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Old 03-06-2014, 07:58 AM
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Default Penalty for Non-disclosure

Many on this forum have on-going difficulties acquiring court ordered financial disclosure.

I just read a case on CanLII from last month in which the judge imposes a fine of $2000 for withholding disclosure

Thought it may be of interest to anyone on the forum having similar difficulties...


Citation: MacGrotty v. MacGrotty, 2014 BCSC 317 (CanLII)



[69] With respect to the motherís application, the remaining issue is whether the father should be ordered to pay a sum of money as a penalty for his non-disclosure, and if so, in what amount?

[70] Family Rule 5-1(28) authorizes the court to make orders against a party who fails to comply with the disclosure requirements of Rule 5-1. The authority includes power to impose a fine against the offending party under s. 92(1) of the Family Relations Act or under s. 213(2) of the Family Law Act, or to require the offending party to pay an amount not exceeding $5,000.00 to the opposite party. The power under s. 92 of the Family Relations Act is similar to the courtís authority under s.213 of the Family Law Act, but the Family Law Act particularizes the kinds of non-disclosure that may be penalized. The relevant parts of s. 213 states as follows:

Enforcing orders respecting disclosure

213 (1) This section applies if a person

(a) fails to comply with

. . .

(ii) a requirement to disclose information in accordance with the Supreme Court Family Rules . . . ,

within the time or in the manner required by the order or Rules, or

(b) provides information that is incomplete, false or misleading.

(2) In the circumstances set out in subsection (1), the court may do one or more of the following:

. . .

(d) make an order requiring the person described in subsection (1) to pay

. . .

(ii) an amount not exceeding $5 000 to or for the benefit of a party, . . . whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure, . . . .

[71] I have found that the father failed to comply with the disclosure requirements of the Family Rules within the time and in the manner required by the Rules, and that he has provided information that is incomplete, false and misleading. In my opinion the conduct of the father in this case deserves to be penalized, by requiring him to pay a sum of money to the mother. In the circumstances, I fix that amount at $2,000.00 and I order that the father shall pay that amount directly to the mother, within 30 days of this date.
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Old 03-06-2014, 08:22 AM
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Would this the. Apply when ex is refusing to provide NOA. He claims he did not receive one. He has proivded a copy of the working documents he says he sent in for,his incometax return. But they are not in the income tax forms formT. It just a spreadsheet.

We have now sent him a form 20 request for information. But he has ignored that and now we will be putting in a motion. But we are now involved in another issue, which has meant engaging a lwyer, so wanted to get this included.
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Old 03-06-2014, 10:04 AM
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Some observations on the case:

The (adult) child had to be involved, testifying or producing affidavits about what contributions each parent made to her school expenses. Poor kid, caught in the middle of her parents' fight about money.

Also, I've never understood the whole idea of not requiring someone to pay their CS arrears after the child becomes an adult. They say it would be a 'windfall' and not used for the child. But that just provides incentive for the CS payor to delay and deceive until the child grows up! Meanwhile, the recipient may have scrimped and sacrificed and gone into debt to cover things that CS was supposed to cover. So shouldn't they get the arrears to defray that? Or even if a court thinks there's nothing to compensate the recipient parent for, can't they order that the arrears go directly to the child, or into a trust or something? Make sure the arrears are accurate, sure, but don't forgive them entirely.

And on TOP of the arrears, there should be the penalty for non-disclosure of information in a timely manner as required. That's a nice precedent for this judgment to have set, at least.
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Old 03-06-2014, 10:06 AM
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Quote:
Originally Posted by Beachnana View Post
Would this the. Apply when ex is refusing to provide NOA. He claims he did not receive one. He has proivded a copy of the working documents he says he sent in for,his incometax return. But they are not in the income tax forms formT. It just a spreadsheet.

We have now sent him a form 20 request for information. But he has ignored that and now we will be putting in a motion. But we are now involved in another issue, which has meant engaging a lwyer, so wanted to get this included.

It seems in this case it was a combo of previous ignored orders and avoidance. In this case he had been ordered to disclose income and danced around the disclosure on tax returns etc. by way of affidavit. When it was all said and done, he had avoided large amounts of child support as a result.

I also believe that the applicant requested a fine amount, I'm not certain it was an arbitrary award on the part of the judge.

I'm curious how this affects arrears calculations moving forward? The judge clearly stated that the respondent should have known that on-going disclosure was necessary as his increases were substantial and he should have recognized that CS would be payable on that increase, so he avoided increases in two years through non-disclosure.

I like how onus was put on the payor to disclose income increases without the request of the recipient. I've always wondered how the receiver of CS would ever know that incomes have been increased significantly without voluntary disclosure, and motions for increased support would be necessary. Without that disclosure how can child support be appropriately managed?

