Gary Joseph | Aug 29 2024

This article was originally published by Law360 (www.law360.ca), part of LexisNexis Canada Inc.

In my non-deliberate efforts to almost constantly be on the wrong side of many family law issues over my years of practice, I have often railed against overly broad disclosure requests in high-conflict cases. With respect and cautiously, I have not been a cheerleader for the “non-disclosure is the cancer of family law” team. Don’t get me wrong, proper disclosure is essential to fair family law dispositions, but when the issue of disclosure takes over the litigation, as it often does, I have very real concerns.

In a recent edition of their newsletter, family lawyers (and my friends) Aaron Franks and Michael Zalev of Epstein Cole LLP, analyzed several recent cases where experienced family law jurists push back somewhat on the “there is never enough disclosure” mantra. I recommend to you their review of the cases of McDonald v. McDonald, [2023] N.S.J. No. 255, and the cases of Anthony v. Anthony, 2024 NSSC 100, and Frost v. Frost, (2024) O.J. No. 2012.

Let us not forget that some years ago, experienced family law jurists did signal that some restraint on the disclosure issue was indeed necessary. Justice Paul Perell in Boyd v. Fields, [2006] O.J. No. 5762, and Justice S.M. Rogers in Chernyakhovsky v. Chernyakhovsky, [2005] O.J. No. 944, articulated tests for disclosure that called for some caution. Unfortunately, in my view, their caution was soon washed away by the tide of the “cancer of family law” team.

In my ongoing non-deliberate effort to alienate not only justices before whom I continue to appear
but also chartered business valuators, some of whom are my friends and others who are most certainly my professional friends, I also point the finger of critical analysis to those professionals. I respect their standards and guidelines, but often their disclosure requests are a runaway train of over-the-top disclosure requests that escape critical review by judges who rubber-stamp their requests.

The bottom line in all of this is that the damage that overly broad disclosure demands can do to family law matters is real. Disclosure has at times been used to gain tactical advantage. I have written before about strategies that lead to motions to strike pleadings. I will not go there again. I end here by welcoming the voices of reason noted in the recent cases analyzed by Franks and Zalev. Well worth reading and well worth citing in disputed disclosure motions. Finally, some support for the other team.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law.

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