What is discovery?

Supreme Court

Sharing information with the other person (the law calls them the other party) in a court case is called discovery.

The Family Law Act says that everyone involved in a family law dispute has to give each other full and true information.

There are lots of important reasons for sharing information. It gives you a chance to:

  • better understand how the other person sees the case,
  • see the strengths and weaknesses of your own case and the other person's case,
  • find things that you might be able to agree about to help sort out some of your disagreement, or even your whole disagreement, and
  • find a way to sort things out in a way that's fair to you and the other person in the long term.

This page is about sharing information when a court case has started. But you have to share information whether or not you've started a court action (court case).

If you have a court case, the court rules require that everyone involved has to share certain information.

That means you might have to give information about things that:

  • you feel are private,
  • you're not proud of, or
  • you think might make you look bad.

But if you go to trial, the judge needs to know the whole story so you and the other person can have a fair trial.

If you don't give full and true information:

  • you could be punished by the judge,
  • any orders that the judge makes could be overturned (changed) later, or
  • a court could set aside any agreements that you made.

And if you start a court action, you have to share information whether or not you have a trial.

Click the sections below to find out more about how to share information for discovery.

Discovery of documents is how you and the other person share documents once a court case has started.

It lets:

  • you see any of the other person's documents that relate to your case, and
  • the other person see any of your documents that relate to their case.

See Rule 9-1 of the Supreme Court Rules to find out more about discovery of documents.

What counts as a document?

When it comes to discovery, the meaning of document is quite broad. It includes any:

  • physical (paper), or
  • electronic record of information (permanent or semi-permanent) recorded or stored by any means of any device.

This means you could use:

  • photographs
  • videos
  • sound recordings
  • disks
  • tapes
  • computer files
  • letters

See Supreme Court Family Rule 1-1 for more detail about what counts as a document.

Which documents do you have to share?

You have to share two types of documents with the other person:

  • any document that you have, or used to have, in your possession or control (that means you can get them even if you don't have them right now) that could be used by any person at trial to prove or disprove a material fact, and
  • all other documents that you plan to use at trial to prove your case.

You even have to share any documents that you're not planning to use because they don't support your case. For example, you can't hide assets by not sharing the documents that show details about them.

If your case involves child or spousal support, you and the other person will have to share your financial information with each other. If you have to do this, file and serve Financial Statements (Form F8) within 30 days of filing the Notice of Family Claim. See Complete a Supreme Court Financial Statement for more about this.

Make a List of Documents

Once you've sorted out which documents you need, use them to fill in the List of Documents (Form F20). The court rules say you have to give this list (not all the documents) to the other person within 35 days after they file their response. But you can talk to the other person and agree about the timing for exchanging these lists.

The form has four parts:

Part 1: Documents related to a material fact. Write down all the documents that you have, or used to have, or control that could be used by you or the other person at trial to prove or disprove a material fact. Write a short description of each document.

Part 2: Other documents for trial. Write down any other documents that you plan to use at trial that you didn't list in Part 1. For example, there might be documents that you know exist but you've never owned or controlled them. Write a short description of each document. (If you don't have anything to include in this part that's okay. But write "n/a" so it's clear that you saw it and chose not to write anything in it.)

Part 3: Demand for documents. Sometimes the other person will ask for certain documents to be on your list. This is called a demand for documents. See the Supreme Court Rules 9-1(8) and (9) to find out more about this. The court might also order that you make a list of certain documents. This list of documents goes in Part 3 of the form.

Part 4: Privileged documents. Some of your documents might be privileged. This means that the other person isn't allowed to read them:

  • all communications (for example, letters, emails) between a lawyer and their client are privileged, and
  • any documents created to help you get ready to take your case to court are privileged. For example:
    • if you spoke with a lawyer about your case and they sent you a letter with some advice, the letter would be a privileged document, or
    • if you met with an accountant to get advice about your case and took notes at your meeting, you could claim that the notes were privileged.

You can deal with all these documents by making them a separate category. For example, you could call this group of documents "Copies of without prejudice correspondence."

And then add a description to say what you've included and why you think they're privileged. For example: “Correspondence between the lawyer for the claimant and the claimant. Counsel’s work product including handwritten notes made by the lawyer for the claimant summarizing conversations between the claimant’s lawyer and the claimant." This would cover all communications between you and your lawyer and memoranda (letters where lawyers are giving their opinions) written by your lawyer or the people who work for them about legal issues or matters related to your file.

