Top Tips for Form 8 Financial Statements

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

A Form 8 Financial Statement is a Supreme Court form used by family law litigants to exchange financial information.  It has 6 parts: 1) Income, 2) Expenses, 3) Property, 4) Special or Extraordinary Expenses, 5) Undue Hardship and 6) Income of Other Persons in Household.

The Form 8 Financial Statement is a crucial document in litigation because it provides asigning-document condensed summary of the financial circumstances of the litigant.  Because of the form’s usefulness, BC family lawyers often will exchange Form 8 Financial Statements with opposing counsel during settlement negotiations.  Whether in litigation or negotiations, the importance of a well-drafted Form 8 Financial Statement to a family law case cannot be understated.

Whether you are preparing your own Form 8 Financial Statement or you are working with your BC family lawyer, here are a few tips to keep in mind:

  1. Be accurate.

The Form 8 Financial Statement is a statement sworn under oath, meaning that the party swearing the document to be true should be prepared to be cross-examined on the facts alleged in the form at an Examination for Discovery or at trial.  Above all else, the most important part of completing a Form 8 Financial Statement is ensuring that it is true.  If there are errors in your Form 8 Financial Statements, it can undermine your credibility before the court.  If you are uncertain about the information you are providing, either take steps to increase your certainty or indicate that the amount is approximate or subject to verification.  For example, you may wish to indicate that the value of your employee pension is “unknown” if you have not yet had a pension valuation.

  1. Be detailed.

The Form 8 Financial Statement can be used by the parties and their lawyers as a guide to the parties’ incomes, assets and debts, and will be referred to again and again throughout a family law case.   Making sure that the Form 8 Financial Statement is detailed and clear will make it a more useful document to the parties and to the court.  For example, when you list your bank accounts, specify the institution, the type of account, and the account number.  Indicate whether your assets are held solely by you or jointly with another person (even if it’s just your spouse).  Make sure to indicate when you acquired your assets and debts, at least to the extent that it is clear whether the asset or debt was acquired before, during, or after the cohabitation.  Indicate the basis upon which you have fixed a value to the property, such as an appraisal, a BC Property Tax Assessment, or an estimate.

  1. Make sure that you have your relevant attachments.

Family Law litigants are required by Rule 5-1 of the BC Supreme Court Family Rules to produce a number of income documents, and all of the documents that apply to you must be attached to your Form 8 Financial Statement.  These almost always include your last 3 years of tax returns, notices of assessment, notices of reassessment, and your most recent property tax assessment.  For a full list please review Rule 5-1 on the www.bclaws.ca website.

  1. Include additional documents where necessary.

Although documents like bank statements and credit card statements are not legally required to be attached to the Form 8 Financial Statement, in many cases it can be very helpful to attach your most recent account statements so that the reader of the Form 8 Financial Statement can see where you obtained your values for the items under Part 3 – Property.  Balances on accounts can fluctuate from day to day, and by providing an account statement you provide a basis upon which to fix a value.

  1. Don’t be afraid to use footnotes.

Clients often have questions about how to complete the Form 8 Financial Statement, given that we are asking them to provide a financial “snap shot” during a period of profound changes to their finances. For example, in Part 2 – Expenses, a person may currently have minimal expenses when they swear the Form 8 Financial Statement because the parties are still under the same roof, but they want to be able to indicate what the housing expense will be when they move out in a month.  A footnote can provide that explanation.  Similarly, a footnote can be included to explain an expense where that expense has been estimated, such as estimating that “vacation” expenses are $375 per month, because you take two vacations per year that each cost $2,250.  These explanations can be incredibly useful when you are under cross-examination, as the Form 8 Financial Statement does not leave the reader guessing as to how the numbers were determined.

  1. Fill out all the parts of the document.

Read the entire document and ensure that every part applicable to you is completed.  Carefully consider: have you disposed of property in the last two years (Part 3), does your child have expenses that meet the test for special and extraordinary expenses (Part 4); do you meet the test for undue hardship (Part 5), are there other income-earning adults in your household (Part 6)?  A full and careful consideration of these questions is essential to the proper completion of a Form 8 Financial Statement.

