PROVIDE, DON'T HIDE: Banaszek Family Law explains disclosure in Alberta family law matters

“Non-disclosure of assets is the cancer of matrimonial property litigation” (Cunha v Cunha).

Many individuals resist providing complete financial disclosure in their family law and divorce proceedings, which invariably increases delays and sparks the potential for excessive litigation. During the financial disclosure exchange process, some parties feel that documents being requested from them are private and should not be shared. Some parties may feel that the opposing party (or their lawyer) is trying to gain the upper-hand by exploring every aspect of their financial situation. Talk about feeling exposed!

The “hiding” or “withholding” of disclosure by one spouse, or the perception that the spouse is avoiding full disclosure, is likely rooted in mistrust. These issues tend to be heightened in situations where one party did not have much control of the family assets or financial matters during the marriage or relationship.

Banaszek Family Law helps clients understand which documents they must produce to ensure efficient resolution of their legal matter. The legal guidance of an Alberta family lawyer will help reduce feelings of mistrust and ensure you are only producing the necessary documents to the other side. We are prepared to guide you through the confusing, but critical, process of disclosure exchange. 

I was served with a Notice to Disclose - NOW WHAT?

What is a Notice to Disclose application?

The Notice to Disclose is an Alberta Court application that compels the production of necessary financial documents within a specified period of time, being within 30 days of the filed document being served on you. Some of the information/documents which must be produced include the following:

  • income verification documents (tax returns, notices of assessment, pay statements, financial statements for parties who are self-employed in an unincorporated business, where applicable);

  • confirmation of all partnership and trust interests, assets and liabilities held in your name (Schedule A, bank statements, credit card statements, statements for all investment interests);

  • list of exemptions of assets claimed, where applicable;

  • list of special and extraordinary expenses claimed with supporting documentation, where child support is claimed; and

  • monthly budget of expenses, where spousal or partner support is claimed.

What should I do after being served?

If the party served with the Notice to Disclose fails to produce the relevant information/documents within the specified time, the party serving the Notice to Disclose is entitled to seek an Order for Costs for non-compliance and an Order for production of the missing documents at the upcoming Court appearance. Therefore, it is vital that you begin organizing the requested documents and seek independent legal advice from a family lawyer right after being served. By booking an initial consultation with an Alberta family lawyer, you will gain an understanding of whether your documents are complete pursuant to the Notice to Disclose and which documents you should NOT produce. A family lawyer should guide you through the disclosure process to ensure that you are not producing privileged (confidential) documents to the opposing party.

What’s the point of Notices to Disclose?

The Court created Notices to Disclose as a way to efficiently compel and expedite the exchange of relevant financial information in family law matters. Where Notices to Disclose are not filed, and if parties are reluctant to exchange documents, it often takes a great deal of time and effort to get relevant financial information from the parties in an action. The Notice to Disclose application puts pressure on the parties to produce the documents because they know there is an upcoming Court date at which an explanation for why the documents are not produced must be given. The sometimes onerous process of document exchange is thereby streamlined with this the Notice to Disclose.

Notices to Disclose can be used in divorce, matrimonial property, parentage and maintenance actions. They are not mandatory, but they are efficient and a good measure for future protection. A Notice to Disclose benefits a family law client in many ways, including reducing the potential for the opposing party to hide assets and income because they are obligated to disclose all aspects of their financial situation.

Other options for disclosure exchange

If the parties are efficient and forthcoming with exchanging disclosure documents without the need of Court intervention, the Notice to Disclose can be used as a guide to cover off most of the relevant documents required to confirm which assets and liabilities will be divided between the parties or exempt, and each parties’ guideline incomes for the purposes of calculating child and/or spousal or partner support. Consult with a family lawyer before making a disclosure request from the opposing party to confirm if you are entitled to receiving this information.

To help ensure that you are producing the correct documents to the opposing party/counsel, or if you wish to gain a better understanding of how you can compel the opposing party to provide you with documents and information relevant to your matter (with or without Court intervention), consult with a family lawyer in your jurisdiction.

Schedule an initial consultation with Adrianna Banaszek of Banaszek Family Law to learn about your legal rights and obligations. During May and June 2019, Banaszek Family Law is offering free 30 minute telephone initial consultations - Make the next move and book yours today!

Follow Banaszek Family Law on Twitter: @BanaszekLaw, Facebook, and LinkedIn.

The Basics of Child Support

Banaszek Family Law explains how Alberta’s and Canada’s child support regimes strive to create financial equality in the households of separated parents to benefit children:

Child support is a legal right of every child, which is safeguarded by the Alberta and Canadian legal systems. Children of intact families benefit from both parents' incomes, and that should not change if their parents separate or divorce. Child support is meant to equalize the financial situations in both households to ensure that the child is receiving the full benefit of both incomes as it is the duty of both parents to financially provide for their children.

