Family law disclosure obligations

Donna Reid Spettigue and Charles Spettigue v. David G. Varcoe, 2011 ONSC 6618 has a useful summary of the law relating to disclosure obligations in family law:

 

A.        The Parties’ Financial Disclosure Obligations

[15]           The parties in this case all had a positive duty to provide meaningful financial disclosure in order to ensure that the issues of child support and contribution to section 7 expenses could be effectively addressed.  This obligation flows from a number of sources.  First, there is a general duty in all cases to disclose information that is relevant and material to the case, subject to any claims respecting privilege or other exclusionary rules of evidence.[2]   The general obligation to disclose information that is material and relevant to the case is reinforced by Rule 19 of the Family Law Rules,[3] which requires a party, upon request by another party, to produce an Affidavit of Documents listing every document that is relevant to any issue in the case, and is in the party’s control or available to the party on request. 

[16]           In this case, the obligation to provide financial disclosure also flows from Rule 13, relating to Financial Statements.  Rule 13(1) (a) and (b) direct that when a claim is made for child support, the person making the claim is required to serve and file a Financial Statement with all necessary attachments thereto, unless the only support claim is for the Table amount of child support under the applicable Child Support Guidelines and the pleading does not include a property claim or request for exclusive possession of the matrimonial home.  A party responding to the support claim is required to serve and file a Financial Statement within the time allowed under the Rules to respond to the claim.  Rule 13(4.2) contains similar provisions relating to Motions to Change Final Orders. 

[17]           Rule 13(6) requires parties who are obliged to serve Financial Statements to make “full and frank disclosure” of their financial situation.   Mr. Spettigue referred me to the case of Meade v. Meade[4], which is helpful in establishing what is required of self employed individuals in order to satisfy the requirement of full and frank disclosure.  The court held in that case that self employed individuals have a positive obligation to “put forward not only adequate, but comprehensive records of income and expenses.”  They are not required to provide audited Financial Statements, but must provide a package of disclosure from which information regarding the party’s income can be reasonably gleaned without the necessity of carrying out cumbersome calculations and costly investigations and examinations.  

[18]           The other source of the parties’ obligation to provide financial disclosure in this case is the federal Child Support Guidelines.  Section 21 of the Child Support Guidelines set out the minimum financial disclosure which must be provided when a claim for child support or contribution to section 7 expenses is made. 

[19]           Where a party has complied with their minimum financial disclosure obligations set out in the Family Law Rules and the Child Support Guidelines as described above, a more detailed and in depth analysis of their financial situation may nonetheless be required in cases where questions arise as to whether the income reported by a party is an accurate reflection of their true income.  As child support is the right of the child, who is typically not a party in child support proceedings, it is incumbent upon the court to err on the side of more extensive disclosure if this is necessary to ensure that the child receives the full protection of the law and the most fulsome benefit of support from their parents.  This approach is consistent with the principle articulated by the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra[5] that any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.