This power derives from the provincial Family Law Act, which provides that the court may make a preservation order in connection with an application for clarification of property matters or for the settlement of net family property, if it is « necessary to protect the interests of the other spouse. » The injunction may be aimed at: (1) limiting the exhaustion of a spouse`s property; and (2) give instructions on the possession, delivery, custody and preservation of such property. Seizure orders can be made under the Family Law Act and are usually ordered to ensure the safety and convenience of a spouse, knowing that at the end of the day, there will be property available to recover. The court considers three main factors when deciding whether to issue a garnishment order: But under Canadian family law, a spouse can go further to protect these funds until trial. Through a « seizure order » (also known as a « non-dissipation order »), a court can expressly prevent a spouse from selling, encumbering or disposing of property until a later and more complete decision can be made by the court. In other words, the court « freezes » one spouse`s ability to infringe the rights of the other by dealing with property pending trial. « Preservation Order ». Merriam-Webster.com Dictionary, Merriam-Webster, www.merriam-webster.com/dictionary/preservation%20order. Retrieved 26 November 2022. It is recommended to hire a lawyer in the preparation and implementation of such a set of instructions, as the obligation to retain is shared by all parties to the dispute and your lawyer knows better than you what documents you need to keep. If you have any questions about this, please do not hesitate to contact us.
In that context, the General Court examined the relevant principles and elements determining the appropriateness of issuing such an injunction. These included: If you have ever been involved in litigation, you may remember seeing or receiving a so-called « attachment letter. » What is this preservation letter and what does it do? A seizure letter may also be called a seizure order, litigation or detention order. This is a letter asking the recipient not to destroy, modify or delete documents useful to the sender. This letter is crucial in today`s world where most documents are stored electronically. Computers and other technologies allow us to store large amounts of information electronically. It also allows accidental or intentional deletion or modification of these documents. This evidence must be retained so that the court can make an informed decision on the case. For this reason, each party to the dispute is required to retain evidence relevant to the claims of the claim; However, the sending of a letter of seizure is only a possible event triggering this obligation. After examining these principles and considering previous decisions, the Conforti Court concluded that a Preservation Order was not justified in the circumstances. He ordered that the $1.27 million currently held in trust be divided equally between husband and wife.
In a future blog, we`ll look again at some interesting factual scenarios that illustrate when a preservation order is likely to be issued by the court (and when it is). A Preservation Order can be extremely important in some cases to protect your interests. Ultimately, a Preservation Order can mean the difference between whether or not you can get your judgment, which you worked so hard for. If you are concerned that your spouse will deplete his or her assets, please consult a lawyer immediately. The court was asked to make such an order in a recent case called Conforti v. Conforti, where long-term married spouses divorced and agreed to register their marital home for $6 million. Although the house eventually sold for $5.3 million, the wife was only informed a few days before it closed, suspecting that the husband had some sort of secret secondary agreement with the buyer that would prompt her to get additional funds directly into her own pocket. About $1.27 million of the proceeds were still held in trust by their joint attorney for the sale, and the husband filed a motion to release that money. The wife responded by requesting a Preservation Order because she had doubts about the integrity of the sale. An organization`s legal team, whether internal or external, typically initiates process lock-in. When the team learns of a triggering event, it sends a legal suspension notification to appropriate custodians, data stewards, and other key stakeholders. A hold notification usually gives an overview of the situation, describes the recipient`s obligations, and determines what data should be retained.
It may include more information, such as who to contact if the recipient has questions. So what should you do to prevent the charge of looting? If you receive such a letter, or even before receiving such a letter, you must immediately stop deleting or modifying documents that may be useful to the other party for the reasons mentioned above. If someone else has access to these documents, you should also let them know to stop doing the same. If you know or learn of changes to a document that are relevant to litigation in this case, you should immediately note those changes and who, what, when, where and why of those changes that will be sent with the document during the discovery request. It may be preferable to have a set of instructions, outline, checklist or manual that outline what to do, particularly with respect to documents, once this retention requirement has been triggered. A litigation suspension, also known as a legal preservation order, preservation order, or suspension order, is an internal process through which an organization goes through to retain all data that could relate to a legal action in which the organization is involved. A process backup process temporarily suspends normal data retention policies to ensure that data is available for the discovery process before litigation. An organization is required by law to retain all relevant data if it becomes aware of a triggering event, such as ongoing or ongoing litigation, or if litigation is reasonably expected, such as if a defective product causes harm. A hold prevents looting – destruction, alteration or mutilation of evidence.
The aim is to ensure that a claimant has fair access to all information that may be relevant to the dispute. If property jointly owned by divorced spouses is sold before trial, the net proceeds are generally held in trust until settlement occurs in a subsequent process. This avoids prejudice for both spouses. Funds can only be distributed earlier if both agree that there are enough assets to meet a likely compensation payment that one of them owes to the other in the future. Large organizations often use legal retention software to automate many of these steps, making it easier to notify recipients and track everyone`s activity.