Divorce always results in the division of property obtained during the marriage. The genesis of the process used to divide assets is what we refer to in Alberta as a Notice to Disclose. A Notice to Disclose compels a party to disclose the following:
- last three years of tax returns;
- last three CRA Notice of Assessments;
- last three years of financial statements for any corporation that you have a 1% interest in;
- last three pay stubs;
- last six months of all bank account statements;
- last six months of all credit card statements;
- information about RRSP's and employment/private pension plans;
- a itemized monthly budget; and
- a Statutory Declaration of all income, assets and liabilities sworn before a lawyer/notary.
When a Notice to Disclose is filed in court, it provides the party from whom disclosure is required 30 days to provide the disclosure requested. The Notice to Disclose provides a date (usually more than 30 days away) where the matter is returnable to court. If the party does not make disclosure, they must appear on that day and answer to a Court of Queen's Bench Justice and explain why they have not complied with the disclosure request.
A recent decision from the Ontario Court of Appeal highlighted the importance of disclosure in divorce proceedings. In Roberts v. Roberts, the Court of Appeal dealt with a case where the husband did not comply with at least two orders for financial disclosure. The failure to comply with disclosure requirements led to the lower court striking out the husband's pleadings. The effect of which was to allow the wife to go to trial and the husband was left with no defense. The husband appealed to the Ontario Court of Appeal.
Justice Benotto, speaking for the Ontario Court of Appeal, held that the most basic obligation in family law is the duty to disclose financial information. The requirement for disclosure in immediate and ongoing. Justice Benotto went on to opine: "Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice." The Court of Appeal went on to hold that while striking pleadings was something that did not occur often, the conduct of the husband was such that it was appropriate in the circumstances. Often times monetary penalties are imposed for non-disclosure. Striking pleadings is an extreme measure.
Court's do not take kindly when a party is playing games around financial disclosure. What is worse is when disclosure is made, but a party tries to hide particular accounts or assets. The Statutory Declaration is a sworn document and the effects untruthfulness on that particular document can have grave consequences. I recently dealt with a file where the party had sworn on the Statutory Declaration to a specific income. On cross-examination at trial I was able to get the party to admit that his actual income was five times that amount. When the judgment was delivered by the Court of Queen's Bench Justice, the effect of that lie was that the court found the husband to have no credibility.
It's simply not worth it to be slow or untruthful with financial disclosure.
- last three years of tax returns;
- last three CRA Notice of Assessments;
- last three years of financial statements for any corporation that you have a 1% interest in;
- last three pay stubs;
- last six months of all bank account statements;
- last six months of all credit card statements;
- information about RRSP's and employment/private pension plans;
- a itemized monthly budget; and
- a Statutory Declaration of all income, assets and liabilities sworn before a lawyer/notary.
When a Notice to Disclose is filed in court, it provides the party from whom disclosure is required 30 days to provide the disclosure requested. The Notice to Disclose provides a date (usually more than 30 days away) where the matter is returnable to court. If the party does not make disclosure, they must appear on that day and answer to a Court of Queen's Bench Justice and explain why they have not complied with the disclosure request.
A recent decision from the Ontario Court of Appeal highlighted the importance of disclosure in divorce proceedings. In Roberts v. Roberts, the Court of Appeal dealt with a case where the husband did not comply with at least two orders for financial disclosure. The failure to comply with disclosure requirements led to the lower court striking out the husband's pleadings. The effect of which was to allow the wife to go to trial and the husband was left with no defense. The husband appealed to the Ontario Court of Appeal.
Justice Benotto, speaking for the Ontario Court of Appeal, held that the most basic obligation in family law is the duty to disclose financial information. The requirement for disclosure in immediate and ongoing. Justice Benotto went on to opine: "Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice." The Court of Appeal went on to hold that while striking pleadings was something that did not occur often, the conduct of the husband was such that it was appropriate in the circumstances. Often times monetary penalties are imposed for non-disclosure. Striking pleadings is an extreme measure.
Court's do not take kindly when a party is playing games around financial disclosure. What is worse is when disclosure is made, but a party tries to hide particular accounts or assets. The Statutory Declaration is a sworn document and the effects untruthfulness on that particular document can have grave consequences. I recently dealt with a file where the party had sworn on the Statutory Declaration to a specific income. On cross-examination at trial I was able to get the party to admit that his actual income was five times that amount. When the judgment was delivered by the Court of Queen's Bench Justice, the effect of that lie was that the court found the husband to have no credibility.
It's simply not worth it to be slow or untruthful with financial disclosure.