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Amending a Court Application, Answer or Reply – when to give consent

February 19th, 2021 by

 

Pleadings include an Application, an Answer, and the Reply. 

Often there is a misconception and concern among self-represented parties or new lawyers about amending an agreement. Let us see what the Family Law Rules have to say about this subject. 

The Rules provide that if you filed an Application and the other party has not responded yet, then you can amend your Application.  The Family Law Rules set out how to do that.  In this case, you can amend the Application without the court’s permission or consent from the respondent. 

However, if there is an Answer filed by the respondent, then you will need consent from the respondent to make any changes to the Application. 

Why would you want to amend the Application?

Usually, you would want to amend if you:

  • forgot to include a request that you would like to ask the court, but you did not include it in your original Application; or
  • think there are material facts that absolutely must be plead in your Application and you did not include that; or 
  • maybe you want to remove a claim that you made and no longer want to pursue. 

Those are some of the reasons you might want to amend your Application or Answer. 

Remember: if there is no Answer filed, you can amend the Application in the form prescribed by the Rules. If there is an Answer, then you need consent from the Respondent.

If you are the Respondent and you want to amend your Answer, then you can do so within 14 days of being served with an amended Application. For instance, you have been served, and the applicant amends their Application, where you previously filed an Answer, you have 14 days to amend your Answer. 

What happens where there is no amended Application? In that case, you also need consent from the other side. 

For the most part, usually if you want to amend an Application or response or Answer, you will usually need the consent of the other side. Often people are concerned and do not want to give their consent. It is usually out of concern for what the other party wants to do. There is obviously distrust on both sides and there is apprehension that someone is trying to pull a fast one and things like that. 

It is important for you to understand that it is almost a right to amend an Application. This right is expressed clearly in the Rule:

On motion, the court shall give permission to a party to amend an Application, Answer or Reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

A motion is usually the request filed by the party seeking to make the amendment. The Rule essentially provides that the courts will grant a request made on motion by a party, whether it be the applicant or respondent, to amend their Application or Answer; except where granting it will disadvantage the other party in a way that cannot be compensated for by cost or an adjournment. 

The mere fact that a person amending their Application would result in a delay in the process or inconvenience you in having to respond to an extra claim that you may believe is frivolous, unnecessary, and disadvantageous to you, will not prevent the court from granting that request. The court recognizes that an amendment may disadvantage you.  It is only a disadvantage that cannot be compensated for by way of cost or an adjournment that would prevent the courts from granting the request. 

For example, a common concern is if you allow the party to amend their Application and they bring another claim, then you will have to respond to it. Indeed, you do have to respond, however, it is possible that this effort may be compensated for by way of a cost order. 

Another example is you may not have time to respond to the additional claim before the next court date; however, an adjournment is a tool that can be used to deal with that disadvantage. 

When you are faced with a request for an amendment, unless other factors exist, it is strongly encouraged that you consent. There is no point utilizing court and your resources to ask for the party to be refused an amendment. Remember, the only time that refusal would be justified is if there is a disadvantage that cannot be compensated for by way of cost or an adjournment. 

A better strategy, in my opinion, would be consenting to that amendment and then asking for an order for costs to compensate you for the additional resources that you have had to put towards amending your Answer.

Request to sell Matrimonial Home refused

February 4th, 2021 by

While a joint owner to a property has prima facie right to its partition and sale, that right may be restricted if the party requesting the sale is engaging in conduct that is malicious, vexatious, or oppressive.

In Rainville v. Walsh, 2021 ONSC 446, the court refused to Order a sale of the matrimonial home because it would result in the husband having no place to live. Justice Ellies stated:

“The owner of real property has a prima facie right to have the property sold and to recover the value of their interest in the property: Partition Act, s. 2; Davis v. Davis (1953), 1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.), at p. 29. However, that right is subject to a narrow exception, namely where the party seeking the sale is guilty of malicious, vexatious, or oppressive conduct: Latcham v. Latcham, 2002 CanLII 44960 (ON CA), at para. 2. In Greenbanktree Power Corp. v. Coinamatic Canada Inc. (2004), 2004 CanLII 48652 (ON CA), 75 O.R. (3d) 478, at para. 2, the Ontario Court of Appeal held oppression includes hardship on a co-owner resulting from the order. In the circumstances of this case, I have concluded that there would be hardship to Mr. Walsh if the Jane Street property were to be sold at this time.”

