Family legal matters, such as the division of matrimonial property, child support or spousal support, can require significant disclosure of income and assets. Consequently, disclosure is often the first step in your family law proceedings. While the process of compiling your financial information and providing it to your ex-partner and his or her counsel can be both tiresome and embarrassing, the exchange of disclosure is integral to most family law proceedings. There can be significant consequences (such an award of costs) if a party fails to properly disclose the required information. As such, an individual should prioritize ensuring they have provided full and comprehensive disclosure.
Property Division Under the Family Property Act (“FPA”)
When a claim for property division has been made under the FPA (previously the Matrimonial Property Act), a party must file and serve a sworn statement (Schedule A: Statement of Income, Assets, and Liabilities) disclosing their property held in Alberta or elsewhere pursuant to section 31 of the Act. This sworn statement outlines an individual’s income and the various sources of his or her income. It also lists the assets an individual owns including any:
- real estate;
- financial assets;
- retirements savings;
- corporate or business interests; and
- other valuable assets owned such as jewelry or artwork.
Finally, the Statement will enumerate the secured and unsecured debts an individual owes. An accurate depiction of the parties’ assets and liabilities acquired while the parties where married or in a relationship of interdependence is necessary so that the Court can divide the assets equally, or in certain cases, as the Court deems ‘just and equitable.’
When commencing proceedings seeking a division of family property, a party should immediately start reviewing their assets and liabilities and should commence the process of obtaining relevant documentation evidencing:
- the date the asset or liability was acquired;
- the value of the asset or liability at the date of acquisition;
- the current value of the asset or liability;
- the location of the asset or liability; and
- who has legal title to the asset or legal responsibility for the liability.
Child and Spousal Support Under the Family Law Act (“FLA”) and the Divorce Act
Pursuant to Division 1 and 2 the FLA and sections 15.1 and 15.2 of the Divorce Act, the Court may make an Order directing a party to pay child support, spousal support or adult interdependent partner support. When a party is seeking any of the above support, they must provide financial information to the other party at the other party’s request. The financial disclosure required is set out in the Alberta Child Support Guidelines, the Federal Child Support Guidelines and the Family Law Act General Regulations. This disclosure is often provided by way of a Disclosure Statement or a Response to a Notice to Disclose with fillable versions of these forms available at https://albertacourts.ca/qb/areas-of-law/family/family-law-forms. Pursuant to the regulations, where child support is sought, a party must provide their:
- 3 most recent personal income tax returns;
- 3 most recent Notices of Assessment or Reassessment;
- 3 most recent statements of earning/paystubs;
- Documentation evidencing the income received from employment insurance, social assistance, a pension, workers’ compensation, disability payments, dividends or any other source, if applicable; and
- Documentation evidencing any student loans, bursaries, grants, scholarships or living allowances received for the current academic year, if applicable.
Additional, and more extensive documentation is required where the party is self-employed, a partner in a partnership, holds more than 1% in a privately held corporation, or is the beneficiary of a trust. For a detailed list of the documentation required, please contact our office or see the Alberta Child Support Guidelines or the Federal Child Support Guidelines.
When the Application is for spousal support or adult interdependent partner support, in addition to the above disclosure, the following is required:
- 6 months of bank account statements;
- 3 months of credit card statements (held solely or jointly);
- The most recent statements for all RRSPs, pensions, term deposit certificates, guaranteed investment certificates, stock accounts and other investments;
- A monthly budget of expenses; and
- A sworn Schedule A (as discussed above).
General Advice Regarding Disclosure
When compiling your disclosure for the opposing party or opposing counsel, we suggest the following:
- Some documentation may not be readily accessible, so start compiling your disclosure before its been formally requested by counsel or the Court. It will be less stressful and ensure you do not miss any disclosure deadlines;
- To stay organized, prepare an electronic folder or binder to store your documents as you accumulate them, especially if you are waiting on a 3rd party (such as a banking institution) to provide documentation;
- If your own counsel is requesting documentation, to reduce legal fees, consider doing the following:
- Provide your office a hard copy (unless your lawyer works at a paperless firm) and an electric copy of all documents so that you are not charged for scanning and saving all the documents or alternatively, printing and compiling all the documents;
- Properly save all documentation when providing electronic versions so that your counsel does not have to waste time identifying the document before saving it;
Example: “2018 T1 General” or “Saving Account #XXX July 2018”
- If you have any questions or concerns about what you need to provide, compile all your questions so that you can minimize back and forth correspondence; and
- When the proceedings are finished, save your documentation and continue to maintain organized financial records on a go forward basis, especially where children are involved. This involves filing your taxes on an annual basis, maintaining records as it relates to your savings and debts, and keeping written record of major (or reoccurring) expenses you may have incurred for your children. Issues about child support or partner support can end up before the Court multiple times: staying on top of your finances and maintaining written records will assist you if you return to Court; and
- Finally, be cognizant of your financial disclosure obligations as set out in formal Agreements, Judgments or Court Order. Child support orders for example, will often require annual disclosure of a party’s T1 General and Notice of Assessment. Failing to exchange your disclosure may mean you do not adjust child support annually. If you are the payor, this may result in you owing a large lump sum of child arrears that you cannot afford to pay.
We hope you found this posting informative! We make regular weekly posts relating to various family law issues and current events, so check back in next week!
If you have any further questions relating to your disclosure obligations (or the other party’s obligations), feel free to book a consult and get individualized advice specific to your situation. Call us at 587 - 390 - 3070 or leave us a message on our website and we’ll get back to you as soon as possible!
The above information provides a brief and general summary of disclosure in family law proceedings. The above information does not constitute legal advice. EBL Family is not liable for any reliance on the above information.