When Can You Examine a Third Party for Discovery in a BC Family Law Case?

Family law disputes over support or the division of family property sometimes raise suspicions that one spouse is hiding income or assets — often through a business, a new partner, or a related company. A recurring procedural question is whether the other spouse can go further than ordinary document disclosure and formally examine a third party, someone who is not a party to the case, about what they know.

The General Rule: Disclosure First

In the Supreme Court of British Columbia, family law claims proceed under the Supreme Court Family Rules, which require both spouses to make full and frank financial disclosure as a matter of course, including tax returns, corporate records, and financial statements for any business in which a spouse has an interest. The starting point is that a party seeking information about a spouse's finances should obtain it through this disclosure process, or through examining the spouse themselves, rather than by examining an outside third party.

Examining a Non-Party Requires Leave of the Court

Where ordinary disclosure and examination of the spouse are not sufficient, the Rules allow a party to apply for a court order permitting the examination for discovery of a person who is not a party to the proceeding. This kind of order is not granted routinely. A party seeking it generally needs to satisfy the court that:

1. the relevant and material information cannot reasonably be obtained from the other spouse or from ordinary disclosure;
2. it would be unfair to require the applicant to proceed without the opportunity to question the third party; and
3. the proposed examination will not cause undue hardship, expense, delay, or unfairness to the third party or to any other party.

Why Courts Are Cautious

Examining someone who is not a party to the litigation is an intrusion on a stranger to the case, and courts in the Okanagan treat it as an exceptional remedy rather than a routine investigative tool. Even where there is a plausible suspicion that a related company or a new spouse may hold relevant information, the court will first ask whether that information could instead be obtained through the ordinary disclosure obligations that already apply to the parties. Where it can, an application to examine the third party is likely to fail.

Practical Takeaways

For a spouse who suspects that income or assets are being hidden through a related business or third party, the practical starting point is thorough use of the existing disclosure process — demanding corporate records, shareholder loan accounts, and financial statements from the spouse who controls the information — before seeking leave to examine an outside third party. Courts want to see that the ordinary tools have been exhausted, or are genuinely inadequate, before allowing a non-party to be drawn into the litigation.

Behind every application are real people affected by these proceedings. It is our job as professionals in the legal system to make sure that during difficult times the process does not create additional cost and stress beyond what is truly necessary.