I am approached by people who want to settle their divorce/relationship property obligations based on either an agreement they have made or restricted sharing of financial disclosure. They leave my office after being told that whether or not the other person wants or needs to know, they must be told everything about the financial situation. Some people do not return and tell me they found a lawyer who does not require them to give full disclosure. For them it may only be a matter of time before they are required to defend themselves in Court when applications are made to set aside their agreements.
There are 16 categories of financial information that need to be shared between divorcing and separating couples. All 16 points need to be answered.
Case in point.
Chateauvert v. Chateauvert, 2018 CarswellAlta 4.
This is a very significant (important reminder, long and detailed) judgment written by Madam Justice Moreau of the Alberta Court of Queen’s Bench.
The Supreme Court of Canada has ruled on the consequences of unconscionable agreements (Miglin v. Miglin) and the consequences of incomplete financial disclosure (Rick v. Bransema). The courts have made it repeatedly clear that financial disclosure is the sine qua non formation of valid domestic agreements
Sine qua non
The essential, crucial, or indispensable ingredient without which something would be impossible: “Her leadership was the sine qua non of the organization’s success.”
From Latin, meaning “without which nothing.”
This case is a reminder of why I tell my clients ( or those who wish to be my clients) that a signed separation agreement with independent legal advice that is based on incomplete or non-disclosure or inaccurate financial disclosure has an extremely high chance of being set aside (overturned) by the Court.
There is no point in negotiating agreements without comprehensive and accurate financial disclosure. This case is a good example of what can go wrong when financial disclosure is lacking.