Non-Party Disclosure and Its Impact on Support

Calculating your spouse’s income for the purposes of determining their child support obligation can be difficult, particularly when they are not, strictly speaking, a T4 employee.

I’m Nick Slinko, an associate at Feldstein Family Law Group. Today, I’ll give you tips and pitfalls of determining your spouse’s income for child support.

The separation process involves the exchange of disclosure about your income, expenses, assets, and debts. This requires the sharing of everything, from banking statements to pay stubs to personal income tax returns.

The disclosure process can sometimes require the cooperation of individuals or groups, such as your spouse’s employer or corporate affiliate, who are not directly involved in the matrimonial litigation. The legal term for these entities is “non-parties.”

Rule 19(11) of the Family Law Rules, (which I will talk about shortly) deals with requesting and receiving financial disclosure from these non-parties, such as your spouse’s employer or corporate affiliate. The application of this rule, and the subsequent production of the disclosure sought by the spouse receiving support payments, depends on six factors.

#1: The financial documents you’re looking for must be under the control of a non-party. This means that the spouse whose finances are under scrutiny does not have possession of the requested documents. This could happen in a situation, for example, where the paying spouse does not have a controlling interest in a corporation through which he earns an income.

#2: The documents are available only to the non-party. Essentially, there must be no other way than pursuing the non-party (for example, your spouse’s employer) to get the needed documents.

#3: All of the documents requested must be relevant and necessary. Watch out for lawyers who engage in disclosure battles for frivolous reasons. These battles can be used as a delay tactic, or they can be designed to drive up the legal fees of the opposing party. At your end, make sure that your request for documents satisfies Rule 19(11). You do not want your pursuit of disclosure to become what is commonly known in the world of Family Law as a “Fishing Expedition.” A common and quite effective way of establishing relevance and necessity is to hire an expert, such as a certified business valuator, to validate your request.

#4: The documents requested cannot be subject to legal privilege. The documents requested can, however, be confidential. That’s fine and steps can be taken to produce the disclosure and still protect the content of the documents from being leaked to anyone other than the spouse receiving support payments.

#5: It must be unfair to require the requesting spouse to proceed without the information sought. Measuring unfairness depends, in large part, on the factors I have already discussed. But unfairness can also be based on the likelihood of being able to calculate the paying spouse’s income, without having all of the relevant and necessary disclosure.

#6: Finally, adequate notice must be given to the non-party. There is no specific timeline, but according to Rule 19(11), reasonable requests should be met, and when they are not, serving motion materials in accordance with the timelines set out in the Family Law Rules should suffice.

Where their cooperation is not forthcoming, there are ways to compel them to produce the disclosure necessary to calculate your spouse’s income.

If you are entitled to spousal support, or if you have children that should be benefiting from the receipt of child support, then it is crucial that your spouse’s income is calculated properly. To that, you need proper and fair financial disclosure.

Rule 19(11) and the lawyers at the Feldstein Family Law Group can help you get that information.

For more details, please visit our website.

For the Feldstein Family Law Group, I’m Nick Slinko.