Types of child support

In Canada, there are two types of child support obligations: section 3 (base/table support) and section 7 (special and extraordinary expenses) support. Section 3 child support is what most people are familiar with. It is the monthly support payment that rappers explain is a hassle, and something that you must pay until the child is “18 years old”. If your child support education is purely based on references from pop culture, please continue reading this blog post…

Unless otherwise provided under the Federal Child Support Guidelines (the “Guidelines”), the amount of section 3 support is the amount set out in the applicable table for the province, the amount of children for which the support is required, and the income of the parent against whom the order is sought.

Special and extraordinary child-related expenses are governed by section 7 of the Guidelines, and are apportioned between separated parents based on each of their respective incomes (each party pays the expense in proportion to their incomes). Section 7 expenses capture those expenses which exceed the ones the parent requesting the support can reasonably cover (they are not the “every day” expenses). Special expenses may include tuition, medical expenses, extracurricular expenses, child care expenses, and other child-related costs.

NOTE: If the section 7 expenses are eligible to be processed through a health benefits plan, you must only share the outstanding out-of-pocket cost as the section 7 expense. in determining the amount of a section 7 expense, the court will take into account any subsidies, benefits or income tax deductions or credits relating to the expense, along with any ELIGIBILITY to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

How do I calculate child support? (Disclaimer: It’s not always easy math)

Your eligibility to pay or receive child support and the recommended amount payable are determined by federal and provincial guidelines as well as specific rules and formulas. Many factors come into play when determining child support in Alberta.

Guideline Incomes

Child support payments are impacted by how the parties earn income. If a party earns income through self-employment, if they hold substantial investments or trust interests, their “guideline income” (total annual income used to calculate child support) will not be as clear cut as an employee of an at arms-length business or institution.

Guideline incomes may be imputed by a court if the total income the parent is claiming is not appropriate for the circumstances. Some circumstances (and there are many more than listed below!) where imputation of guideline income may be reasonable, include:

  • when a party is intentionally under-employed or unemployed;

  • when a party resides in a country that has effective rates of income tax that are significantly lower than those in Canada;

  • it appears that the party’s income has been diverted which would affect the level of child support to be determined under the Guidelines;

  • the party’s property is not reasonably utilized to generate income;

  • the party has failed to provide income information when under a legal obligation to do so (AKA: We can’t figure out the party’s total income so we need to produce evidence and make arguments for why that party’s income should be imputed to a certain amount);

  • the party unreasonably deducts expenses from income (this can become relevant when a party is self-employed); and

  • the party derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

Parenting Arrangement

Child support payments can also be affected by the type of child custody or guardianship arrangements in place. "Shared parenting” applies where both parents each have at least 40% of total parenting time. In shared parenting arrangements, child support is sometimes “set off” by each party’s table child support amount, with the difference of child support being paid to the lower income-earning parent. In a shared parenting arrangement, child support is sometimes reduced to take into account the potentially increased costs of a shared parenting arrangement. The court will also take into account the conditions, means, needs and other circumstances of each party and of the child for whom support is sought before deviating from the applicable table support.

There is a FREE child support calculator available online which can help you obtain a general estimate of your monthly section 3 child support payments.

More factors to consider…

There are many other factors (than listed above) which should be considered in confirming a parent’s child support obligations. For example, just because a “child” has reached the age of majority (18 years old in Alberta) does not mean that they are no longer a “child” for the purposes of calculating child support. Child support may continue to be owed (to the other parent or to the child directly) if they are over the age of majority but are unable, due to illness, disability or other cause, to withdraw from their parents’ charge or to obtain the necessaries of life on their own. This may include a child who continues to rely on their parents for financial support while attending post-secondary education.

If you are a payor of support and you earn income in excess of $150,000, the Court may stray away from applying the Guidelines as the children’s needs are taken care of with support that does not correspond with the total income earned. Alberta courts will consider the amount of child support that is appropriate for the child, taking into account the circumstances of the child who is entitled to the support.

A party who stands in the place of a parent for a child ("in loco parentis”) may also have a child support obligation for the child if he/she separates from the child’s other parent. Meet with a family lawyer to confirm whether you are standing in the place of a parent for a child.

At Banaszek Family Law, we suggest you meet with a family lawyer to obtain independent legal advice as there are many factors which must be considered to confirm your child support obligations and entitlement to claim a particular amount of support for the children.

What is MEP?

The Maintenance Enforcement Program (“MEP”) is a Government of Alberta program which collects court-ordered child support, spousal and partner support, and takes care of enforcement as needed. MEP is a free service which allows either the payor or the recipient of support to register the child support order. Introducing MEP into the mix may help reduce tensions for parties as the accounting and enforcement of money matters are outsourced.

If you have a court order, you can register your order with MEP here. If you require assistance obtaining a court order for child support (whether it is a litigious situation or an amicable one which would be accomplished by consent of both parties) contact Banaszek Family Law to learn how we can assist you.

Need help calculating child support? Banaszek Family Law is here for you.

At Banaszek Family Law, we offer flat rate Child Support Analysis to provide you with a better understanding of what your support obligations are and to confirm the amount of support your children are entitled to.

Banaszek Family Law also offers independent legal advice and full representation with respect to child support and parenting matters in both Alberta and British Columbia. Make the next move by scheduling your initial consultation with Adrianna Banaszek today, HERE

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