Exchanging financial information is crucial to determine child support. John-Paul Boyd gave a great overview of child support in LawNow Issues 38-4 and 38-5. I covered the general duty to disclose financial information in family law cases in LawNow Issue 39-5. There have been some recent changes in Alberta Family Courts that emphasize the need for the timely exchange of financial information (often called “disclosure”).
The Court of Queen’s Bench issued two Notices to the Profession and Public on April 15, 2016 and May 19, 2016. Notices to the Profession and Public are official notices regarding procedure issued by the Chief Justices of the Courts. They let us know in advance how the judges will collectively decide on procedural issues. They also often include information about what the clerks of the court have been instructed to do when dealing with lawyers and the public. All such Notices can be found on the Alberta Courts website under “Announcements”. If you are self-represented, it is worth having a look at any Notices that apply to family law.
If the Disclosure Statements are not attached to the Application or Response, the clerks are instructed not to file it. This addresses the issue of disclosure right from the start. In the recent past, the general practice in Alberta for many parties to a child support application was to simply exchange financial information between themselves and their lawyers. Sometimes, parties filed Notices to Disclose with the court to ensure that basic financial information was exchanged. Rarely was the complete disclosure filed with the courts, though some documents may have been attached to affidavits to support or respond to an application. However, s. 21 of the Federal [and Alberta] Child Support Guidelines requires that the financial documents listed (including tax returns and notices, pay statements, business or corporate financial statements, statements for any other income) be actually provided to the court, as well as to the other party.
Also, in the recent past, it was common for people to file an application for child support, to change a child support order, or to respond to an application without ever providing their financial disclosure. The courts were then left to make decisions with an absence of information, or court time was spent chasing down one party for their information. This was a not a good use of court time when the disclosure requirements are very clear.
Now, anyone applying for child support or to vary a child support order must file, along with their application, a Disclosure Statement and attach the relevant schedule with their financial disclosure. Financial disclosure must be filed with the court if the Applicant’s income is relevant to the determination (they are the payor, there is shared or split parenting, undue hardship is claimed, or s. 7 expenses are at issue). If their income is not relevant, this can be checked off on the Disclosure Statement. The Respondent must also provide a Disclosure Statement along with their Response which is due within 30 days. If the Disclosure Statements are not attached to the Application or Response, the clerks are instructed not to file it. This addresses the issue of disclosure right from the start. Further, if the Respondents do not reply and provide their information, their income could be imputed or costs may be awarded.
…s. 21 of the Federal [and Alberta] Child Support Guidelines requires that the financial documents listed (including tax returns and notices, pay statements, business or corporate financial statements, statements for any other income) be actually provided to the court, as well as to the other party.
In emergency situations, a party can ask a Justice for permission to file an application without their information attached (via a fiat). However, these are rarely granted. The requirement to file a Disclosure Statement does not apply to an application for a stay of enforcement regarding child support arrears, if that is the only application. Parties may also still file Notices to Disclose if they choose.
One issue of concern that many have raised is that materials filed with the court are publicly accessible. Many people do not want their financial information made available to anyone who asks. The courts are looking into changing the rules about the accessibility of family court documents; however, no changes have yet been made.
It’s important to note that the requirement to file financial disclosure only applies when an application is made, which means it can be avoided if the parties reach an agreement outside of court. This is one more reason for parties to make their best efforts to agree and avoid court altogether.
A comprehensive guide, Providing Financial Disclosure, designed primarily for self-represented litigants, is available online, from the clerk’s counter, or at Resolution Services.
Another recent change that anyone with a child support order should be aware of is a change to the Maintenance Enforcement Program’s (MEP) policy regarding special expenses (also called “s. 7 expenses”). In the recent past, recipients of child support could submit receipts for s. 7 expenses to MEP and it would collect from the payor of child support. Many child support orders simply say that the payor must pay a certain percent of s. 7 expenses when they arise without specifying the type of expense. MEP had a list of allowable expenses based on the categories listed in the Federal [and Alberta] Child Support Guidelines. MEP will no longer do this. Now, MEP will collect s. 7 expenses only if the amount and/or specific type of expense is listed in the Order. More information about this policy can be found here. As a result, parties would be wise to clearly spell out acceptable s. 7 expenses in any future child support orders.