Why do we ask for your financial documentation?
By Paula J. Kinoshita BEd, MA, JD
Disclosure of financial information is the foundation of any prenuptial agreement, cohabitation agreement, separation agreement, divorce and property contract, or family law court action.
For some, the burden of financial disclosure is light. Some have all these documents already stored in a filing cabinet – bank statements, credit card statements, pay stubs, T4s, tax returns, financial statements, mortgage statements, etc.
However, the lawyer’s request for financial disclosure can create a huge workload for those who have to gather these documents from the ends of the earth, so it seems.
Is disclosure, when it is costly and cumbersome worth it? Yes, It is.
Can we get around the need for disclosure? No, we cannot.
If an individual is getting into or getting out of a common-law relationship or marriage and wants to settle the matter by negotiated agreement or court order, the law requires complete disclosure.
Pursuant to the Divorce Act of Canada and the Family Law Act of Alberta, and regulations thereunder, disclosure of financial information is essential to the analysis and determination of support issues, such as child and spousal support.
If property is to be divided between spouses or adult interdependent partners pursuant to the Family Property Act, knowledge and disclosure of the property of each party is essential to the task.
In Rick v. Brandsema, 2009 SCC 10, the Supreme Court of Canada overturned an agreement because there had not been full and honest financial disclosure. This case makes clear that when dividing assets of a former relationship, disclosure is required throughout the negotiating process. As separation from a spouse is an emotionally charged time, special care has to be taken to ensure that negotiations are “free from informational and psychological exploitation” (para 1). Without full and frank disclosure, agreements may be overturned by a court.
In Brown v. Silvera, 2009 ABQB 523, the court determined that there can be no bargain if there has been no disclosure. In other words, “Non-disclosure is a fundamental breach of a property settlement contract” (para 36).
Further, in Smith v. Smith, 2016 ABCA 376, the court states: “The foundation of family law rests on parties making full disclosure for the purpose of settlement or trial. A lawful and proper exercise of judicial discretion demands full disclosure” (para 15).
Therefore, if your lawyer requests that you provide certain financial documents and information as part of the disclosure process, your lawyer is not simply trying to make the deal more strenuous or expensive for you, they are simply trying to follow legal requirements.
Costly applications to the court for disclosure documents can prompt compliance from a party resistant to providing disclosure. Also, costly reminders from a lawyer for full disclosure can also encourage document production. However, the most cost-effective way you can move past this disclosure step is simply to accept the fact that the step needs to get done, gather up the required documents, organize them, and deliver the package to your lawyer.
Our goal at Quantz Law is to ensure that our clients have been fully informed of their rights and potential entitlements, so that they can be discerning as they decide whether or not to enter into an agreement or to pursue their rights through the court or an alternate dispute resolution process.
We can be reached by email at firstname.lastname@example.org or by phone at 780-482-7691.
NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.