New Tort of Family Violence rejected by Ontario Court of Appeal

November 22nd, 2023 by

The landmark decision in Ahluwalia v Ahluwalia 2022 by Justice Renu Mandhane of the Ontario Superior Court of Justice created the tort of family violence in family law. This was a ground-breaking decision because it has important implications for survivors of intimate partner violence throughout the province. This case involved a 17-year traditional marriage of the parties. At trial, the judge assessed damages at $150,000: $50,000 for each of compensatory, aggravated, and punitive damages. The husband disputed the amount of award, and he raised objection to the novel tort in family law.  

The parties were married in 1999 and had two children during their marriage and later separated in 2016. The father immigrated to Canada in 2001, and the mother and child arrived the following year. The husband was a lawyer, and the wife was a teacher in India. The parties later had another child in Canada. When the parties settled, they lacked the financial resources to get their foreign credentials accredited in Canada. The parties worked in factory and retail jobs to make ends meet.  

According to the wife’s evidence the parties’ relationship was characterized by a pattern of emotional and physical abuse and financial control. This was not disputed by the husband on appeal. The trial judge found that the husband was abusive during the marriage.  The wife had testified to three specific incidents of physical violence in 2000, 2008 and 2013.  

On July 7, 2023, the Ontario Court of Appeal released its decision in the case. The court acknowledged the existence of intimate partner violence in this case but rejected the creation of the tort of family violence. The court held that when remedies already exist, a new tort is not required. The court held that existing torts when properly applied, addressed the harm suffered in domestic relationships. The Court of Appeal also reduced the damages from $150,000 to $100,000 by eliminating the award for punitive damages.  

In Ahluwalia, the Court of Appeal clearly recognized that intimate partner violence is a “pervasive social problem.” The ruling represents a milestone in the evolving legal landscape surrounding tort claims in family law proceedings. It clarified the boundaries of the law, and the appropriate remedies that are available to victims of family violence. 

Available Remedies? 

Victims of domestic violence have the option to ask the family court for a restraining order against their partners if there are safety concerns for them or their children. The restraining order will list conditions that the abuser must obey. If the abuser does not follow the conditions of the restraining order, it will be contempt of court and the abuser will face consequences. A judge can ensure that a restraining order lists conditions that are suitable for the victim’s unique situation to protect the victim from the abuser.  

A no-contact order is another kind of legal order that is sometimes imposed on a person by a court. No-contact includes all forms of contact, including in-person, by telephone and by email. A person under no-contact order is not allowed to contact the person, usually the victim and sometimes her family or friends named in the order.  

While a peace bond is an order given by the criminal court that requires a particular person to be mindful and keep the peace for the duration of the peace bond order. It ensures that the person maintains good behaviour for the duration of the order. These orders are subtle in differences but are designed to protect victims and their families. 

In Ontario, victims can call Victim Support Line to get financial assistance and receive access to support for critical needs such as emergency home safety expenses and short-term counselling services. There are other platforms that provide similar assistance such as Assaulted Women’s Helpline, Fem’aide Support, Kids Help Line, Male Survivors of Sexual Abuse Crisis Line and Victims Support Line. These helplines are operated 24 hours a day. 

Ontario network of sexual assault/domestic violence treatment centres is funded by the Province of Ontario and has 37 treatment centres across the province dedicated to provide comprehensive, trauma-specific care and treatment to victims and survivors of sexual and domestic violence. 

If you’re a victim of family violence, don’t suffer in silence. Get the supports you need. 

What is Parenting Coordination?

November 15th, 2023 by

Remember that not all circumstances in a divorce are the same and that not all parties separate amicably. Often separating parties find it difficult to mutually agree on decisions about children. If the children are at the center of the divorce battle, then several decisions are required to be made. For instance, where the parties will meet to exchange the children or whether a previously agreed-to location can be changed. 

A parenting coordinator is a neutral third party brought into family law cases to reduce the level of conflict between parents about parenting arrangements or parenting orders. Under the Family Law Act, parenting coordinator is an alternative dispute resolution process. Generally, they may be family law lawyers, social workers, counsellors, or psychologists. For many high-conflict cases, the parenting coordinators have accomplished assisted parents with making decisions that are difficult to make on their own. For instance, they assist parents with the successful implementation of the parties’ parenting plan. If there is a dispute with respect to the parenting plan, the parenting coordinators will try to mediate an agreement between the parties. Parenting coordinators employ a child-focused method of alternative dispute resolution used in high-conflict cases.  

 

What is defined as a high-conflict custody case? 

This is a situation where the parents cannot agree on decision-making responsibilities and parenting time arrangements. This includes when parents cannot agree on the children’s best interests, lack communication, and are unable to make mutual decisions regarding the children. The legal process in a high-conflict parenting case is usually long and complicated. Allegations of domestic violence, child abuse, and alienation are common in high-conflict cases. In these cases, both legal and mental health practitioners agree that early intervention and assessment by the courts are necessary.  

In some instances, parents are unable to let go of the spousal relationship and use parental issues to try to hold on to it. Sometimes one parent may use the parenting arrangement as a way of maintaining or exerting control or of exacting revenge. Frequent court applications and lengthy affidavits requiring responses may be used to punish and exhaust the other parent emotionally and financially. One or both of the parties may still be very emotionally engaged. Where there is an eruption of marital conflict, children may lack confidence and become hesitant to move forward or may move forward in a dysfunctional way. See Jackson v Jackson (2008) CanLii 3222 as this case provides an excellent review of the literature on high-conflict divorce.  

 

How does a parenting coordinator get involved? 

Judges can appoint parenting coordinators, or former partners can choose them. Judges cannot order parenting coordinators without the consent of the parties. If the relationship between the parties are difficult, especially in terms of communication and cooperation then it makes sense for the parties to accept the parent coordinators’ involvement.  

If you have questions or concerns about how to navigate your family law case, please get in touch with us for more information and speak to one of our experienced Family lawyers in Pickering, Markham, Toronto, or Scarborough. You can call us at (905)-492-7662 or email us at [email protected] to schedule a consultation.

SOMETIMES LOVE LEADS TO A BITTER DIVORCE

November 2nd, 2023 by

The following cases are a good reminder that sometimes love leads to a bitter divorce. If you are happily married, then perhaps appreciate your significant other a bit more or let this be a happy reminder of why you chose to be single. 

1. The legal battle over $34.84 in Canadian Tire Money 

Couples tend to usually blend all their assets during a marriage. One type of asset that parties usually pay less attention to is loyalty points that are accumulated through household shopping. In the following case, you will see the couple litigate over this matter. 

Like most divorce cases, the parties in Nikolaev v Fakhredinov, 2015 ONSC 6267 had requested the court for equalization. What is interesting is the fact the parties could not settle a difference of $34.84 concerning the value of the Canadian Tire account. The proportionate outcome was split between the parties by the court without considering the merits given the value, but it is absurd that this was even disputed. 

2. Bickering over cats and dogs 

It is no surprise that to many couples their pets are their babies, so to speak. These animal-loving former couples end up fighting in court over decision-making responsibility and ownership of their once-shared pets. Ideally, the first step in such cases is for the respective party’s lawyers to set the expectations straight namely, whether either of them has the right to have “decision-making responsibility” of a pet like they would have with children of the relationship. 

The Canadian law does not regard pets as a member of the family, and decision-making responsibility principles are inapplicable to these kinds of disputes. In other words, pets are simply possessions. This was reinforced in a recent Saskatchewan decision, Henderson v Henderson, 2016 SKQB 282 involving a couple who shared two dogs while living together. The husband wanted to keep one dog and was willing to allow the wife to choose which one, but the wife wanted both dogs. Neither of them would compromise, and the matter went before a court. 

The following was reinforced by the court: 

Dogs are wonderful creatures. They are often highly intelligent, sensitive, and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.  

But after all is said and done, a dog is a dog. At law, it is property, a domesticated animal that is owned. At law, it enjoys no familial rights. 

The court went on to say:
In a justice system that is incredibly busy, where delay has virtually become systemic, and where there are cases involving child welfare and family matters that wait months for adjudication, these parties have chosen to throw this dispute into the mix. I am sure that to them, this is the most important matter. But it must be kept in perspective and measured against other matters, many of which inarguably are of more importance. The foundational rules in our Queen’s Bench rules speak to proportionality and reasonableness. Parties are bound by those rules. To consume scarce judicial resources with this matter is wasteful. In my view, such applications should be discouraged. 

The court made its legal approach clear, and the court ultimately declined to make any interim orders respecting the dogs, because the couple certainly had other personal property that would be dealt with and divided at trial. The court also noted for both parties to bear in mind that if the court cannot reach a decision on where the dogs go, the court has the discretion under the legislation to order them sold and the proceeds to be split. 

3. Spousal Support for pets  

In this 2015 case, Slongo v Slongo, 2015 ONSC 2093, the parties were married for 23 years and separated a few years after. Ms. Slongo stayed at home and raised the children while Mr. Slongo had a successful career. The court found a significant compensatory basis for spousal support to alleviate financial hardship and to rectify any economic advantage or disadvantage to a spouse caused by the breakdown of the relationship. What is interesting about this case is that among other things, Ms. Slongo requested $755 a month in spousal support for the couple’s 10 cats and 5 dogs. Slongo’s counsel argued that the relationship between spouses resulted in inequality because they had purchased the pets together, but since the separation, the financial burden had fallen on Ms. Slongo. 

Either way, the court awarded $5000 a month in spousal support to Ms. Slongo but it is not clear from the judgment whether that amount included support for the family pets.    

These are just a few examples of bitter divorce cases. The key takeaway from this is to remember that relationships do not always end up how it begins. Most people when they get married, they do not consider or plan for their separation. In fact, these parties were happily married at one point (some in a marriage of over 20 years) and probably never thought they would end up in court arguing over small things. Be mindful and prepare yourself by taking the necessary steps to protect yourself. If you have concerns, speak with one of our experienced lawyers. You can call us at (905)-492-7662 or email us at [email protected] to schedule a consultation. 

Do I need a Marriage Contract?

August 24th, 2023 by

It’s scary to think of anything going sideways. Simply thinking of the unimaginable makes us feel like something bad could happen. And yet, we do. 
That’s why we get insurance – for our car, our homes and even ourselves. We want to make sure we’re protected. However, when it comes to relationships, we hate to think that it could possibly end.  

“Our love is eternal” 

“We promised to grow old together” 

“He/She’s my soulmate” 

“We’re destined to be” 

While you tell yourself this, you might find yourself reminded of others who have said the same and who are now filing for divorce.  

Of course, there’s no saying that your relationship would come to that. It could thrive. It could last your lifetime. And I pray yours does.  

In fact, a handful of couples have made it work – kudos to them- however, relationships won’t always turn out the way we want or expect them to.  

And while you might not see it now, having a Marriage Contract or Cohabitation Agreement is something you might want to consider before you commit to living together from here on out.  

The Marriage Mindset 

We want our love to last forever. And while we should all strive to fight for that, we also don’t know what the future holds.  

A marriage contract is there to secure you and your partner’s properties and assets if ever things go south. Of course, the goal is to never have to get to that point but then again, you never know.  

In fact, if you get a marriage contract, you can just get it and forget it.  

So, what’s the point of it then?  

If you truly love your partner, you’d have everything set in writing while you can still amicably come to an agreement on things. Also, many people fail to realize that there are unintended consequences to not having a marriage contract at all.  

Let’s say that you only want what’s yours or you’ve planned to just shares things if it does come to it, leaving it to the default means you leave it up to the provisions of the law and it may not be what you or your partner intended.  

The Unintended Consequences  

Now, what could these unintended consequences be? 

Although a ton of things come to mind, primarily, the main consequences you should wish to avoid are changes in the provision of the law in regard to marriage and how marriage affects your own personal assets, achievements and income moving forward.  

Of course, this involves quite a broad range of things, which is why I’d like to discuss three of the most misconstrued myths behind the division of properties during divorce.  

This house is under MY Name before Marriage 

Regardless of how much you put towards your home, even prior to marriage, even if it is under your name, it is considered conjugal. The same could be said of other properties and assets acquired before and after your marriage.  

That said, if the matrimonial home was initially purchased by you, even with the downpayment being covered solely by you, in the eyes of the law you will still be splitting it 50-50. 

Many make the mistake of thinking they’d get a deduction because they put more towards the home than their partner, however, that is not the case. In fact, when it comes to the matrimonial home title it does not matter.  

