What to do about non-disclosure
What can you do when the other side won’t give you the documents you need to determine his or her income? Rule 60D of the British Columbia Supreme Court Rules dictates the disclosure that a party must make in a family law proceeding. In the case of Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.)) Mr. Justice Fraser quite appropriately stated that,
“Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done. Non-disclosure also has a tendency to deprive children of proper support.
It is not enough to respond to non-disclosure by an award of costs. Nor is it enough, in a case like this one, to deal only with what is known. Either of these approaches, or both together, may still reward the non-disclosing litigant for his conduct, depending whether his concealment has been successful.”
What then is to be done? Luckily, the courts provide some resources to the party seeking information. They include:
Presumptions Against the Non Disclosing Party: If someone does not disclose assets in accordance with the Rules, the court may presume that there is continuing non-disclosure and the onus will be on the non-disclosing party to satisfy the court that he or she has complied.
Penalties Against the Non-Disclosing Party: If a proper demand has been made for disclosure and it has not been complied with, the court is able to assess up to $5000.00 against the non-disclosing party, to be paid for the benefit of the spouse, child or parent on whose behalf the request for financial information was made.
Dismissal of the Non-Disclosing Party’s Action: If a party does not provide a financial statement, the court under Rule 60D of the rules of court, under Rule 2(5) is able dismiss the offending party’s proceedings or order that the proceeding go ahead as if no appearance had been entered or no defense had been filed.
Contempt: The court can, in certain circumstances, make findings of contempt of court against someone hiding income or assets. This could result in fines against the offending party or even jail time.
Mr. Justice Fraser’s words still ring very true, and it is vital that each party provide full disclosure so that each has full knowledge of the other’s finances.
Posted: November 25th, 2009 under Child Support, Procedure, Property Division, Spousal Support.
Tags: Cunha v. Cunha, disclosure, non-disclosure
Getting Married, Separated, or Divorced? Time to think about your will.
The laws of British Columbia with regard to familial relations and wills and estates interact in a way that you need to be aware of if you want to make sure that wishes are honoured if you pass away. These are a few of the common issues that you should be aware of:
If you are getting Married:
Wills in BC are governed by the Wills Act. Under section 15 of the Wills Act, your will is revoked if you get married, unless your will specifically contemplates your upcoming marriage. If your will is revoked and you pass away, it will be as though you died with no will at all, and your property will be distributed according to the Estate Administration Act. So if you get married, make sure you revisit your will if you want your final wishes to be respected.
If you are getting Divorced:
Unlike getting married, getting divorced does not cancel your will. However, it can change your will. Any parts of your will that name your former spouse as executor or as a beneficiary of your estate are cancelled. The division of your estate can be complex and unpredictable if these portions of your will are cancelled. If you are getting divorced and you named your former spouse in your will, you should seriously consider getting a new will.
If you are separated and planning on getting Divorced.
The process of getting divorced can often take some time. Even if you are separated from your spouse and have started divorce proceedings, your will is still valid. If you are separated but not divorced and do not have a will, a substantial portion of your estate will go to your spouse if you pass away before getting divorced. Under both of these circumstances, you should consider immediately getting a new will which explicitly sets out that you are making the will with your impending divorce in mind, and which reflects your wishes.
Posted: November 18th, 2009 under Divorce, Wills and Estates.
Tags: Divorce, estates, wills
Welcome
Welcome to the Henderson Heinrichs Vancouver Divorce Law Blog. Located in Vancouver, British Columbia, our firm focuses exclusively on the full range of issues related to divorce and family law matters in British Columbia.
This blog is a space where the lawyers at Henderson Heinrichs will offer commentary and observations on the practice of family law, on recent developments in the area, and on topics which may help people going through a divorce or family law situation.
At Henderson Heinrichs our lawyers handle a diverse range of family law matters. Our day-to-day experience helping clients deal with separation and divorce, child custody and support, division of assets, common law and same sex marriage rights and obligations gives us a unique vantage point. We are able to identify trends in legislation and caselaw in family law and witness firsthand how this affects people living in Vancouver and elsewhere in British Columbia.
We want to create a space through which we can be part of the dialogue and share some of our collective wisdom on how people can help themselves, their friends or family members during a very stressful time. We know that people facing a family law problem often feel completely overwhelmed by the system. In what is already a time of stress and uncertainty, people are faced with a tangle of rules, regulations and paperwork. One of the things we want to do with this blog is to help dispel some of the anxiety caused by lack of clear information about the mechanics of the separation and divorce process. It’s hard to make good decisions when you don’t know where to begin or even what is possible.
So, welcome to our blog. This is a new project for all of us here at Henderson Heinrichs and it will undoubtedly be a learning experience. We hope you find it interesting and useful and invite you to check back often for new posts by our lawyers. You are always welcome to (contact) info (at) bcfamilylawyers (dot) com one of our lawyers to discuss your situation further if you feel you need help with a specific legal problem.
Posted: November 9th, 2009 under Uncategorized.