  1. Ask yourself: does it make sense?

When your Form 8 Financial Statement has been filled in, but prior to swearing it to be true, you should review the document again and carefully consider whether the information in the Form is internally consistent.  For example, if your actual expenses greatly exceed your stated income, then we would expect to see a corresponding debt or some other explanation for the discrepancy.  If there is no explanation for the discrepancy, then it’s time to look back at either your income or your expenses to see if you have missed some piece of information.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Nasty Doesn’t Work in Family Court

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

Intimate partners are expert in knowing how to push each other’s pain points, and when a separation turns into a legal action, it can be difficult to resist the urge to provide evidence of every embarrassing fact or salacious detail about the other party.  The adversarial system pits the parties against each other, and when parenting is at issue, it can be difficult for litigants to discern what is relevant and what is plain-old mud-slinging.  However, a party must always consider whether the facts they try to enter into evidence are relevant and probative to the issues before the court, or they risk their mud-slinging resulting in their own character looking sullied.

Since Reasons for Judgment were published in the case of J.S. v. M.M., 2016 ONSC 2179, the link to the Reasons has been copied and emailed between family law lawyers around the country.  The facts of the case are not unusual, but it’s the pointed and exasperated writing style of Mr. Justice Pazaratz that makes the case so compelling.  Pazaratz J. held nothing back in expressing his frustration at being asked to consider (and view, in full colour) sexually explicit photographs of the mother in a custody case.

In that case, Mr. S applied for temporary custody of the two children of the marriage and primary residence of his son. He argued that the mother was not adequately caring for boy, who had special needs.  He alleged that she was too preoccupied with her new boyfriend.  man-person-smartphone-technologyIn his affidavit submitted in support of his application, Mr. S included screenshots taken from the mother’s cell phone (which she thought was discarded) of “sexts” and pictures exchanged between the mother and her boyfriend.  The judge rightly found that these bore no relevance to the matters before the court.  In the words of Mr. Justice Pazaratz, “The mother has a sex life. Big deal.”

Mr.  S’s strategy was particularly flawed given that he had tried to allege that the sexually explicit material was relevant because the parties’ son had found the cell phone and viewed the material, causing trauma to the boy. The problem with that line of reasoning was that Mr. S himself had left the phone in his residence unattended, giving his son access to it.

Pazaratz J. held no punches when he says in his Reasons, “nasty doesn’t work”, and “nasty won’t be tolerated.”

Ultimately, Mr. S’s application for primary residency of his son was dismissed, although he was able to obtain some increased access to both children.  The Court struck the sexually explicit photographs and texts from the record and prohibited Mr. S from showing the materials to any other person.   The Court invited submissions on costs, and it is very likely that once the submissions are made, there will be cost consequences for Mr. S’s litigation conduct.

More importantly than court costs, however, is possibility of co-parenting going forward.  The level of conflict between separated parents has an immense impact on the development of the children. Mr. S has likely irreparably damaged the prospects of the children being able to reap the benefits of parents who are amicable with each other.  In the words of the presiding judge: “How will the parents ever again be able to get along?”

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

BC Supreme Court Family Rules Amendments

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On February 18, 2016, the British Columbia Supreme Court announced a January 28, 2016
Order in Counsel making amendments to the Supreme Court Family Rules effective July 1, 2016.  Notable among the amendments is to Form 20 and Form 21, which are the List of Documents and Appointment to Examine for Discovery, respectively.  typing-vintage-technology-keyboard

The List of Documents is a form that tells the other party which relevant documents are in the possession and control of the listing party.  The Appointment to Examine for Discovery is the form that sets the time and place for the other party to be examined under oath in advance of the trial.  Lists of Documents and Examinations for Discovery facilitate and require broad and comprehensive disclosure, and typical family litigation will result in the parties exchanging very sensitive information and documents.  The recent amendments call for including in the forms the implied undertaking of confidentiality over documents exchanged in family litigation:

Implied undertaking to the court

Documents produced are not to be used by the other party(ies) except for the purposes of this litigation unless and until the scope of the undertaking is varied by a court order or other judicial order, consent or statutory override or a situation of immediate and serious danger emerges. This implied undertaking continues despite settlement or completion of the litigation.”

This implied undertaking is not at all a new concept.  You may not use documents or information obtained in litigation for any other purpose except the litigation, unless you fall within a few narrow exceptions.  Family law litigants have been bound by this rule for years.  However lay litigants are increasingly common, and most non-lawyers would not have reason to be aware of the implied undertaking until now.   The amendments make it clear on the face of the documents: disclosure obtained in family cases is for use in the litigation only.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Ex Tapes: Recording Marital Discord

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

One of the most difficult challenges survivors of abuse in custody and guardianship cases face is proving to the judge that they have been abused.  Abuse survivors are often faced with the risk of being found to be exaggerating or fabricating their allegations in order to gain an upper hand in the litigation.  Sadly, survivors are put in a position of having to decide whether their evidence is “good enough” such that they will be believed.  Some survivors choose not to lead evidence regarding abuse because they are concerned that it will have a negative impact on how the court will view their credibility.

