To Disclose or Not to Disclose – Not A Question but An Obligation

Often one of the most overwhelming steps for many clients, is providing financial disclosure. Alas, this is an essential part of nearly every family law matter that clients not only stress over but attempt to avoid.

Whether you are looking to get a marriage contract completed (also known as a “prenup”), dividing your assets upon separation or divorce, or trying to determine child or spousal support; exchanging full and complete financial disclosure is integral to the success of your matter.

What is Financial Disclosure?

Financial disclosure means providing the other party with a full picture of your financial position. It is a legal requirement and cannot be avoided. The rules surrounding financial disclosure obligations can be found at Rule 13 of the Family Law Rules.

Whether or not your matter is in court, one of the first steps to providing disclosure is completing a Financial Statement. This is a court form that outlines your income, current expenses, and all assets and liabilities in your name.

Depending on the issues in your matter, the Financial Statement you complete will either be a Form 13 or a Form 13.1 Financial Statement:

1. The Form 13.1 Financial Statement is used when property issues are in dispute between separating spouses. You will need to disclose all your assets and liabilities and their values on three important dates: your date of marriage, date of separation and the date that you are completing the statement;
   
2. The Form 13 Financial Statement is the simpler of the two forms, used only when support issues are at play or property claims if you are unmarried. While many of the sections mirror that of Form 13.1, the disclosure of property is limited to what each party currently owns. Couples negotiating cohabitation or marriage contracts will also complete a Form 13.

Now that you have completed the proper Financial Statement, you will also need to gather the supporting disclosure. Though not an exhaustive list, you will be asked to provide:  

• The last three (3) years of income taxes and notices of assessments;
• Proof of income from all sources;
• Documentation supporting the values of all the assets and debts on the relevant dates on your Financial Statement (i.e., bank statements, credit card statements, property appraisals, pension valuations, mortgage and loan documents, business interests, etc.);

What Happens If I Don’t Provide Full Disclosure? 

You may be wondering what happens if I don’t provide full disclosure?  There are several serious consequences if one or both parties fail to provide full and complete financial disclosure in a timely manner, including:

1. Delays and Additional Expense. The longer you and the other party spend investigating one another’s finances or requesting disclosure that should have been provided earlier, the more costs and delays in reaching a resolution;
   
2. Cost Consequences. Beyond the additional costs that come with delays for missing disclosure, if you are found to have provided incomplete, false or misleading financial disclosure, you may also be ordered to pay a fine and all or some of the other party’s legal costs
   
3. Damaging your credibility. If you withhold information, you will damage your reputation in the eyes of the other party and the court. Credibility is extremely important in family law cases. The other party will use your dishonesty at every step of the process to bring your claims and evidence into question. A Judge may also draw a negative inference and be less likely to believe you and your claims;
   
4. Imputing your income. If you do not provide accurate income information, a court may order that your income be imputed to a higher amount. Support will then be based on that imputed income. Income issues are a particular concern if a party is self-employed. Often self-employed individuals report a lower income on their income taxes due to deductions, some of which are not available when determining income for child or spousal support purposes;
   
5. Attributing values to your assets and debts. If you don’t provide proper disclosure to support the values of certain assets and debts on your Financial Statement, a court may refuse to accept their value. This can lead to significant financial consequences when dividing property upon separation;
   
6. Causing your Agreement or a Court Order to be set aside. This means that any Agreement you and the other party came to, or an Order made by the court will no longer be valid or enforceable;
   
7. Striking Pleadings. If a party fails to provide court ordered financial disclosure, their pleadings may be struck. If pleadings are struck, a court will no longer consider that party’s position when making decisions in the proceeding.

It is important to note that many couples think that can agree to skip financial disclosure, especially if they are separating amicably. However, the exchange of disclosure cannot be negotiated away. Parties need to be aware of one another’s full financial position to be able to make informed decisions that will affect them and their family’s future. Ensuring proper disclosure also protects your agreement from being challenged in the future. After spending all that time and money coming to an Agreement in or out of court, the last thing anyone wants is to have to renegotiate it in the future.  

Tips to Complete Disclosure

Here are some tips to help complete the Financial Disclosure process:

1. Focus on one task at a time. Looking at all your disclosure obligations at once can be extremely overwhelming. Focus on completing one task before moving on to the next.
   
2. Fill out the Financial Statement to the best of your ability. Since the information must come from you, try filling out the Form provided to you from your lawyer on your own first. Read through the Statement carefully as well as any guides your lawyer may have provided to you. Be as accurate as possible and make notes for anything you don’t know or aren’t sure about.
   
3. Find documents online. While it may not be possible for everyone, it is easiest to gather and send documents electronically. Check all your online accounts where you can easily access income tax returns, notices of assessments and statements for all your bank and credit accounts.
   
4. Gather and sort your documents before sending to your lawyer. If you are gathering multiple statements for each bank or credit account and for several different important dates, try organizing them before you send copies to your lawyer. Name each document properly so they are easy to identify and organize. This will end up saving your legal fees.
   
5. If you aren’t sure, ask. Don’t hesitate to ask your lawyer if you have any questions or are unsure what documents or information you must disclose.

Remember, financial disclosure is not optional—it is an ongoing legal requirement. You will be expected to update your disclosure throughout your separation process. Ensuring you have provided full and complete financial disclosure is the best way to protect yourself and your agreement.

At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law, family law, real estate law, estate law, employment law, health law, and tax law. For over 130 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125.