Automatic Orders for Financial Disclosure in Family Court

As of February 1, 2022, the Ottawa family court began issuing automatic orders as soon as an Application is issued in claims involving property or support. This Order requires the party responding to the Application to serve a list of stipulated financial disclosure within 30 days. The Order is made under the new s. 8.0.1 of the Family Law Rules.

For an employed party, standard disclosure would include the most recent 3 years of Income Tax Returns and Notices of Assessment, a recent pay stub, and confirmation of their annual salary. Where a party is self employed or earns money through a corporation, they are required to disclose, additionally, the most recent 3 years of financial statements for their business, or for the corporation.

While this disclosure is not new and has always been required in family cases, the earliest point when such Orders for disclosure would be made was at the case conference. Given that a case conference might not take place for 3-6 months after an Application is issued, there wasn’t necessarily a strong incentive for litigants to exchange financial disclosure in a timely way. This change will encourage compliance with already existing disclosure obligations.

It is not uncommon for parties to request time extensions for filing their Answer, beyond the 30 day limit imposed by the Family Law Rules. A Responding party can also request an extension in time for providing their financial disclosure notwithstanding that Rule 8.0.1 requires it to be provided within 30 days. If the Applicant does not agree to provide this extension, there may be an opportunity at the case conference to ask for costs against the opposing party. Normally, costs would not be awarded at a case conference unless one party was not prepared.

If there aren’t penalties imposed for not complying with the new automatic orders, they will be less useful in managing litigant’s behavior.

Slow and inadequate financial disclosure is a perennial problem in family law litigation. While litigants who refuse to provide timely disclosure are eventually sanctioned by the court, this often takes place too late in the process and does not adequately compensate the opposing party for both their lost time and their legal costs. It’s not possible for a party to make a realistic assessment of their case, and then make an Offer to Settle consistent with this assessment, without financial disclosure.

Insufficient financial disclosure, effectively, prolongs litigation.  Not only does this drive up legal costs for both parties,  it also increases the burden on the court system and uses up judicial resources. If the goal of the court system is to facilitate the most cost effective resolution of legal disputes, early financial disclosure is essential.