May 12, 2023 | Other

Discovery Phase

Discovery is an important phase in all family cases as it is the opportunity for the parties to gather information before heading into trial, a settlement conferences, or preparing an offer for settlement purposes. Both parties obtain and review all relevant documentation that is related to the dispute in order for them to decide how to proceed with their case.

Examination for discovery allows the parties to examine the evidence that the other side intends to use for their case. It can also help to clarify the issues and shorten the length of the trial.

The Code of Civil Procedure (CCP) governs the discovery process in the province. All the rules and procedures for obtaining and providing disclosure are outlined in the code. It is necessary for both parties to provide complete disclosure of all relevant documentation such as financial information as well as any other information that is deemed important for the dispute out of court.

During discovery, the parties can examine each other. A judge is not present, just a stenographer, the parties and their lawyers. The stenographer will record and transcribe the interview. This testimony is admissible as evidence at trial as well. The examination can also be written. In that case, the parties will have a list of questions that they must answer in writing before a certain date.

Financial disclosure is an essential part of the discovery phase for family law disputes. Both parties must provide, all their financial statements or declarations. The period can be up to 3 years before the parties date of separation to the present date. This includes their income, assets, expenses, and liabilities. The documentation should consist of tax returns, investment account statements, bank statements, credit card statements as well as any other financial documents.

This financial information from the discovery phase is needed for all types of family law cases such as determining spousal support, child support, and property division.

There are other types of disclosure that could be required, depending on what issue is being disputed. For example, if the issue being disputed is spousal support, employment records or property valuation reports may be requested. Furthermore, if it is a child custody case, medical records, school records and communication records could also be requested for the case. Both parties need to disclose all relevant information and documentation. The specifics of what needs to be disclosed varies based on the issue and the details of the case.

In a family law case, failure to provide full and complete disclosure can have serious repercussions. There are different sanctions that can result of this unfulfilled obligation.

Missing information can be detrimental to the case of the party who failed to provide it. The court can order that party to provide the missing documents, they can adjourn the case until the documents are provided, or they may have to pay damages to the other party. Failure to provide disclosure in accordance with a court order or subpoena which can lead to fines or imprisonment in exceptional cases.

If the other party fails to provide disclosure after you request it in writing with a specific deadline, you can bring a motion to the court for a judge to order the financial disclosure which you need to obtain. The court will then order the production of those documents if they are not protected by solicitor client privilege, etc.

The discovery phase is an essential part of the process because it allows the parties to review all the relevant information related to the issues in dispute. It is very important to provide all the necessary documents when you are preparing for trial.
Please see the links below for more information.

https://www.custodyxchange.com/locations/canada/quebec/process.php

https://www.dlapiperintelligence.com/litigation/insight/index.html?t=04-disclosure-and-discovery&c=CA 

https://www.justice.gc.ca/eng/csj-sjc/just/08.html

https://lawjournal.mcgill.ca/wpcontent/uploads/pdf/6276615-meredith.pdf

https://www.lexology.com/library/detail.aspx?g=b7d0bf36-8b7c-4dcf-96f1-3787a4439227

https://educaloi.qc.ca/en/capsules/financialsupportforanexspouse/#:~:text=The%20spouses%20can%20agree%20on,the%20reply%20to%20this%20application

https://educaloi.qc.ca/en/capsules/child-support/