My Partner Used to Earn More and Can Still Earn More 

Despite how responsible and financially capable you or your partner may be now, you never know how the tides may turn. You may be the low-income earner or the high-income earner at one point in another during your relationship, and this is fine so long as you are together.  

However, in separation, spousal support tends to be very draining especially if things turned out for the worse. It could be that your partner, being the former breadwinner, cheats, turns to drugs, might go into a life crisis of some sort and you end up being the greater-income earner in your relationship at the date of separation.  

In this case, more often than not, where the lower-income earner becomes the high-income earner, the now greater-income earner does not want to pay spousal support, and of course, for good reason. Yet no matter the cause of the role reversal, the lower income-earner during the date of separation is entitled to spousal support from the higher income earner.  

Of course, there is an entitlement threshold, but most of those who have experienced this scenario say that had they known it would happen they would have organized their affairs differently.  

Getting Back Inheritance spent on the Marriage 

Another thing we have to look at is your inheritances.  

Although inheritance is considered separate property, belonging exclusively to the inheritor, if you decide to put it to use towards your marital assets such as using it on your matrimonial home or depositing it into a joint bank account, it automatically becomes subject to division if you do decide to separate even if your intention was to simply temporarily sustain or improve your shared household during the time it was used.  

What if these scenarios don’t bother me at all? 

The point of a marriage contract is to be intentional with your future. Even if you aren’t concerned with these unintended consequences, it’s always best to put that into writing this way both you and your partner have a written agreement you can turn to if ever it comes to that. Of course, you could always change the terms in the future, however, at least it would be on your terms rather than leaving it up solely to the law to decide.  

This way, both you and your partner have a say as to who gets to keep what and what is considered as yours or your partner’s throughout the course of your marriage. 

Effective Co-Parenting When Your Ex-Partner is Re-partnering

August 10th, 2023 by

Separation and divorce are difficult processes for everyone, but it can be challenging to face a reality in which your former spouse or partner has a new partner, especially if this new partner is entering the lives of your child(ren).

If a new partner is growing to be a significant part of your child(ren)’s life, it’s healthy to find a positive way to approach co-parenting with this new individual in the mix. An amicable approach would be the ideal way to handle the situation. It may be hard to acknowledge that your child(ren) feels affectionate towards your co-parent’s new partner but remember that you and your co-parent will always be your child(ren)’s mom or dad. If you can recognize that this person has your child(ren)’s best interest at heart, then support this positive relationship. It is great for your child(ren) to have plenty of healthy support systems in their life. Consider them an extra set of listening ears and an extra set of hugging arms when your kids need support, and you can’t be there.

It is always important to keep the child(ren)’s best interest and needs at heart. Even if this new partner isn’t your favorite person, approach in a polite manner because causing meritless challenges will only impact your child(ren)’s well-being. There is no exact law on how to introduce new partners to your child(ren); parties should act reasonably and consider the best interests of the child(ren). By setting this co-parenting boundary, it will promote positive interactions, and cheerful life experiences to help your child(ren) succeed.

Be advised, this can be a confusing time for your child(ren) with all the changes they may feel internal pressure not knowing how to react. It is incredibly important that the co-parent’s partner is introduced to the child(ren) carefully with a proper plan. Essentially, provide the child(ren) with reassurance that your new partner is not replacing their other parent and being mindful not to overstep boundaries.

If you do have concerns about your co-parent’s new partner, address the concerns to the other parent directly or speak with a family lawyer or mental health professional specializing in post-separation dynamics if there are challenges. On the other hand, if you are the co-parent with the new partner and you feel overwhelmed about the situation, seek professional help to you navigate this tricky situation.

Here are a few tips for setting co-parenting boundaries:
1. Open communication with your ex-partner;
2. Aim for consistency in co-parenting;
3. Prioritize your child(ren)’s best interest;
4. Resolve co-parenting disagreements;
5. Set your own boundaries if required; and
6. Evaluate your own emotional and mental health

14B Motions in Family Law

July 27th, 2023 by

Motions are one of the numerous steps in family law. Motions can be brought by either party to the proceeding, and this can be done before the court makes a final decision on the matter in your case. If you are bringing the motion, you are called the moving party and your partner is called the responding party.

Motions allow the moving party to ask the court to make temporary decisions on the matters you have asked the court to decide, ideally on a time-sensitive issue before the outcome of your case is reached. This temporary decision would be in place until the court makes a final decision in your case.

A temporary order can vary as it depends on the type of claim you are seeking but an example would be a request to the court for your ex-partner to pay temporary child support or a decision on parenting time. Another example is when you need a temporary order that says where your children will live and what school they will go to.

Note that we are talking about regular motions which are different from 14B motions. If your motion is for something procedural and uncomplicated then you can file a Form 14B motion. A general example is asking the court for permission to file an Answer after the time to file an Answer has passed.

Here are a few specific examples of when 14B Motions are used:

  1. If financial statements are required in the proceeding and if a party is unable to obtain Canada Revenue Agency documents in a timely manner. A Form 14B may be filed with supporting documents along with an affidavit indicating that the party has filed tax returns and a copy of the return was disclosed to the other side but that the party is still waiting for the Notice of Assessment from the Canada Revenue Agency and request for extension of time. Similarly, if a party believes that the financial disclosure provided by another party does not provide enough information for a full understanding of the other party’s financial circumstances then the party may file form 14B requesting the court to order the other party to give the information requested or to serve and file a new financial statement.
  2. An Applicant can ask the court for an order for substituted service if the Applicant believes that the Respondent is intentionally evading service. In situations where the Respondent has been unresponsive to any communication from the Applicant or the Applicant’s counsel and if service was attempted numerous times with no success. In this situation, Form 14B can be completed to ask the court to allow substitute a service to serve the Application, supporting documents, and affidavit along with proof of attempted service.
  3. If you have served your Family Court Applications and tried communicating with the Respondent and it is obvious the Respondent chooses not to participate in the matter, it is possible to bring a Form 14B along with supporting documents and an affidavit to request the court to note the Respondent in default of the proceedings and to proceed with an uncontested trial.
  4. If the parties to the proceeding agree on a common issue, the parties can ask the court to put the agreement in a court order. They complete simply a 14B motion form, attach the consent, and a draft order that includes the terms that you are seeking for.

Motions are an important tool in family dispute resolution through the courts and the above is a very brief outline of how motions can help you resolve issues in your family law matter.

How to deal with narcissistic personalities for parties who are going through a divorce or separation

June 13th, 2023 by

Narcissistic Personality Disorder (NPD) is a complex condition with significant implications for individuals’ thinking, emotions, and behaviors. Central features of this disorder include an exaggerated sense of self-importance or worth insistent cravings for admiration from others despite the low capacity for empathy or emotional engagement with them and an intense focus on achieving power or success regardless of cost. At its worst NPD can manifest in manipulating or exploiting others to achieve desired ends. When circumstances involve divorcing parties or separating couples such behavior can inflict lasting damage as the narcissistic partner may fixate on controlling assets and decisions involving children. 

 

Managing a separation from someone who has NPD isn’t easy and it can drain you both physically and emotionally. Set up some proactive measures during this period to safeguard yourself against their behavior so that your mental health isn’t compromised further than it may already have been by their disorder. Establish firm boundaries as soon as possible while keeping these expectations clear so there’s less room for manipulation by them. Indulge in physical self-care practices such as regular engagement in mindfulness or deep breathing exercises which will draw lines of physical and mental distance between yourself and their conduct leading to less stress. Keep all communication exchanges brief, focused, and strictly on “business” meaning avoid all confrontations or arguments about anything beyond taking care of parenting issues for example or fairly splitting assets with them as another example, if these are applicable to your circumstances. Engaging in arguments with a narcissist will only provide histrionic outlets for their already inflated ego which is best left unprovoked. Be measured in your tone with them too and avoid losing your cool since anything confrontational feeds into their control and ego.  

 

Remember that while you can control how much energy you give towards separating from a narcissistic partner, it’s not within your power to change their personality. They’re likely to crave attention from all directions so it’s essential to minimize giving them any more than legally required to deal with the issues that pertain to your separation or divorce proceedings.  

 

You could also consider seeking guidance from a therapist who can help with specific advice on how best to handle the challenges of dealing with a narcissistic ex-partner. I am not a therapist but as a family law lawyer who has to deal with these personalities, these are my two cents. All the best! 

Top 10 Blockbusters that relate to Family Law

May 25th, 2023 by

Family law is a complex and emotionally charged area of law that governs the legal relationships between family members. In Ontario, the family laws are based on case law, the Family Law Act, the Children’s Law Reform Act, and other related legislation. Hollywood has produced several movies that depict the intricacies and challenges of family law. In this blog post, we will take a look at the top ten movies related to family law matters.

Kramer vs. Kramer (1979)

Kramer vs. Kramer is a classic movie that depicts the emotional and legal struggles of a couple going through a bitter divorce. The movie explores the impact of divorce on children and the challenges of co-parenting.

The War of the Roses (1989)

The War of the Roses is a dark comedy that portrays the ugly and bitter end of a marriage. The movie explores the financial and legal aspects of divorce, including property division and spousal support.

Blue Valentine (2010)

Blue Valentine is a raw and emotional movie that portrays the breakdown of a marriage. The movie explores the impact of infidelity and the legal challenges of custody and access disputes.

Mrs. Doubtfire (1993)

Mrs. Doubtfire is a heartwarming comedy that portrays a father’s struggle to maintain a relationship with his children after a bitter divorce. The movie explores the legal challenges of custody and access disputes and the impact of divorce on children.

The Kids Are All Right (2010)

The Kids Are All Right is a comedy-drama that portrays the legal and emotional challenges faced by a same-sex couple and their children. The movie explores the legal challenges of same-sex parenting and the impact of divorce on children.

The Squid and the Whale (2005)

The Squid and the Whale is a dark comedy that portrays the impact of divorce on a family. The movie explores the legal challenges of custody and access disputes and the emotional struggles of children caught in the middle.

The Good Girl (2002)

The Good Girl is a drama that explores the challenges of extramarital affairs and the impact on family relationships. The movie portrays the legal and emotional challenges of divorce and the impact on children.

Revolutionary Road (2008)

Revolutionary Road is a drama that explores the breakdown of a marriage and the legal and emotional challenges of divorce. The movie portrays the financial and legal aspects of property division and spousal support.

A Separation (2011)

A Separation is an Iranian movie that explores the legal and emotional challenges faced by a couple going through a divorce. The movie portrays the challenges of child custody and access disputes and the impact of divorce on children.

The Divorce (2003)

The Divorce is a made-for-TV movie that portrays the legal and emotional challenges of a divorce. The movie explores the financial and legal aspects of property division and spousal support and the impact on children.

Hollywood has produced several movies that explore the intricacies and challenges of family. These movies offer a glimpse into the emotional and legal struggles faced by families going through divorce and parenting disputes. Whether you are a lawyer, a parent, or a movie enthusiast, these movies are a must-watch.

Happy viewing!

Recognition of Foreign Divorces in Ontario

May 23rd, 2023 by

Toby, who had been married to Leah for five blissful years, unfortunately, had to go through the arduous divorce process due to the strain and pressure of the pandemic. After much contemplation and discussion, they decided to dissolve their union in 2021, a recently finalized decision. However, Toby’s fortune changed after meeting his life’s love during a ski trip to Whistler, BC, in December 2022. Overwhelmed with affection and the desire to tie the knot once again, Toby is left with an important question that must be answered before he can proceed to exchange vows with his new partner, “will his divorce be recognized in Canada?”

The question of whether a divorced individual from the United States can get remarried in Canada is not uncommon. Toby’s previous marriage was legally dissolved in the United States as per the country’s legal system. The process involved filing a petition, serving notice to the spouse, division of assets, and agreement on child support, among other aspects before a judge made a final decision on the matter.

However, recognizing a foreign divorce in Canada may not be automatic. Generally, if the divorce is granted in a country that follows similar legal principles as Canada, it is usually recognized. According to the Divorce Act, a foreign divorce can generally be recognized in Canada if both parties involved in the original marriage were entitled to obtain a divorce under the laws of the country where the divorce was granted. Additionally, the divorce decree must meet certain requirements in terms of form and content, and the parties must have been granted appropriate notice and the opportunity to participate in the proceedings leading up to the divorce.