Mr. Walsh was an alcoholic who though sober at the time of the motion, did not appear to be in a very stable state. He had lost his driver’s licence more than once for impaired driving and had been hospitalized for alcoholism or other alcohol-related illnesses. While Mr. Walsh’s company had several rental properties, they were all being occupied except for one which required repairs. Even if Mr. Walsh gave notice to a tenant to vacate one of the units so he could occupy it, given the recent passage of O. Reg. 13/21 passed under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, which currently prohibits residential evictions. the court was not certain the Mr. Walsh would be able to evict them.

The wife’s request for partition and sale was denied.

Right of First Refusal to Buy the Family or Matrimonial Home

January 28th, 2021 by

When parties who own a home together separate, often one person wants the home sold while the other would like to keep the home. It would ordinarily not be a big deal except often, the person who wants the home sold has one or more of the following reasons:

  • They believe they would get more money if they sold to an arms-length party;
  • They do not believe their ex-partner would be able to afford to buy out their interest in the home;
  • They believe it would take longer for their ex-partner to arrange financing than selling in the open market;
  • They are simply uncomfortable with the other party getting to keep the family home;
  • This list would not be complete without sweet old revenge being one of the reasons why a party refuses to sell to their ex-partner.

Unfortunately for the person who wants to keep the home, there is nothing the courts can do to ensure this. Too much time and money is spent on motions where a person is seeking a right to first refusal to purchase a property. Sadly, in some cases, trial judges do in fact grant this relief but, on an appeal,, it most certainly would be reversed as was the case in Barry v. Barry, 2020 ONCA 321

What is a right of first refusal?

In the context of a matrimonial home or a family residence, the right of first refusal gives one party the first opportunity to buy out the other party’s interest/ share of the matrimonial home, without the home being listed for sale. If the home is listed for sale, the right of first refusal means the party with the right of first refusal gets the first opportunity to buy the house.

According to the court in Martin v. Martin which was cited by the Ontario Court of Appeal in Barry v. Barry:

As this court explained in Martin v. Martin, [1992] 8 O.R. (3d) 41 (C.A.), a right of first refusal is a substantive right that has economic value. It falls outside the boundaries of what is ancillary or what is reasonably necessary to implement the order for sale of the matrimonial home. It distorts the market for the sale of the matrimonial home by eliminating the need to compete against any other prospective purchaser, thus potentially reducing the amount the joint owning spouse realizes on the sale. In the absence of consent, the right of first refusal should not have been granted in this case. If the respondent seeks to purchase the matrimonial home, he must compete with any other interested purchaser.

A few takeaways from the quote in the Martin’s case:

  1. A right of first refusal has economic value. It is separate and above the rights of a joint tenant to deal with their property.
  2. A right of first refusal distorts the market for the sale of the home in favor of the party who has that right.
  3. Parties can agree to a right of first refusal but it is outside the boundaries of what is reasonably necessary for a judge to order for the sale of the home.
  4. A joint owner is always able to compete in the open market and purchase the house by offering the best price.

In Barry v. Barry, the Court of Appeal held that the right of first refusal should not have been granted in that case. It allowed the wife’s appeal and vacated the section of the trial judge’s Order granting the right of first refusal. Because the wife’s appeal was successful, costs were awarded in her favor.

The lesson here is, if you will like to keep the matrimonial home or family residence, your best and only option is to negotiate and get the other party’s consent. I recognize this may range from unpleasant to impossible in some situations, but truly, there is no other way.

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. 