It can be hard to be sure that a document's privileged. It's a good idea to speak with a lawyer about it. You might harm your case if you give copies of privileged documents to the other person. See Tips about getting legal help for where to find a lawyer.

What do you do after you’ve filled out the List of Documents?

On the form, look for the part that says "TAKE NOTICE that the documents listed in Parts 1, 2 or 3 of this List of Documents." Write down when and where the other person (or their lawyer) can look at the documents you've listed (except for any privileged documents or any you don't have).

Then, serve the List of Documents on the other person by ordinary service. See Serve Supreme Court documents by ordinary service to find out how to do this.

The court rules say you have to do this within 35 days of the other person’s Response being filed. But often it's not done that quickly. Talk to the other person or their lawyer about a timetable you can both agree on for sharing documents with each other. You or your lawyers can talk with the other person or their lawyers about when you'll do this.

What do you do with all the documents?

It’s a good idea to put all the documents (except any privileged ones) in a file or three-ring binder so you can find them easily.

The court rules don't make you give paper copies of the documents. Instead, they say that the other person or the lawyer can come to a specified place and copy them. But these days, because most documents are electronic, often you and the other person will give each other electronic copies of the documents.

You can get copies of any documents on the other person's list that you think are important to your case.

You have to pay each other first for the cost of copying documents if:

  • you don't share documents electronically, and
  • you or the other person want copies of any documents.

See Supreme Court Rule 9-1(13) to find out more about this.

If you think that certain documents should have been on the other person's List of Documents, you can make a demand for documents, in writing, that they:

  • make and serve an extra List of Documents, and
  • let you see the documents.

If they haven't done this after 35 days, you can apply to court for an order that they do as you've asked. See Rules 9-1(8)-(14) to find out more about this.

Change your list and serve it on the other party right away if:

  • you realize later that your list isn't accurate or complete, or
  • you get or find a document that should have been on your list.
You can only use the documents you get during the discovery process for the court proceedings, unless the court or the person who produced the document gives you permission to use them for something else. This means you can't give the documents to people who aren't involved in your case or use them for another legal case. If you do, you can be held in contempt of court, which has serious consequences.

One way to get information from the other person is to have a meeting where you or your lawyer ask them questions about your case. This is called an examination for discovery.

It can also help you find out more about the other person's case before you go to trial.

When you've finished an examination for discovery, you might still have questions. If so, you can ask the other person for more documents to answer your questions.

The other person will also ask you questions, but this happens on a different day. And their lawyer might ask you questions as well.

Examinations for discovery are part of the court process. But:

  • they don't happen in a courtroom, and
  • there aren't any judges or court officials there.

You and the other person pay a court reporter to:

  • record each question with its answer, and
  • give you both a transcript (a written record) of the examination.

The person who's answering questions has to swear or affirm that they'll tell the truth. The transcript of the examination for discovery can be used as evidence at a trial.

You can spend a total of up to five hours asking questions at an examination for discovery. But:

  • the court might order a longer examination for discovery, or
  • you and the other person might agree to a longer examination for discovery.

See Rule 9-2 of the Supreme Court rules to find out more about how examinations for discovery work.

Arranging the examination for discovery

An examination for discovery happens:

  • after:
    • the Notice of Family Claim, Response, and Counterclaim have been filed, and
    • you and the other person have exchanged your Lists of Documents so you can ask questions about them (click Discovery of documents on this page to find out more about this), but
  • before a trial is held.

Find out:

  • when the other person (and their lawyer, if they have one) is free, and
  • when you can book a court reporter.

Once you have a date that works for everyone, serve the Appointment to Examine for Discovery (Form F21) on the other person at least seven days before the date of the examination. See Serve Supreme Court documents to find out how to do this.

Find a court reporter

Most court reporters will be able to let you use a boardroom for your discovery. Book the court reporter as soon as you can, as:

  • they're often very busy, and
  • their boardrooms are often booked up quite far ahead.

There's no general list of court reporters. Look in the phone book or online to find one. Talk to a few court reporters to get an idea of what they charge and how they work.

Who pays for discovery?

