Corporate Mailing Address:
731 9th Street West, Owen Sound, ON N4K 3P5 www.fola.ca
Phone: (519) 270-4001 @ont_law_assoc
“The Voice of the Practising Lawyer in
Ontario”
FOLA Submissions on Automatic Standard
Orders Relating to Financial Disclosure by
the Clerk in Family Law Matters
Submitted to: CSD.operationalsupportbranch@ontario.ca
The Honourble Doug Downey, Attorney General
Ministry of Attorney General
McMurtry-Scott Building
720 Bay Street, 11th Floor
Toronto, ON M7A 2S9
Submitted on: May 25th, 2021
Submitted by: Sam Misheal, FOLA Family Law Chair
sam@familyseparation.ca
2020-2021
William Woodward, Chair
Nathan Baker, Vice Chair &
LiRN Chair
Michael Winward, Past
Chair
Jane Robertson, Treasurer
Corey Wall, Central East
Region Representative
Allen Wynperle, Central
South Representative
Sam Misheal, Central West
Representative & Family
Law Chair
Ted Mann, East Region
Representative & Mental
Health Chair
Gordon Prisco, Northeast
Region Representative
Douglas Judson, Northwest
Region Representative
Terry Brandon, Southwest
Region Representative &
Legal Aid Chair
Anna Wong, Toronto
Lawyers Association
Representative
Eldon Horner, Real Estate
Co-Chair
Merredith MacLennan,
Real Estate Co-Chair
Katie Robinette, Executive
Director
Corporate Mailing Address:
731 9th Street West, Owen Sound, ON N4K 3P5 www.fola.ca
Phone: (519) 270-4001 @ont_law_assoc
“The Voice of the Practising Lawyer in
Ontario”
Introduction
Thank you for providing this opportunity to FOLA to comment on the Ministry of Attorney General’s proposal
for automatic standard orders relating to financial disclosure by the clerk in family law matters.
The Federation of Ontario Law Associations (FOLA) is an organization that represents the associations and
members of the 46 local law associations across Ontario. Together with our associate member, The Toronto
Lawyers Association, we represent approximately 12,000 lawyers, most of whom are in private practice in
firms across the province. These lawyers are on the front lines of the justice system and see its triumphs and
shortcomings every day.
General Overview
This reply serves as FOLA’s comments regarding the proposal to create new standard orders relating to
financial disclosure requirements in family law matters.
In response to the Ministry of Attorney General’s request, FOLA has consulted with our members in order to
make meaningful observations and submissions. Many of our members are professionals who practice family
law either exclusively or as part of a broader general practice.
Issues for Consideration
FOLA’s view is that The Family Law Rules already require at the start of any Family Court Case, and pursuant
to Rules 13(3.2) and (3.3) of the Family Law Rules, that no later than 30 days after the day by which the
financial statement is required to be served, serve on the other a comprehensive financial disclosure which is
necessary to understand each parties’ financial situation. There is a further obligation for an ongoing and update
financial disclosure throughout the proceedings.
FOLA’s position on the proposal to create new standard orders relating to financial disclosure requirements
in family law matters is cautiously welcomed.
However, automatic routine financial disclosure orders can be problematic, because they operate on the
presumption that a party must disclose certain information, and that the disclosure is readily available to the
parties. These presumption fails to consider situation which maybe beyond the norm of the typical T4
employee or take into account situations where the ordered financial disclosure is for some valid reasons
outside the party’s control.
A one-size-fits-all standard wording, amongst other things, may not apply to particular fact scenarios, may not
be relevant in the circumstances, and may not be possible within a specified time period.
For example:
• In a circumstance where in a T4 employed payor is ordered to produce bank records via a clerk’s order;
• A party has not filed their income tax returns for several years, and it is not possible to produce within
a specific time period;
• The party may not be a Canadian resident in a given year and have no legal obligation to file his or her
income tax returns;
Corporate Mailing Address:
731 9th Street West, Owen Sound, ON N4K 3P5 www.fola.ca
Phone: (519) 270-4001 @ont_law_assoc
“The Voice of the Practising Lawyer in
Ontario”
• A carte blanche Order may not be relevant in
the circumstances causing unnecessary costs associated with obtaining and compiling for the
production of the said disclosure; and
• Third parties may not be cooperative with producing financial disclosure
FOLA has concerns that in situation as outlined above, a party’s inability to provide disclosure in these
circumstances may prove to be or maybe prejudicial in the proceedings.
The Rules already provide and deal with disclosure on the premise that it will be dealt with and provided well
in advance of the conference to allow counsel the opportunity to have a productive conference, settlement
discussions, and receive judicial opinion.
Recommendations
In conclusion, FOLA is of the view that this is a great initiative, but any proposed disclosure order must be
carefully drafted.
FOLA recommends the following:
1. Develop a template where counsel/litigants can determine what disclosure is provided on consent.
2. Any outstanding items need to be determined by the court with serious cost consequences.
3. Consider implementing a mechanism for enforcement in cases of willful noncompliance.
FOLA is grateful for the opportunity to provide its submissions and welcomes any opportunity to work with
the Ministry of Attorney General as it continues its commitment to improving Ontario’s justice system.
Respectfully submitted,
Sam Misheal
FOLA Family Law Chair