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Case Update: Family Island Dispute Goes to Appeal

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Case Update: Family Island Dispute Goes to Appeal

A few years ago I wrote about a case called Clarke v. Johnson which involved a dispute over a family-owned island on which a camp had been built.
Martha, the matriarch of the family was one-third owner (the other two thirds were owned by her deceased husband’s siblings) and the question was whether Martha’s son-in-law Donald should be allowed to use the camp after his 1991 separation from Martha’s daughter Victoria. In happier times and with Martha’s permission, Victoria and Donald had built a $15,000 pre-fabricated cottage on Martha’s portion of the property. Post-separation, Victoria wanted nothing to do with the camp at all and never visited it even once, whereas Donald continued to use the camp with their children over the years.

One of those children was Wesley, who had been living out west for a decade. When he returned he indicated that he wanted to use the camp, but he and his father Donald got into various conflicts and Donald eventually barred Wesley from using the camp entirely.

Martha then stepped in to threaten Donald with a trespass notice, pointing out that she was the rightful owner of the property. If Donald was unwilling to share it with Wesley and his other children, then his use would be circumscribed.

Donald took the matter to court, claiming an equitable right to occupy the property and camp. Initially, the matter was heard by an Ontario trial court. The appeal of that matter was heard recently, and the original decision was confirmed. The appeal judgment began this way:

A cottage, a camp, a cabin, a country house, a ranch: these are the different names given to second homes across Canada. No matter the description, Canadians’ affinity for their recreational properties is deep, abiding and renowned. This appeal involves such a recreational property, a camp located on Lake Panage near the city of Sudbury in Northern Ontario. …

It was indisputable that Donald had maintained and improved the camp for more than 20 years, paying the bills and taxes, and making improvement such as building a new dock, a new shed, a gazebo, and also reconstructing the sauna, roof and porch; his case for unjust enrichment was made out. In endorsing the trial judge’s decision to craft a minimally-intrusive solution (which used the legal concept of constructive trust and essentially gave Donald a personal, exclusive lifelong license to use the land), the Appeal Court pointed out that it would have been simply inadequate to award him monetary damages in light of the significant emotional attachment to the property. This was a delicate family situation calling for a nuanced solution, and the trial judge’s approach had been reasonable.

For the full text of the decisions, see:

Clarke v. Johnson (2012), 2012 ONSC 4320, 2012

Clarke v. Johnson (2014), 2014 ONCA 237

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

How Long Does Child Support Continue in Ontario? – video

 

Wednesday’s Video Clip: How Long Does Child Support Continue in Ontario?

In Ontario, child support must be paid as long as the child remains a dependent.

In this video we discuss how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

Appeal Court Settles Issue of Time Limits for Constructive Trust Claims Against Land

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Appeal Court Settles Issue of Time Limits for Constructive Trust Claims Against Land

The legal concepts of “constructive trust” and “unjust enrichment” are usually engaged by family courts in order to do justice between separating couples, most often when the separating partners are common-law spouses. In particular – and since there was no traditional marriage to trigger the application of the matrimonial home provisions in the Family Law Act – the constructive trust / unjust enrichment concepts are often applied to determine the rights relating to the home that the separating couple shared. In the typical scenario, legal title to the home is in the name of one of the spouses, but the other one has contributed toward the mortgage payments, or has provided household expenses and child care during the relationship. In the right circumstances, courts will apply the constructive trust / unjust enrichment concept to remedy the injustice of failing to acknowledge and account for the non-titled spouse’s contribution upon separation.

However, in Ontario one of the related and lingering legal questions has been whether there are any time-limits for a non-titled spouse to bring such a constructive trust claim in connection with land. Recently, the question was answered definitively by the Ontario Court of Appeal, in its follow-up to an earlier trial decision in a case called McConnell v. Huxtable, 2014 ONCA 86 (CanLII).

Prior to this decision, there had been two feasible options as to the proper deadline for bringing a constructive trust claim; either it was: 1) a 10-year deadline under the Real Property Limitations Act, or else 2) no deadline at all, because (as the trial court had found) there was a “gap” in the legislation that covered these kinds of constructive trust claims.

In its legally-complex reasons, the Court of Appeal agreed with the trial decision in finding that, for unjust enrichment or constructive claims relating to property (which is the typical scenario involving separating common-law spouses), the deadline (or “limitation period”) for the non-titled spouse to bring his or her claim is 10 years. This covers not only claims where the non-titled person is asking for the court to declare that a remedial trust exists over the land, but also situations where he or she is claiming money. (It does not, however, apply to equitable claims against something other than land, e.g. an RRSP or a pension – in those kinds of situations, the limitation period is two years, not 10).

While perhaps esoteric, the Court of Appeal’s decision clears up a good deal of confusion amongst family lawyers (and by extension, their clients) as to the deadline for bringing their claims – but still underlines the point that delay in doing so should be avoided.

For the full text of the decision, see:

McConnell v. Huxtable, 2014 ONCA 86 (CanLII)  http://canlii.ca/t/g2wrf

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

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Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

The couple, who had married in 1973, separated almost 40 years later. During the marriage the husband had worked at a local mill and mine, while the wife had a traditional role and stayed home to raise their children.

They owned the matrimonial home jointly, and the husband continued to live in it after they split.

The wife applied to the court for an order that the matrimonial home should be listed for sale; she also asked the court to order the husband to pay her occupation rent, pending the eventual sale.

After considering the various factors, the court granted part of her request forcing the home to be listed – even though the home was located in a small mill town where the mill had closed, there was still a market for real estate in the area and the home was to be listed at a mutually-agreed price after consulting with a realtor.

