O. Sanctions for Non-disclosure

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 240-242

Page 240

A correct determination of income is vital to the proper assessment of child support under the Federal Child Support Guidelines. If a spouse or former spouse fails to comply with the disclosure requirements, a variety of options are available to the court pursuant to the express provisions of the Guidelines. Where a spouse or former spouse fails to provide the income information set out in section 21 of the Federal Child Support Guidelines, section 22(1) of the Guidelines entitles the other spouse (a) to seek to have the application for child support set down for a hearing or to move for judgment; or (b) to apply for an order requiring compliance with section 21. After granting an order in either of these circumstances, the court may order costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.⁷⁹²Where the court proceeds to a hearing, an adverse inference may be drawn against the spouse or former spouse who failed to make disclosure and the court may impute such income to that spouse or former spouse as may be deemed appropriate.⁷⁹³Where the spouse or former spouse fails to comply with a court order under section 22(1)(a) of the Federal Child Support Guidelines, the court may

(a) strike out any of that spouse’s pleadings;

(b) make a contempt order against that spouse;

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(c) proceed to a hearing in which it may draw an adverse inference against the spouse or former spouse and impute income to that spouse in such amount as it considers appropriate; and

(d) order costs in favour of the other spouse that fully compensates the other spouse for all costs incurred in the proceedings.⁷⁹⁴The availability of an indemnity for costs in relation to the respondent’s non-disclosure of financial information presupposes that the applicant has also made full financial disclosure. Where an indemnity for costs is available, the amount payable will be set by a taxing officer in the absence of agreement between the parties.⁷⁹⁵If the court is asked to fix the costs, the claimant should provide the court with an outline of the costs requested.⁷⁹⁶Section 92(1) of the Family Relations Act (B.C.) empowers a court to impose a penalty of up to $5,000 for failure to provide financial disclosure in accordance with Rule 60(D). The court may decline to impose this sanction where it has not been impeded from arriving at the obligor’s income for the purpose of determining the child support obligation.⁷⁹⁷Failure to comply with an order for financial disclosure can not only result in the judicial imputation of income; it can also result in a penalty up to $5,000 under section 36.1(2) of The Family Maintenance Act (Manitoba).⁷⁹⁸This remedy is separate and apart from any other sanctions the court might impose as a consequence of a contempt finding.⁷⁹⁹Both the Ontario Family Law Rules and the Federal Child Support Guidelines empha-size the importance placed on full and timely disclosure. In order to promote early resolution or timely...