Financial Statement Assumptions
Some thoughts about Financial Statements: The Form 89 financial statement is divided into major sections – income, expenses and property. Generally, income and property pose few conceptual problems. Parties might disagree with values of assets or with characterization of income, but there little room for assumptions (ie, you would not include a Ferrari in section 2 of Part 3 (Vehicles) premised on “IF I had a Ferrari, THEN I would have a Ferrari”).
The same cannot be said for the expense section of the Form 89, which is rife with assumptions. It is not clear on the face of the document what, exactly, is called for. Is one being asked to say what one’s expenses have been for the past year? What one expects them to be in the coming year? What they will be if one gets what one is proposing that the court order, or what one will be paying if the other party is successful? Does one calculate expenses on the most one believes one should be spending or the least? The answer to all of these questions is, unfortunately, yes.
Because there is so much grey in the Financial Statement, it is important that one clarifies for the court any assumptions and decisions that you make. If one is filling out the document based upon what one expects to pay if one receives what one is seeking, that assumption should be set out in affidavit material and brought to the attention of any judge hearing a related matter. Clarifying affidavits are very helpful for the court and helps them to see exactly what logic lies behind the income and expense calculations you or your counsel may be promoting.
Posted: February 24th, 2010 under Child Support, Procedure, Property Division, Spousal Support.
Tags: Financial Statement, Forms, Procedure, Supreme Court
Henderson Heinrichs watches some guy run past with a torch!
Posted: February 12th, 2010 under Uncategorized.
Recent Cases on Costs
Some interesting cases recently reported which underscore both the discretion which a court has over awarding costs, and the confusion as to what factors will affect the court’s decision. In Robyrts v. Roberts, 2009 BCCA 574 , the Court of Appeal confirmed that, even in the face of an offer to settle which would have provided a better result, the trial or chambers judge can deny any award of costs or double costs. In C. (S.J.) v. A. (S.C.), 2010 BCCA 31, 2010 CarswellBC 135 British Columbia Court of Appeal, 2010, this issue of the court’s flexibility was canvassed again. In this case, double costs was not awarded but the court paid attention to several factors in exercising its discretion, including the conduct of the parties and the interests of children involved. It is clear that an Offer to Settle does not guarantee costs, let alone double costs. It is equally clear, however, that a successful Offer will not negatively affect the court’s discretion to award those costs.
Posted: February 10th, 2010 under Case Analysis, Costs.
Tags: Costs, double costs, offer to settle, Robyrts v. Roberts
Mobility Law Update
The BC Court of Appeal recently released a decision which clarifies the decision making process the Court will use where one parent wants to move to another city, province, or country with the children and the other parent wants to stay where they are living and keep the children. The test in these situations is what is in the “best interests” of the children.
In S.S.L. v. J.W.W., 2010 BCCA 55, an appeal from S.S.L. v. J.W.W., 2009 BCSC 924, the Court of Appeal said the Judges should consider four possible scenarios and then decide which one will be in the best interests of the children. The four possible scenarios are:
- One parent moves with the children and the other parent stays behind;
- One parent moves and the children stay behind with the other parent;
- Both parents stay behind with the children;
- Both parents move with the children.
Where the Judge is unable to decide between options 1 and 2, the Judge will then proceed to choose between options 3 and 4. Until this Court of Appeal case, scenario 4 was not typically considered, and it has only been somewhat recently that BC Courts began considering scenario 3.
The Court doesn’t actually have the authority to force you to move or not to move. The practical effect of this decision is that the Court may make decisions about whether a move is in the best interests of the children while assuming under scenario 3 or scenario 4 that both parents will live in the same city in the future, whether or not that is actually the case.
Posted: February 5th, 2010 under Case Analysis, Mobility.
Tags: British Columbia, Case Analysis, Court of Appeal, Mobility, S.S.L. v. J.W.W.
