L. Duty to Make Full Disclosure

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 553-553

Page 553

See note ¹¹⁵

Lawyers must be diligent when filing a financial statement so that it reflects a budget that is a reasonable one in all the circumstances. An unrealistic budget does not reflect well on the client or the lawyer.¹¹⁶The modern approach to disclosure seeks to avoid trial by ambush. It is now incumbent on a party to disclose any document relevant to the action whether it supports or detracts from her position. Full disclosure is essential if justice is to be done. Where production is objected to on the basis of privilege, the statement as to documents must identify the documents sufficiently to enable an order for their production to be enforced if the claim for privilege is unfounded. The description should contain enough detail to allow a judge, on a motion for production, to determine if a prima facie case has been made out for a claim of privilege. However, no details need be provided that would enable the opposite party to discover indirectly the contents of the privileged documents, as opposed to their existence and location.¹¹⁷The failure to file a mandatory financial statement or otherwise provide relevant financial information to the other spouse may preclude an offer to settle by the delinquent party from being seriously considered and the court may draw adverse inferences respecting the delinquent’s income, expenses, and assets.¹¹⁸If a respondent fails to file the required financial statement, such failure should not be permitted to frustrate the applicant’s claim and the court may allow the matter to proceed, while drawing appropriate inferences against the respondent.¹¹⁹An application to vary or rescind a support order granted by way of corollary relief in a divorce proceeding may be stayed pending the filing of the applicant’s income tax return for the preceding year.¹²⁰

[115] See Chapter 4, Section M. As to provincial financial sanctions for non-disclosure, see Lamontagne v. Klyne (1994), 93 Man. R. (2d) 79 (Q.B.), applying s. 8(2) of The Family Maintenance Act, C.C.S.M. c. F20.

[116] Carruthers v. Carruthers (1988), 15 R.F.L. (3d) 321 (P.E.I.T.D.).

[117] Schlechter v. Schlechter, [1988] S.J. No. 701 (Q.B.).

[118] Payne v. Payne (1982), 31 R.F.L. (2d) 211 (Ont. U.F.C.); see also Almeida v. Almeida (1995), 11 R.F.L. (4th) 131 (Alta. Q.B.); Fabian v. Fabian (1983), 34 R.F.L. (2d) 313 (Ont. C.A.).

[119] Attersley v. Hambleton (1988)...