5.13: Obtaining records from others

Case Summary

The Appellant appealed a Decision where the Court declined to order the production of specific corporate financial statements. The purpose of seeking these documents was to evaluate the amount of child support that should be paid by the Respondent. The Alberta Court of King’s Bench previously determined that the Respondent did not exercise control over the involved companies (the "Companies"). This conclusion was based on the finding that the Respondent was neither an owner, shareholder, nor a director of the Companies.

The Court noted that in family law proceedings like this, certain subject-specific disclosure obligations arise under legislation, but those specific provisions do not replace the basic disclosure obligations in the Rules. The Court noted that Rule 5.13 provides a mechanism to obtain production of relevant and material records from non-parties, including entities like the Companies.

The Chambers Judge did not decide whether Rule 5.13 required the Companies to produce the requested financial records. Since this issue remained unresolved, the Court addressed it during the Appeal. The Court noted that to obtain a records from a non-party under Rule 5.13 notice of the Application must be served on the non-party and the Applicant must show that: (1) The records exist; (2) They are under the control of the non-party; (3) The records are relevant and material; (4) The records cannot be obtained from a party; and (5) It is appropriate to order the non-party to produce the records.

Satisfied that the Applicant met the test, the Court allowed the Appeal and ordered disclosure of the requested financial records under Rule 5.13.

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