BC Non Disclosure of Property Unequal Division Lawyers handle cases where one spouse has been less than forthright in disclosing their real income or family property. Lifestyle audits, forensic financial analysis plus digging tenaciously for evidence of missing cash income and assets, using private eyes, forensic auditors and Anton Pillar orders can all assist in getting to the truth. MacLean Law has had excellent success in obtaining Anton Pillar orders and finding hidden income in and cash in two recent cases. One of our recent wins led to the husband being jailed for perjury and one led to a finding of a million dollar plus attributed income leading to a combined spousal and child support award of over $90,000 a month.
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SO- what is the onus a family client and their team of BC Non Disclosure of Property Unequal Division Lawyers must meet to get a bigger share of the kow family property? In today’s blog Lorne MacLean, QC explains the law on this key issue. We have offices in Vancouver Calgary, Surrey, Kelowna and Fort St John.
Our BC Non Disclosure of Property Unequal Division Lawyers approve of the recent analysis of Madam Justice Dardi in M.C.V v. F.V where she reviewed the law on unequal division of family property for hidden in a family law claim by a wife that she should get more than half of the known assets because she alleged her husband had hidden family property. The wife’s claim was unsuccessful on this point but the legal analysis helps family clients and their BC Non Disclosure of Property Unequal Division Lawyers understand clearly the rules to be applied in these cases often called the “cancer of matrimonial litigation”.
Test Explained By BC Non Disclosure of Property Unequal Division Lawyers
Claim for Unequal Division
[119] Ms. C. argues that, by failing to produce the European Trust indenture and financial statements, she has been deprived of the opportunity to determine if Mr. V.’s interest in that trust, specifically its increase in value, is family property under the FLA. Similarly, she contends that it can reasonably be inferred that Mr. V. has other assets in Europe that generate income and may have increased in value since 2002. She submits that, due to Mr. V.’s failure to make adequate disclosure, it would be significantly unfair to divide the disclosed family property equally.
[120] Mr. V. submits that he has made persistent efforts to obtain information and, despite his numerous requests, he has only been provided very limited information on the European Trust. He disputes that he has any assets in Europe and contends that there is no evidentiary foundation for such a claim.
[121] The authorities establish that the “significant unfairness” threshold imposes a higher standard that the “unfairness” test under the FRA. It will be met only where an equal division would produce compelling unfairness having regard to the factors set out in ss. 95(2) and (3).
[122] In Jaszczewska v. Kostanski, 2016 BCCA 286, the Court of Appeal interpreted the legislative intent of section 95 as constraining the exercise of judicial discretion:
41 Clearly, the statutory intent is to constrain the exercise of judicial discretion. The test of “significant unfairness” imposes a more stringent threshold than the mere “unfairness” test of the FRA to allow unequal division by a court. As Mr. Justice Butler observed in Remmem v. Remmem, 2014 BCSC 1552, “significant” is defined as “extensive or important enough to merit attention” and the term refers to something that is “weighty, meaningful or compelling.” He concluded that to justify an unequal distribution “[i]t is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2)”. Remmem at para. 44. As the judge here noted at para. 162 of her reasons, the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result. I agree.
[123] In my view, a spouse’s failure to disclose financial assets may be considered as a factor under section 95(2)(i) in ordering an unequal division of family property. In certain circumstances, a failure to order unequal division in the face of a failure to disclose assets or debts may lead to significant unfairness: E.H.H. v. C.L.M., 2017 BCSC 1299 at para. 119.
[124] Ms. C. relies on the approach taken by Mr. Justice Fraser in Cunha v. Cunha, (1994), 99 B.C.L.R. (2D) 93 (S.C.), a case decided under the FRA. The Cunha approach urged a robust exercise of the adverse inference power when one party in matrimonial litigation conceals assets: at paras. 11-13.
[125] In Laxton v. Coglon, 2008 BCSC 42, Mr. Justice Kelleher clarified that the Court in Cunha did not reapportion family assets pursuant to s. 65 of the FRA. Rather, the Court, having not been satisfied that adequate disclosure had been made, inferred that the value of the undisclosed assets was at least equal to the value of the disclosed assets: at paras. 27-29. It is key that the principle in Cunha only applies where there is a sound evidentiary basis to support the notion that one of the parties to the litigation has hidden assets. See also Nearing v. Sauer, 2015 BCSC 58, at para. 126.
[126] In Wu v. Sun, 2011 BCCA 239, the Court of the Appeal, while affirming that strong measures are justified in discouraging nondisclosure, cautioned that there must be sufficient evidence upon which the court may draw any adverse inferences regarding the existence of undisclosed family assets: at paras. 40-42.
New Act Applies Same Test Say BC Non Disclosure of Property Unequal Division Lawyers
[127] In Nearing, the Court concluded, at para. 132, that the adverse inference referred to in Cunha and the subsequent authorities continues to be applicable to the new regime for property division under the FLA. I agree.
Call Experienced BC Non Disclosure of Property Unequal Division Lawyers
The take away from this case is that you cannot simply allege non disclosure you must provide reasonable evidence to support the allegation. Documents, witnesses, admissions in emails and texts, can all assist. Bank statements will often show transfers to bank accounts that were not disclosed, large cash ATM withdrawals, lifestyle audits and Anton Pillar raids ca provide such proof. Call our BC Non Disclosure of Property Unequal Division Lawyers who are experienced with this aggressively addressing unsavoury business. Get started on stopping non disclosure early on in your family case.
