Author: Oren Weinberg, Partner, Boulby Weinberg Fishman LLP
Toronto is a hub of people and communities from all over the world. For family lawyers that means working for clients that have their feet planted in more than one and possibly several jurisdictions. Family law disputes encompass not just international parenting disagreements but also discovery of assets and compelling evidence from witnesses.
In Ontario, litigants have the right to fairly robust discovery, subject to discretionary limits such as relevance and necessity. In some foreign jurisdictions, there may be no ability for the litigant to a family law proceeding to obtain meaningful disclosure or deal with assets outside of the particular jurisdiction. At the other end of the spectrum, there are jurisdictions that have more robust discovery than in this jurisdiction. Whether a lawyer from California or Shanghai gives you a call, the family law practitioner needs to know how to advise clients who may wish to discover assets and compel evidence from third-party witnesses when an opposing party is not forthcoming with, or is evading, disclosure.
The mechanism to compel evidence by a litigant outside of Ontario is an application to enforce letters of request, traditionally referred to as letters rogatory, issued by the foreign court. The foreign litigant asks the court in its jurisdiction to make a request for international judicial assistance. The request essentially asks an Ontario court for help to obtain relevant disclosure directly from the source, for example the financial institution where the opposing party may hold accounts or corporations where the opposing party may have an interest.
Enforcement of a letter of request in Ontario is discretionary. The hearing judge may enforce the request in whole or in part or decline the request. The authority and analytical principles governing the exercise of discretion was set out by the Court of Appeal in Adler v. Deloitte Touche Tohamtsu, 2022 ONCA 855. Under 46(1) of the Canada Evidence Act and s. 60(1) of the Evidence Act (Ontario) these are the requirements that must be met: 1) the foreign court that wants the testimony in a pending matter has authorized the obtaining of evidence, 2) the party that has the evidence is in Ontario, 3) the evidence sought concerns a pending proceeding before the foreign court, and 4) the foreign court is a court of competent jurisdiction. Moreover, in determining whether to enforce letters rogatory or not, six factors must be considered: 1) the evidence being sought must be relevant, 2) the evidence must be necessary for trial, 3) the evidence must be unavailable by other means, 4) the foreign request must not be contrary to public policy, the court must protect against violating domestic legal principles, 5) the request must be sufficiently specific, documents must be identifiable, and 6) the request cannot be unduly burdensome on the witnesses, having regard to what the witnesses would have to do or produce in the matter was an Ontario proceeding.
The overriding policy behind enforcing letters rogatory is one of comity. At the same time, an Ontario court will refuse to order enforcement of a foreign request if the request for production is vague, violates the rules of civil procedure, or appears to be a fishing expedition.
It is important to highlight to the party seeking to enforce a letter of request that they will be undertaking a court application. Careful consideration should be given to the practical reality of starting litigation and the costs associated with seeing it through to completion. The applicant will have to serve and file an application with supporting affidavit setting out the relevance, necessity, and inability to obtain the evidence sought. If contested, there will be a hearing.
In practical terms, if you are acting for a foreign litigant seeking to secure enforcement, it is important to plan as early as possible. Assist the litigant in crafting the request so that it can meet the factors that Ontario courts will consider. Make sure that the evidence sought is clearly defined, is relevant, and necessary, and does not offend legal principles for discovery in Ontario. Practitioners must give careful consideration to the request and structure the affidavit to address potential judicial concern for things like overreaching and maintaining privilege.
In the family law context, in some foreign jurisdictions, the litigant simply has no right to compel disclosure of assets or evidence from outside their home jurisdiction. The foreign court may not undertake issuing a request for judicial assistance. In that case, it is important to explore what substantive rights the litigant may be able to pursue against the opposing party in this jurisdiction. If the opposing party is habitually resident here, or if the spouses had their last common habitual residence here, it may be possible to pursue claims against them for support, equalization under the Family Law Act or other equitable remedies and avail themselves of the robust disclosure obligations in this jurisdiction.
