Disclosure and Valuation Date - Family Property Act

1. Disclosure
   1. ​Each person has to disclose any and all relevant information so that each person can make in informed decision or agreement about family property division. The Notice to Disclose sets out minimum disclosure but full disclosure can often go much further.
   2. “Full disclosure” may vary from case to case, depending on the nature of the assets and liabilities and the nature of the claims.
   3. Any documentation that supports any asset, debt or exemption must be provided to the other person.
   4. You cannot rely on a document in trial unless it has been disclosed to the other person. Late disclosure has risks and may bear penalties.
   5. Other ways of obtaining “full disclosure” are:

• to voluntarily provide it when negotiating
• to provide it in Collaboration or Mediation
• to provide it when formally requested pursuant to a Notice to Respond to Written Interrogatories
• to provide it pursuant to a request made in a “Questioning”

6. A Notice to Respond to Written Interrogatories is limited to 30 questions. The answers are made under oath. Failure to respond can result in a Court application requiring a response within a specified time and an assessment of costs against the person who has not responded.
7. A “Questioning” is a formal process where you, your lawyer, the other person and their lawyer meet in a room with a Court Reporter present. You are sworn to tell the truth. The other lawyer will ask you questions and ask you to provide documents at a later date (undertakings). A transcript of the session is produced by the Court Reporter. Questionings are very expensive- they take a considerable amount of time- you pay for your lawyer’s time to prepare and attend Questioning, as well as for the Court Reporter and ultimately a copy of the transcripts (we are now arranging some Questionings over video conference).
8. It is not enough for you to have knowledge of the disclosure and to have reviewed it. Your lawyer must also have the disclosure, and the opportunity to review it.
9. Disclosure often includes formal valuations of assets and debts such as valuations of corporations, appraisals of real property and other valuable assets.

2. Date of Division

1. In Alberta, the date of division of family property is the date of trial. Most people don’t go to trial so from a practical perspective, it is the date you are negotiating or trying to resolve matters. This often means that valuation date is a moving target and updated disclosure is required.
2. Where there have been lengthy separations, it gets very complicated.
3. In other jurisdictions, the legislation fixes the valuation date as of separation or the date of the Statement of Claim was filed. In Alberta, it is a moving date.
4. You and your partner can agree on any date you want to for valuation of assets. But you both have to agree.
5. Sometimes people agree to use different dates for some assets than others. Usually this is where there is a fundamental understanding that the assets are very different, or that unusual circumstances exists.

3. Court has discretion

1. Even though the current date is the proper date of division, the Court can also divide property that was acquired when the parties were living separate and apart in a way they see fit (section 8 (f) of the Family Property Act).

© Marilyn Herrmann

This information was provided as a courtesy by Niblock & Company LLP for information purposes only and should not be taken as legal advice. You should not rely on, or take or fail to take any action based on this information.  If you need legal advice, contact Niblock & Company LLP or a lawyer of your choice to obtain advice that is particular to your situation.  The provision of this information does not create a solicitor/client relationship.