BC Supreme Court Family Rules Amendments

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On February 18, 2016, the British Columbia Supreme Court announced a January 28, 2016
Order in Counsel making amendments to the Supreme Court Family Rules effective July 1, 2016.  Notable among the amendments is to Form 20 and Form 21, which are the List of Documents and Appointment to Examine for Discovery, respectively.  typing-vintage-technology-keyboard

The List of Documents is a form that tells the other party which relevant documents are in the possession and control of the listing party.  The Appointment to Examine for Discovery is the form that sets the time and place for the other party to be examined under oath in advance of the trial.  Lists of Documents and Examinations for Discovery facilitate and require broad and comprehensive disclosure, and typical family litigation will result in the parties exchanging very sensitive information and documents.  The recent amendments call for including in the forms the implied undertaking of confidentiality over documents exchanged in family litigation:

Implied undertaking to the court

Documents produced are not to be used by the other party(ies) except for the purposes of this litigation unless and until the scope of the undertaking is varied by a court order or other judicial order, consent or statutory override or a situation of immediate and serious danger emerges. This implied undertaking continues despite settlement or completion of the litigation.”

This implied undertaking is not at all a new concept.  You may not use documents or information obtained in litigation for any other purpose except the litigation, unless you fall within a few narrow exceptions.  Family law litigants have been bound by this rule for years.  However lay litigants are increasingly common, and most non-lawyers would not have reason to be aware of the implied undertaking until now.   The amendments make it clear on the face of the documents: disclosure obtained in family cases is for use in the litigation only.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Ex Tapes: Recording Marital Discord

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

One of the most difficult challenges survivors of abuse in custody and guardianship cases face is proving to the judge that they have been abused.  Abuse survivors are often faced with the risk of being found to be exaggerating or fabricating their allegations in order to gain an upper hand in the litigation.  Sadly, survivors are put in a position of having to decide whether their evidence is “good enough” such that they will be believed.  Some survivors choose not to lead evidence regarding abuse because they are concerned that it will have a negative impact on how the court will view their credibility.

In the recent BC Supreme Court decision of N.D.T. v. T.F.T., 2016 BCSC 134, the Claimant was successful in proving her allegations of abuse.  She was able to show that the Respondent had been verbally abusive, that the abuse had taken place in the presence of the parties’ children, and that the Respondent’s conduct reflected his capacity to parent the children.  The BC Family Law Act explicitly requires BC Courts to consider the impact of family violence on children, whether or not it has been directed at the children.  The Claimant, referred to in Mr. Justice Saunders’ judgment as “Ms. T”, consequently won her claims for custody, guardianship and parenting time.  Her method of proof: video recordings.

Ms. T had video recorded the parties’ arguments for a period of approximately two years leading up to the date of separation.  Videos of 19 separate incidents were admitted into evidence.  That takes riphone_notes.jpgeal forethought!

What makes Ms. T’s success even more remarkable is that she won despite an expert report that made recommendations that Ms. T should get counselling to shift her focus away from drawing the children into the conflict and “placing blame” on her husband.

In the past, BC courts have been disapproving of surreptitious recordings in family cases.  Recording a former spouse without permission has been viewed as contributing to mistrust and conflict between parties; and yet time and time again videos and audio recordings are admitted into evidence.  In this case, one has to wonder if Ms. T would have been so resolutely successful on the parenting issues had she not been so proactive in collecting evidence during the marriage.

It feels unsettling to think that unhappy spouses will start recording each other’s worst moments for years on end with the aim to build a case for a family law trial.  However, with recording devices literally at everyone’s finger tips, we can expect more of this evidence to come.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.