Nanc's lawyer, Jack Hittrich, has been practising family law for many years and has become concerned by certain deficiencies unique to family law. He is part of a working group of lawyers that have come to grips with ways to address these issues. Many of these issues were central to Nanc's experience with the justice system. This post is a preliminary report:
C.B.A. FAMILY LAW SUBSECTION SUBMISSIONS ON DISCLOSURE PRINCIPLES IN REFORMING FAMILY LAW RULES
Mr. Justice Fraser in Cunha v. Cunha [1994] B.C..No. 2573, brilliant description of “non disclosure” as “the cancer of matrimonial property litigation” is applicable to all areas of family law. Accessing reliable financial information at an early stage and with a minimum of expense and complexity should the primary objective and underlying rationale in the current review of our disclosure rules.
The current Supreme Court and Provincial Court Rules are a good start but simply do not go far enough. Very real barriers continue to exist to obtaining accurate and reliable financial information upon which informed decisions can be made. A complex, expensive, and often unpredictable court process is frequently necessary to determine income and asset information in cases of self employed individuals.
It is unfortunate that our adversarial legal system places the onus on usually the weaker spouse, who lacks the knowledge and often the financial means, to prove on a balance of probabilities that her spouse (yes, this is usually gender specific) has income at a certain level or has this or that asset and what its value is. Why force the weaker party to spend thousands and thousands of dollars on lawyers, forensic accountants and business valuators to prove income levels and business values when the party in control of the key financial information can often sit back and wait to see if his (yes, it is usually “his”) spouse will tire and hopefully give up and take a settlement which is less than fair?
The key here is to shift the burden and expense of disclosure to the spouse who controls the financial information. The traditional burden of proof on a balance of probabilities on the claiming party is deeply flawed in the area of disclosure in family law.
Why should there be a requirement to commence litigation before the disclosure rules of our courts apply? Why should the party seeking the disclosure through the court process be required to seek costs, usually at a small fraction of their real costs? Why should the non disclosing party have the opportunity to delay and then produce at the last minute knowing very well how lax courts tend to be about awarding costs?
There are a number of useful ideas in this area and they include the following:
1. There should be an automatic right to seek full financial disclosure by means of appropriate demands, without the need to start any legal action. Supreme Court Rule 60D could be amended to include pre writ disclosure demands.
2. If the demand is on a self employed individual, in addition to the usual disclosure requirements, there should be a clearly specified requirement to produce banking records, both personal and business, over a period of 2 to 3 years.
3. The forms for financial demands should clearly spell out that failure to produce by a stipulated date will automatically result in a fixed financial penalty unless the non disclosing party brings on a successful application in court to show cause why the penalty should not apply.
4. If the commencement of legal action is required for failure to comply with disclosure, special costs should normally be awarded unless the offending party can show compelling reasons to the contrary.
5. The scope of Interrogatories should be broadened to include demand for specified documents.
6. There should be the option in family cases to specify on a Demand for Lists of Documents the subject area in issue.
7. Photocopying costs and costs of accessing third party documents should be controlled as much as possible with an automatic payment out of family assets unless cause can be shown otherwise.
8. Judicial Case Conference and Family Case Conference Judges and Masters should have broad and specific powers to order extensive financial disclosure with meaningful penalty provisions in case of non compliance.
9. At any stage of the proceeding, either party should be able to bring on an application to fund the full costs of an appropriate investigation and report into financial matters with legal fees, accounting fees, and disbursements paid by the other party or from family assets.
10. Non disclosure, partial disclosure, and financial ability to bear costs, should be specified criteria in the awarding of costs to fund investigations and reports into financial matters.
11. Rule 60D should be clearly linked to Rules 32 and 32A with expanded powers for court appointed masters, registrars, special referees and experts to investigate and report on financial matters. FRA s. 15 investigations and reports into custody and access matters are well known and routinely ordered while Rules 32 and 32A are little known and rarely used to investigating and report on financial matters.
12. If there is a judicial finding of material non-disclosure, there should be specific legislative authority for judges to reverse the onus of proof on evidence and to draw appropriate adverse inferences against the non disclosing party, essentially incorporating the rationale of Cunha v. Cunha. This goes beyond the scope of procedural law and will require amendments to the FRA and possibly the Divorce Act.
The foregoing ideas are expressed in very general terms. They arise from the collective financial and emotional pain of numerous disadvantaged spouses who have a bitter taste in their mouth about the substantial procedural hurdles that they faced in the current family justice system. It is time to make the family justice system more user friendly and more just.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
September , 2007
Jack Hittrich, Chair of the Law Reform Committee of the Westminster Sub Section
David Hart
Janet L. Clark
David Halkett
with input from David Dundee
and J.P. Boyd
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