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Posts tagged ‘division of family property’

Marriage Annulment 101

Marriage Annulment 101

Last week we wrote about whether a scam immigration can be annulled under Canadian divorce law. This provides a good springboard for exploring some basic legal facts pertaining to the concept of an annulment, that many people may not be aware of.

Question:  What is an annulment?

Answer:  An annulment is simply a formal court order that brings an end to a marriage on one of several possible grounds or bases.

From a legal and conceptual standpoint, an order for an annulment renders the marriage void, both retrospectively and prospectively.

Question:  What qualifies a marriage to be annulled in the first place?

Answer:  A marriage can be annulled if it is “defective” in one of several ways.  Specifically, an annulment is available if at least one of the two spouses:

  • Had no legal capacity to marry (due to mental incapacity, intoxication, duress, fraud, etc.);
  • Was under 18 and had no parental consent to marry;
  • Was already married to another person at the time;
  • Was physically unable to consummate the marriage;
  • Was unaware that he or she was participating in a ceremony that results in a real marriage; or
  • Was too-closely related to the other spouse by blood or adoption, as prohibited by law.

Question:  Is a legal annulment the same as a religious one?

Answer:  No.  A legal or judicial annulment is granted by a Canadian court, and pertains to the civil marriage ceremony undergone by the couple.

A religious annulment, on the other hand, involves the rituals or ceremony prescribed by an organized religious; it impacts the religious ceremony that is recognized by the particular faith to which the couple adhere.

Question: Does an annulment eliminate the need for a divorce? 

Answer:  Yes.  If a marriage is formally annulled by a court, then in the eyes of the law it is essentially treated as if it never happened.  This means that a divorce becomes unnecessary.

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 RussellAlexander.com

Can a common-law couple adopt a child?

Can a common-law couple adopt a child?

In Ontario, common-law spouses have the same rights as married spouses to adopt a child; they are also subject to the exact same requirements. These include the requirement that they have both reached the age of 18, that they provide certain documents (e.g. medical reports, police clearance reports, letters of reference, financial statements, and similar) and that they participate in both a home study process and an education program. The home study may be completed either privately, or by a Children’s Aid social worker.

 

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 RussellAlexander.com

 

Despite Canadian Order, Court in India Refuses to Allow Child’s Return

Despite Canadian Order, Court in India Refuses to Allow Child’s Return

Given the impressive multiculturalism of modern-day Canada, it is not uncommon for parents to have originated from different nations before settling down to raise their children here.  But when those same parents later find themselves on the brink of separation or divorce, they may choose to return to their country-of-origin (often to rejoin extended family), and ideally take their children with them.

This can give rise to disputes involving numerous international law issues, including: whether a parent actually has the legal right to do so; which country’s laws and judicial system should govern the matter; where a trial or hearing should be held; and how or whether Family Law orders validly issued in one country can be enforced in a different one.

This last issue was the illuminated in a recent ruling from a court in India.  The decision shows that – as with the courts of all countries — the judgments of Canadian courts are not always respected and enforced, especially when they happen to relate to children.

The ruling emanated from the northern Indian state of Rajasthan, which borders on Pakistan.  Despite the existence of an order by a Canadian court requiring a 10-year-old boy to be returned from there to rejoin his father in Canada, the presiding Indian court concluded that the boy should not be allowed to go.

The boy’s parents, who had lived together in Ontario while married, were now embroiled in a custody dispute over him, post-separation.  The mother took matters into her own hands, and unilaterally decided to move the boy back to India with her, against the father’s wishes. This prompted the father to successfully obtain an order from Family Court judge in Hamilton, Ontario, granting him sole custody of his son, and directing his return.  That order also directed all law enforcement agencies – including INTERPOL – to take enforcement steps as necessary.

The matter then came before the court in India, where the father merely sought to have the pre-existing Ontario court order enforced.

However, the Indian court refused to do so, stating:

“If now he is forced to go back to Canada in the sole care of his father, is likely to psychologically disturb him, particularly when he will be required to now adapt to an education system of that country. This would adversely affect his over all growth and grooming as in the absence of his mother, his father being a busy professional, he is not likely to remain under the care of a Nanny.”

The Indian court was untroubled by the existence of the prior Canadian order stating otherwise; it concluded that it still had the authority to decline the boy’s return in light of what it adjudged to be his best interests.  That remained the prevailing and paramount consideration.

Indeed, the Indian court observed that the existence of the Canadian court order was “only one of the factors” and that it should not get “fixated” with it.   Rather, in these kinds of cases the India court had other factors to consider, too: – such as how settled the child had become in the new country, whether he or she would be exposed to physical or psychological harm, and whether the child’s own views could be ascertained in light of his or her age and maturity.

Applying those tests, the Indian court was satisfied that the child’s removal back to Canada to rejoin his father was not in his best interests in this case, since he had already been living in India for several years, and suffered from some health concerns.  (Still, the court did acknowledge the father’s access rights, by issuing directions specifically mandating that he still be allowed to maintain contact with his son.)

