- order disclosure;
- draw an adverse inference against the non-disclosing party, and make a decision based on that inference;
- require the non-disclosing party to give security in any form the court directs;
- order that the non-disclosing party pay one of the following penalties: (a) all reasonably incurred costs of the innocent party as a result of the non-disclosure or late disclosure;
- (b) a monetary penalty, up to $5,000.00, payable to the party affected by the non-disclosure, or to a child or other person affected by the non-disclosure; or
- (c) a fine not exceeding $5,000.00, payable to the court.
This seems to be the Court's first stab at addressing what the court lovingly refers to as the "cancer of matrimonial litigation."
The judgment, penned by Punnett J., is quite comprehensive in comparing the old remedies under the Family Relations Act to the Family Law Act, noting that the Family Law Act adds some tools to address non-disclosure, such as the power to order the giving of security or a fine.
Interestingly, Justice Punnett notes that, while contempt remains an option for non-disclosure, it should only be used as a measure of last resort: "[P]resumably in all but the most egregious cases an application under s. 213 should be made initially. This recognizes the seriousness of a contempt application with its more onerous procedural and evidentiary requirements. It also recognizes that the FLA adds to the arsenal for enforcement available to the courts rather than subtracting from the court’s remedies."
The non-disclosing party in this case was made to pay a fine of $500.00 to the innocent party, and to pay $1,500.00 toward the costs the innocent party incurred in applying for the order.