It’s worth noting that Toby may need to meet certain requirements before getting married in Canada, regardless of whether his divorce is recognized or not. For instance, he would have to obtain a marriage license, provide proof of his divorce, and fulfill any other conditions deemed necessary under the Marriage Act, R.S.O. 1990 c.M.3. Moreover, Toby and his new partner may need to be aware of the impact that their marriage has on their immigration status, particularly if one of them is a non-resident of Canada, and they wish to make Canada their home.

While Toby’s US divorce is legally binding in the US, its recognition in Canada, while very likely, given it is in the United States, depends on several factors. To avoid any future legal complications, Toby may choose to seek guidance from a legal professional to ensure that he meets all the requirements before tying the knot.

6 steps to take when you discover your spouse is cheating on you

May 16th, 2023 by

It is devastating to find out that the person you are spending your life with, or have spent a significant part of your life with, is unfaithful. It feels as if the ground is slipping under one’s feet. As easy as it is for me to write it here, stop, think, plan and follow these steps below to help assist you in separating from your significant other.

1. Talk to a Therapist

While you are building a support system, it is also beneficial for your mental health to contact and speak to a therapist, for expert advice. It will provide you with mental strength that you need to deal with separation and a cheating spouse. They will provide you with coping mechanisms you need to help you move forward in this process.

2. Consult a Family Law Lawyer

After you have taken time to digest the facts, call and consult with a Family Law lawyer. Consulting with a lawyer will assist you in planning for your future. You may or may not choose to separate, depending on your circumstances. However, there is no harm in finding out what you are legally entitled to under the law.

3. Update your Will

If you have an existing Will and Power of Attorney, please contact your Will and your Estate Lawyer to update your Will as your relationship with your spouse changes upon separation. In addition, you will need to update the beneficiary designations as your former spouse may no longer be the person you want to inherit from your investments or estate upon your death.

4. Protect yourself

Once you separate from your partner, you must protect yourself financially. If you have joint accounts, then open a separate bank account. Keep records of any Section 7 expenses you are paying for your children. Good record-keeping will take you a long way. For more information on how to protect yourself financially post-separation, please consult a lawyer.

5. Communicate with your Children Together

If you decide to separate from your spouse, then you and your spouse should sit down with your children and explain to them that their parents will no longer be together. It is important for the children to know that their parents love them dearly, but now they will have two households instead of one.

Sometimes, children get wrapped around adult conflict, and it is essential for the parents to put their conflict on the side and think of the children’s best interests. You and your former spouse will be parents for the rest of your children’s lives; the earlier you start co-parenting, the better it is for them emotionally.

6. Build a Support System

Separation and divorce can be emotionally draining. Talk to a friend or a family member you trust and build a strong support system around you. Not only do you need it for yourself but also for your children. It is comforting to know that you have a shoulder to cry on and can rely on your support system anytime throughout this process.

How to Mentally Prepare for a Family Law Matter

May 11th, 2023 by

Dealing with family law matters can be incredibly stressful and emotionally draining. The prospect of facing legal proceedings can be overwhelming, whether it’s a divorce, parenting dispute, property division, or another issue. Mental preparation can help you navigate these challenging situations more easily and resiliently. Here are some tips for how to mentally prepare for a family law matter:

Acknowledge your emotions

Feeling a range of emotions is normal when going through a family law matter. You may feel angry, sad, betrayed, or overwhelmed. Acknowledge these emotions and allow yourself to feel them. It’s okay to cry, scream, or vent to a trusted friend or therapist. Remember that taking care of your mental health is important during this process.

Educate yourself

The more you know about the legal process, the less scary it will seem. Research the laws or rules that apply to your situation and familiarize yourself with the legal terminology. Learn about the steps involved in your case and what you can expect at each stage. This knowledge will help you feel more in control and better able to make informed decisions.

Find a good lawyer

A good lawyer can make all the difference in a family law matter. Look for an experienced Family lawyer who specializes in family law and has experience with cases similar to yours. Make sure you feel comfortable with your lawyer and trust their advice. A good lawyer can provide you with guidance, support, and advocacy throughout the legal process.

Set realistic expectations

Family law matters can take time to resolve, and the outcome may not be exactly what you want. It’s important to set realistic expectations and be prepared for the possibility of a less than ideal outcome. Focus on what you can control and work towards a positive outcome within those limits.

Practice self-care

Taking care of yourself is crucial during a family law matter. Make time for activities that bring you joy, such as exercise, meditation, or spending time with loved ones. Practice good sleep hygiene and eat a healthy diet. Taking care of yourself will help you stay strong and resilient during this difficult time.

Preparing mentally for a family law matter is critical to your ability to navigate the legal process with ease and resilience. Acknowledge your emotions, educate yourself, find a good lawyer, set realistic expectations, and practice self-care. By following these tips, you’ll be better prepared to face any challenges that come your way.

CUT: ONTARIO FAMILY LAW AND TV COUPLES- AMY AND BOB

May 9th, 2023 by

I always liked Good Luck Charlie. I mean it’s no That’s so Raven or Hannah Montana but still, I remember being so excited to watch this show every time it came on. I remember when Spencer cheated on Teddy, I felt like I was the one who was heartbroken. Great show.

For the non-90’s babies, the older 90’s babies and the non-Disney channel watchers, let me give a breakdown of the show. Main character is Teddy. She’s a 15-year-old girl dealing with high school, friends, boys, driving and all the other regular teenage things. She has an older brother and a younger brother. Her parents decided to have another baby, Charlotte a.k.a. Charlie. Teddy then decided to document her life and make videos for Charlie to be able to refer to when she is older. At the end of the videos which usually occur at the end of the episode, she always says “Good Luck Charlie” hence the name of the show. It’s not a bad show at all and it actually still holds up. I refuse to confirm or deny if I have watched episodes of the show recently.

Anyways.

Why is a children’s show featuring in the Cut blog? Who could possibly be getting divorced on Disney? I mean Carrie from Suite life comes to mind. Also, Phineas and Ferb, we were actually never told about Phineas and Candace’s birth father and Ferb’s birth mother. Come to think of it, no parenting time was ever sought by the parents so what was that about?

Okay. None of that is relevant. Let’s get back on track. The reason that this show is being featured in the Cut blog is not for divorce. Family law is not all about separation, sometimes we are there for the inception too. *ahem* inserts plug about how you should retain AP Lawyers for your marriage contracts.

The reason that this is being featured is interesting. So after four children, a mortgage etc, Teddy’s parents, Amy and Bob decided to go on a skiing trip. On this trip, they find out that they were not actually married. Apparently, Judge Lawson, the person who married them was some kind of con man who did fake marriages all the time. They did not realize this at the time, obviously so they thought they were married.

If this had happened in Ontario, what would the courts have done? Luckily, we can look to the case of Swinden and Crowell. It is almost exactly what happened in Good Luck Charlie. In that case, the parties were married but apparently, the Reverend was not qualified to marry them. The Reverend in this case was not a scam artist, she genuinely thought she could marry the parties Now they were looking for a declaration that they were married.

In Swinden, the court held that four elements must be applied for a marriage to be deemed valid under the Marriage Act:

1. The marriage must have been solemnized in good faith;
2. The marriage must have been intended to be in compliance with the Marriage Act;
3. Neither party was under a legal disqualification to contract marriage; and,
4. The parties must have lived together and cohabitated as a married couple after solemnization.

For the first element, I believe the marriage between Amy and Bob was solemnized in good faith. They fell in love, got married and had children. For the second element, I am sure they intended to comply with the Marriage Act of the state that they lived in (Colorado, apparently). Again, we are looking at this as if it happened in Ontario so we assume that yes they did intend to comply with the Marriage Act. For the third, as far as we know, there is no legal disqualification. Off the top of my head, a legal disqualification could be if either person was at that time married to someone else. This would disqualify them from marrying another person as bigamy is not allowed in Ontario. As far as we know, this is not the case. For the final element, Amy and Bob have lived together as a married couple. They own a home together and have 4 children (they eventually have a fifth).

Amy and Bob fulfill all the grounds so likely an Ontario Court will hold that they are still married. They did end up getting married again at the lodge but if this was in Ontario, it would likely have been unnecessary.

Reconciliation Can Terminate Your Separation Agreement

April 28th, 2023 by

Reconciliation between two parties can be a powerful thing, but it can also have unexpected effects in certain legal situations. Absent any provisions to the contrary, reconciliation will terminate a separation agreement between the two parties. This means that any clauses or agreements outlined in the initial separation agreement will no longer be valid and any assets or liabilities that were to be shared based on the terms of the agreement will no longer have to be divided between the two parties. Anything that has already been divided is unaffected, though.

 

When it comes to your separation agreement, whether or not it will be terminated by reconciliation depends on the terms of the agreement itself. Generally speaking, if it is clear from the terms of the Agreement that the parties intend for all or part of an agreement to remain intact even if reconciliation occurs, then it will not be terminated. On the other hand, if there are no specific stipulations about this occurring in the Agreement then reconciliation may terminate the entire agreement.

 

If you are going through a period of difficulty and considering entering into a separation agreement with your partner, it’s important to be aware that reconciling could potentially terminate any agreements you make during this period. Before signing any agreements, you should always seek legal advice to ensure your rights are protected and understand how they might change if reconciliation were to take place further down the line.

 

Overall, when considering reconciliation after entering into a separation agreement with your partner – no matter what form that takes – it’s essential to remember that any agreements you’ve made could potentially be affected by reconciling with your partner again. If in doubt about anything at all related to your situation, make sure you consult with our team at AP Lawyers as soon as possible so you know exactly where you stand both before and after reconciling with your partner again.

K vs H: Sham Agreements and Date of Separation

March 21st, 2023 by

Yes, this is another blog on the date of separation. This just goes to show how seriously important this is.

Okay, so facts.

The parties had two daughters. They had been married since in or around 2004. They had a separation agreement dated April 1, 2015. The Respondent’s wife wanted this separation agreement to be set aside. The Court believed that her reasons were contradictory, probably because she changed them so often. She went from saying she did not have legal advice to saying that she was misled by the legal advice and even brought a law society complaint against her lawyer. At one point, she also stated that she made the agreement to help her husband out with a business issue. The Applicant’s husband disputes this and says that the separation agreement is legit.

The April separation agreement lists July 15, 2013, as the date of separation. The Agreement detailed parenting time, decision-making responsibilities, child support, spousal support, etc. This did not make sense because the parties never stopped acting like a couple. The judge stated that he believed the agreement to be a sham because at the time,

‘Ms. H and Dr. K were not separated at the time that they signed the Agreement, did not intend to separate, nor did they intend to be governed by its terms. Nothing changed in their day-to-day life, but their tax filing status permitted Ms. H, as a separated spouse, to continue to be eligible for significant tax credits and benefits despite her husband’s dramatic increase in income after he qualified as a family physician’

The Applicant’s husband never paid support, nor did he apply for divorce. To explain this, he claims that the household account paid from the matrimonial home should be considered child support. The Court declined to do this because, on the facts, it just does not make any sense.

On December 18, 2019, the Applicant’s husband was charged with assault, and he said to the Respondent’s wife, “I divorce you” three times. This is known as “Talaq”. It is the process of initiating an Islamic divorce. After this date, the parties started to live separately and actually started to act like a separate couple. The Respondent’s wife wanted February 2020 or July 16, 2021, to be decided as the date of separation. The court stated that a date of separation does not require concurrence; only one spouse needs to form the intention to separate. The Applicant chose February 2020 because she claimed that they had gone to their Imam (spiritual leader) and had reconciled after the 2019 date. She provides the 2021 date as an alternative to when she received the introductory letter from the Applicant’s husband’s lawyer. The Court decided that the date of separation be December 18, 2019. It was what made the most sense.

It is interesting because while the court did not find the Respondent’s wife credible or reliable, the agreement still got set aside because of the circumstances of the matter. The Court outlines the difference between finding a sham agreement (which is what it did) and setting aside the contract pursuant to section 56 of the Family Law Act (which is what the Respondent’s wife was seeking). The difference is whether both parties have participated in the mischief, or one party alone bears the cost of having duped the other, respectively. Justice McGee refers to it as a difference with a distinction.

What’s the moral of the story? Do not get a separation agreement unless you are actually getting separated.
Read the case for yourself here:
2023 ONSC 303 (CanLII) | K vs H | CanLII

The Story of Greg

March 1st, 2023 by

This is a story about…. let’s call him Greg. Greg had been married for 10 years, and he thought it was going to be a happy marriage. He would often come home from work to find his wife cooking dinner for the family or helping the kids with their homework. But little did Greg know that all of this was a facade, behind which lurked an unfaithful partner.

