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.
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Notices to Admit

In family law, there are several methods to obtain information and disclosure from the opposing party.  Questions can be posed by way of interrogatories (ie. written requests for information) or in Examinations for Discovery (meetings during which the person being examined is required to answer questions relating to the matters in question).  Another method through which to obtain information from a party is a Notice to Admit.  A Notice to Admit is a document which lets a party seek the other party’s admission as to the truth of facts alleged in the Notice or the authenticity of documents specified in the Notice.

When you receive a Notice to Admit, you have two weeks to respond, either by:

1)            admitting the truth or authenticity requested;

2)            denying the truth or authenticity requested;

3)            describing in detail the reasons why the admission cannot be made; or,

4)            stating that you refuse to admit on the grounds of privilege or irrelevancy, or that the request is otherwise improper, and describes in detail the reasons for the refusal.

If you do not respond to the Notice to Admit in the allotted two week period, you are deemed to have admitted everything that was in that Notice.  This is very effective and requires that, if you receive a Notice to Admit, you carefully and thoroughly review the facts and documents set out, and that you promptly and accurately respond to that Notice.

In certain cases, people have for whatever reason failed to respond to a Notice to Admit and, despite the untruth of the facts  alleged and the unauthenticity of the documents set out, they are deemed true and authentic for the purposes of the trial or hearing. Master J.W. Horn in Hamilton v. Hamilton, 1999 Can LII 7029 (B.C.S.C.) set out eight principals for a court to consider in determining whether to withdraw a deemed admission.  They are:

1.         That the test is whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact.

2.         That in applying that test, all the circumstances should be taken into account including the following:

3.         That the admission has been made inadvertently, hastily, or without knowledge of the facts.

4.         That the fact admitted was not within the knowledge of the party making the admission.

5.         That the fact admitted is not true.

6.         That the fact admitted is one of mixed fact and law.

7.         That the withdrawal of the admission would not prejudice a party.

8.         That there has been no delay in applying to withdraw the admission.

While there is a chance that a deemed admission may be withdrawn and replaced with one accurately reflecting the truth and authenticity of the facts and documents set out, the safest and most expedient method of dealing with a Notice to Admit is simply to respond to it in time.

Posted: January 14th, 2010 under Procedure.
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