Sometimes parties try hiding their assets behind their family members or friends in divorce cases in family law court. In those circumstances there are two options how to access that information. One option is to add them as parties to the proceeding. Another option us to obtain an order for disclosure from a non-party. This article will describe general principles of the latter.
Family Law Rules
There are two provisions in Family Law Rules authorizing non-party disclosure when a spouse does not control a corporation:
- If a document is in a non-party’s control that is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may order the non-party to produce the document to the party: Rule 19(11) [1] (Family Law Rules, O Reg 114/99, r. 19(11).); and
- The court may order a non-party to disclose information where:
- it would be unfair to the party who wants the disclosure to carry on with the case without it;
- The information is not easily available by another method; and
- The disclosure will not cause unacceptable delay or undue expense: Rule 20(5) [2] (Ibid at r. 20(5).).
- The onus is on the moving party requesting the production of disclosure to satisfy the court that the production should be ordered.[3] (Hohl v Hohl, 2021 ONSC 2182, 333 A.C.W.S. (3d) 49 at para 24, citing Weber v Meritt, 2018 ONSC 3086, 11 R.F.L. (8th) 177, at para 29.)
- C.D. Braid J. in Hohl v Hohl stated that “Non-party disclosure in family litigation is generally more permissible than under the Rules of Civil Procedure, and judges should exercise “liberal and generous discretion” in ordering non-party disclosure in the family context.”[4] (Ibid at para 25.)
- Madsen J. in Weber v Meritt sets out the relevant factors to be considered in a motion for disclosure from non-parties. Those factors were recently adopted in Hohl v Hohl.
Applicable Principles
It is important to have sufficient evidence to convince a family law judge in your divorce case during the non-party disclosure motion hearing. Since it is the requesting party who needs to convince the judge to make the requested order, below are the factors you will need to address at the motion hearing:
Unfairness/Relevancy
- You need to satisfy the family law judge that the requested information is relevant to your case. Also, you need to prove that without access to such information it would be unfair for you to continue your divorce case. For example, if your former spouse has found a new partner and your former spouse’s income has dropped significantly after separation but you are confident that they continue operating the business (for instance as a sole proprietorship) and the corporate search shows your former spouse’s new partner’s address registered as the new business address, it may ring a bell for a judge that not only the address of that person is now being utilized by the business. Having access to the bank accounts of the new partner may be relevant if you are asking for spousal support and your former spouse’s income has significantly decreased without a plausible explanation.
Information Is Not Easily Available By Any Other Method
- Obviously, you would not be able to access bank accounts of your former spouse’s new partner without a court order. However, if there is a situation where you have legal right to access the requested information, there is no need to seek such an order. By way of an example, you could be a joint owner of the corporation from which you are seeking certain documents. By virtue of your legal status, you could request and should be provided with such information without a court order.
Unacceptable Delay or Undue Expense
- Sometimes requests for disclosure from a non-party in a divorce case may require the non-party to spend thousands of dollars to provide it. For example, if you are seeking ten years worth of bank statements and the bank may charge $1.00 per page, the court will be concerned. You can either suggest to cover those expenses (reserving the right to recoup those expenses from the opposing party later in the proceedings) or the court may dismiss your non-party disclosure request because compliance by a non-party with such order may become an unbearable burden.
Position of Non-Parties Regarding Production
- Usually non-parties would oppose the request for disclosure in a divorce case. It is understandable. However, if a non-party does not take a position or consents to the request, it makes it easier for the judge to grant your request.
Relationship of the Non-Parties and Interest in Litigation
- Very often non-parties are somehow connected to your former spouse. For example, it could be a relative or a new partner. Any non-arm’s length arrangements raise the court’s suspicion.
It is crucial to have a lawyer who understands the legal test of disclosure from a non-party. Your lawyer should be able to convince the divorce court that it should be done. PLS WILL HELP!