One day, Greg came home from work to find his wife gone, along with her things and half of the money in the bank account. She had left him for another man, who she had been seeing for months behind Greg’s back. The shock of betrayal ran deep; he felt as if everything he knew had been taken away from him in an instant. As much as he wanted to move on with his life and pick up the pieces, there were still financial implications that needed to be dealt with.

As part of their divorce settlement, Greg was ordered to pay spousal support until his ex-wife found a job. This meant that every month a significant amount of money was being taken out of his paycheque and given directly to his former partner – the same one who cheated on him and left him.

The financial burden weighed heavily on Greg’s shoulders while he continued raising his three children alone and trying to make ends meet each month.
His kids were left confused, angry, and hurt by their mother’s betrayal. They tried to understand why she would do something so hurtful and Greg didn’t have an answer for them. His work suffered too as he struggled to concentrate on anything other than his broken marriage. Given his ex-wife was unemployed, she could not even pay him child support.

Greg wondered why he had to pay support to a cheating spouse. How she was able to get away with leaving with half the money? He did not understand how a mother could be so callous and how the legal system could reward her for it. The support laws seemed so unfair. Did no one understand that he had to provide solely for these children?

His lawyers provided answers, but Greg did not feel any better. He still does not believe the laws make any sense…

Although it was difficult at first, eventually things began looking up again; he found himself laughing at jokes more often and spending quality time with old friends. He also started investing in online business opportunities which enabled him to regain some financial security over time.

The problem though, was with more money came a motion from his ex-wife to increase spousal support. With good legal representation, that claim was unsuccessful.

Overall, although life took an unexpected turn for Greg after the divorce, he managed to get through it with strength and resilience – proving that even if change comes unexpectedly into our lives, we can handle it better than we think if we remain positive and focused on our goals.

Date of Separation: Drakes v. Lee-Drakes Case Summary

February 27th, 2023 by

First, the Facts…  

The facts of this case are pretty fascinating. There is a lot going on.
Okay, so husband and wife were high school sweethearts. They got married in 1991. They have three children who at the time this case was heard were 28, 27 and 23 years of age.
Apparently, the husband had been cheating with the wife’s cousin, Ms. Greaves since 2002 and they had a child together. The wife had no idea. There were rumours but he denied it and the wife believed him. Ouch.


In 2006, the husband was convicted of five counts of fraud, one count of attempted fraud, and one of money laundering and sentenced to 5 years in the penitentiary. He had been a very busy man.

In 2009, the husband discloses his relationship with Ms. Greaves to his wife at a coffee store. He also reveals that they have a child together. Unsurprisingly, a physical fight between the wife and Ms. Greaves happens.


In 2010, the husband began to serve his sentence. He was granted full parole in 2011. The husband assured his wife that the affair was over with Ms. Greaves. This was not true, but the wife believed him.


The wife claims that the date of separation is February 14, 2012. She claims that they always celebrated valentines day together but did not that year because he never came home and did not respond to her. Husband denies this.


In September 14, 2012, the husband was arrested again. He was charged with 6 offenses which later increased to 18 charges. The parole board revoked his parole and sent him back to jail. While he was in jail, the wife visited him frequently. She also posted on social media for his birthday in 2013. True definition of a ride or die I guess.


In August 2013, the husband wrote her a letter from prison. An excerpt is “You might think that I am leaving you, the truth is I am not leaving you, I am actually saving you. I am saving you from living a life of any more misery because of the brute that I am. The lord is doing you a favor (sic) by making me let you go.”


In November 2014, the husband was released from prison and did not tell his wife. According to the terms of his parole, he had to live with his sister. The wife found out that he has been released when she saw him at the mall about two weeks later. Imagine how bizarre that is. He claimed he did not tell her because he wanted to surprise her.


On Valentines’ Day 2015, the wife took a picture of the husband and sent it to Ms. Greaves. She did this probably to quote Brandy and Monica and say, the boy is mine.


Between April and October 2015, the husband was granted day passes to visit the wife. In a call with the husband’s parole officer, the wife confirmed her continuing support for the husband.

Okay, fascinating facts but why is this case important? Why do we care about the date of separation?

I’m glad you asked. The main reason why the parties were in front of the court was because they disagreed about the date of separation. The date of separation is incredibly important for a number of reasons, a few of which are:
1. It is used in equalization and property division calculations
2. It can be used to determine when a divorce can be obtained
3. It is important with regard to limitation periods (for example, you can bring an equalization claim up to 6 years after separation date)
In this case, the wife claimed that the marriage was over in 2012 and that is the date of separation. The husband denies this and states that they did not separate until 2015.

What did the Court decide?  

The court actually held that the date of separation was August 18, 2013. It makes sense because that was the date that the husband wrote the letter to the wife. The court outlined that the wife’s overall behavior did not reflect that she believed the marriage was over until December 15, 2015 which honestly, fair enough.

They still lived in the same house and occasionally had sex. They went to events together and presented as a couple. The wife filed taxes until 2015 as married.
The Court also did not use the husband’s date of separation because the Judge stated that for the husband to come out of jail and immediately go to live with Ms. Greaves, there must have been some time before that when he decided on the course of action to take.
In truth, sometimes the date of separation can be confusing to determine. If you are having any issues regarding your date of separation, please contact us and one of our lawyers can help you.
If you would like to read this case yourself (which I recommend because man, this summary cannot fully capture the facts) please see below.

Drakes v. Lee-Drakes, 2021 CanLII 151478 (ON SC)

Do You Need Life Insurance When Getting a Divorce or Separating? 

February 8th, 2023 by

If you are undergoing a separation that involves paying spousal or child support, you would ordinarily be required to secure your support obligations. This can be done in a multitude of ways. The most common is obtaining life insurance for the intended beneficiaries or ensuring an existing policy is updated to reflect these beneficiaries. This would often be in the form of having the recipient spouse or parent designated as an irrevocable beneficiary of your life insurance policy. 

But Why? 

The reason for securing your support obligations is simple. In the event of your death, the support recipient(s) may not have sufficient financial resources to support themselves. A common misconception is that once you die, your obligations cease, and you can peacefully leave this Earth…hmm, wrong. Your obligations may continue even after your death. 

Morbid, I know, but these are things that should be considered when dealing with the issue of support. Knowing your obligations to better prepare from an estate planning perspective is also important. 

What If You Do Not Have a Life Insurance Policy? – What, Then?

If you do not have a life insurance policy, the court may order you to obtain one or maintain one unless another less cumbersome option exists. If there is another form of security that is better under the circumstance, say, for example, your current health status would require you to pay exorbitant monthly premiums. You may want to consider having a lien registered against your property or designating the recipient spouse or parent as a beneficiary of your registered investments, such as an RRSP. 

How Much Life Insurance Do I Need? 

The answer to this would entirely depend on how much your support obligations are and how much longer you have to support your dependent. When undergoing a separation with counsel, the parties would often refer to their counsel to calculate this using a support calculator. By way of a simple example, if your monthly spousal support is fixed at $1,200 per year for a period of 5 years, we can assume the face value amount of the policy should be enough to cover that duration, so a maximum of $72,000. 

If there are concerns about the amount of life insurance needed to be covered under your policy, you should consult with a lawyer to better assist in calculating this. 

If you have questions or concerns about how to go about securing support payments or your rights and obligations, please get in touch with us for more information and speak to one of our experienced Family lawyers in Markham, Toronto, Pickering, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation. 

 Choose YOU! Separation and Divorce Simplified 

February 14th, 2022 by

At AP Lawyers, our mission is to help make peoples’ family lives better! It really is that simple.

We keep our goal/mission simple so that we do not lose focus on what really matters – YOU! 

As I sat enjoying my morning cup of java and mindlessly reading articles on the internet, I stumbled upon an interesting article titled Kim Kardashian Declares the Cause of Her Divorce, In New Interview. The article was written by Sakayna Hunter. Excited to read some juicy gossip but even more determined not to be the only person on planet earth who did not know why the KimYe marriage fell apart, I opened and started to read. So, what was Kim’s shocking revelation? Was it drugs or addiction issues? Perhaps infidelity? It had to be infidelity. No, it wasn’t. Hmmm, maybe it could be financial troubles. I mean, even the rich and famous cannot be above that. Right? Wrong. I get it. Enough already. Here’s what Kim Kardashian said. She said, and I quote, “I’ve chosen myself. I think it’s okay to choose you”. It was that simple, and I thought to myself, how insightful!

She chooses herself. She wanted to be true to herself. Of course, there must be a million flaws Kanye West has, I bet you could even name a few, but she focused on herself. 

This took me straight to our mission statement and our central focus at AP Lawyers, which is to make your life better – specifically, to make your family’s life better. Given that a large part of the work we do at AP Lawyers relates to separating couples, whenever I share our mission statement, people wonder how that is even possible. There’s always the undertone, if not the direct accusation of – how can your work make family lives better? 

Kim K. summed it up in a much better way than I have ever been able to when she said she chose herself. When you’re going through a separation, you have made a decision to choose yourself! If the other person initiates the separation, you need to choose yourself. The reasons why you chose you do not matter. It doesn’t matter that they are gamblers, abusive, narcissistic adulterers. You have chosen YOU. As the article explained, Kim K. intimated that staying in the marriage would have constituted a sacrifice of herself and her own well-being. 

For those who aren’t there yet, you need to make a conscious effort to choose YOU in all your awesomeness. The other party has already decided, for good or bad reasons, to choose themselves, and that’s ok. They have decided that not being in the relationship is better for them than being in the relationship. Could they be wrong? Of course, but that’s beside the point.

YOU matter, and yes, it is ok to choose you; of course, we are here to hold your hands and guide you through the legal consequences of that decision. 

We do our job firm in the belief that we are making individuals and families live better. And while the positives may not be obvious today, if we can help you through the legal aspect of things, we are confident that you are one step closer to the best you there ever have been. 

I think it’s fitting to end with these wise words by Zig Ziglar – “Difficult roads often lead to beautiful destinations. The best is yet to come.”

If you need any help with family law matters, contact AP Family Lawyers in Pickering, Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

Photo Credit

An Effective Remedy for Failure to Provide Disclosure

December 29th, 2021 by

A monetary penalty paid directly to a spouse is an effective method to enforce the production of outstanding disclosure.  In Granofsky v. Lambersky, the spouse was ordered to pay a penalty of $500 per day for each day of non-compliance, and in Mantella v. Mantella the court ordered the spouse to pay $185,000 for not providing timely disclosure. This is one of several ways to remedy persistent failure to provide disclosure.

Judges are familiar with tactics to avoid providing disclosure, and we can ask them to use a variety of methods to force the needed information. If a party delays, provides insufficient disclosure, or behaves in a manner that interferes with the obligation to provide disclosure, a judge can make an order demanding the party furnish the requested disclosure.

If the party still does not deliver the disclosure the judge has the power to:

  • order costs;
  • dismiss claims;
  • strike out pleadings;
  • not make any orders for the offending party; and/or
  • find the party in contempt.

We can also ask the judge to make an adverse inference against the offending party and to attribute additional income for support purposes, reapportion family property, and/or impose a monetary penalty paid to the non-offending party. Failure to disclose significant assets or liabilities is also grounds to set aside an agreement, rendering it unenforceable. Under Rule 1(8) the judge can make “any order that it considers necessary for a just determination of the matter”. The primary objective of the rule is to coerce the offender into obeying the court’s judgment.

Disclosure is any relevant information that may be required as evidence. Disclosure is an essential part of the family law process, and the law requires each party to provide any relevant information requested. This duty to disclose is fundamental, immediate, and ongoing. It is automatic and does not require a court order. Without proper disclosure neither party can make an informed decision on how to decide issues in the case, and failure to provide disclosure causes unnecessary delays, adds to costs, and hinders a just resolution.

Failure to provide disclosure can be devastating to a family law case, and judges do not take lightly non-compliance with the duty to disclose. We have a variety of procedures we can use to effectively remedy failures to provide disclosure.

If you need any help with family law matters, contact AP Family Law services in Pickering, Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

Financial Literacy for Separating couples

November 29th, 2021 by

I’m not sure if you knew this or not, but November is Financial Literacy Month and this year, the focus was on the “importance of building financial resilience in challenging times and a digital economy”. How appropriate, given we are still in the process of navigating our way out of this COVID-19 pandemic 

This got me thinking about how much financial resilience our clients need when dealing with their separation or divorce. I always tell my clients that two can live cheaper than one so except for the more affluent, their finances are going to get a little tight. 