However, the court declined to order the husband to pay occupation rent. Pointing out that its ability to make such an order was fully at its discretion, the court still had to balance the various relevant factors to determine whether ordering occupation rent was reasonable in all the circumstances. It concluded that at this stage, such an order would be premature.

This was because the current arrangement allowed the husband to live in the house inexpensively, so it did not make sense to force him out of the home in the winter when there was no one available to look after it. Instead, the court ordered that the house did not have to be put on the market until April, and the proceeds could be put into trust until the court made another order.

For the full text of the decision, see:

Charron v. Charron (2014), 2014 ONSC 496, 2014 CarswellOnt 694, J. deP. Wright J. (Ont. S.C.J.) [Ontario]  http://canlii.ca/t/g2s0h

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Top 5 questions about spousal support in Ontario, Canada – Video


 

Wednesday Video Clip: Top 5 questions about spousal support in Ontario, Canada
In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support — which is sometimes called “maintenance” or (especially in the U.S.) “alimony” — is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

Can a child support agreement or order be changed? – video

 

 

Wednesday’s Video Clip: Can a child support agreement or order be changed?

If both parents agree, they can simply amend the terms of their existing agreement or they can make a new agreement. The amendment or the new agreement must be in writing, dated, signed by both parents, and each parent must have their signature witnessed.

In order to have the terms of the new agreement enforced by the Family Responsibility Office, The new agreement should be filed with the court where the original one was filed and then mailed to the FRO. If it is not filed with the court, the FRO cannot enforce the new support amount.

MIP — New process mandatory for divorcing spouses in Ontario, Video


 

Wednesday’s Video Clip: MIP — New process mandatory for divorcing spouses in Ontario

In this video we look at the new MIP program for the Ontario Family Court. Effective July 18, 2011, in all contested family cases are subject to new requirements implemented by the Ontario Ministry of the Attorney General, obliging each spouse to attend a mandatory information program or session.

Husband Reneges on Post-Separation House Transfer – What Do Courts Do About Broken Promises?

taxiShould a Cab Driver Lose His Licence for Failing to Pay Support?

As many of you know, in Ontario the government’s Family Responsibility Office (FRO) is charged with the task of helping enforce spousal and child support orders. To do this, the FRO has been given an arsenal of enforcement mechanisms to be used against the parent in default of a support order – including garnishing wages or income tax refunds, having a lien placed on property, and suspending his or her passport.

But one of the more routine enforcement mechanisms is for the FRO to suspend the driver’s license of the defaulting payor until he or she has paid the support arrears or has satisfied other terms of the support order.

Certainly this adds a significant level of inconvenience to the payor’s life, and likely provides a very effective incentive for paying arrears and support. But what happens if that person relies on being able to drive, as a means of earning his or her livelihood?

This was precisely the quandary in the recent Ontario decision in Dumais v. Dumais. There, the father had been ordered to pay about $300 in monthly child support, based on his income. However, he never voluntarily paid that support and quickly fell into arrears which over time totalled about $40,000. The mother applied to the FRO for assistance to enforce the support order and collect the arrears.

The matter came before the court when the father asked to have the arrears rescinded, and to have his support reduced to zero. In this context, the court had to consider whether the FRO’s suspension of the father’s driver’s license was reasonable in the circumstances.

The court observed that if it allowed the license suspension to continue, then the father would lose his job as a taxi driver and have no source of income whatsoever. This, the court found, was counter-productive and moreover would prevent the father from driving to exercising access to his child (who was in the custody of the mother).

Instead, the court arrived at something of a compromise: Rather than allow the FRO to suspend the father’s license for arrears – which it said would be “catastrophic” – it essentially suspended the FRO’s suspension in connection with the arrears only. The father was not totally off the hook, however: Any going-forward support would still be subject to the FRO’s enforcement mechanisms. The husband’s support obligations were reduced slightly, to $267 per month, based on his most recent income levels.

Dumais v. Dumais, 2013 ONSC 5949  http://canlii.ca/t/g0q8x

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

When do the child support guidelines apply? – video

 

 

Wednesday’s Video Clip: When do the child support guidelines apply?

In this video, we review when the child support guidelines apply.

If parents go to court to get a child support order, in almost all cases the court must use the Guidelines to set the amount.

Time To Nominate Your Favorite Law Blogs For the 2013 Clawbies, #clawbies2013

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Time To Nominate Your Favorite Law Blogs For the 2013 Clawbies

Yes it’s that favorite time of year (no not Christmas), time to nominate your favorite law blogs for the 2013 Clawbies.

The top three Canadian blogs that I follow and have caught my attention this year and constitute my nominations for the 2013 Clawbies are:

1. Marla B. Gilsig

Marla is a family law lawyer who writes about all aspects of family law and helps keeps her colleagues and public informed of the changes and trends in family law in British Columbia. Her blog helps people find their way out of the maze of family law and divorce and reminds her clients to consider alternate avenues of resolution. To learn more, visit Marla’ main site.

2. David J. Bilinsky

I had the pleasure of presenting with David at the ABA’s Tech Show in Chicago. I regularly follow David’s blog and he provides “thoughtful” analysis and content on a wide array of subject including technology, tips for busy lawyers and strategic planning. Click to learn more about David’s blog.

3. Michele R.J. Alliontte (last but certainly not least)

Michele’s social media savvy, small town niche, and community activities help elevate her blog to one of my top 3 picks for 2013. Michele provides practical advice and common sense tips for her clients. Her blog covers an array of subjects and serves as a good reminder and sample of how lawyers can effectively communicate with their clients by blogging.top gun

Good luck to everyone who is nominated and to our judges who will have a tough time deciding who are best of the best, cream of the crop, the top guns in legal blogging. With over 400 Canadian legal blogs on the internet it will not be easy finding Goose and Maverick.

Click here to learn more about the 2013 Clawbies.