The court added that the boy should be allowed to stay in India until he reached the age of majority, at which time he would be entitled to choose between pursuing citizenship from that country, or else obtain citizenship rights in North America.

See the full text of the Indian court’s judgment, here.

 

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 RussellAlexander.com

 

The Family Law Limited Scope Services Project 

The Family Law Limited Scope Services Project 

The Law Foundation of Ontario recently reported that:

“A new website designed to help Ontarians with their family law needs will officially launch on February 12, at a special reception that will take place at the Law Society of Ontario.

The Family Law Limited Scope Services Project aims to improve access to family justice for middle income Ontarians by increasing the use of limited scope retainers and legal coaching, also known as “unbundled” legal services. These services are an option between full representation and no representation at all. The Project provides access to these services through the website, which includes a searchable roster of trained lawyers who are willing and able to provide such services in communities across Ontario.

The website presents easy-to-understand, step-by-step information on limited scope services and legal coaching in family law matters for both the public and practising lawyers. In addition, it offers practical tools such as checklists, flow charts, precedent retainer agreements, as well as resources and referral information for family legal services in Ontario.

The Family Law Limited Scope Services Project is a collaborative legal project funded by The Law Foundation of Ontario with the aim of improving access to family justice for middle and lower income Ontarians by increasing the use of limited scope retainers (such as court document drafting or in-court representation on a single appearance), legal coaching (lawyer assists client by offering advice, guidance and support) and summary legal counsel (scheduled lawyers provide day-of-court assistance for a fee to unrepresented litigants not eligible for Legal Aid).”

Are “Unbundled” Legal Services in Family Law a Good Thing? Time Will Tell

We examined the issue of unbundled legal services in 2012.

The Ontario family law system sees more than its share of unrepresented litigants; the option to use a lawyer for unbundled services is designed bridge the divide between those who can afford competent legal representation, and those who struggle to do so.

There remain risks that procedural and other issues that could or will arise in the context of litigation.  Further, potential problems inherent in this option may still come to light, and of course there is always the potential that disputes will arise between the client and his or her chosen lawyer, in connection with the particular scope, nature, duration and cost of the services that were agreed to be provided.

The Family Law Limited Scope Services Project website connects clients with lawyer and provides valuable information to litigants which is a step in the right direction for addressing our overburdened family court system.

Divorce Information Centre

Learn more about divorce and the Ontario Court Process at our divorce information centre where you find helpful tips, resources, videos and downloadable ebooks.

Resources include:

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 RussellAlexander.com

Can Scam Immigration Marriage Be Annulled?

Image result for immigration marriage

Can Scam Immigration Marriage Be Annulled?

In this Blog we often focus on divorce, and its fall-out.   A topic that doesn’t come up often, is the effect of immigration fraud on the validity of a marriage.

This unusual issue was the focus in an Ontario case called Grewal v. Kaur, where on a motion for summary judgment the court was faced with the following question in its own words:

“Can immigration fraud, where one spouse has married the other for the sole purpose of acquiring citizenship status in Canada, unbeknownst to the other sponsoring spouse who thought they were entering into a genuine marriage and who was deceived as to the other spouse’s motivation for entering into the marriage, form the legal basis for the granting of an annulment of a marriage, if such can be proven at trial?”

In this case, the husband had been tricked into marriage by the putative wife. His lawyer argued that if for none other than public policy grounds, immigration fraud should be a ground for annulment to discourage anyone from “jumping the queue” in the Canadian immigration system.  It would also deprive the fraudster from being eligible for certain marriage-based remedies under Ontario family law.

The court rejected these policy-based arguments. It held that that changing the law around marriage and annulment would not impact the flow of the immigration system in the least, since the laws governing that regime already define “spouse” to exclude immigration fraudsters.   As for the impact on family law entitlement, the court noted that it is “difficult as a practical matter to conceive that family law remedies would be awarded to a proven immigration fraudster.”

The court also dismissed the added argument that cultural sensitivities might dictate expanding the law in this area, stating:

Certain individuals may be motivated by the belief that for cultural and/or personal reasons an annulment is preferable to a divorce.   While these beliefs may be sincerely held, I see no good reason to recognize a legal right to an annulment. The courts are already having difficulty dealing with the existing volume of pressing criminal, family and civil matters.  I see no public interest in adding to the caseload if the principal motivation relates to saving face or conceptions of personal or family honour.

More to the point, the court concluded that it was bound by several existing Ontario Court of Appeal decisions holding that immigration fraud cannot be relied on to grant an annulment, even where – as here – one spouse had tricked the other into marriage for the sole purpose of acquiring citizenship status in Canada.  If the prevailing caselaw on this point was ripe for being overturned based on public policy and related arguments, then this was a task that only the Court of Appeal itself could do.

In short, the court concluded that the grounds for granting an annulment have already been firmly set by legislation; there was no reason to try to expand them to include immigration fraud even where it involved deception of one spouse by the other.

For the full text of the decision, see:

Grewal v. Kaur, 2009 

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 RussellAlexander.com

 

 

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

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, family lawyer Russell Alexander discusses how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

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 RussellAlexander.com

Does Employer Discriminate Against Woman Who Lacked Child-Care?

