists” have taken control of the process.
Almost every non T4 payor must now subject himself/herself to an income analysis driving the cost of family law disputes instantly upwards. There were multiple judicial pronouncements on the evil occasioned by non-disclosure (an opinion I comfortably endorse) however, there is more to this issue than mere platitudes. Two cogent commentaries on the need for balance in this pursuit are found in the Ontario cases of Chernyakhovsky v. Chernyakhovsky and Boyd v. Fields.
Justice Sherrill M. Rogers of the Ontario Superior Court penned the informative decision of Chernyakhovsky v. Chernyakhovsky (2005) relating to disclosure requests in the family law context. The following statements provided by Rogers must be given due weight and consideration:
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 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 CarswellOnt 942 (S.C.J.), paras. 6-8
Therefore, disclosure requests cannot be used as a sword in family law litigation to cause delay or reap a tactical advantage, although they are most definitely used as such. Our courts must strike a balance to ensure fairness.
Justice Paul M. Perell of the Ontario Superior Court in Boyd v. Fields (2006) was faced with deciding a Motion for disclosure, one month before the trial was scheduled. Perell adopted Rogers’ approach in Chernyakhovsky regarding disclosure. The following statements by Perell are instructive on the issue:
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.
As to the element of fairness, Rule 2(2) provides that the primary objective of the rules is to enable the court to deal with cases justly. Rule 2(3) states:
2(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with cases in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
In my opinion, the disclosure obligations under the Family Law Rules must also be assessed in the light of Rule 2(3).
Boyd v. Fields, 2006 CarswellOnt 8675 (S.C.J.), paras. 12-13
The underlying message from both Perell and Rogers is that fairness, which is entrenched in the family law proceedings pursuant to Rule 2 of the Family Law Rules, is paramount. A party is not free to provide a wish list of disclosure without it having the ability to materially contribute to the fact-finding process.
Phil Epstein and Lene Madsen (two respected family lawyers) commented on Chernyakhovsky and Boyd in Epstein and Madsen’s This Week in Family Law (Feb. 20, 2007). The following comments provide further insight into the Justices’ decisions:
While it is clear that family law cases do require full and complete disclosure so that parties can ascertain their position, the comment that the court must consider the burden that certain disclosure requests bring to the party is a comment often overlooked. Forensic accountants, in particular, have an annoying practice of creating shopping lists so large and voluminous that they create an enormous burden to the disclosing party without shedding a great deal of light on the issues.
This decision of Justice Perell and Justice Rogers’ decision in Chernyakhovsky counsel the court to take a look at disclosure requests both in terms of relevance and proportionality. Without detracting from the principle that full and complete disclosure is the order of the day, these two cases at least reflect the fact that full and complete disclosure does not mean exactly what it says and one must strike a balance between what a party needs to conduct a fair trial and what is reasonable for the disclosing party to put forward, all the while, seeking Aristotle’s “golden mean.”
A fair and proportional approach to disclosure must be taken that advances the objectives of the Family Law Rules, which is to deal with cases justly, which includes fairness and saving expense and time.
Family Law Rules, O Reg 114/99, Rules 2(2) – 2(4).
Unfortunately the balance discussed in these cases seems to have not been recognized nor achieved within the Family Law Bar. There are many reasons for this including, but not limited to, the need for counsel to feel comfortable with their due diligence and the court’s need to be equally comfortable with the evidence before it before support orders are made based upon income.
Nevertheless, this perspective, cost and proportionality must re-enter the court system. If not, the consuming public will find other less expensive ways of determining their family law disputes. In fact, this has already taken hold in the tidal wave of self-represented individuals before our courts and the choice of alternative dispute resolution methods.