Confidentiality and Family Law Disclosure: The Broad Scope

The general disclosure obligations for both parties play a significant role when determining “income” for the purposes of the Child Support Guidelines.  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.

Due to the fact that the disclosure obligation imposed on separating spouses involves the production of documents that are “relevant to any issue,” the first question and concern that can arise is how confidentiality is accommodated.  Spouses may be concerned about “airing out their dirty laundry” and disclosing private financial information and documents that generally become part of the public record.  We have outlined various options available for maintaining privacy and the confidentiality of this information.

  1. The “Deemed Undertaking” Rule

The Family Law Rules do include a “deemed undertaking” rule that imposes an obligation on all concerned parties to maintain the confidentiality of all documents and information exchanged by way of financial statement, or obtained through the disclosure of documents or questioning.

Additionally, subject to the obligation being waived in some circumstance, information obtained through these processes can only be used for the case at hand, and not for any collateral purposes.

These measures, however, do not necessarily keep private information derived from a financial statement or other litigation document away from the eyes of the public.

  1. Confidentiality Agreement

Outside 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 that arise with this approach as there is no way to require the other side to sign it.  Additionally, this route can sometimes give rise to certain issues relating to the relationship between the other side and his or her counsel.

If the confidentiality agreement contains a provision requiring all documents to be returned to the parties once the dispute is resolved, it may hinder the ability to obtain a variation of spousal support in the future from a court if both the court file and the parties’ files are empty.

  1. Sealing Order

In the event that a confidentiality agreement cannot be signed, an alternative route, although more burdensome and costly, 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 will have to go before the court for its determination and unfortunately for the parties, the threshold test for obtaining a sealing order is relatively high.   The process 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 also involves considerations relating to the best interest of the child.

  1. Mediation/Arbitration

Finally, there is a route available for parties to keep their matter out of the public record entirely.  By avoiding litigation and having the matter determined by private mediation or arbitration, separating parties can keep the disputes between them out of the court system and maintain each party’s privacy.

Although preparing and producing a financial statement is a mandatory part of Family Law litigation, there may be unforeseen ramifications in connection with the privacy of the information included in that process.  For individuals that have concerns relating to the public having access to sensitive information, it is important to consult a lawyer for competent advice as to how to satisfy the disclosure obligations while still maintaining the utmost confidentiality in the circumstances.