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Posts tagged ‘divorce’

Can Husband Be Forced to Obtain a Separate Home Appraisal?

beautiful house at sunset

Can Husband Be Forced to Obtain a Separate Home Appraisal?

In a recent case called Kraemer v. Kraemer, the court confirmed two important procedural points relating to property valuation:

  • The divorcing spouse who “owns” or controls an asset has the primary obligation to obtain an accurate valuation of it; and
  • In the event of a dispute as to an asset’s value, each spouse may be obliged to get a separate expert appraisal.

The couple had been married for almost 15 years and had three children.   In the course of their divorce proceedings, they ended up asking the court to help with their disagreement over the proper value of the matrimonial home they previously shared.

The wife had had it formally appraised at $735,000.   In contrast, the husband claimed it was worth $800,000, but offered no evidence to support that figure.  He resisted getting an expert appraisal of his own.

To this last point, the court replied:

Mr. Kraemer takes the position that he cannot be required to value the home and, essentially, the value will be decided when the house is sold. In my view, he is wrong in that position.

Indeed, the husband’s (incorrect) position overlooked the core principles that in Family Law proceedings:

  • Each party just take disclosure “very seriously”, and is duty-bound to provide meaningful disclosure of asset values.
  • Each spouse has an obligation to provide credible, realistic values, including independent valuations – not a “guess” or a “fictional amount”.
  • A failure to provide credible evidence to support a value may result in a less-advantageous value being assigned by the court.

On the issue of which spouse is responsible for obtaining an accurate valuation:  The primary responsibility for establishing an asset’s accurate value on the valuation date lies with the spouse who “owns” or controls it.  This is particularly true if that spouse makes an assertion in his or her filed affidavit about the asset’s value.  The spouse then has the burden of proving the stated value is correct;  this may require the input of an expert.  If the other spouse does not agree to the value proposed, then he or she can respond with a valuation from a different expert entirely.

Having reasoned this way, the court found that the husband in this case was obliged by law to hire his own expert to provide a separate, accurate valuation of the matrimonial home.   The court also declined the husband’s requires to treat the latest valuation as a shared expense;  it noted that the wife had already paid for her own valuation, so the overall fees for both appraisals would effectively be split between them.

For the full text of the decision, see:

Kraemer v. Kraemer, 2019 

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

 

Divorce Law 101:  Which Former Spouse Gets the Half-Billion Dollar Yacht?

yacht on water

Divorce Law 101:  Which Former Spouse Gets the Half-Billion Dollar Yacht?

Upon deciding to split up, many couples have to squabble over things like who gets to keep the high-end coffee maker or toaster they received as a wedding gift.  But as divorcing spouses go, it is rare to have to argue over which of them gets the family’s CDN$584 million mega-yacht.

This was the plight of Russian billionaire Farkad Akhmedov and his former wife Tatiana.  As part of their 2016 divorce settlement – which is one of the costliest in the world – Farkad had been ordered by a U.K. court to pay over about 40 percent of his vast fortune to his ex-wife. But the ownership of the 115-metre mega-yacht called “Luna” was still under contention; when Farkad failed to pay Tatiana the CDN$795 million as ordered, she obtained a freezing order from a U.K. court in 2018 that purported to apply to Dubai, where the yacht was docked.  A Dubai court affirmed that the U.K. judgment declaring Tatiana the owner could be enforced.  Local Dubai authorities went ahead and impounded the vessel.

But recently, a Dubai Court of Appeal ruled in Farkad’s favour;  it agreed with his position that the yacht was part of a matrimonial dispute, not a maritime dispute, and that Shariah law should govern the ownership issue. Since the 2016 U.K. order relating to the yacht was ill-founded, the Dubai seizure was also improper.  The Appeal Court added that the Dubai ruling, purporting to find that the U.K. judgment was enforceable in that jurisdiction, was also in error.

It is unlikely that this will be the end of the matter: It is reported that Tatiana intends to resume pursuing her various marriage- and property-related claims in the U.K. courts.  It is also expected that the case will also be forwarded to another Dubai court for a further hearing.

