Vesting orders can be valuable in divorce cases, especially in the hands of an experienced lawyer who knows how to properly use them, Pickering family lawyer Angela Princewill tells AdvocateDaily.com.
“When you’re working for a client and trying to get what they’re entitled to under the law, every tool becomes critically important,” says Princewill, principal of AP Lawyers.
She says vesting orders allow the court to transfer the ownership of a property from one party to another.
“In family law, they are most commonly used when equalization and support payments are issues,” she says, “or if someone is not very co-operative.”
She gives the example of a couple that has separated, with the man ordered to pay support to the wife. If he fell deeply into arrears, but was still included on the home’s title, the wife could ask for a vesting order to transfer the house solely to her.
“In many cases, both parties are named as the home’s owner,” Princewill says. “The vesting order takes the title away from one, and that will probably settle the issue of arrears.”
Another common use of a vesting order is if one party owes an equalization payment, she says, but shows no sign of being willing to pay it.
“If a person is not making any moves to satisfy that equalization payment, a vesting order can be requested to mitigate at least some of the inequity.”
Even if someone can show they are being denied support or equalization payments, a vesting order will not be automatically given, says Princewill, explaining that the decision lies with the judge in each case.
“It’s a discretionary remedy,” she says. “You may check all the boxes, but it doesn’t guarantee that a judge will grant your request. They are always given at the court’s discretion.”
Princewill says the judge looks at each party’s interest in the home, and its value relative to the amount owing.
“The whole process is not done in a vacuum,” she says. “You don’t get ownership of the matrimonial home just because you asked for it.”
Princewill cautions that vesting orders cannot be used to obtain payment of court costs.
“When people have been dragged through the divorce process, and now they are looking to recover their legal fees, they may think they can ask for a vesting order,” she says.
“Unfortunately, it’s not possible in those cases, as the law is very specific about where vesting orders are appropriate.”
When asking for a vesting order, “It’s important that the equalization numbers are done properly, so that you have the right evidence to present. The court wants to ensure that your request is valid and you’re not just trying to get a windfall,” she says.
“It has to be reasonable and fair under the circumstances.”
Princewill says the complexities around vesting orders is a key reason why they are more effectively used by seasoned lawyers.
“They sometimes are the only way to ensure fairness,” she says, “especially in cases where one person is suffering, while the person with assets is ignoring their obligations to pay up.”