How do you respond to a non-disclosing party?
In November 2009, we posted an article on what you can do when the other side won’t give you the documents you need to determine their income. In that article, we referred to Mr. Justice Fraser’s 1994 decision of Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), in which he writes that “non-disclosure of assets is the cancer of matrimonial property litigation”.
Over 25 years after Mr. Justice Fraser’s decision, non-disclosure remains a frustrating obstacle to spouses reaching a swift and fair resolution to the issues arising from their separation.
The Family Law Act and the Supreme Court Family Rules provide different methods in dealing with this issue. They include:
Drawing Inferences Against the Non-Disclosing Party: if an ex-spouse does not disclose information regarding their assets or income, the court may “draw an adverse inference” against that spouse and “infer” that they have an asset that they say they don’t have, or that they have an income that they say they don’t have.
Reapportionment: if an ex-spouse does not disclose information about certain assets, such as assets located outside of Canada, the offending spouse can be ordered to give up a greater share of the remaining family property that the court is aware of (Martinoff v. Martinoff, 2017 BCSC 200).
Penalties Against the Non-Disclosing Party: If a proper demand for disclosure has been made and it has not been complied with, the court is able to fine the non-disclosing party in an amount up to $5,000, and have that amount paid to the party making the demand. The Supreme Court Family Rules also allow courts to order that the non-disclosing party be jailed for a maximum of 30 days in especially egregious cases.
Contempt: In some cases, the Court will order that a party is in contempt of court for failing to provide disclosure, with the end result being that the party is fined or ordered to spent time in jail.
Dismissal of the Non-Disclosing Party’s Action: In applicable cases, the court can dismiss an offending party’s proceedings under Rule 21-5 if they fail to provide disclosure in accordance with the Rules. The same remedy applies to a failure to provide a Form F8 financial statement: if a party does not provide one when they are required to, the court can use Rule 5-1(28) to dismiss the offending party’s claim entirely.
If you’re dealing with an uncooperative ex-spouse and want to know the best options to make them comply, contact Henderson Heinrichs LLP to set up your free 30-minute initial consultation.