Written by: Kevin Heinrichs (View All Posts
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) Published: November 25, 2009
Categorized: Child Support, Procedure, Property Division, Spousal Support.
What can you do when the other side won’t give you the documents you need to determine his or her income? Rule 60D of the British Columbia Supreme Court Rules dictates the disclosure that a party must make in a family law proceeding. In the case of Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.)) Mr. Justice Fraser quite appropriately stated that,
“Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done. Non-disclosure also has a tendency to deprive children of proper support.
It is not enough to respond to non-disclosure by an award of costs. Nor is it enough, in a case like this one, to deal only with what is known. Either of these approaches, or both together, may still reward the non-disclosing litigant for his conduct, depending whether his concealment has been successful.”
What then is to be done? Luckily, the courts provide some resources to the party seeking information. They include:
Presumptions Against the Non-Disclosing Party: If someone does not disclose assets in accordance with the Rules, the court may presume that there is continuing non-disclosure and the onus will be on the non-disclosing party to satisfy the court that he or she has complied.
Penalties Against the Non-Disclosing Party: If a proper demand has been made for disclosure and it has not been complied with, the court is able to assess up to $5000.00 against the non-disclosing party, to be paid for the benefit of the spouse, child or parent on whose behalf the request for financial information was made.
Dismissal of the Non-Disclosing Party’s Action: If a party does not provide a financial statement, the court under Rule 60D of the rules of court, under Rule 2(5) is able dismiss the offending party’s proceedings or order that the proceeding go ahead as if no appearance had been entered or no defense had been filed.
Contempt: The court can, in certain circumstances, make findings of contempt of court against someone hiding income or assets. This could result in fines against the offending party or even jail time.
Mr. Justice Fraser’s words still ring very true, and it is vital that each party provide full disclosure so that each has full knowledge of the other’s finances.
