Restraining Financial Family Violence is a critical component of protecting vulnerable separated spouses and children from emotional and financial harm. Personal protection orders protect family members from emotional violence which can include financial coercion. Property restraining orders to ensure money and assets are not hidden or wasted protect against the disposition of real estate, chattels, and cash by a devious separated spouse. Kaye Booth provides this explanatory blog on Restraining Financial Family Violence with case examples from numerous precedent-setting wins by Lorne MacLean, QC.
Restraining Financial Family Violence
When someone misuses someone else’s money or property, this is financial abuse. Financial abuse is serious – it is an insidious form of domestic abuse. According to the 2016 Chief Public Health Officer’s Report on family violence, 3% of Canadians have been victims of financial abuse. Some markers of financial abuse include refusing to support a spouse or children, mysterious withdrawals of funds without explanation, hiding cash income to deprive a spouse and child of proper support, transfers of a property below value, forged signatures on banking documents, the pressure to take on extra paid work to bring in additional money, and pressure to purchase unnecessary or unwanted items or even threatening to quit working to go bankrupt.
Financial Abuse Cannot Be Tolerated
Financial abuse can have a great impact on divorce and settlement, leaving one party disadvantaged, traumatized, and uncertain about their future.
In general, financial abuse is not likely to impact a court’s decision on the division of matrimonial property. Section 8 of the Alberta Matrimonial Property Act sets out the factors that the Court may consider when granting a division of property order. Financial abuse is not mentioned in the section, however, the Court may consider the fact that a party has dissipated property to the detriment of the other party, which may be a result of financial abuse. The section also contains a miscellaneous provision, allowing the Court to consider any other factor that may be relevant to property division. As such, it is possible to argue that financial abuse should be considered by the court, however, case law does not suggest that courts take it under consideration.
There may, however, be other remedies available to a party who has been the victim of financial abuse.
- In BGMS v JEB, 2018 BCSC 1628, the Court ordered that a party who had been financially abusing the other party pay the party $6000 per year as a security for his payment of child support. This suggests that courts may be open to ordering a party to pay a sum of money ahead of the conclusion of property division, to ensure that the settlement is fair, even if a party refuses to deal fairly with the other party.
- In Devthasan, our founder Lorne MacLean, QC obtained a lump sum support order of nearly $6 million, special costs of $1.5 million and interim property restraining orders, and a worldwide MAREVA injunction was ordered on $50 million of assets and a lifetime protection order against an ex-husband who acted egregiously during a divorce and who swore to never pay a penny of support.
- A Court could order spousal support on a non-compensatory basis if the financial abuse has caused the party to be in financial need.
- A Court could make a preservation order or Mareva Injunction to prevent the further dissipation of property or funds.
- you can obtain forensic audits and potentially find millions of missing cash as Lorne MacLean, QC did in Wang v Jiang
- you can obtain a 6-month jail sentence as Lorne MacLean, QC did after executed an Anton Pillar raid;
- A court can consider spousal misconduct for spousal support purposes as follows:
Misconduct of spouse
166 In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably
(a)causes, prolongs, or aggravates the need for spousal support, or
Restraining Financial Family Violence
Criminal law or tort law may provide more direct consequences for a financial abuser. In the meantime, your family lawyer can assist you in preventing further damage.
An individual can take several steps themselves to escape financial abuse:
- Storing financial and personal information in a secure place
- Maintaining a record of financial transactions and examining your financial statements each month
- Consulting a lawyer or financial adviser before signing any documents
- Keeping in touch with friends and family so you do not become isolated
- Contact the Alberta family violence hotline (310-1818)
Financial abuse is serious. If you are going through financial abuse, you need experts that can help you through the difficult and sensitive process of divorce and protect your interests. Contact the lawyers at MacLean Law today to obtain orders Restraining Financial Family Violence. We have offices nationally across Canada in multiple locations in BC, Calgary, Winnipeg, and Toronto
