An Effective Remedy for Failure to Provide Disclosure

Tahir Cheema

December 29, 2021
family property division

A monetary penalty paid directly to a spouse is an effective method to enforce the production of outstanding disclosure.  In Granofsky v. Lambersky, the spouse was ordered to pay a penalty of $500 per day for each day of non-compliance, and in Mantella v. Mantella the court ordered the spouse to pay $185,000 for not providing timely disclosure. This is one of several ways to remedy persistent failure to provide disclosure.

Judges are familiar with tactics to avoid providing disclosure, and we can ask them to use a variety of methods to force the needed information. If a party delays, provides insufficient disclosure, or behaves in a manner that interferes with the obligation to provide disclosure, a judge can make an order demanding the party furnish the requested disclosure.

If the party still does not deliver the disclosure the judge has the power to:

  • order costs;
  • dismiss claims;
  • strike out pleadings;
  • not make any orders for the offending party; and/or
  • find the party in contempt.

We can also ask the judge to make an adverse inference against the offending party and to attribute additional income for support purposes, reapportion family property, and/or impose a monetary penalty paid to the non-offending party. Failure to disclose significant assets or liabilities is also grounds to set aside an agreement, rendering it unenforceable. Under Rule 1(8) the judge can make “any order that it considers necessary for a just determination of the matter”. The primary objective of the rule is to coerce the offender into obeying the court’s judgment.

Disclosure is any relevant information that may be required as evidence. Disclosure is an essential part of the family law process, and the law requires each party to provide any relevant information requested. This duty to disclose is fundamental, immediate, and ongoing. It is automatic and does not require a court order. Without proper disclosure neither party can make an informed decision on how to decide issues in the case, and failure to provide disclosure causes unnecessary delays, adds to costs, and hinders a just resolution.

Failure to provide disclosure can be devastating to a family law case, and judges do not take lightly non-compliance with the duty to disclose. We have a variety of procedures we can use to effectively remedy failures to provide disclosure.

If you need any help with family law matters, contact AP Family Law services in Pickering, Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.