The Court Of Appeal: Motion For Financial Disclosure In Family Law Case Ought To Be Sought In Lower Court
Author(s): Melanie A. Larock
October 23, 2023
Take a coffee break with Melanie Larock and read a weekly blog post about family law decisions released by the Court of Appeal for Ontario.
In the Court of Appeal of Ontario’s decision in Janzen v. Cook, 2023 ONCA 457 (released June 26, 2023, please click here to see full decision) ,the appellant brought a motion to the Court of Appeal pending the appeal seeking financial disclosure from the respondent.
The appellant argued that she was entitled to some of the requested disclosure pursuant to the terms of the parties’ separation agreement or the Child Support Guidelines even if that disclosure was not related to the appeal. She also argued that other disclosure requested may have a bearing on the appeal and the trial judge’s findings about whether proper financial disclosure had been made.
The Court of Appeal reaffirmed that Motions to a single judge of the Court of Appeal relate generally to (i) how the appeal will be conducted or (ii) how the rights of the parties are to be preserved pending the appeal. The motion in this case did not fall within this ambit.
While the Court of Appeal acknowledged the fundamental obligation to disclose in family law cases citing Roberts v. Roberts, 2015 ONCA 450, the Court dismissed the Motion. The Motion was not consistent with the appellate process. The appellant could have brought a Motion to introduce fresh evidence on the appeal, but she did not demonstrate how she would have met that stringent test.
This is a reminder that the Court of Appeal is a court of review, and the disclosure ought to have been sought in the court of original jurisdiction. The Court of Appeal makes it clear that the appeal process is not a continuation of the trial.
About Melanie Larock
Melanie Larock is a family law litigator and a partner in Thomson Rogers’ Family Law group. Melanie’s focus is on all areas of family law with a particular emphasis on complex financial issues and high conflict parenting disputes. Melanie was trained by an illustrious litigator, and she is a self-proclaimed evidence law nerd.