They may not be able to afford the same size of home the family is used to or even be able to live in the same neighbour. This raises concerns for many parents as they would like to maintain the children in the same neighbourhood with their friends and support systems.

Non-parents and empty nesters are not immune to challenges. For those who are nearing retirement, the limited income available for retirement may become even more limited if the income is split. For those who do not get to share in the pension, there is the loss of the income they expected to have available to them at retirement. 

Add to these, the fact that usually, one person is the one who takes care of the finances you can see that the importance of financial literacy cannot be overemphasized

If you’re going through a separation or divorce, it is important to take control of your finances. Creating and sticking to a budget is essential. Understanding where and how you spend is important especially if you were not the one who managed the family’s finances. You can no longer afford to be casual about your spending habits.

Be careful how much debt you take on. I recognize many people leave a relationship taking on more debt. Sometimes to buy out the other party’s interest in an asset. That may be the financially smart thing for you to do but going forward, you need to be mindful of how much consumer debt you take on. It’s tempting to take on more debt to be able to maintain the same standard of living for yourself and the children but that is never a good idea.

Talk to a financial advisor to get a better understanding of how you can meet your financial goals in the future including your children’s education and your retirement. Review your investments as with a separation, your financial priorities may have changed, and it is important that your savings and investment reflect this.

In short, get the help and information you need otherwise, you could become overwhelmed with mounting expenses, debt, and a feeling of loss of control.

In addition, make sure you pursue what you are entitled to under the law. You should keep the following in mind:

Child and spousal support

Child support is the right of the child. Payors have a responsivity to pay, recipients have an obligation to be diligent in pursuing it. Child poverty continues to grow, and every dollar not paid toward child support is a dollar that can be applied to better the standard of living of the child.

If you are the lower income earner or stay-at-home partner, it is important that you seek independent legal advice about your entitlement to spousal support. Even higher-income earners need to seek independent legal advice to ensure that they are not overpaying.

Often, without the benefit of legal advice, parties come to agreements that involve either one person paying too much, or the other receiving way less than they are entitled to. There is no problem with this scenario if it is an informed decision however, if one party is struggling and they do not understand the extent of their obligation or right, we can all agree that is not an ideal situation.

Equalization 

If you were married, on a breakdown of the relationship, you are entitled to an equalization of your net family properties. There are some common misconceptions that I would like to debunk:  

 1. I brought the matrimonial home into the marriage, so I get to deduct the value on the date of marriage. Unless there is a marriage contract that allows you to do this, then no, you share the full value of the property on the date of separation.

2. I earned most of the income in our joint account, so the balance is mine. Money or any asset that is joint names is presumed to belong to both parties. This presumption can be rebutted of course, but it is no easy feat especially in this context.

3. I used part of my inheritance to renovate the matrimonial home. I want credit for it. Once invested in the matrimonial home, that money cannot be excluded. Except there is a domestic contract stating otherwise
4. The home is only in her name so it’s hers.

No, every property gets to be divided regardless of who holds title to the property.

Division of Property for common-law spouses

Often, a person leaving a common-law relationship may think that because they were not married and because the asset is not in their name, they are not entitled to a share of the assets accumulated during the relationship. That may not be the case. The role you played in the relationship, your intentions, and your contributions (tangible or intangible) in the acquisition, maintenance, or preservation of a property, may entitle you to a share of the property. You need to talk to a lawyer

Limitation Period 

It is important to remember that you have two years from the date of divorce or six years from the date of separation to make your claim for an equalization of net family properties. The fact that you were negotiating with the other party may not be sufficient to extend these limitation periods so be mindful.

Those are my few words of wisdom this financial literacy month. Of course, I could keep going but I’ll take the advice of Seneca – Less is more. For more information on equalization & division of property

If you need any help with family law matters, contact AP experienced family lawyers in Markham, Pickering, Toronto, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

Imputing Income Based on Gifts From Parents & Grandparents

September 15th, 2021 by

Question:

My partner and I received lots of cash gifts from her parents throughout our marriage. Can I ask for the gift to be included as income to my partner?

Answer:

Whether or not gifts received by a spouse or parent from their parents or grandparents can be imputed as income for the purpose of support obligations varies case-by-case. In imputing income, Courts have made a distinction between parents or spouses who receive one-time, needs-based gifts from their families from those who receive such gifts on a regular and periodical basis. In Bak v Dobell Justice Lang stated that usual gifts, such as those given to mark a special occasion, are not included as income”. Justice Lang further stated that in considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider several factors, including:

1. the regularity of the gifts;

2. the duration of their receipt;

3. whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle;

4. the circumstances of the gifts that earmark them as exceptional;

5. whether the gifts do more than provide a basic standard of living;

6. the income generated by the gifts in proportion to the payor’s entire income;

7. whether they are paid to support an adult child through a crisis or period of disability;

8. whether the gifts are likely to continue; and

9. the true purpose and nature of the gifts.

In the Bak case, the mother (the “Applicant”) applied to increase the father’s (the “Respondent) obligation to pay child support by imputing income based on the Respondent’s lifestyle and receipt of gifts from his father. The Respondent had a chronic disorder that resulted in an inability to maintain employment. As a result of his inability to work, the Respondent’s father provided him with a monthly allowance to cover day-to-day needs; paid all his medical bills; and bought a property for his use to motivate him to be self-sufficient. The Court of appeal affirmed the trial judge’s decision to dismiss the wife’s motion stating that the husband had no entitlement to a stream of income from his father; the gifts were intended only to encourage the husband’s self-sufficiency; they were more in the nature of support for an adult child than an allowance; and they did not provide the Respondent with an extravagant lifestyle.

When gifts are imputed as income

In Korman v Korman, the parties were married for 21 years and had two children. Throughout their marriage, the husband’s parents assisted the parties financially, including helping pay for their matrimonial home, gifting the husband money to start two businesses, paying for their children’s camp and private school expenses, and paying the husband’s legal fees. The husband applied for Divorce and other relief under the Family Law Act. In determining child and spousal support, the trial judge imputed the gifts the husband received from his parents in his annual income. On appeal, the Court of Appeal held that the trial judge was right in imputing the income. The Court found that it was appropriate for the trial judge to take into consideration the gifts given to the husband by his parents. The gifts were substantial in size and were provided regularly and on an ongoing basis. The Court stated that the gifts helped the husband establish a lifestyle well above a basic standard of living for himself and his family during the marriage.

Takeaways from the decisions of the Courts

Courts are likely to impute gifts as income if such gifts are significant, are provided on a regular and periodic basis, and have the effect of entrenching a lifestyle that is above a basic standard of living.

If you need any help with family law matters, contact AP Family Law Firm in Pickering, Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

The Effect of Reconciliation on a Separation Agreement

June 19th, 2021 by

By Tara Seosankar

My ex-husband and I have reconciled. What happens to our separation agreement now?

The effect of reconciliation on your separation agreement can vary depending on the circumstances, and here, we will refer to case law to help us understand the varying effects.

The general rule is that a separation agreement (hereinafter the “agreement”) is void upon reconciliation because generally, such an agreement does not explicitly contemplate the parties’ reconciling. Therefore, if you and your partner intend to preserve the terms of your agreement if reconciliation were to occur, your intentions must be clearly stated in your agreement.

An example of this is Emery v. Emery,[1] where the agreement was deemed void because it clearly set out the parties’ intentions, with no indication of change upon reconciliation. In Emery, the wife received the proceeds from the sale of the matrimonial home and, in exchange, released her claims to spousal support and her husband’s pension.

Another example is the decision in Sydor v Sydor[2] (hereinafter “Sydor”) where the Court of Appeal held that the agreement was void upon reconciliation. This was because the husband and wife entered into an agreement that explicitly provided for property arrangements that would be final and binding.

Sydor reiterated the common law rule that:

“the separation agreement is void upon reconciliation, subject to a specific clause in the agreement that would override the common law or a clause that would be implied from the agreement that the intent of the parties was that transactions carried out under the agreement will remain in place.”

In other words, certain clauses or provisions in an agreement may be interpreted as the exception to the general rule that the agreement is void upon reconciliation.

This was the case in Miaskowski v MacIntyre[3] (hereinafter “Miaskowski”). In Miaskowski, the couple entered into an agreement approximately two and a half years after separation. The couple remained married during their seven years of separation, and upon reconciliation, they remained together for another nine years before separating a second time.

In their agreement, the wife had agreed to release any claims to the husband’s Canada Post pension. The agreement also included the following reconciliation clause:

  • if reconciliation lasted for not more than 90 days, the agreement would not be affected, and
  • if the parties reconciled for more than 90 days, the agreement would become void, except … “any payment, conveyance or act made or done pursuant to the provisions in this agreement.”

The reconciliation clause effectively preserved the agreement if the reconciliation lasted less than 90 days but voided the agreement if the parties reconciled for more than 90 days. The exception to the voiding provision was “any payment, conveyance or act” done under the agreement would not be invalidated. The exception emphasises the transactions already completed pursuant to the agreement.

The final decision of the Court of Appeal affirmed the common law rule stated in Sydor, and found that the agreement was indeed void, however it was still subject to the exception provision.

In simple terms, the court found that because no payment or conveyance was ever made with respect to the wife’s entitlement to a share of the husband’s Canada Post pension, the exception to the voiding clause did not apply. As a result, the wife’s release to a share in the pension was deemed void and she was entitled to receive a share of the husband’s pension from the date of marriage to the date of the second separation.

The take-away from these decisions, and particularly the recent decision in Miaskowski is that it is important to ensure your intentions are clear and explicitly stated in your separation agreement, regardless of whether the agreement contemplates reconciliation. One way to do this is to have a lawyer review the terms of your agreement.

If you need any help with family law matters, contact AP Lawyers in Toronto, Pickering, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

[1] (2008), 51 R.F.L. (6th) 294, 2008 CarswellOnt 1165

[2] (2003), 178 O.A.C. 155

[3] Miaskowski v. MacIntyre 2020 ONCA 178

Report changes in marital status to CRA

January 21st, 2021 by

Did you know that if you have been separated for more than 90 days because of a breakdown in your relationship you need to inform the Canada Revenue Agency (CRA)? Actually, you need to inform CRA whenever there is a change to your marital status such as: 

  • You get married.
  • You enter into a common law relationship.
  • Your spouse or common-law partner dies.
  • You have been separated for over 90 days due to a breakdown in your relationship, not simply because you are physically unable to live with your partner because they are away for work or school for example.  

When you update your status with the CRA, you avoid missing out on benefits you may be entitled to or avoid receiving incorrect payments. 

If you need any help with family law matters, contact AP Lawyers, our family law firm in Scarborough, Pickering, Markham, and Toronto. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

CRA offers various options for updating them on your marital status. For more information, visit the CRA website on www.canada.ca/en/revenue-agency/services/child-family-benefits/update-your-marital-status-canada-revenue-agency.html 

LIFETIME VS. INDEFINITE SUPPORT – What are the difference and how can you change indefinite support duration.

January 13th, 2021 by
If you’re separating from your spouse, you may be obliged to pay spousal support. The amount of spousal support you have to pay and the duration/ length of time  you have to pay support for depends on a variety of factors including:
  • how long you were married/cohabited
  • the age of the recipient on the date of separation
  • if you have children with your spouse
  • the child custody arrangement
  • the age of the children
  • if you choose to restructure support payments to reduce the number of support payments
  • your respective financial circumstances
  • the basis of entitlement/strength of any compensatory claim
    • recipient’s need  and ability of the payor to pay
  • any special needs of the children
For long-term marriages of 20 years or more, the duration of spousal support is usually for an  “indefinite (unspecified) duration, subject to variation and possibly review”. Many payors get concerned when they see this as they interpret it as meaning that would have to pay spousal support forever. Even recipients are surprised when after the passage of time, they discover that their spousal support could be reduced or terminated as they imagined they would receive spousal support in the same amount until they died.
Spousal support for an indefinite duration and spousal support for the recipient’s lifetime are very different things.
The spousal support advisory guidelines would recommend indefinite support when the relationship is 20 years or longer or when the rule of 65 applies (see below for the meaning of the  Rule of 65). Indefinite support simply means that at the time the support agreement or order is being made, an end date would not be set. Indefinite support amounts can also be changed. Variation and review of the amount of spousal support being paid is possible if there is a change in circumstances.
In short, despite spousal support being set for an indefinite/ unspecified duration, in the future an end date can be fixed, support can be terminated, and the amount of spousal support can change. What are some factors that could lead to this?
  • the payor’s retirement
  • remarriage of the recipient or the recipient being in a marriage-like relationship
  • changes in income
  • recipient being deemed self-sufficient, even if based on income being imputed to the recipient.
Support recipients are required to make reasonable attempts to become self-sufficient even if they have a spousal support agreement or order for an indefinite duration.
The Rule of 65
It applies to marriages of 5 years or longer where the length of the parties’ relationship plus the recipient’s age at the date of separation, equals or exceeds 65.  In this case, an indefinite duration of spousal support may be appropriate, even though the parties’ relationship is less than 20 years.