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 

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.
For further assistance, please contact us. We are waiting to help.

No Limitation Period to Nullify Marriage Contract

November 22nd, 2020 by

If you have a marriage contract you would like to set aside, you may be concerned about the timing of your claim. You may have heard about limitation periods which in the simplest terms means the timeframe within which you must start your case or you will be out of luck.
In Ontario, except otherwise provided in a different legislation, limitation periods are governed by the ​Limitations Act, 2002​, SO 2002, c 24, Sch B. The Basic Limitation Period is 2 years from discovering that you have a claim. Which for the purposes of this post is 2-years from the day you realized there might be an issue with your marriage contract.
However, if you are bringing a proceeding for a declaration if no consequential relief is sought, there is no limitation period applicable. To add to the mix, the ​Family Law Act​ has its own limitation periods set out in section 7(3)​.
The issue of what limitation period applies to set aside a marriage contract was dealt with by the Ontario Court of Appeal in Kyle v. Atwill, ​2020 ONCA 476​.
In that case, the husband and wife signed a marriage contract the wife drafted from a template she found on the internet. She and the husband signed the contract a week before their wedding in July 2005. They did not get independent legal advice on their rights, neither did they exchange financial disclosure. In the agreement, they waived spousal support from each other and agreed to keep their properties separate such that in the event of a breakdown of the marriage, there will be no equalization.
In August 2012, the parties separated. Negotiations started but stopped due to the husband’s mental health. In 2015, the husband’s lawyer made contact with the wife’s lawyer but nothing was done. In August 2017, the husband brought an Application for spousal support and equalization. He did not specifically ask for an Order setting aside the marriage contract but he referred to the contract. He stated that he got no independent legal advice, no financial disclosure, and that he signed the marriage contract under duress.
The wife of course relied on the signed marriage contract as grounds to dismiss the husband’s claim. She then tried to summarily dismiss the claim which she argued was a claim to set aside the marriage contract and that the limitation period to do this had passed (It was more than 2 years since the parties separated. 2012 – 2017).
The wife was successful at the motion for summary judgment. The motions judge considered whether the husband’s claim was a proceeding for a declaration if no consequential relief was sought. In which case, s.16 (1)(a) of the ​Limitations Act​ which says there would be no limitation period will apply. The motions judge held that the husband was seeking consequential relief (equalization and spousal support) and so given he discovered his claim in 2012, he was past the limitation period and his claim is therefore statute-barred. The husband appealed the decision.

The issue on appeal was, what rule applied to a request to set aside a marriage contract? Is it the 2-year limitation period under section 4 of the ​Limitations Act​, the 2 or 6-year limitation period under the ​Family Law Act​, or no limitation period under section 16 of the ​Limitations Act​?
While the panel was divided on their reasons, the Court of Appeal unanimously agreed that the husband’s claim was not statute-barred and overturned the motion judge’s decision.
I particularly find Justice Brown’s comment here interesting: ​“requiring a party to apply to set aside a marriage contract within two years of the discovery of some “injury, loss or damage” while the marriage remains on-going would result in a harsh, if not absurd, application of the Limitations Act.”​ Interesting, isn’t it?
Regardless of your opinion on the decision, the Court of Appeal in ​Kyle v. Atwill​ has made it clear that no limitation period applies to a request to set aside a marriage contract.
Do you have a marriage contract you would like to set aside or would do you want to ensure your marriage contract is upheld in court? ​Call​, ​email​, or ​chat ​with us. Our family & divorce lawyers can help.

When Enforcing Support Payments Through the Family Responsibility Office is Your Only Choice!

November 10th, 2020 by

Many times, litigants involved with their family law court case, do not want their support payments to be enforced by the Family Responsibility Office but they have no choice.

In Ontario courts, when a person is ordered to pay child or spousal support payments, the support order is automatically filed with the Family Responsibility Office (referred to as FRO). Even during those times when the parties and their lawyers agree that payments shall be made directly between each other, the court will continue to have the order enforced by FRO, as that is the default.