When you examine a person for discovery, you have to pay them a witness fee. Schedule 3 of Appendix C to the Rules of Court shows how much you have to pay for witnesses. Check how much it'll cost you to examine the other person before you go ahead with discovery.

If they live out of town, you'll have to pay:

  • their travel expenses,
  • a daily rate for their meals (called a per diem), and
  • their hotel bill if they have to stay overnight.

You'll also have to pay for the court reporter. But you don't need to pay for the other person who's involved in your case.

Make the most of your time

You usually have only one chance to do an examination for discovery. And you only have up to five hours, so you need to make good use of the time.

Make a list of your questions ahead of time so you don't forget anything. Questions at an examination for discovery can be about anything related to your case.

You can also bring documents from the List of Documents (either yours or the other person's) to the discovery and ask questions about them.

It's a good idea to speak to a lawyer if:

  • you're planning to have an examination for discovery, or
  • you're going to be questioned at an examination for discovery.

They can:

  • help you work out what questions you can ask, or
  • give you advice about:
    • what you might be asked, and
    • what to do if you don't know the answer, or if you think the answer's privileged.

Some lawyers now offer unbundled legal services, which means you can pay them to help you with part of your family law problem, and you handle the rest of your case yourself. See People's Law School to find out more about this.

At the examination for discovery

Usually, you start by asking the person being examined to say their name, address, and occupation (what they work as). You then ask your questions.

The person being examined has to answer any question whose answer is within their knowledge (facts they know or can find out) that:

  • relates to your case, but
  • isn't privileged.

If the person being examined can't answer a question right away, you can ask them to send you the answer in a letter.

You can also ask the person being examined for the names and addresses of other people who might have information that relates to your case.

The person being examined might refuse to answer a question. This is called an objection.

You'll have to go to court to get a judge to decide if they should answer the question if:

  • the person objects to something, and
  • you don't agree with the objection.

See What is evidence and how do you present it in Supreme Court? and Using witnesses to give evidence in Supreme Court to find out more about asking witnesses questions.

Get a transcript

After you've asked the other person all your questions, and paid the court reporter and transcript fees, the court reporter will give you:

  • an original transcript, and
  • as many copies as you order. You can choose to get electronic or hard copy (paper) copies.

If you decide to use any part of the transcript at trial, you'll need to give the original to the court, so keep it safe.

The transcript will be a set of questions and answers. Each question and answer is numbered in the order you asked the questions.

The transcripts also show which questions weren't answered (for example, if the person being questioned had to find information before they could answer). Keep a note of these questions and make sure you get answers to them. The person being examined and the person doing the discovery should both do this.

Before you go to a trial, you can save some time (and maybe money) if you and the other person (the law calls them the other party) can sort out some facts and agree about what's true. You can do this by:

  • using a Notice to Admit, and
  • responding to a Notice to Admit.

What's a Notice to Admit?

A Notice to Admit lets you ask the other person to "admit" that certain facts and documents are true or accurate. Usually the facts are things:

  • that are easy to prove, or
  • that really only have one answer (for example, the person's name).

The facts that you both agree are true are called admissions.

A Notice to Admit saves you from proving these types of facts at trial. It's a good way to speed up your case and shorten the trial.

There'll be lots of facts about your case that you and the other person agree about (for example, the names and birthdates of the children, where they go to school).

In the Notice to Admit (Form F26), you:

  • write the facts you want to agree about,
  • attach any documents (for example, birth certificates), and
  • ask the other party to admit the truth of the facts and the authenticity of the documents (say that they agree they're true).

You then serve the Notice to Admit on the other person by ordinary service.

The person who gets the Notice to Admit either admits or denies (says they're not true) the facts or documents.

Write each fact and document in separate paragraphs and number the paragraphs. That way, the other person can write down:

  • the number of each paragraph, and
  • "admitted" or "denied" beside each one. (If they deny an answer, they need to write down why they're denying it.)

Responding to a Notice to Admit

If you don't respond (reply) to a Notice to Admit within 14 days, the court takes for granted that you've agreed with everything written in it.

The facts in a Notice to Admit might be very important and it's hard to change later what you've agreed to or denied.

If you deny a fact and the court finds that your denial was unreasonable, it might order you to pay the costs of the other person if they had to prove that the fact was actually true.

See Rule 9-6 of the Supreme Court Rules to find out more about admissions.

Updated on 2 September 2021