If you need any help with family law matters, contact AP Family Law Firm in Toronto, Pickering, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

GIFT vs LOAN – How money from parents and grandparents may be treated under Ontario Family Law

January 13th, 2021 by
Is it a gift or is it a loan? That is a question that we often grapple with in our family law practice.
A typical scenario is Jane and John are married and want to buy a home. Jane and John have both saved up some money for their down payment but unfortunately, not enough. Jane’s grandparents so kindly transfer $50,000 to Jane and John’s joint bank account and now they have enough for the downpayment and both are super excited to finally be able to purchase that dream home. All is right and well in the universe, until it isn’t.
Jane and John decide to call it quits and now must equalize their net family properties. Jane’s grandparents want their $50,000 back (or at least so says Jane) but John refuses, saying the $50,000 was a gift to him and Jane. Therein lies the problem! John has $25,000 at stake. He feels that the money really wouldn’t go back to Jane’s grandparents and is essentially Jane taking more than she is entitled to, in fact, he thinks, as a matter of principle, it is just wrong to ask for a gift to be repaid. Jane, of course, feels John is being ungrateful. Her grandparents simply helped them achieve their goal at the time. They have now accrued significant equity in their home so why shouldn’t her grandparents get their money back? She always understood it was a loan but even if it’s a gift, it’s her grandparents and her gift, right?  If John isn’t being greedy, why can’t he just repay her grandparents and keep the equity he has accrued which by the way they never would have been able to get without her grandparent’s help.
As you can see neither John nor Jane is wrong. Their respective positions make sense. It truly does. However, the legal question remains. How does it get resolved? Simple. The intention of the grandparents at the time of giving them the $50,000 is what counts. That’s it. Not what Jane thought, not what John thought, but what the grandparents themselves intended. If Jane’s grandparents expected to be repaid, then it is a loan if they didn’t, then it’s a gift. I wish the analysis ended there though, but it doesn’t. That’s the nature of the law.
Even though Jane’s grandparents may have intended for the $50,000 to be paid back, if the court believes that the loan is not likely to be repaid, or is unlikely to be repaid in full, the courts can discount the loan, all the way to $0. What do I mean? t means, based on the facts of the case, the courts can decide that only half of the loan is likely to be paid back and so the court can discount the loan by 50% thereby allowing only a deduction of $25,000 from the NFP calculations. The court can also find that the entire loan is not likely to be repaid, in which case, the entire loan will be discounted to $0.
The law generally does not presume a gift, where money is transferred by a parent or grandparent to an adult child. So in this case, John would have the burden to prove that the transfer to Jane was a gift.
If you’re a parent or grandparent making a loan, what are some steps you can take to ensure that your intentions are respected by the courts?
  1. Prepare a loan agreement
  2. Include interest on the loan
  3. Include a loan repayment date.
  4. Consider registering a mortgage to secure the loan
  5. Provide for periodic repayment of the loan
  6. Even if periodic payments are missed, document demands for loan repayment.
As you can see, while the true test is the intention of the parents or grandparents at the time of the transfer, events after the fact, such as demand for repayments are considered by the courts in determining if the money is a true loan. While monetary transactions between family members can be very informal, the legal ramifications can be serious. It is important for all parties to be on the same page and documentation of your intentions can prevent future conflicts.

If you need any help with family law matters, contact our AP Family Lawyers in Pickering, Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

Collaborative Family Law – the Better Way to Divorce & Separate

September 8th, 2020 by

Your relationship is over. You have to move on. You’re hurt, you’re angry, or maybe just resigned to the fact and simply cannot wait to move on to the next phase of your life.

 You’re wondering if you and your ex-partner can be amicable enough to settle all the issues yourselves. May you can, maybe you can’t or maybe there’s a few issues that will surely prove problematic.

You talk to your friends, family and even get independent legal advice from a divorce lawyer in Pickering. They tell you about various options for dispute resolution. They tell you your rights and obligations. You discuss the best interests of the children. You even talk about fees and limited scope retainers. You wonder if should just represent yourself.

 In all of this, what are the chances that anyone told you anything about Collaborative Family Law?

 If you’re one of the lucky few to have been offered that option, congratulations. I hope I can answer any lingering questions you have about the process. Most people however, would have never heard about this process.

 So what is the Collaborative Family Law process? Simply put, it is a dignified, respectful approach to resolving your family law dispute.

 To give you better context, lets quickly go over the various choices you have for resolving your family law dispute, in the order of how inexpensive they are.

  1. Negotiations by the parties only
  2. Mediation
  3. Collaborative process
  4. Lawyer negotiations
  5. Arbitration
  6. Court

 Negotiation by the parties

This involves the parties talking things out, and drafting a Separation Agreement for themselves.  The parties may get independent legal advice or not and they may draft their Agreement on their own or the parties may retain lawyers to draft the Agreement.

This is a great option if the parties are able to communicate amicably. If there is a power imbalance between them, one party may be at a huge disadvantage. Provided the parties are amicable, informed and each can hold his or her own, this is the most cost effective dispute resolution process. Provided of course, they get a lawyer to draft the final agreement for them.

The worst thing parties in this situation can do is draft the Agreement themselves. This is because clarity in the Agreement matters just as much as the actual terms of the Agreement and this is where most “kitchen table agreements” miss the mark. The cost of resolving disputes that arise from improperly drafted Agreements, is much more than the cost of the getting a lawyer to draft it from the onset.

Mediation

The parties get the assistance of a 3rd party to assist them in the negotiation process. Mediation can be done with or without lawyers in attendance. The parties must be willing to cooperate all through the process otherwise, negotiations can breakdown and both parties can walk away from the process without reaching an agreement as there is little incentive to remain in the process beyond the recognition that it is a great alternative way to resolve your dispute.

Parties would generally enter into a memorandum of understanding and a lawyer needs to draft a separation agreement for the parties otherwise, the Agreement is not binding.

Collaborative Process

I’ll save this one for last.

Lawyer Negotiations

This is usually a great option to start but can often escalate the process, if BOTH parties are not working with settlement focused lawyers. With settlement focused lawyers, agreements can be reached relatively quickly and can often be more cost effective than all the other options besides the option where the parties do the negotiations themselves.

If one of the lawyers is not settlement focused? This can turn into a very expensive process and the parties can even find themselves in protracted litigation.

Arbitration

The arbitrator is like a judge and makes the final decision for the parties. It is less expensive than court because there is less procedural formality. It is also faster than court and the parties have the option of selecting who their decision maker would be.

Arbitration is expensive as the parties have to not only pay their lawyers, but also have to pay their Arbitrators themselves. Regardless, it is often more cost-effective than taking a matter all the way to a Trial. It is also preferable to court, where privacy is important to the parties.

Court

Do we need to say anything about this? People already know litigation is slow and expensive. You lose the opportunity to enter into a creative/customised settlement.

Courts serve a useful purpose when a party refuses to negotiate or negotiate reasonably. If a party is unduly delaying the process, the court process can ensure the matter moves forward eventually. Where a party wilfully and consistently breaches agreements, the enforcement tools of the court may be necessary.

Collaborative Process

With this process, both parties work with a lawyer all through. The parties interests, not their positions is paramount. The parties maintain the flexibility to reach an agreement that works for their particular situation and what they are individually interested in, not just what the letter of the law dictates.

For a process to be considered a collaborative family law process, both parties must be represented by counsel and the parties and their lawyers must sign a Participation Agreement.  The bottom line of the Participation Agreement is that neither lawyer can represent the parties, if the matter escalates to court. What a great incentive!

Both lawyers are usually knowledgeable and know what their client’s cases’ strong and weak points are. By removing that constant posturing by the lawyers and the (empty) threats of litigation, the parties really focus on reaching a settlement that not only is fair under the law, but most important, serves the clients interest.

Collaborative process is truly client focused every step of the way and most collaborative cases settle and the parties are happier with the decisions and consequently, are more likely to follow through on the deals made.

In the collaborative process, the lawyers do not attack each other or the parties. The parties do not have to dread the process. A separation is hard enough without the added stress of overly aggressive lawyers. While the aggression may be satisfying to the client whose lawyer is behaving in that manner, they forget that such behaviour costs them tens of thousands of dollars in legal fees. It’s really not worth it. Remember: you attract more bees with honey. Do you want results, or do you simply want a fight?

The Collaborative Team

 Besides the lawyers for the parties, you can work with a team that includes financial specialists and family coaches.

 Financial specialists can be involved to ensure full and frank disclosure is provided. The Financial Specialists are neutral and work with both parties. They’re specialists in what they do so bye bye worries about a party hiding money. They’re able to uncover such things. Best part, they usually cost less than the lawyers. They do not offer any legal advice because they are not lawyers, but they offer financial advice and are very helpful with creating budgets and coming up with strategies to ensure both parties can thrive financially, post divorce.

By using one professional, the parties save money by not having multiple professionals duplicating work.

Family coaches help deal with the emotional aspects of a separation and believe me when I say every case has an emotional side to it, whether or not the parties admit it.  The family coach can work with the children to deal with their feelings surrounding the separation. They help craft a child-focused parenting plan. The family coaches help keep the parties focused on reaching a settlement that works best for them and their children if they have children. They understand the parties’ triggers and are able to ensure that both parties’ emotional well-being is protected throughout the process.

More often than not, we do not realize that most impediments to a settlement are purely emotional. Yes, legal justifications can be made, but when uncovered, you find that more often than not, the real reasons are emotional. If those needs are attended to, rather than ignored, parties are more open to reasonable negotiations and settlements are reached way faster.

The family coaches have the specialized skills to deal with the mental and emotional, and generally cost less than lawyers.

As you can see, by working with a team, the parties are able to get the best possible specialized service, making the collaborative process more cost-effective. Taking out the aggressiveness and fighting between the lawyers significantly reduces legal fees. The parties are able to negotiate for what they want, and are not confined by their rights and responsibilities under the law.

Settlements are reached faster and the parties and their lawyers focus solely on what the clients want. Even when it looks like the parties are at an impasse, you would be surprised to discover what creative solutions can be crafted when people are committed to resolving their issues collaboratively.  

If you need any help with family law matters, contact AP Family Law Services in Scarborough, Pickering, Markham, and Toronto. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

 

 

Embryos – Consent vs Contract | How do you deal with Genetic Material post separation?

August 21st, 2020 by

Some much-needed guidance in the fertility law area concerning genetic material such as Embryos.

INTRO

As reproductive technologies continue to advance and evolve, society is slowly becoming more accepting of the use of such science and technology. Couples resorting to reproductive technologies to make complete their family is becoming increasingly common. However, as the general acceptance of such methods increases, there are certain questions that arise. Questions that in the family law context, can be of significant importance to you or your loved ones. Who has ownership of an embryo? Is an embryo even considered property? What happens after separation or divorce?

In 2018, an Ontario court battled these very questions and attempted to provide some much-needed guidance. In S.H. v. D.H, the courts looked at what happens to an Embryo upon divorce or separation where neither party has a biological connection to the Embryo itself.

FACTS

In 2012, a married couple entered contracts with two companies regarding the use of reproductive technology to conceive a child. The couple purchased two viable Embryos from a facility in Georgia, USA, and entered a contract with the company. For the sake of Simplicity, we can refer to this contract as the “Georgia contract”.

The couple then transported the two Embryos to a fertility clinic in Mississauga. Wherein they entered a second contract. We can refer to this contract as the “Ontario Contract”.

On December 9, 2012 DH, the mother gave birth to their first child using one of the Embryo. On December 18, 2012, the couple separated. The question then arose, who owns the second Embryo? Family Law rules and the concept of equalization state that all property between the husband and the wife needs to be split. In that case, what happens to an Embryo?