There are ways around this and terminology and/or having a mutual agreement is important. In your Court Order or Consent, the parties can agree to withdraw from FRO enforcement and hae the payments made directly to the recipient via e-transfer or even post-dated cheques for example. It takes the mutual consent of the parties to do so and it is as easy as signing a form and sending it into FRO to let them know you want to withdraw from their enforcement. However, if one party wants FRO to be involved, there really will not be a choice to the other party.

Is having FRO involved a bad thing? Not at all. It really depends on the parties. Not all litigants have a poor relationship with one another, and they can find a way to manage support payments between themselves. In those situations where the payor is unreliable to make a payment or you need the payment garnished from their wages, FRO can become your tool. There are pros and cons to using FRO for enforcing your support payments which we can go over with you to make sure it is right for you. Book a consultation with one of our experienced family law lawyers in Pickering today!

Foul-Play in Family Law

October 26th, 2020 by

As experienced family law lawyers, we have seen our fair share of things to look out for our clients. Here are some tips for what to look out for if your ex-partner is trying to manipulate or take advantage of the situation.

  • Choosing a different date of separation – The date of separation is the “tell-all” in your separation. It is the date that governs many things, such as when child support/spousal support shall start being paid, when equalization shall take place, etc. Sometimes, partners try to use a different date of separation intentionally to lower how much will be paid in equalization. They move some of their assets around and increase their debts. The they choose a date of separation after this to reflect the change in their finances.
  • Failing to disclose assets – A big part of separation is disclosing finances for your Financial Statement. There is a requirement for full and frank financial disclosure and sometimes, parties attempt to hide assets or conveniently forget about bank accounts that they have, like a TFSA or RRSP. It is important to do your homework and try your best to remember what accounts/assets your partner has when it comes time to reviewing their financial statement. For example, if you think they have more accounts with a certain bank because of a reasonable belief that you saw a lot of mail coming from that bank or comments were made during the marriage about contributing to certain accounts, then it is a good idea to request an account summary from the bank. Looking at bank statements is also a good idea to see any suspicious transfers or if your ex’s income is being deposited into any of the accounts. If not, then that is a clear indication a account is missing.

 

  • Speaking ill about you to the children – As we all know, many children are like sponges and are very easily influenced by what one of their parent’s say. When your partner starts speaking ill about you to the children, he/she is attempting to change their mindset about how they view you for parenting purposes. Even discussing the legal issues with the children is frowned upon because children shall not be involved in their parent’s separation like this. It is important to protect the children from the proceedings and ensure that they know the separation is not their fault.
  • “Gaslighting” you – Gaslighting is a form of psychological manipulation that causes you to raise a doubt in your memory or recollection. Separation and divorce sometimes bring the worse out in people and they become obsessed with “winning”. Or sometimes, some partners are surprised you decided to proceed with the separation and retain a lawyer, so they want to try to bring you back under their control by causing you to doubt yourself.
  • Increasing your legal bill – By causing delays, not disclosing information or documents, not responding to your lawyer, or over responding to your lawyer – these are all things that increase your legal bill.
  • Not showing up for court – Imagine how hard you and your lawyer have worked to prepare for your first Case Conference, only for your ex not to show up, show up unprepared or use some delay tactics (i.e. request an adjournment). All of this is an emotional roller coaster of getting to that day only for it not to proceed sometimes and sometimes even making you tired of the length of time it has taken to lower your position for a settlement. This does not always work but definitely something to look out for.
  • Not disclosing true income – You hear the stories, “They work for cash,” “They have unreported income,” “They have a side job,” etc. Some ex’s attempt to get away with not disclosing their true income for support purposes. An experienced family law lawyer would know how to handle this as best as possible and even avenues of attempting to impute income to them.

There are so many more actions to look out for in a family law matter. Do they all work – no! However, they are definitely frustrating to deal with and each item that was mentioned above has a way of not working out as planned for your ex. 

