Last week we wrote about the general disclosure obligation that arise when parties decide to separate, and how the information plays into the determination of “income” for the purposes of the Child Support Guidelines.
As I mentioned in my last Blog, under Ontario family law the scope of the disclosure obligation imposed on separating spouses is very broad. Specifically, pursuant to the Family Law Rules, a spouse involved in family law litigation is required, within 10 days of the other spouse’s request, to provide an Affidavit that lists every document that is:
• relevant to any issue in the case; and
• in the party’s control, or available to the party on request
In light of the broad wording of these legislatively-imposed obligations, various issues arise in connection with the precise scope and extent of these requirements.
Since the disclosure obligation imposed on separating spouses involves the production of documents that are “relevant to any issue”, the first question that can arise is how concerns over confidentiality are accommodated. In particular, spouses may be concerned about “airing their dirty laundry” and disclosing private financial information through documents that generally become part of the public record. The question then arises as to how to maintain the confidentiality of this information.
“Deemed Undertaking” Rule
As a starting-point, the Family Law Rules do include a “deemed undertaking” rule, which imposes an obligation on all concerned parties to maintain the confidentiality of all the information and documents which have been exchanged by way of Financial Statement, or obtained through the disclosure of documents or questioning. Also – subject to the obligation being waived in some circumstances – information obtained from these processes can only be used for the case at hand, and not for any collateral purposes.
However, these measures do not necessarily keep private information derived from a Financial Statement or other litigation document away from the prying eyes of the public.
Beyond the “deemed undertaking” rule, the options for maintaining privacy are rather restricted. The easiest route is for both parties and their lawyers to sign a confidentiality agreement. However, there can be difficulties with this approach: there is likely way to compel the other side to sign it (by court order or otherwise), and it can give rise to certain issues relating to the relationship between the other side and his or her counsel. Furthermore, if the confidentiality agreement purports to contain a provision requiring all documents to be returned once the dispute between the parties is resolved, this may hamper the ability in the future to obtain a variation of spousal support from a court, if both the court file and the parties’ files are empty.
If no confidentiality agreement can be signed, then the more onerous and costly route is to apply for a sealing order from a court under the Courts of Justice Act. These cannot be obtained on consent, so the matter must go before the court for its determination. Unfortunately for the parties, the threshold test for obtaining a sealing order is relatively high, and in the family law context includes not only the usual considerations relating to freedom of expression, and desire to promote full public access to the process of the courts, but it also involves considerations relating to the best interests of the child.
Finally, if the parties want to keep their matter out of the public record entirely, then they may want to avoid litigation and have the matter determined by private mediation or arbitration. This keeps the dispute between them out of the court system, and maintains each party’s privacy.
Although the preparation of a Financial Statement and the production of related documents is a mandatory part of family law litigation, there may be unforeseen ramifications in connection with the privacy of the information that surfaces or is produced as part of that process. For those who have concerns over public access to sensitive information, it is important to consult a lawyer for competent advice as to how to satisfy disclosure obligations yet still maintain the utmost confidentiality in the circumstances.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com