I'm very curious - we're in settlement conference next month and the ex still hasn't provided a Financial Statement as required in response to the orginal motion which was served in August. At CC in January he was ordered, again, to provide disclosure by March 17, and I still haven't received anything from him.
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Old 03-06-2014, 10:08 AM
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Quote:
Originally Posted by Rioe View Post
Also, I've never understood the whole idea of not requiring someone to pay their CS arrears after the child becomes an adult. They say it would be a 'windfall' and not used for the child. But that just provides incentive for the CS payor to delay and deceive until the child grows up! Meanwhile, the recipient may have scrimped and sacrificed and gone into debt to cover things that CS was supposed to cover. So shouldn't they get the arrears to defray that? Or even if a court thinks there's nothing to compensate the recipient parent for, can't they order that the arrears go directly to the child, or into a trust or something? Make sure the arrears are accurate, sure, but don't forgive them entirely.

And on TOP of the arrears, there should be the penalty for non-disclosure of information in a timely manner as required. That's a nice precedent for this judgment to have set, at least.
I agree on the arrears - I wonder if you demonstrated that substantial debt had accumulated due to the cs shortfalls then arrears would be paid up?
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Old 03-06-2014, 12:33 PM
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What I find most interesting about this case is that a finding of contempt is not sought. Only a fine.

So Beachnana, I would suggest you ask in any motion you may file for a penalty fine for any non-disclosure. Here is the wording you would use, with your particular details inserted (taken from the case referenced at the beginning of this thread)...

"d) An order requiring the father to pay her the sum of $5,000.00, as a penalty for his failure to comply with disclosure orders made on October 1, 2007 and May 27, 2013, pursuant to s.92 of the Family Relations Act and s.213 of the Family Law Act."

In any other case law I've read where an applicant is desperately seeking disclosure that is being withheld, there is a contempt motion made. Contempt motions are extremely difficult to pursue, there is much game playing that takes place, often over years because judges keep adjourning matters to allow the person more time to disclose. It is all prohibitively expensive. Ridiculously so.

Comparatively, simply asking for a fine to be applied without seeking contempt seems a smarter way to deal with this issue
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Old 03-06-2014, 12:38 PM
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Quote:
Originally Posted by Winter View Post
What I find most interesting about this case is that a finding of contempt is not sought. Only a fine.

So Beachnana, I would suggest you ask in any motion you may file for a penalty fine for any non-disclosure. Here is the wording you would use, with your particular details inserted (taken from the case referenced at the beginning of this thread)...

"d) An order requiring the father to pay her the sum of $5,000.00, as a penalty for his failure to comply with disclosure orders made on October 1, 2007 and May 27, 2013, pursuant to s.92 of the Family Relations Act and s.213 of the Family Law Act."

In any other case law I've read where an applicant is desperately seeking disclosure that is being withheld, there is a contempt motion made. Contempt motions are extremely difficult to pursue, there is much game playing that takes place, often over years because judges keep adjourning matters to allow the person more time to disclose. It is all prohibitively expensive. Ridiculously so.

Comparatively, simply asking for a fine to be applied without seeking contempt seems a smarter way to deal with this issue
I'm desperately seeking disclosure, but as a self-represented person a contempt motion is scary stuff - especially if they're represented. One would hope that if a Judge orders disclosure by a certain date then they would find the person in contempt if they appeared before them again without having followed the previous orders. Is it always up to the seeker to make these motions? Or can a judge use the contempt of court on their own volition?
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Old 03-06-2014, 12:44 PM
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MS Mom - research contempt motions for non-disclosure on CanLII. It is truly outrageous how difficult they are

Contempt is a very serious charge. Judges are extremely reluctant to make findings of it. They give chance after chance after chance for the withholder to purge their contempt. It takes years.

If I were you, I'd go the route taken in this case instead and request a fine. Use that particular wording. Cite this case.
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Old 03-06-2014, 01:33 PM
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Quote:
Originally Posted by Winter View Post
MS Mom - research contempt motions for non-disclosure on CanLII. It is truly outrageous how difficult they are

Contempt is a very serious charge. Judges are extremely reluctant to make findings of it. They give chance after chance after chance for the withholder to purge their contempt. It takes years.

If I were you, I'd go the route taken in this case instead and request a fine. Use that particular wording. Cite this case.
Well, to be honest, it wasn't a path I was willing to go down on my own.

I've already made the motion to change CS/Custody. He didn't disclose upon the 30 days he required, was given an extention and still didn't do any formal disclosure at the CC. What he did provide is outdated and irrelevant (lists a house he sold prior to being served, a job he no longer had). The day before CC they emailed me paystubs and nothing else. Judge ordered full disclosure, amongst other things.

Can I still attempt to implement this case in my SC brief, or am I too far in to add to this? Or is it a case of another motion being brought?
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Old 03-06-2014, 02:30 PM
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I think that you need to amend your motion to request a fine for the non-disclosure. You could include the request in your SC brief and ask that the SC judge make an order to amend the motion to include the fine.

I wish more people included this request for fines in their motions.

Withholders are aware of how difficult/expensive the contempt process is and rely on this lack of consequence for continuing their behaviour.

If judges routinely handed out fines for nondisclosure, it will become very expensive very quickly for withholders. Fines are an excellent deterrent for this behaviour. One judge called nondisclosure the "cancer" of family law.
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