Calgary matrimonial property division lawyers 403 444 5503 – Fair Disclosure in Matrimonial Cases
Our Calgary matrimonial property division lawyers handle hundreds of family cases each year. Skilled Calgary matrimonial property division lawyers ensure they make and receive full financial disclosure in a Calgary matrimonial property division and support case. Top Calgary matrimonial property division lawyers understand that non disclosure in a Calgary family law case is the cancer of matrimonial litigation. Our Calgary matrimonial property division lawyers will aggressively ensure that you obtain proper disclosure so your matrimonial property division and financial support case is fairly negotiated or decided by a judge. In cases where you were tricked in the past by an untruthful spouse, we will pursue remedies such as setting aside of the contract or retroactive correction of financial support and division of hidden assets together with fines and contempt applications. Our Calgary matrimonial property division lawyers will ensure you are protected and that full and proper disclosure is obtained.
Our Calgary family lawyers office is now open at:
MacLean Law | Calgary Office
Regus Bankers Hall
888 – 3rd Street. SW, 10th Floor, West Tower
Calgary, AB T2P 5C5
Contact Mr. Lorne MacLean, Q.C.
Tel 403 444 5503
lmaclean@macleanlaw.ca
Monday to Friday: 9.00 am – 5.00 pm
We are Western Canada’s largest family law firm and multiple winners of Vancouver’s best family law firm. We have been asked to open a Calgary office and are pleased to respond to the demands of our family law clients living and working in Calgary.
What is the law to ensure people can’t hide assets and pressure their spouses into improvident settlements?
Our Calgary matrimonial property division lawyers applaud the decision in Brown v. Silvera, 2009 ABQB 523 where the court awarded the wife over $15,000,000 of property that had been hidden from her through non disclosure and psychological pressure as well as solicitor and own client against her ex spouse.
Supreme Court of Canada Sets Aside Agreements When Non Disclosure and Psychological Abuse
The Calgary matrimonial property division lawyers at MacLean Law provide the following extract from Canada’s highest court on how disclosure is crucial in a matrimonial property division and financial support case. These decisions guide lawyers and parties to ensure fair agreements are reached and the court has the proper information to correctly decide a case.
[29] Brandsema makes clear the law with respect to non-disclosure in a matrimonial negotiation which culminates in a matrimonial settlement agreement. The Supreme Court describes the tone in matrimonial negotiations as a “singularly emotional negotiating environment”. The court says that “special care must be taken to ensure that, to the extent possible, the assets … are distributed through negotiations that are free from informational and psychological exploitation.” (emphasis added) (at para. 1).
[30] On the question of disclosure, Abella J. in Brandsema indicates that under the common-law, each spouse has “a duty to make full and honest disclosure all relevant financial information” when negotiating separation agreements (at para. 47, see also paras. 5, 48-49).
[34] The Supreme Court in Miglin emphasized that the courts are not to overturn matrimonial property division agreements lightly because one of the goals of such agreements is certainty and finality. However, the overriding principle is whether both parties have entered into that agreement with complete information and without psychological exploitation.
Alberta Courts Don’t Tolerate Financial Trickery
In addition to the Supreme Court of Canada’s guidance, Calgary matrimonial property division lawyers also rely upon the Alberta common law and Alberta Rules of Court to ensure full and proper disclosure is made.
Our Calgary division of matrimonial property lawyers will assess the level of completeness of financial disclosure as well as assessing valuations made and profit and loss statements for companies to ensure there are no financial shenanigans at play. You can meet with Lorne N. MacLean, QC the founder of MacLean Law who has appealed more than once in the Supreme Court of Canada and multiple times in the BC Court of Appeal. His recent successes at the Calgary Court of Queen’s Bench has led to him being in high demand in Calgary as well as throughout BC.
