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Family Law Rules – Rule 19: Document Disclosure

Angela Princewill

November 14, 2015

RULE 19:  DOCUMENT DISCLOSURE

AFFIDAVIT LISTING DOCUMENTS

19. (1) Subject to subrule (1.1), every party shall, within 10 days after another party’s request, give the other party an affidavit listing every document that is,

(a) relevant to any issue in the case; and

(b) in the party’s control, or available to the party on request.  O. Reg. 114/99, r. 19 (1); O. Reg. 383/11, s. 5 (1).

EXCEPTIONS

(1.1) Subrule (1) does not apply,

(a) to the Office of the Children’s Lawyer or to children’s aid societies; and

(b) in respect of documents required to be served under rule 13 (financial disclosure). O. Reg. 69/15, s. 7 (1).

ACCESS TO LISTED DOCUMENTS

(2) The other party is entitled, on request,

(a) to examine any document listed in the affidavit, unless it is protected by a legal privilege; and

(b) to receive, at the party’s own expense at the legal aid rate, a copy of any document that the party is entitled to examine under clause (a).  O. Reg. 114/99, r. 19 (2).

ACCESS TO DOCUMENTS MENTIONED IN COURT PAPERS

(3) Subrule (2) also applies, with necessary changes, to a document mentioned in a party’s application, answer, reply, notice of motion or affidavit. O. Reg. 69/15, s. 7 (2).

DOCUMENTS PROTECTED BY LEGAL PRIVILEGE

(4) If a party claims that a document is protected by a legal privilege, the court may, on motion, examine it and decide the issue.  O. Reg. 114/99, r. 19 (4).

USE OF PRIVILEGED DOCUMENTS

(5) A party who claims that a document is protected by a legal privilege may use it at trial only,

(a) if the other party has been allowed to examine the document and been supplied with a copy, free of charge, at least 30 days before the settlement conference; or

(b) on the conditions the trial judge considers appropriate, including an adjournment if necessary.  O. Reg. 114/99, r. 19 (5).

DOCUMENTS OF SUBSIDIARY OR AFFILIATED CORPORATION

(6) The court may, on motion, despite clause 1 (7.2) (a), order a party to give another party an affidavit listing the documents that are,

(a) relevant to any issue in the case; and

(b) in the control of, or available on request to a corporation that is controlled, directly or indirectly, by the party or by another corporation that the party controls directly or indirectly.  O. Reg. 114/99, r. 19 (6); O. Reg. 69/15, s. 7 (3).

DOCUMENTS OF OFFICE OF THE CHILDREN’S LAWYER OR CHILDREN’S AID SOCIETY

(6.1) The court may, on motion, despite clause 1 (7.2) (a), order the Office of the Children’s Lawyer or a children’s aid society to give another party an affidavit listing the documents that are,

(a) relevant to any issue in the case; and

(b) in the control of, or available on request to, the Office of the Children’s Lawyer or the children’s aid society.  O. Reg. 383/11, s. 5 (3); O. Reg. 69/15, s. 7 (4).

ACCESS TO LISTED DOCUMENTS

(7) Subrule (2) also applies, with necessary changes, to any document listed in an affidavit ordered under subrule (6) or (6.1).  O. Reg. 114/99, r. 19 (7); O. Reg. 383/11, s. 5 (4).

DOCUMENTS OMITTED FROM AFFIDAVIT OR FOUND LATER

(8) A party who, after serving an affidavit required under subrule (1), (6) or (6.1), finds a document that should have been listed in it, or finds that the list is not correct or not complete, shall immediately serve on the other party a new affidavit listing the correct information.  O. Reg. 114/99, r. 19 (8); O. Reg. 383/11, s. 5 (5).

ACCESS TO ADDITIONAL DOCUMENTS

(9) The other party is entitled, on request,

(a) to examine any document listed in an affidavit served under subrule (8), unless it is protected by a legal privilege; and

(b) to receive, free of charge, a copy of any document that the party is entitled to examine under clause (a).  O. Reg. 114/99, r. 19 (9).

FAILURE TO FOLLOW RULE 19 OR OBEY ORDER

(10) If a party does not follow this rule or obey an order made under this rule, the court may, in addition to any power to make an order under subrule 1 (8) or (8.1),

(a) order the party to give another party an affidavit, let the other party examine a document or supply the other party with a copy free of charge;

(b) order that a document favourable to the party’s case may not be used except with the court’s permission; or

(c) order that the party is not entitled to obtain disclosure under these rules until the party follows the rule or obeys the order. O. Reg. 322/13, s. 11.

DOCUMENT IN NON-PARTY’S CONTROL

(11) If a document is in a non-party’s control, or is available only to the non-party, and 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, on motion with notice served on every party and served on the non-party by special service,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original.  O. Reg. 114/99, r. 19 (11).

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