To Disclose or Not to Disclose: The Disclosure Obligations of Third-Parties
In this case, the wife brought a motion for financial disclosure of a company owned by her husband’s parents and an Order that the husband’s father attend a questioning. Much of the litigation between the parties focused on the husband’s income and support obligations. The father strenuously opposed being subjected to a third-party disclosure Order or an Order for questioning. He felt it would reveal private, confidential, proprietary information, which his son has no interest in beyond being an employee.
The wife brought her motion under Rule 20(5) of the Family Law Rules, which contemplates both documentary disclosure as well as questioning third-parties, in certain circumstances. This rule dictates that the court may, on motion, order that a person be questioned by a party. The court may also order a third party to disclose information by affidavit or other method pertaining to an issue in the case. The following conditions need to be met:
- It would be unfair to the party who wants the questioning or disclosure to carry on the case without the disclosure;
- The information is not easily available by another method;
- The questioning or disclosure will not cause unacceptable delay or undue expense.
With respect to the first condition, Madsen J. found that it would be unfair for the wife to not have the opportunity to satisfy herself, through documentary disclosure and questioning of the father, of issues that pertain to income for support purposes. With respect to the second condition, Madsen J. found that the information sought is not easily accessible by any other method. With respect to the final condition, Madsen J. found that there would not be unacceptable delay or any undue expenses should the questioning be permitted.
Interestingly, Justice Madsen references the Ontario Superior Court case of Loeb v Loeb, where it is noted that it is not uncommon for family members to align their businesses in a manner that supports and protects a family member defending a property or support claim. Ultimately, after carefully reviewing the facts of the case, Madsen J. ordered the husband’s father to attend questioning for half a day.