Parties Position and Decision

The position of the wife is that the Ontario Contract should be enforced. The Ontario contract states the agent (of the fertility clinic) “shall respect the patients wishes”. In the contract, the wife is defined as the patient. Additionally, the wife argued that while she was still capable of carrying a pregnancy according to her doctor, she was 48 years old and time was of the essence. Attempting a natural pregnancy would prove to be time-consuming and risks losing the window to have a second child. The Father argued that he alone paid for the Embryos, they were his property. Further, the father argued that the best interest of the child is at the heart of all family law cases involving children, and that the mother is not self sufficient and would not be able to provide for more than one child.

The Ontario Court ultimately upheld the Ontario contract and provided the mother with use of the Embryo. They based their decision entirely off Contract and Property law by putting significant weight on the language of the contracts. As the Ontario contract stated the patients wishes would be respected, the courts deemed it acceptable to award the Embryo to the Mother with the mother having to pay the cost of the final Embryo to the father.

APPEAL

In 2019 however, the Ontario Court of Appeals decided to overturn the decision of the lower court stating that neither property law nor contract law govern how to effectively dispose of an Embryo.

Instead the Court of Appeals decided that the Reproduction Act (AHRA) and The Assisted Human Reproductions Regulations specifically Section 8 Consent regulations prevail in this matter.

The Court of Appeals decided that a consent-based approach needs to be applied to such situations as opposed to strictly interpreting contracts. As a result, the Court of Appeals allowed the husbands appeal to withdraw his consent to the use of the Embryo by the wife.

The AHRA states in s. 2(d) that “free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies”. S. 8(3) prohibits the use of an in vitro embryo for any purpose without the consent of the “donor”. S. 61 establishes that any prohibited use is a criminal offence under the Criminal Code of Canada

The AHRA and the Consent Regulations provided the husband with the ability to withdraw his consent, and that a contract cannot deprive him of this fundamental right. The entirety of the AHRA places a significant importance on consent throughout the act. It would be counter productive to the act if the prior consent of the husband were irrevocable. Over time, many things change especially with regards to something as delicate as the use of an Embryo that it would be simply wrong to make consent completely irrevocable.

Secondly, under the AHRA, donor status also extends to spouses that did not contribute any genetic material to the creation of the Embryos but were still married at the time the Embryos were created. The act further states that separation or divorce does not change the donor status of a couple with regards to the Embryo where BOTH individuals are genetically connected to the Embryo or are not connected to the Embryo as in this case. The donor status only changes upon divorce or separation if there was only one genetically contributing spouse when the Embryos were created. Thus, despite their divorce, both DH and SH are still considered donors.

The principle of free and informed consent is a fundamental aspect of the AHRA and consent regulations. The language of the contracts makes it clear that consent is free and ongoing and can be revoked by either donor at anytime. Since it is a criminal offence to use genetic material without written consent, an individual should have not the ability to simply contract out of a criminal offense.

In summary, the Court of Appeals concluded that Consent is a fundamental part of AHRA and fertility law in general. That consent is ongoing and revocable and that the contracts do not deprive him of that right. The courts found nothing in the AHRA that deprived SH of his donor status and there was nothing that can extinguish his rights as a donor.

FUTURE IMPLICATIONS?

Although fertility law is still a premature area in Canada, this case has provided some much-needed initial guidance. There are several things to note about this decision. Firstly, Embryo’s can now be treated as legal property that may need to be disposed of on separation or divorce to either party. However, unlike bank accounts and other assets that can be divided equally in a relatively easy fashion under the Family Law Act, dividing an Embryo is simply impossible. Due to this, courts may choose to award significant weight to the language of the contract itself, the intention of the parties while entering the contract or may simply interpret the AHRA. What is clear however, is that one way or another, genetic material such as an Embryo will need to be addressed upon separation or divorce whether that means one party gets to keep it or to neither.

What is clear now is that consent will always supersede the language of contracts. Despite what a contract might state, either party that still retains their donor status will be able to withdraw consent related to the use of their genetic material. Once cannot contract out of revoking consent. Consent no matter the contract, will always be revocable by a donor.

This does not mean that contracts and intention of the parties will be entirely ignored. Simply that they will be secondary. Having a clear and concise contract that details what is to happen to genetic material such an Embryos in various situations is still incredibly important.

It is also worth noting that the Assisted Human Reproduction Act (AHRA Act), which makes the purchase or sale of Embryo’s illegal was not applied in this case. There was also no biological connection to the Embryo. Perhaps if only one party had (or did not have) a biological connection to the Embryo, the case would change drastically. This leaves the question of how the AHRA Act may potentially apply and change things in such cases.

Stefanie Carsley, in an article for The Globe and Mail titled “who has control over frozen Embryo’s after divorce?” made several key points regarding the future of fertility law. She questions whether men and women should have equal say in the control of an Embryo as there are health risk and side effects that women endure by harvesting their eggs that men do not have to experience. She further notes that men can continue to re-produce at a much older age as compared to women. A frozen Embryo may then represent a woman’s best or only chance of conceiving a child.

All in all, S.H. v D.H., at both the lower court level and at the Court of Appeals provides valuable insight into the future of fertility law and possible disposition of genetic material. However, this is still a developing area that parliament needs to legislate further on to provide clear guidelines.

If you need any help with family law matters, contact AP an experienced Family Law Firm in Toronto, Pickering, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

Are You Already Separated & Don’t Know It?

May 31st, 2020 by

Most people believe that to be separated they need to physically separate from their partner.

I sometimes hear the phrase legal separation and often it suggests that some sort of legal document is exchanged confirming that the parties have separated. This is not necessary.

Under Ontario law, parties are legally separated when the relationship has broken down and there is no reasonable prospect that the parties will reconcile. Put another way, when was it that the parties knew, or acting reasonably, ought to have known, that their relationship was over and would not resume? That would be the date of separation.

When put so simply, you see that parties can live under the same roof, and yet be separate and apart.

But what happens when one party knows there will be no reconciliation, but the other still has hopes for the relationship resuming? This can lead to a dispute about the date of separation.

How will the court deal with this? By reviewing the unique circumstances of each couple.

 

Some factors that the courts would look at include:

  • Are the parties sleeping in separate bedrooms?
  • Is there an absence of sexual relations (this is a factor, but not a determinative factor)
  • Did the parties communicate, discuss family problems as a couple, etc?
  • Did they attend social activities together and present themselves as a couple to others?
  • Did the parties continue to cook and perform household tasks as they did before the alleged date of separation?
  • How did the parties manage their finances? – who managed them? how are car payments, cell homes and other household accounts paid?
  • Was there an incident that stands out – e.g. a physical altercation; a major blow out argument, etc. Some cases have referred to it as a seminal event.
  • Has one party stopped depositing money into a joint account for e.g.? Has he or she transferred funds to an account the other party cannot access?
  • How did the parties file their taxes?
  • Did either party retain or consult a lawyer?

None of these factors are determinate in and of themselves.

The courts in deciding the date of separation would be careful to differentiate between parties living together in an unhappy or stormy relationship, vs. living as two separate individuals under the same roof.

 

Why is the date of separation important? The 2 main reasons are:

It is the date of valuation. This means it is the date your assets and liabilities are valued, for the purposes of equalization.

Divorce – one year begins to count from that date

The wrong date of separation could cost you a lot of dollars in equalization

Also, while you may be eyeing a divorce and excited about an earlier date of separation, beware of what it may cost you in Retroactive Child and Spousal Support if you have a support obligation.

 

What to do if you and your partner don’t agree?

Go over your situation based on the factors I had previously mentioned. That is, numbers 1 – 10 above. Try mediation with a knowledgeable mediator. An objective mediator will be able to help you resolve the issue.

 

Is it worth it?

Sometimes, the dispute is not even worth it. The difference in dates could be so close that nothing turns on it e.g. equalization or support. It may mean waiting a little longer in some cases even a few days to get the divorce. But if you’re caught up in a court battle, you may delay getting your divorce by even longer anyway.

Principles: There is something to be said for principles and the truth however you need to make an informed decision of whether the cost is worth the benefit.

If you need any help with family law matters, contact the AP Family Lawyers team in Pickering, Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

What should I know before discussing divorce or separation from my partner?

February 6th, 2020 by

Thank you for attending last week’s webinar titled: What should I know before discussing divorce or separation from my partner?. Below is an outline of the topics discussed and responses to questions from the webinar.

Step 1: 

What do YOU want. Not what’s fair, not what does the other person want,  what do you want.

Clarity of your intentions is a very important first step!

Step 2: 

Why do you want it?

With steps 1 and 2 clear,  you have a starting base from which to think of everybody else.

You will think of others, especially the children but your WHAT and WHY gives you and your lawyer a base from which to start resolving the issues that may arise from the separation.

Step 3: 

Put your mind to some broad substantive areas and your rights and responsibilities in these areas.

Custody and Access

  • What parenting arrangement is in the children’s best interest?
  • Is One or Both Parents better able to care for the children daily? If not, which parent is better suited for the role?
  • What kind of access arrangement works better for the children?
  • Remember Maximum Contact Principle
  •  Gatekeeping | Estrangement vs. Alienation

 Child support 

  • Remember – 50-50 doesn’t mean any child support.
  • There might be a set off amount payable
  • Special and Extraordinary expenses are paid over and above regular child support payments

 Spousal Support 

  • Is there entitlement? Remember, this is a threshold question. You must first be entitled to spousal support before discussions relating to amount or duration.
  •  Child support takes priority over spousal support payments so while you might be entitled to spousal support, the payor may not have the ability to pay.

 Division of Property

  •  Remember the Limitation Periods – 6 years from the date of separation or 2 years from the date of divorce
  •  Property regime differs for common law vs. Married spouses

Step 4: 

What dispute resolution mechanism do wish to use in resolving your dispute?

  • Negotiation (with or without counsel)
  • Mediation (with or without counsel)
  • Arbitration (or Med – Arb combination)
  • Litigation

Or a combination of all of the above.

QUESTIONS 

Q: What dispute resolution method do you find most effective?

A: Any combination of negotiation, mediation or arbitration.

Q: As a common-law wife, can I get equal sharing of our property?

 A: It depends on the specific facts of your case. If you can show that your partner would otherwise be unjustly enriched, you can get the court to reverse the injustice by ordering a division of property. The court may or may not order a 50-50 split. It would depend on the facts of your case.

Q: What if my ex is refusing mediation?

A: Unfortunately, there isn’t much you can do. Mediation is a voluntary process and your ex must choose to participate in the process. In limited circumstances, where appropriate, the court may order the parties to mediate.

If you need any help with family law matters, contact AP Family Lawyers Services in Markham, Toronto, Pickering, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

Contentious Divorce: Deciding What Matters Most to You

October 6th, 2019 by

Divorce is stressful for all involved parties including minor children. If you had a contentious relationship with your spouse leading up to the divorce, chances are the divorce will also be contentious and be even more stressful.

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The Matrimonial Home – Love it or List It

February 25th, 2019 by

Owner of Amazon, Jeff Bezos could be looking at an expensive divorce!

January 10th, 2019 by

Everyone is talking about the owner of Amazon, Jeff Bezos and his wife, MacKenzie, who are getting divorced after a 25 year long marriage.

As sad as we are to hear this, life happens! What does this mean for Amazon shareholders? We do not have a clue, we are family law lawyers! What could the end of a 25-year marriage to the wealthiest man in the world look like? One word – expensive.

Amazon is currently one of the world’s most beneficial companies. It took shopping convenience to a new level in my opinion. Everything you need and do not need is on Amazon!

The major question everyone has is – did the couple have a Marriage Contract (aka Prenuptial Agreement)? Usually, couples only enter into a marriage contract when they have something to protect. When Jeff and MacKenzie were married, Amazon did not exist. Having said that, nothing could have stopped them from entering into one after marriage. Yes, that is a thing!

If you did not get a marriage contract when you got married, it is not too late. It is a common misconception that you only need a marriage contract when you have something to protect. You intend to get married and grow with your spouse, right? Why not protect yourself before it even happens because you never know when it is too late.

Aside from the Marriage Contract debate that is all over the internet – under Ontario Family Law, a marriage of 20+ years is a sensitive territory. It opens up the spousal support argument for a lifetime! According to the Spousal Support Advisory Guidelines, spousal support could be an indefinite obligation. The same thing occurs if a marriage was only 5 years or longer AND the age of the recipient plus the years of marriage add up to 65 (i.e. Marriage of 7 years and the recipient was 58). This is known as the Rule of 65 under the Spousal Support Advisory Guidelines.