An example of how the Alberta discloure rules work for Calgary Division Of Matrimonial Property lawyers comes from the leading case of Brown v. Silvera, 2009 ABQB 523 where the court sanctioned a husband for outrageous non disclosing behaviour and psychological intimidation:
[35] Courts in Alberta have also set out these principles. Full “disclosure is fundamentally important to family law litigation” and to negotiations and separation agreements. Parties must enter into such agreements on an informed basis in compliance with the overall objectives of the Matrimonial Property Act – including a duty to disclose property such that a fair and equitable distribution is achieved. In particular, we must look to the overall objectives of the Matrimonial Property Act, R.S.A. 2000, c-M-8: Fercho v. Dos Santos, 2006 ABQB 879 (CanLII) at paras. 34-38, 153 A.C.W.S. (3d) 1171; Schultz v. Schultz, 2000 ABQB 866 (CanLII) at paras. 9-11, 282 A.R. 59.
[36] Non-disclosure is a fundamental breach of a property settlement contract: Fercho v. Dos Santos, at para. 42. Proper disclosure means presenting financial information in a clear, non-cryptic form that does not require additional investigation: Fercho v. Dos Santos, at para. 45. The Alberta Court of Appeal, in discussing disclosure pursuant to matrimonial property agreements, stated that “the production of such disclosure must be regarded as fundamental to the Agreement.”: Moore v. Moore, 2000 ABCA 102 (CanLII) at para. 10, 185 D.L.R. (4th) 93.
[37] When parties negotiate a separation agreement, they owe a duty of utmost good faith to each other to make full and complete documentary and factual financial disclosure. They must be fair to each other and not take advantage of any weaknesses they may perceive in the other. Co-operation between separating couples is to be encouraged. The “marital relationship is full of potential power imbalance.”: Leopold v. Leopold (2000), 2000 CanLII 22708 (ON SC), 51 O.R. (3d) 275 at paras. 126-128, 195 D.L.R. (4th) 717 (Ont. Sup. Ct. J.)
[41] I adopt the reasoning of Justice Erb in Fercho v. Dos Santos, at paras. 40 and 45. She held that parties to a separation agreement are not expected to engage in a “scavenger hunt”, to unweave “a complex web of corporate or other intrigue” or to “make huge expenditures to untangle complex corporate structures” just to ascertain family assets. Justice Erb stated that behaviour of concealing assets is not to be encouraged. I agree.
[15] I conclude that Silvera was psychologically exploited by Brown via the manner in which Brown provided misleading and incorrect information concerning the prospects for Somagen, Langerin, and the family finances. Brown intended to panic Silvera so as to rapidly conclude divorce proceedings and matrimonial property division. That matrimonial property division, conducted in haste, allowed Brown to conceal matrimonial corporate property that would otherwise have likely been detected, had there been a proper valuation of the family’s corporate interests in Somagen and Langerin.
[16] In light of Brown’s deliberate misstatement of the matrimonial corporate property and his psychological exploitation of Silvera, the Minutes terms and common-law principles allow Silvera to unwind the distribution of the matrimonial corporate assets. She has chosen to do so.
[20] In total $15,095,778.76 of Brown’s at-trial worth was either matrimonial property that would have been received by Silvera, were it not for Brown’s misinformation and psychological exploitation of Silvera, or benefits that Brown obtained as a consequence of his wrongful possession of that trust property.
Calgary Matrimonial Property Division Lawyers
What Do You Have To Disclose In an Alberta Matrimonial Property and Support Case As A Minimum?
Alberta Rule of Court 5.2 sets out the general rule for document disclosure in a court case and requires any document that:
“could reasonably be expected
(a) to significantly help determine one or more of the issues raised in the pleadings, or
(b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.”
to be disclosed and in family matters the disclosure needs to be made within 30 days of a demand for document disclosure.
Failure to produce can lead to penalties and an adverse inference being drawn by the court such as attributing a higher value to missing assets or to a higher income to the non-disclosing party. You can ask for an extension of time to collect the documents but you cannot count on this so collect documents early and fully.