In the recent BC Supreme Court decision of N.D.T. v. T.F.T., 2016 BCSC 134, the Claimant was successful in proving her allegations of abuse.  She was able to show that the Respondent had been verbally abusive, that the abuse had taken place in the presence of the parties’ children, and that the Respondent’s conduct reflected his capacity to parent the children.  The BC Family Law Act explicitly requires BC Courts to consider the impact of family violence on children, whether or not it has been directed at the children.  The Claimant, referred to in Mr. Justice Saunders’ judgment as “Ms. T”, consequently won her claims for custody, guardianship and parenting time.  Her method of proof: video recordings.

Ms. T had video recorded the parties’ arguments for a period of approximately two years leading up to the date of separation.  Videos of 19 separate incidents were admitted into evidence.  That takes riphone_notes.jpgeal forethought!

What makes Ms. T’s success even more remarkable is that she won despite an expert report that made recommendations that Ms. T should get counselling to shift her focus away from drawing the children into the conflict and “placing blame” on her husband.

In the past, BC courts have been disapproving of surreptitious recordings in family cases.  Recording a former spouse without permission has been viewed as contributing to mistrust and conflict between parties; and yet time and time again videos and audio recordings are admitted into evidence.  In this case, one has to wonder if Ms. T would have been so resolutely successful on the parenting issues had she not been so proactive in collecting evidence during the marriage.

It feels unsettling to think that unhappy spouses will start recording each other’s worst moments for years on end with the aim to build a case for a family law trial.  However, with recording devices literally at everyone’s finger tips, we can expect more of this evidence to come.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

New Family Law Pilot Project at Supreme Court

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The Vancouver and New Westminster locations of the British Columbia Supreme Court announced on July 14, 2014 that a new Family Law Pilot Project will start on September 2, 2014.  The project will involve appointing a roster of judges that will be assigned to preside exclusively over family law applications and trials for a period of approximately six months each.  The project is slated to continue for two years, and will be supported by dedicated legal counsel who will provide research support to our BC Supreme Court Justices.  This is great news for family lawyers as the area of family law can be quite different from civil litigation, and many justices have no experience practicing family law when they take up their spot on the bench.  The pilot project is perfectly timed to address the uncertainty surrounding the new Family Law Act and some of the trickier questions that have emerged from its interpretation.  

When Can I Get Into Court?

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Many times family lawyers are asked by clients when they can expect to get into court.  Once you start your court action by filing your Notice of Family Claim, the trial can be months or sometimes years away, as the parties and the lawyers work on disclosure, negotiations, investigations, and finally trial preparation.  Most cases in my experience take just over a year to get to a trial.  Trial dates are typically set well in advance with both parties’ agreement and by consulting the court’s availability through the courthouse website or by contacting the courthouse registry.

In contrast, interim applications can require your appearance at court within weeks or even days of starting your court action.  Just a few examples of court orders that you might apply for in an interim application include: orders restraining the sale of family property, orders requiring disclosure of documents, orders restraining contact between the parties, orders for a parenting schedule for the time leading up to trial, and orders for the immediate payment of support.  The Provincial Court of British Columbia, the Supreme Court of British Columbia, and even the British Columbia Court of Appeal all have their own rules for how much notice you must give the opposing party.  For example, in the Supreme Court of British Columbia, the time period is least at eight business days (not including the day you serve your notice and the day you attend the hearing), unless you get permission from the court to give shorter notice.

Most family law lawyers will make an effort to set down a court date that is convenient for both parties.  Whether you will get to court on an interim application early in your file will depend on the particular facts of your case.

 

*Nothing in this post constitutes legal advice and is for general informational purposes only.  To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Limited Sittings in BC Supreme Court this Month

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Every once in a while the justices of the Supreme Court of British Columbia have a reading break or a judges’ conference.  This week the New Westminster and Victoria locations will be limiting their court time, and next week there will be no judges or masters in Vancouver, Victoria or New Westminster on May 21, 22, or 23, except for emergency applications.