Nondisclosure is “A Fraud of the Court”
Recently we wrote about an Ontario Court of Appeal decision in a case called Leitch v. Novac, which focused primarily on the interesting legal issue of whether – in the Family Law context – it is possible for one spouse to commit civil conspiracy against the other spouse.
In that decision, there were several other aspects of the Family justice system about which the Appeal Court offered its pointed commentary. Among them was the rampant problem of deliberate non-compliance by litigants, in connection with their obligation to provide full and frank disclosure of financial information to each other.
After repeating the often-cited comment by the Supreme Court of Canada ruling in Leskun v. Leskun to the effect that nondisclosure is the “cancer of family law”, the court in Leitch went on to observe this:
This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial.
Worse, the impact of this “fraud on the court” is borne most severely by the children, as the court explained:
Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor’s required financial contribution.
The court’s diatribe concluded with these words:
In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.
For the full text of the decisions, see:
Leskun v. Leskun, 2006 SCC 25 (CanLII),  1 SCR 920
Leitch v. Novac, 2020 ONCA 257 (CanLII),