I’ve had some discussions lately with various people about how to go about obtaining documents from a person who is not a party to the proceedings, but have information (this could be medical records, financial records, etc.). And seemingly equally I’ve had discussions about how to stop others from a fishing expedition.
There is a way to do it.
The court’s discretion to make orders for non-parties to produce documents and provide information are governed by subrules 19(11) and 20(5) of the Family Law Rules.
The court has the discretion to order a non-party to produce a document provided
the document is in a non-party’s control (or the documents only available to the non-party);
it is not protected by legal privilege, and
it would be unfair to the moving party to go on with the case without the document.
The test in subrule 19(11) is objective. Suspicion and conjecture will not suffice. The party moving for disclosure must advice the court of the relevance and necessity of the documents sought for the court to determine whether or not out would be unfair for the moving party to go on with the case without the documents. The moving party must establish on a balance of probabilities that absent production, they cannot conduct their case in a manner that would result in a just determination. The documents sought must be relevant.
There is also a “fairness” test that could be weighed in the cases where production of those documents or testimony could be costly.
In addition to document disclosures there may nee a need to have an examination of a Party by a Health Practitioner done (be it physical or mental).
To add a non-party to the proceedings for the purposes of disclosure, you would rely on FLR 20(4)(a) if you can obtain the other side's consent to do so. Otherwise you would need to do it by way of an motion, asking the court to order it pursuant to FLR 20(4)(b) and FLR 20(5)
Other cases — consent or order
(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,
(a) with the other party’s consent; or
(b) by an order under subrule (5). O. Reg. 114/99, r. 20 (4).
Order for questioning or disclosure
(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
2. The information is not easily available by any other method.
3. The questioning or disclosure will not cause unacceptable delay or undue expense. O. Reg. 114/99, r. 20 (5).
Then there are assessments under s.30 of the Children’s Law Reform Act that can be ordered.
The point is - yes - you can compel third party disclosures… but it has to be balanced against fairness and relevance first.
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