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?
- Prepare a loan agreement
- Include interest on the loan
- Include a loan repayment date.
- Consider registering a mortgage to secure the loan
- Provide for periodic repayment of the loan
- 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.
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.
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!
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.
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
As you may already know, at AP Lawyers, our values are:
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.
To all of the parents who are currently trying to manoeuvre Covid-19 and parenting arrangements with the other parent – this is for you!
The Ontario Court of Justice and Superior Court of Justice announced on March 16, 2020 that they will only be accepting URGENT matters for their family law departments. The pressing question that everyone has is – Is my matter urgent?
While your parenting issues are pressing and urgent to you, the courts may not see it that way. We are currently in a unique and unprecedented time. What does that mean? It means that the courts do not have all of the answers right now and everything is going on a case-by-case basis.
What is truly urgent is going to be judged against a high threshold to use the limited court resources for a decision.
On March 24, 2020, Justice Pazaratz of the Hamilton Superior Court of Justice, endorsed a Motion decision that we can rely on to decide if a case is truly urgent to be heard by the courts. (Ribeiro v. Wright, Superior Court of Justice, Family Court – Hamilton)
In this case, the Mother brought an Urgent Motion to prevent the parties 9-year-old son from attending the Father’s home in light of Covid-19 and concerns that she and her family are practising social distancing and self-isolation and that she has concerns the Father is not. The parties have joint custody of the child pursuant to a Final Order from 2012 with primary residence to the Mother. There is a current outstanding Motion to expand parenting time to the Father.
What is noteworthy of Justice Pazaratz’ Endorsement is that he takes the time to outline what is an urgent parenting matter for the courts attention during this time and provides guidance for litigants and parents. This is no surprise as Justice Pazaratz is usually very detailed in his decisions with making strong statements to illustrate his decisions. This case is no exception.
What are some takeaways from the case?
- There is a presumption that existing parenting arrangements, whether and order, consent, agreement etc., should be respected and complied with in the best interests of the child;
- These are extraordinary times and parents are understandably confused and worried about what to do.
- This is uncharted territory for our court system and that we all have to work together to promote both the physical and emotional well-being of our children;
- A blanket policy that children should never leave their primary residence – even to visit the other parent – is inconsistent with a comprehensive analysis of the best interests of the children;
- Modifications, flexibility, creativity and common sense are all required by everyone right now to carry out parenting arrangements as best as possible;
- In some cases, custodial or access parents may have to forego their times with a child for reasons such as recent travel, personal illness, exposure to illness etc.;
- In some cases, a parent’s personal risk factors through employment or associations may require controls with respect to direct contact with the child;
- In some cases, a parent’s reckless lifestyle or behaviour in the face of Covid-19 which raises serious concerns about failing to take expected precautions, such as social-distancing, will have zero tolerance;
- Each case has its own unique circumstances and arrangement modifications.
If you need to bring an Urgent Motion for parenting issues in light of Covid-19, it would be expected of you to try everything else before you do. It is also important that you outline examples of behaviour or specific evidence against the other parent which are inconsistent with Covid-19 Protocol and the risk to the child.
All in all, this is something new for everyone. We all need to use our best efforts to and prior to taking that step to stop existing parenting arrangements, take a step back and think about how to make it the best possible in these circumstances, if possible.
When in December 2019 Dr Li Wenliang alerted his colleagues of a virus he thought looked like the other coronaviruses (e.g. Sars) it is unlikely that even he would have predicted the circumstances that the world has found itself in today. Sadly, the doctor passed away early last month after he contracted the disease, while treating patients in Wuhan, China. We have now come to call the novel Coronavirus Disease, “COVID-19”. On March 11, 2020 the World Health Organization (“WHO”) characterized COVID-19 as a pandemic. Two weeks later, with the number of confirmed cases and deaths from the disease increasing in various parts of the world, governments and their agencies and the public are now using technology to engage in business operations while maintaining responsible social distancing.
The government of Canada has provided the public with resources to help combat COVID-19 at https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html
As of March 23, 2020, 6:00 p.m. EDT the official confirmed number of COVID-19 in Canada was 1,646, after 107,147 people having been tested. We know that we must do our part to reduce the likelihood that our healthcare system becomes overwhelmed with too many new cases all at once. As such there have been several areas of legal practice that has changed or been delayed until further notice. The province of Ontario has made certain declarations of which our clients should therefore be aware.
All family trials previously scheduled between Friday March 20, 2020 and Friday May 29, 2020 are suspended, subject to a judge seized with a continuing matter ordering otherwise.
All non-urgent matters, including trials, are adjourned for 8-12 weeks. Details of the new schedules would be provided at a later date.
All onsite family mediation and information services are being suspended until further notice. Where possible these services may be offered remotely, including online or by phone.
Canada is currently denying boarding to most foreign nationals, on flights to Canada coming from all countries. Only Canadian citizens, Canadian permanent residents, or their immediate family members, who show none of the symptoms of COVID-19 will be allowed to board, and all travellers will be asked to self-isolate for 14 days upon entry into Canada.
Travel across the Canada–US border Canada is temporarily restricted for all non-essential travel across, including by Canadian citizens, permanent residents wishing to return to Canada.