What is A Notice to Disclose and What Do I Have to Disclose?
Our Calgary matrimonial property division lawyers explain that A “Notice to Disclose” (form FL-17) is a request for the information set out in s. 21 of the Federal Child Support Guidelines as well as some additional information and its disclosure demand is substantial:
Calgary Matrimonial Property Division lawyers tell their clients they need top produce a variety oif documents top enable and court to properly decide a matrimonial property division and child or spousal support case.
Individuals
- A copy of every personal income tax return you have filed for each of the 3 most recent taxation years
- A copy of every notice of assessment and reassessment issued to you for each of the 3 most recent taxation years, or a copy of the Canada Revenue Agency printout of your last 3 years’ income tax returns.
- If you are an employee, a copy of each of your 3 most recent statements of earnings indicating your total earnings paid in the year to date, including overtime, or where such a statement is not provided by your employer, a letter from your employer setting out that information, including your rate of annual salary or remuneration.
- If you receive income from employment insurance, social assistance, a pension, workers’ compensation, disability payments, dividends or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information.
Students
If you are a student, a statement indicating the total amount of student funding you have received during the current academic year, including loans, grants, bursaries, scholarships and living allowances.
Business Owners
The value of a business and it’s real income including pre-tax profits are crucial aspects of a Calgary matrimonial property division lawyers negotiating and litigation strategy.
If you are self-employed in an unincorporated business:
- (a) particulars or copies of every cheque issued to you during the last 6 weeks from any business or corporation in which you have an interest, or to which you have rendered a service;
- (b) the financial statements of your business or professional practice for the 3 most recent taxation years; and
- (c) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to yourself, or to persons or corporations with whom you do not deal at arm’s length, for the 3 most recent taxation years.
Partners
If you are a partner in a partnership,
- confirmation of your income and draws from, and capital in, the partnership for its 3 most recent taxation years.
Investors in Companies
If you have a 1% or more interest in a privately held corporation:
- the financial statements of the corporation and its subsidiaries for its 3 most recent taxation years;
- (b) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to yourself, or to persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length for the corporation’s 3 most recent taxation years; and
- (c) a record showing your shareholder’s loan transactions for the past 12 months.
List of Special Expenses for Child
A detailed list of any special or extraordinary expenses claimed (where child support is an issue) as well as copies of receipts or other documentation providing the amount of those expenses, namely:
- child care costs;
- (b) health care and extended medical and dental insurance premiums attributable to the child
- (c) uninsured health care and dental expenses;
- (d) extraordinary educational expenses;
- (e) post-secondary educational expenses; and
- (f) extraordinary expenses for extracurricular activities.
Beneficiaries of Trust
Calgary matrimonial property division lawyers at MacLean Law are involved in contingent and vested trust interest disputes frequently and understand the arguments made in these complex cases.
If you are a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s 3 most recent financial statements.
Bank Statements and Cancelled Cheques
Copies of all statements and cancelled cheques for all bank accounts held solely or jointly in your name for the most recent 6 months.
Credit Card Statements
Copies of credit card statements for all credit cards solely or jointly in your name for the most recent 6 months.
Your Budget
Your monthly budget of expenses (where spousal or adult interdependent partner support is an issue).
A sworn itemized list of your income, assets and liabilities (in the form attached as Schedule A).
RRSP’s Pensions Stock
Copies of the most recent statement for all RRSPs, pensions, term deposit certificates, guaranteed investment certificates, stock accounts and other investments in your name or in which you have an interest.
Exempt Property List
A list of any exemptions claimed (where the action involves the division of matrimonial property).
Our Calgary Matrimonial Property Division lawyers would be pleased to meet with you to explain the disclosure obligations and rights you have. If you feel you were tricked or you have been unfairly accused of making non-disclosure delay can be fatal. Call us now at 403-444-5503.