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Does Employer Discriminate Against Woman Who Lacked Child-Care?

“Family status” is one of the prohibited grounds of workplace discrimination under the Ontario Human Rights Code.  It is defined as “the status of being in a parent and child relationship.”

The scope of an employer’s duty to accommodate an employee’s “family status” was the focus of a recent case called Peternel v. Custom Granite & Marble Ltd. where the court heard a human rights complaint by a woman who was returning to her job from having taken maternity leave.  She claimed the employer had discriminated against her by requiring her to report to work each day at 8:30 a.m., even though she had no morning child-care for two of her three children.  She claimed this was tantamount to a failure to accommodate her “family status” under human rights legislation, and asked for six months’ pay and $20,000 in punitive damages.

The woman had started to work for the small company – which made and installed granite counters — in 2010, taking on the role of scheduler.  And important part of her job was to respond to early-morning calls and attend morning meetings, and the woman acknowledged that an 8:30 a.m. start-time was one of the stipulations in her job description.  Still, during the years leading up to the birth of the woman’s third child, the employer had accommodated her child-related needs to some extent, for example by giving her a cellphone that allowed her to make work early-morning work-related calls from her home.

But in 2015, while the woman was still on maternity leave, the employer advised that upon her return she would be required to consistently report to work at 8:30 a.m., due to changes in the workplace. The employer gave her time to try to find child-care, but she was unable to do so in advance of her return date.

The employer did offer her an alternative job, at comparable pay, that would allow her to start work mid-morning, rather than at 8:30.   However, the woman did not even respond to that offer; instead she chose not to return to work when her maternity leave came to an end.

In light of these facts, and after pointing out some issues with the woman’s credibility, the court dismissed her discrimination claim.   The court concluded that she had essentially frustrated the employer’s efforts to accommodate her.

First, the court noted contradictions in the woman’s dealings with the employer, and some discrepancies in her evidence to the court.  For example, she had told the employer that she could not come into work by 8:30 a.m. because she needed to take her children to the school bus; however, the court noted the woman’s mother lived with them, and was often called upon to watch the children including taking early mornings when the woman’s job absolutely required it.

After shining light on further discrepancies, the court noted:

Taken as a whole, the evidence leads me to conclude that [the employer] Custom was a good employer to the plaintiff. Custom allowed the plaintiff flexibility with her hours, and showed her sympathy and accommodation following earlier miscarriages and throughout her last pregnancy. In return, Custom expected and understood that the plaintiff would be able to come to work in the early morning when required, and be willing and able to field early morning telephone calls from home or en route to work.

When it came time to accommodate her third child, the employer was ill-positioned since the woman had not provided key information concerning her need for accommodation, and not given details about her efforts to secure child care.

By law, all employees have a positive duty to cooperate with an employer as part of the human rights accommodation process, which includes providing information concerning family-related needs, and working with the employer to identify possible solutions.  In this case, the woman had simply failed to provide the employer with the information it needed to accommodate her.

For the full text of the decision, see:

Peternel v. Custom Granite & Marble Ltd., 2018 

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 RussellAlexander.com

 

 

 

Long-Overdue Divorce Act Amendments Are Likely On the Horizon

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Long-Overdue Divorce Act Amendments Are Likely On the Horizon

Canadian law has not seen a substantive change to the federal Divorce Act in more than 30 years.  But with the mid-2018 introduction of Bill C-78 (which has the unwieldy title of “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”) that long-overdue revision and update is in sight.

Bill C-78, which is expected to be passed into law in 2019, is touted as having a long list of legal substantive and procedural objectives, including:

  • Simplifying certain processes, including those related to family support obligations;
  • Creating duties for parties and legal advisers to encourage the use of family dispute resolution processes (including negotiation, mediation, and collaborative law);
  • Introducing measures to assist the courts in addressing family violence; and
  • Establishing a framework for the relocation of a child.

Importantly, the Bill also proposes to give clarity to what is considered the “best interests of the child”, by establishing a non-exhaustive list of criteria.  It also strengthens the court’s ability to focus on a child’s best interest when crafting its orders, by mandating that the court consider the child’s own views and preferences in the context of his or her age and maturity (unless those views cannot be ascertained in the circumstances).  This is in keeping with existing court rulings on the point, and essentially imports the established principles into a more modern version of the statute.

Bill C-78 also injects two important concepts into the existing legislation:

  • That part of fostering the “best interests of the child” requires a court to consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; and
  • That grandparents, or other persons who play an important part in a child’s life, may be eligible to obtain a court order formally entitling them to have contact with the child.

Finally, the Bill updates terminology throughout the existing Divorce Act, so that references to “custody” and “access” are replaced with terminology related to “parenting” and “decision-making responsibility” instead.

In a nutshell, the changes proposed under Bill C-78 are designed to clarify and promote some well-established family law principles (especially those relating to children), and to make the family justice system more accessible and efficient.  Further updates on these pending changes will follow in future Blogs, as the Bill gets closer to being passed.

At Russell Alexander Collaborative 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 RussellAlexander.com