Immigration and Refugee Board of Canada (“IRB”) front offices are closed until further notice. All in-person hearings and mediations, except detention reviews are postponed until after May 3, 2020.
The processing times for all applications to Immigration, Refugees and Citizenship Canada (“IRCC”) may experience disruptions caused by the COVID-19.
Given that the Succession Law Reform Act which governs how a Will has to be executed in order to be valid requires that the testator and witnesses be “in the presence of” each other, while signing the document, we will not be having any virtual estate planning appointments. This requirement has been held to mean that all parties are in the same room at the time of signing. We are not in a position to witness the signatures virtually.
We are however able to set up remote video consultations with potential Estate Planning clients.
Our lawyers would be in touch with our clients that have matters scheduled during this relevant period. Client meetings with our lawyers remain available via telephone and other online tools.
#APLawyers #RedefiningThePracticeOfLaw #FamilyLaw #ImmigrationLaw #EstatePlanning #AloneTogether #RemoteWorking #SocialDistancing #FlattenTheCurve #TeleWork #EndCOVID19
If there is one thing that Family Law Lawyers have learnt during this COVID-19 pandemic, it is that there is so much we do not know about how to navigate the justice system with all these rapid changes caused by this pandemic.
Let’s take one example. The Superior Court of Justice suspended ALL scheduled hearings indefinitely, starting March 17, 2020. The courts, however, will continue to hear urgent matters during this emergency period, including:
- requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
- urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
- dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
- in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
What then can be done in a situation where a custodial parent denies access visits to the access parent? Is this a wrongful retention of a child so that the issue can be heard at this time? It is certainly not related to the child or parent’s safety. But really, is it wrongful retention?
If it isn’t, as is most likely the case, is the access parent powerless to do anything during this emergency period?
Thankfully, if a parent failed to return a child after March Break as provided in a court order, it clearly would be a case of wrongful retention. But is it? Couldn’t that party just argue that the government extended the March break and so they really are not violating the order?
What if a parent has concerns about the hygiene conditions at the other parent’s home and refuses to allow the child to visit the home, thereby blocking that parenting time with the child? It is urgent because it surely relates to the safety of the child at this time – Right? Well…. could be wrong.
As with everything COVID-19, we seem to be left with more questions than answers but be not dismayed. At AP Lawyers, we are following the developments closely, asking questions, and getting answers where possible (frankly, the authorities are still trying to figure most of it out).
What you can always count on is our creativity in getting solutions and that matters now, more than ever. We remain open to serve you via Video Conference, Skype, Telephone, Email, and Live Chat.
Contact us today:
Sometimes family law matters do not require retaining the services of a family law lawyer in the GTA. One such time is when you are confident about representing yourself in Court but want to make sure that you have the legal knowledge so as not to jeopardize your chances of success.
What is family law coaching?
A family law coaching session is different from an initial consultation.
An initial consultation is an appointment where we get to learn about you to fully understand your legal issues. We then advice on you on the best solution and provide you an action plan. An initial consultation is designed to be a one-time event, where family law coaching can either be a one-time event, or an ongoing process. You choose.
Family law coaching is different from full legal representation from our law firm because YOU run the show. You have full control of your family law matter and you use our services when and where you need us.
AP Lawyers has several family law coaching/unbundled legal services that allow you to represent yourself in your family law matter, but still have the full benefit of independent legal advice. For example, our AP Silver Coaching Package allows you to prepay for 10 Telephone Calls and/or Emails with an experienced family law lawyer. You get to choose when to call or email us and about what issues.
Are you in court negotiating a settlement and want to make sure the deal is fair? Give us a call then. Do you have a question regarding a letter you received from the opposing lawyer? Send us an email then. Are you unsure about the next step in the process? A quick call can set you in the right direction.
Another type of family law coaching available is a Quick Question and Advice Coaching Session. This type of coaching session is a short 20-minute meeting that is conducted via phone, Skype or Zoom. These sessions can be purchased in blocks of 20-minute increments.
Our family law coaching services can also be used to prepare yourself for your Family Law Trial or simply assist you with drafting court documents.
We can review your matter in detail and
- Discuss potential outcomes based on the information you provide.
- Inform you of your rights and legal obligations.
- Inform you of how the law would apply to your specific situation and how it could impact you based on various scenarios.
- Prepare you for your upcoming negotiation, mediation, arbitration, or Court appearance on your own to resolve the family law matter.
- Your family law lawyer will give you solid legal advice on how to strengthen your case and your position.
- Your family law lawyer can help craft the groundwork to create an offer to reach a settlement with the other party.
- Your lawyer will coach you so that you are better equipped to calmly and factually present information to the mediator, arbitrator, or Judge.
With Family Law Coaching, you get legal advice, custom tailored to your needs.
A family law coaching session can be as little as 20 minutes or as long as a whole day, depending on your needs. Remember, you are always in control and we have created various options to meet the varying needs our clients.
What Are the Benefits of Family Law Coaching Sessions?
The primary benefit is family law coaching sessions cost less than retaining a family law lawyer full time to represent your interests. If you are on a tight budget or have a situation where you are fully capable of resolving the matter on your own, then a family law coaching session could be the right choice. However, this option is not ideal for complex family law matters.