- July 3, 2020
- Posted by: Tricia Wong
- Categories: FDR Updates, FDRIO News
Shmuel Stern is a family law lawyer currently on sabbatical obtaining his LLM in Family Law and running a limited scope practice at Disclosure Clinic – Ontario Family Law Financial Disclosure. Done Right. Follow his family law caselaw twitter feed @corrollaryrelief
Shmuel, what is the Disclosure Clinic?
The Disclosure Clinic is a limited scope service that fills a specific, and I’d say vital, gap in available family law services. It assists individuals to take a proactive approach to their financial disclosure, helping them fully disclose relevant information, including information not asked for directly on a Form 13 or 13.1 Financial Statement but will be asked of them eventually. The goal is to move their family law matter along faster, build credibility into their information and claims, and avoid negative inferences made by the other party or a Court. My tag line is that we need to stop treating the 80% of those who don’t know how to disclose with the 20% who don’t want to disclose.
What does that mean, 80% vs. 20%?
There is an assumption that those filling out the Forms 13 and 13.1 know what they are doing and understand why the information is being requested. For your average family law client, completing the financial statement is as annoying (and uses the same brain space) as completing a passport application, which also requires gathering supporting documents without a place to attach them.
The effect in family law of the mere lack of knowledge about the consequences of what a person says – or does not say – on their financial statement is staggering. Financial disclosure is the means to the end, right? But disclosure or lack of disclosure recurrently becomes the primary issue in litigation, especially when the merits of the case may otherwise be weak. But worse is the trickle-down effect on out-of-court negotiations and ADR. As lawyers, we’ve limited our own toolbox by relying on threats of the same reactive consequences that the court has at its disposal: costs consequences, negative inferences, imputation of income and striking of pleadings, all arising from a form that begs, but doesn’t ask, for more information. The form is so complex, and the information required so mundane that it creates distrust when the information is not provided at first instance. The Disclosure Clinic service is a proactive legal tool to avoid all that wasted energy and time.
An example is the income section, which initially asks the question “If unemployed, when did you last work?” Often, the response is just the date of unemployment, as asked. What is truly required is an explanation as to the person’s last job/employer,(if any), education and employment background, reasons for current unemployment, any temporary support (EI, disability, WSIB, social assistance, family), and prospect/efforts for reemployment based on their past/present circumstances. In this instance, I would want to see a resume, an education plan (if in school), job search details, and if possible, have a discussion with the client’s doctor. All of this information is required simply to explain the client’s story of unemployment, depending on the circumstances. When is this information otherwise provided? Only when asked for, or within court materials. It’s interesting that the case Drygala v. Pauli, which is the seminal case on imputing income in the case of underemployment, provides not just the legal test, but also what information the court is looking for to analyze the test. True financial disclosure is addressing these evidentiary issues up front.
What is the difference between your service and other online services for legal documents?
Firstly, any other person or service offering to help draft financial statements is to be commended. The act of compiling the documentation is hard enough for your average person going through the family law process.
In one sense, Disclosure Clinic helps people complete a form. It’s the starting point. But what is the reasonable end of disclosure? That is a question in law, that requires legal experience to spot the disclosure issues that will arise, plus knowledge and advice on what information and documentation is relevant to address the issues and promote credibility. There are financial claims that are not even addressed at all in the financial statement including post-separation credits, unjust enrichment claims, increased costs of shared parenting and undue hardship information, to name a few. These need to be documented as well. It’s legal advice, not just form filling.
Do you think you take any business away from mediators/lawyers?
No, not at all. As neutrals, it’s technically beyond a Mediator’s role to give specific advice on financial statements. As for lawyers, this is a focused, niche service that is currently not being offered on a limited scope basis. Consider that this work is typically done by law clerks in terms of initially completing and updating financial statements with clients, overseen by lawyers. Self-represented parties are people without lawyers, because they don’t want all that is entailed in having a lawyer. This is a service that provides very specific legal advice by a lawyer, without the trappings. Additionally, by keeping it a virtual service, the cost can be contained. There’s no upsell for other services (although calculations are available, if asked). Just one service, done right.
How would the Disclosure Clinic assist mediators, self-represented parties, or counsel?
For the mediator who is asked “where can I get help filling this out?” there’s now a service. For the self-employed person who doesn’t understand why they are being inundated with seemingly endless demands for more and more paper information/documentation by letters from lawyers or court orders, there’s a service. For the lawyer repeatedly sending demand letters, save the threats and tell them where to seek guidance. For clients, seeing a demand list from an ex’s lawyer is construed as control. From Disclosure Clinic, it’s advice.
What do you want individuals to know about accessing your service?
I am very cost-conscious for the client and that needs to be balanced by a requirement to know the facts and positions of both parties. As a lawyer, I am also keenly aware of prioritizing deadlines and when a client’s situation is truly “urgent”. The services are offered on a session to session basis, remotely over the phone, email and video as suits the client. From the onset, the client needs to have a Gmail account where they will compile and have control over sharing their documents, linked to the information provided on their financial statement. Electronic disclosure certificates/briefs eliminate bulky paper briefs.
Matilda Kissi is a Senior Family Law Clerk with over 15 years’ experience in family law field. In addition, she has completed her training as a family mediator and is working towards her accreditation. Ms. Kissi is currently the Law Clerk for Lauren B. Israel.
Matilda’s expertise lies in supporting clients navigating the difficult and often emotional process of family court. She is well versed in all areas of Family Law, particularly in the area of Child Protection.