The couple had 4 children and their eldest child was born in 2000. This also opens up the child custody, access and support issues. Who gets the kids? Who pays who child support? How will the custody and access arrangements work out?

Now, we don’t know yet if MacKenzie is claiming any type of support from Jeff, if there is an Agreement in place and if it will get messy. We only wish them well. We will follow their divorce proceedings to see what happens.

If you need any help with family law matters, contact AP Family Law Firm in Toronto, Pickering, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

How can Social Media aid your life during a divorce?

October 17th, 2018 by

Not everything about social media is negative. During a divorce, you can use it as a tool to help build yourself to get through this time. Read our post about “Social Media and the impacts on your Divorce” to learn about managing your online activity.

During a divorce, I suggest the following:

  1. Engage with support groups, like-minded individuals, mental health groups, yoga/ mediation chats etc. Facebook and Instagram are great sources for this. They can support you during this time and I find that social media can sometimes put the “pressure” that you need in your life to maintain it.
  2. Post about positivity only and not about negativity.
  3. Stop following and being friends with anyone that gets in your way of a happier and stronger you!

If you need any help with family law matters, contact AP professional lawyers in Toronto, Pickering, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

5 Tips on Social Media and the impact on your divorce

October 15th, 2018 by

We are in the day and age where social media is being widely recognized in the court as a form of evidence. Whether it is your Facebook profile, your LinkedIn Profile, text messages, your pictures and sometimes, even your online dating profile chats!

When separating from your spouse, it is important to properly manage your online activity and be aware that once you post or send something, it is as if you will never get it back. In most cases, that is true. Some spouses are waiting for you to slip up and some even have family members/ friends monitoring your activity or attempting to catch you at any point.

Your social media activity can exhibit a lot about you that you do not want to be revealed in your family law matter. It can be used to portray you as a parent, as a faithful or unfaithful spouse, hiding assets or wealth, your travels, your access with your children, and much more. Here are some tips to ensure you are more conscious about how to manage your social media after a separation.

  1. Review your friend/ followers list regularly – You never know who has eyes on you and is screenshotting your activity to distribute.
  2. Do not post anything negative about your spouse – Seriously! I mean it. Your spouse and their lawyer are combing through your profile waiting for posts like this to use against you.
  3. Do not post about your family law matter – As if I need to explain this. Your family law matter is private, between you and your spouse and the ones you trust and rely on for support. Be classy, keep it that way and help mitigate any high conflict scenarios by not posting about it publicly.
  4. Think twice before posting about your lavish lifestyle – Are you attempting to claim that you live a simple lifestyle but yet have a luxurious online presence? Your travels, your night outs, your partying, your cars, handbags etc. Be careful, because this can sometimes be used against you.
  5. Just in general, think twice about posting. Period. – Before you post, ask yourself who your audience is. Do you have privacy settings? Can this be used against me? It could be as innocent as posting about a new job offer or a promotion. If you do, make sure you update your lawyer about it and update your family law file because it is important to disclose such information.

Remember, nothing is private. Even if you have strict privacy settings, once the information is out there, sometimes it’s too late. It is best to stay off of social media until after everything is resolved if you can.

If you need any help with family law matters, contact AP Family Law Lawyers in Scarborough, Pickering, Markham, and Toronto. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.

We’re open later to serve you better (9am – 7pm)

September 14th, 2018 by

Tips to Reduce your Divorce Costs

August 17th, 2016 by

Reduce costs of divorce
Reduce costs of divorce

Divorces can be pretty pricey and most people do not actually know what is involved and how high the costs could end up being. Of course, when people get married, the last thing they are thinking about is ever getting a divorce. However, life happens and sometimes it is better to be prepared than not. The very first thing couples can get that would help with the costs of divorce, is a prenuptial agreement or a cohabitation agreement outlining responsibilities in the event that the relationship takes a wrong turn. Divorces are not as simple as getting a piece of paper. The process of getting the divorce can be long, hard, and definitely costly, especially if the parties are not amicable.

When getting a divorce, you have to think about what the two of you have accumulated over the years and how that is going to be divided. You also have to think about the costs of a divorce including separation agreements, court fees, and legal fees. A lot of people think they know the laws regarding divorce and what they are entitled to, when in reality it ends up being quite the opposite. That is why it is so crucial for parties to seek legal advice when getting a divorce or separation. Here are a few steps to help you keep your divorce costs low:

  • Know the laws – First, get yourself familiar with the laws. Understand the process of separation and divorce and what it is you want out of it. Try to understand what you are entitled to i.e. spousal support, child support, etc., and seek legal advice to help you understand your rights. There are several Family Law Information Centres across Ontario that provide a lot of information on separation, divorce, and other family law matters and the best news is that it is FREE!
  • Be organized – Once the separation or divorce process starts, there are going to be quite a few documents requested by your lawyer to determine what you are entitled to and to prove that as well. Have them organized and ready for your lawyer to review. Be a step ahead of the game and start preparing a Financial Statement with the applicable documents.
  • Other alternatives – Know that there are other ways to resolve a separation or divorce that does not require a feud in court. Mediation or Arbitration are options. Try being amicable with your partner, instead of having the lawyers battle back and forth. It only costs you more money each time a phone call is made or a letter is sent.
  • Division of property – One thing I cannot stress enough is really pick and choose what matters the most to you. If you are fighting over a few simple household items, is that really saving you money? The cost for the back and forth between lawyers is most likely going to exceed the cost of the items you are fighting for.
  • Other resources – Most law offices have legal assistants that are trained and able to do some of the work. Ask your lawyer if there is an assistant or clerk that can help on your file to help reduce the costs.

Overall, we know the cost of the initial marriage was already expensive enough, we do not want the divorce to be just as costly. Let us help you keep your separation and divorce costs low. Here at A. Princewill Law Firm, we do our best to get our clients exactly what they deserve. We know the process is hard emotionally and the last thing we want to add to our clients is financial stress. To help alleviate that, we evaluate your situation and offer either a flat fee cost or an hourly rate to help keep the costs as low as possible depending on your situation. We are here for our clients every step of the way. If you need legal advice regarding a divorce or any family matter, please contact our office.

A. Princewill Law Firm

905-492-7662

[email protected]

1480 Bayly Street, Suite 2
Pickering, ON L1W 3T8

Separation and winning the lottery

January 28th, 2016 by

Division of Property on Divorce or Separation

August 29th, 2015 by

Property Division

Whether you are married, separated, divorced, or under common law, the law has rules about how to decide the value of family property and how to divide the property. If you are married, the law sees marriage as an economic partnership. If you are divorced, the family assets and debts that have built up during your marriage (net family property) must be divided equally. However, if you and your partner were not legally married and are classified as common law, you will not automatically have the same rights.

Property can be defined as anything you own, such as your homes, cars, personal and household items, pensions, bank accounts and any other investments, including debts.

Separation/Divorce: 

When a marriage ends, the equal contribution of each person to the marriage is recognized. The law requires that the value of any kind of property that was established by a spouse during the marriage and still exists at separation must be divided equally between the spouses. Also, any increase in the value of property owned by a spouse at the date of marriage must be shared. The payment that may be owed to one of the spouses in order to effect this sharing is called an equalization payment, or an equalization of net family property.

Types of Property 

Matrimonial Home:

The family home, or matrimonial home, is the home where your family mostly lived before you separated. If you own this home, each of you has the right to share in the value of the equity on the home. The only time the value of the home would not be shared is if you and your spouse had signed an agreement (marriage contract) that says the home will be kept out of the equalization process.

Pensions:

Starting January 1, 2012, pension plan members who have to pay their former spouse a settlement based on the value of their pension plan will be able to make some or all of the payment from the pension plan itself. The pension plan administrator will also now be responsible for valuing the pension plan so that spouses do not have to hire an actuary to do this for them.

Personal and Household Items: 

Reasonable ‘personal effects’ (belongings) are normally not considered to be matrimonial assets. What a ‘reasonable personal effect’ is may be hard to figure out in some cases, especially if the item in question is valuable (like jewellery). Legal advice is often helpful to assist you in deciding what items are ‘personal.’

House hold items are goods and products used within households. They are the tangible and movable personal property placed in the living rooms, dining rooms, kitchens, family rooms, guest rooms, bedrooms, bathrooms, recreation rooms, hallways, attics, and basements and other rooms of a house.
When it comes to household items and repairs, the parties by agreement, can decide who is to arrange, carry out or pay for things like house repairs, insurance, mortgage and taxes on the matrimonial home.

If the parties cannot agree, then either one of them can file a motion for ‘interim’ relief requesting that a judge decide these issues for the short term until a final hearing or trial can be scheduled. Get legal advice about your rights and obligations. A lawyer can help you sort out different ways to do this that may be able to benefit you, or the family as a whole.

Debt:

Matrimonial or family debt is debt that was acquired by either spouse or both spouses together during the marriage that was used for ordinary family matters. These may include such things as household expenses, the mortgage on the family home, or debt used to finance a family car. If some debts were acquired after you separated from your spouse they may be considered matrimonial debts if they were used to pay for necessary living expenses or to maintain the house or car or other assets.
As a general rule, both spouses are equally responsible for a debt that is in both of their names. You may also share responsibility for debts that are only in your spouse’s name if the money was used to buy something that benefited you or your family. Examples are heating oil or a family vacation. Usually you are not responsible for your spouse’s non-matrimonial debts unless you co-signed or guaranteed them. For example, you would not usually be responsible for debts your spouse acquired to run their business, or debts acquired by your spouse before the marriage.

What is the process for dividing property?
The process of dividing family property is called equalization. There are two steps in the equalization process.

Step 1: Calculate net family property:

  • The first step in the process is that each of you calculates the value of your net family property.
  • To do this, each of you must make a list of your assets at the time you separated and total the value of the assets. From this amount, you deduct the value of:
  • debts owing at separation
  • the value of property that you brought into the marriage
  • gifts you were given
  • property you inherited
  • damages for personal injury

Step 2: Share the family property equally:
Once each of you has calculated your net family property, its value must be equalized. Each of you must tell the other your net family property. The spouse whose net family property is higher must pay the other spouse half of the difference between the two amounts. This is called an equalization payment.
In some cases, the court can order a different equalization payment if the equalization amount is unfair. For example, the court could order your spouse to pay more if he did not tell you about large debts he had when you were married, or if he got into major debt on purpose.

Common-law:
Property rights are very different for people who in to live common-law relationships. Each of you owns whatever property you brought into the relationship and whatever you bought while you were together.  Complications arise when the property increases in value and it is owned by just one common-law spouse.

If you and your partner lived in a common-law relationship, you do not have equal rights to the value of your matrimonial home. The home that you lived in as a couple belongs to the person whose name is on the title.

You and your common-law partner could write a cohabitation agreement to set out how you would deal with property and debts if you separate. If you do not have a cohabitation agreement and you cannot agree about how to divide your property, either one of you can go to court. You can ask a judge to award you a share of what you bought as a couple, or a share of the amount that a property increased in value during the relationship.

Cases: 

In the case of Collins v. Collins, 2000 192 Nfld & PEIR 6; 6 RFL (5th) 101, the Plaintiff, Mrs. Collins, claims she is entitled to equal division of the property between her and her husband Mr. Collins.

The evidence is clear in this matter that Mrs. Collins has been the sole person responsible for all maintenance of the property for the past 15 years. She was responsible for all municipal taxation and the day to day upkeep of the property. This was done while Mrs. Collins also endeavoured to support the two children of the marriage.

Mr. Collins did not make substantial contributions to the children’s maintenance during the early years of separation. This is evidenced by the fact that Mrs. Collins had to resort to assistance from the Department of Social Services, as Mr. Collins was not in a position to provide financial support to his family on a continuous basis in the years prior to receiving a disability pension.

In circumstances such as the mentioned case, section 4(6) of the Family Law Act allows for an unequal division of assets after certain factors are considered.
Section 4(6) FLA states:

PART I FAMILY PROPERTY

Variation of share 

  1. (6)  The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

This was a case where an unequal division of the matrimonial home was substantially in favour of Mrs. Collins. Therefore the decision was made in her favour for an unequal division of the net family property.

If you need any help with family law matters, contact our experienced family lawyers in Toronto, Pickering, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.