“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!