In all my years of doing family law, there is no single form that draws the ire of clients as much as the financial statement. It is a dull and painstakingly clumsy form. When I was a staff lawyer at the Hamilton Family Courthouse (about 15-20 years ago), I initially gave clients the blank financial statement form for them to complete on their own time, only to see/hear the same clients toss the paperwork into the garbage bin as they left the courthouse. I quickly learned that it was a hopeless endeavour for most of them to complete on their own. When I returned to private practice a few years ago, most of my clients told me that the form is still too intimidating for them to complete independently. (I even know a few lawyers who struggle with the form). Alas, it is an important form in family law matters. In most cases, it is also a required form, especially when helping parties resolve the issues of child support, spousal support, and property division.
What seems to make things worse is that the lawyers and judges who use the form rarely make reference to all of the figures set out in the form. Is this intentional? Do we make people complete form as a way of punishment? Do we ask them to complete the form, just to show that they are “worthy” of proceeding to the next step in the family law process, as if they were on a fantastical quest, like Harrison Ford in “Indiana Jones in the Last Crusade?” (just a classic movie, by the way).
But fear not – the completion of the financial statement does not have to be so difficult that staying in a bad relationship is seen as the preferred option. You just need time, patience, your household bills, but most importantly, some guidance on how to complete the form. But be warned – Rome wasn’t built in a day – so don’t expect to complete your financial statement in just one sitting.
The first step is to decide which financial statement form you must complete. There are two financial statements: Form 13 and Form 13.1. You must complete one form, not both forms. If you are seeking any form of property division, equalization of net family property values, or any trust claims to property; then you must complete Form 13.1. Otherwise, you must complete Form 13.
Once you have the right form, the second step in completing the form is to make sure you have the supporting documents that you need to input (by hand or by computer) the proper value in the appropriate column. You should have the following documents readily available to you, either in paper form or online:
- Your last three years of income tax returns and the accompanying notices of assessment
- Your three most recent pay receipts or receipts from your other sources of monthly income (such as your OW statement, ODSP statement, CPP statement, etc.)
- Your bank statements for the last 12 months
- Your credit card statements for the last 12 months
- Your utility statements for the last 12 months
- Your property taxes for the last 12 months (if applicable)
- Your rent receipts for the last 12 months (if applicable)
- Your title documents and mortgage documents for your home (if applicable)
- Your car loan, student loan, bank loan, or other personal loan documents (if applicable)
- Your car/vehicle ownership documents (if applicable)
- Your life insurance documents (if applicable)
- Your business-related documents (if applicable)
You will likely need to refer to other documents when completing your financial statement, but these are the foundational ones you will need. If you do not have them all, so be it (for now), but have as many as you can to reference.
Once you have completed these two steps, you are ready for the third step – start the form. I always recommend to clients that you do a “draft version” of the form, in pencil or online (and if online, make sure that you save your data entries regularly). Do not worry about tabulating the columns for sub-totals or totals. Your lawyer will do that for you when they transpose the information using their own computerized data-entry program (usually DivorceMate).
There are two major parts to the financial statement – the monthly budget and the net worth statement. I will briefly describe each of them and why they are important.
Regarding the monthly budget, the parties and the court need to see how much money you bring in each month and how much of that money flows out each month. A keen observation of this section will reveal the following issues:
- Are you spending more money each month than you are bringing in? If so, and you have a negative balance at the end of each month, how is this sustainable? This could also suggest that your stated income is not accurate or that you have alternate/supplemental income sources that you have not disclosed.
- Is your income stream regular, seasonal, temporary, etc.? There may be a legitimate reason why you are flush with cash in some months, but then in other months, you are making stops at the local food bank to make ends meet.
- Is any of your income not subject to taxation, e.g., WSIB benefits? If so, the income level may need to be grossed up to take into consideration what it would be if it were taxable.
- Is your income based on a fixed employment income/salary, or are you self-employed? If you are self-employed, what are your deductions from your income? For support calculation purposes, some proper and legitimate income tax deductions may be added back into your income levels.
- What are you spending your money on each month? If you claim that you cannot afford to pay support but spend over $1,000.00 combined in alcohol, tobacco, entertainment, gifts, and other discretionary spending, you will not get much sympathy from the other side or from the court.
- Are there other income earners in the home? We need to know if there are other income earners when a party is seeking a claim for undue hardship (in cases involving child support) or when seeking a spousal support claim. This information may go a long way to explain why there may be a deficiency at the end of each month.
Regarding the net worth part of the statement, everyone needs to see what you own and what you owe. However, depending upon which form you complete (Form 13 vs. 13.1), there are several important dates for which you will need to provide these values:
- The Date of Marriage – this date is self-explanatory. You need to put down the value of your assets and debts as they were on the date you got married. Many people cannot remember what they had for dinner last week, let alone their financial worth when they married. If you do not have the paperwork to back it up, use your best estimation, but be prepared to prove the figures’ accuracy later on.
- The Valuation Date – this date is not so self-explanatory. This refers to the date that you and the other party separated from one another. This may or may not be the date that you are also physically separated from one another. You can be living separate and apart from one another (emotionally and mentally) but still be physically residing in the same home until the house is sold or one party buys the other out. The earlier date is the date of separation, not the later date. If you are not sure what your date of separation is, please speak to your lawyer, or seek legal advice if you are self-represented. Please list the value of your assets and debts as of that date. The same rule applies as above – be prepared to prove the accuracy of the figures you put down.
- Today’s Date – once again, this date is self-explanatory. You need to state the value of your assets and debts as they are on the date you complete the form. This is especially the case in regards to your home and your stocks/investments/pension, which may have increased in value since the date of separation. Once again, be prepared to prove the accuracy of the figures if so questioned.
There is a sub-section of this part of the form that may also need to be completed – exclusions from net family property (NFP). This is where certain items should be listed, but not included in the calculation of the NFP for married spouses, as determined by specific provisions of Ontario’s Family Law Act. Once again, this can get very complicated and very conflictual, so please consult your lawyer or duty counsel for information about possible exclusions from the NFP values.
We need to have this asset/debt information for two main reasons. First, we can determine whether parties live a consistent or inconsistent lifestyle with what their declared income is. For example, only, we want to see whether someone claiming to make $15,000 per year as a real estate agent owns a luxury car, lives in a new 4-bedroom model home in an affluent part of town, and has investment funds that cannot be explained on their modest salary alone. In such cases, the courts may impute income against that person (this is the subject of a future blog). But secondly, and more importantly, the asset/debt information will help the parties determine the value of their NFP (net family property, as referenced above) in order to decide whether one party owes the other party an equalization payment. This calculation is provided for under Ontario’s Family Law Act. At present, however, this calculation and the property equalization scheme only applies to married spouses (i.e., it does not apply to common law, dating, or one-night relationships). This blog does not address possible claims made by common law spouses for constructive or resulting trusts. Stay tuned for that one (at a later date)!
As you can see from this blog, completing the financial statement is not easy, but it is made easier if you understand both what you need to input and why you need to do so. I always ask my clients to take a shot at completing the form on their own first. I want my clients to feel empowered. But I will not abandon them in their time of need. A good lawyer will give a client the form and ask them to complete it. A great one will take the time (either by themselves or with the help of their trusted family law staff member) to go over the form with the client, explain each part, and ensure that the values have listed both accurate and provable wherever possible. Please be prepared to spend some quality time with your lawyer, their staff, or duty counsel to complete your financial statement correctly and in a timely manner.
Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at firstname.lastname@example.org.