A bumpy ride in family law litigation is sometimes normal and it is important that you understand what the process is and ways your ex can conduct themselves. For different types of tactics your ex-partner may try to use to frustrate the process, there can sometimes be relief found in Cost Awards and Motions. These are great ways of providing some consequences to your ex. Speak with one of our experienced family lawyers today for more information and how we can help you! You can submit an online form to book your appointment or call us at (905) 492-7662.

Pension Plan: Death Benefit

October 21st, 2020 by

If you have a Pension Plan, you are probably aware of its death benefit. Do you know how your death benefit works? There may be important differences in who receives this benefit depending on the circumstances at the time of your death.

If you die before retirement

In this case, generally, your spouse will receive the benefit. Your spouse is the person you are married to; or that you have been living with for, at least, three years; or, you have been living with for less than three years, but you have a child together.

There are two exceptions to the spouse rule: if your spouse waives their entitlement in writing (before or after your death. If it is waived before, they can cancel the waiver anytime while you are alive.); and if you and your spouse are not living together anymore – if you were separated or divorced at the time of your death.

A Separation Agreement is important for many reasons, and this is one of them. Imagine you have been separated for years and you start living with a new partner. If you die before signing an Agreement or getting a divorce, your new partner may need to face a battle to receive your benefits. The person you are legally married to may want to pursue the benefit entirely, or claim their share, without you ever having the chance to negotiate it.

If you don’t have a spouse at the time of your death, your named plan beneficiary will receive the benefit. If there is no named beneficiary, the benefit will be paid to your estate and distributed in the same way your inheritance will be distributed. If you don’t have a valid or up to date Will, this, again, may have unexpected results.

If you die after retirement

If you are already receiving your pension payments when you die, and you have a spouse, they will receive the benefit as a joint and survivor pension. If you don’t have a spouse when you retire, the death benefit paid to your beneficiary, if any, depends on your plan’s specific terms and conditions.

The Joint and Survivor Pension means that your eligible spouse will receive at least 60% of your monthly payments for their lifetime, even if they marry again.

To be eligible, your spouse should be still in a relationship with you at the time you first receive your pension payment. They will still be entitled to the death benefit if you are separated at the time of your death. This applies even if you have a new partner. That’s because your spouse was already entitled to their share of the benefit when you died. The only way to avoid this is to negotiate their entitlement when drafting your Separation Agreement or pursuing your divorce. It is better to consult with a divorce & family lawyer in Toronto to draft your Separation or Divorce agreement.

You can find more information about pension plans here: http://www.fsco.gov.on.ca/en/pensions/pension-plan-guide/pages/LE-If-You-are-Thinking-About-Retirement.html#support-family

Leveraging Technology To Provide Quicker, Faster, Better Service At AP Lawyers

April 21st, 2020 by

As you may already know, at AP Lawyers, our values are:

1. Compassion

2. Convenience

3. Speed

4. Respect

5. Relentlessness

6. Honesty

7. Responsibility

8. Innovation

We always strive to model our actions as a firm, to be true to our values. We look at our values and reflect on how we can do things even better. For e.g. Innovation, Convenience & Respect led us to think, how can we leverage technology to provide faster more convenient legal services?

Using secure video technology, we were able to hold virtual settlement meetings by having our clients at our offices and the opposing party and their lawyers, miles away, and yet have very meaningful settlement talks with our client feeling safer and more comfortable. We also eliminated commute time for the lawyers, thereby costing the clients less (remember, one of our values is being responsible with our client’s resources. So check that too).

We did this long before social distancing and Zoom became the trend.

We have 90 minute Q&A sessions over the phone to provide answers to specific legal questions our clients have in real-time, in the most convenient manner for them.

With telephone and video consultations, we are able to offer legal advice to clients in every corner of the globe, especially those looking to immigrate to Canada.

These are just a few ways AP Lawyers uses technology in delivering legal services to our clients. Every day, we continue to strive and find more ways to be quicker, faster, and better for our clients.