Meanwhile, the mega-yacht is currently still docked in Dubai pending resolution of which of these former spouses is the owner, and under which jurisdiction’s laws.  The yacht is described as having nine decks, two helicopter landing pads, an on-board swimming pool, a mini-submarine, and space for 50 crew.

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

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

In a recent Blog we talked about an Ontario Court of Appeal case called M. v. F.,  where Justice Benotto made some observations about the “win/lose” mentality of provincial child custody laws.  Specifically, she noted that:

“For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.”

That call-to-arms by Justice Benotto has finally been heeded by the federal government, in the form of upcoming changes to the Divorce Act. Those amendments, which are found in Bill C-78 but are not yet in force, have an unwieldy title:  “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”.

Although these Bill C-78 amendments implement a broad and ambitious range of changes to existing Family legislation, one of the more important ones is to replace the terms “custody” and “access” in the Divorce Act with more neutral terms like “parenting orders” and “contact orders”, respectively.  These newer concepts also give courts an embedded opportunity to give specific directions as to the care of children.

That revised Divorce Act wording also acknowledges the fact that family law academics – and judges like Justice Benotto in the M. v. F. case – have long encouraged this tweak to the terminology.  It eliminates the “winner/loser syndrome” she spoke of, as well as the unproductive mindset that the current custody regime fosters.  By allowing courts to grant orders for “parenting” and “contact” instead, the level of parental conflict will be reduced, and by extension the best interests of children will be promoted.

As yet, there is no specific date announced for the implementation of the Divorce Act changes, but they are expected to be rolled out at some point in 2019.

Is this a promising development in the legislation around custody? Will it work in helping to reduce parental conflict, as hoped?  What are your thoughts?

For a copy of the legislative amendments to the Divorce Act, see here.

M v. F., 2015 

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

Divorce Information Centre – New Section

resource

Divorce Information Centre announced a new section today titled, Working With Your Divorce Lawyer. The section provides access to information including:

We Are Now Seeking an Associate Family Lawyer

Russell Alexander Collaborative Family Lawyers is growing and we are seeking an Associate Family Lawyer to join our team! We practice exclusively in all areas of family law at multiple office locations in Ontario. We provide the opportunity to work remotely up to three days a week.

Job Type: Full-time

Salary: $150,000.00 – $200,000.00

Required skills and knowledge:
• Qualified to practice law in Ontario;
• Minimum of 3 years experience in Family Law and litigation;
• Interest and/or Certification in Collaborative Practice;
• Ability to work independently and in a team-environment;
• Strong and effective analytical and problem-solving skills, and excellent writing skills;
• Ability to engage in effective oral advocacy;
• Excellent organizational and time management skills, including attention to detail, and an ability to multi-task;
• High level of professionalism and initiative.

Responsibilities:
• Drafting legal documents, including but not limited to, pleadings, motions, affidavits, financial statements and conference briefs;
• Upkeep on all current client files, as well as bringing in new clients
• Delegating work to law clerks, and working closely with law clerks on files;
• Attending court.

Applications will be kept confidential. Please submit resume and cover letter to reception@russellalexander.com

Long-Overdue Divorce Act Amendments Are Likely On the Horizon

Tree

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

 

GM Oshawa Assembly Plant Closing & Divorce

The Ghosts of GM: Past, Present and Future

On November 26, 2018, the General Motors Company (GM) announced that it will cease allocating new product to its Oshawa assembly plant beyond the end of 2019. This came as a shock to the 2,500 employees who work at the Oshawa plant and the many more who depend on their income. While the jury is still out on whether GM will be laying off or re-training its 2,500 employees, one thing is certain—a large cohort of GM’s employees stand to lose their livelihood.

Whether laid off or re-trained, employees who have a potential, current or settled family law matter will need to govern themselves wisely to weather the impact that closure will have on their day-to-day lives. Accordingly, this post explores the likely, and, not so likely, family law implications of GM’s closure of its once thriving Oshawa assembly plant.

The Ghost of GM Past: Settled Family Law Matters

If your family law matter was previously settled by way of a Separation Agreement or Final Order, the loss of employment income may trigger a review of child support or spousal support, or parenting.

Support obligations

It is likely that the loss of employment income will mean that you cannot afford to pay child support and/or spousal support as set out in a Separation Agreement or Final Order. In the case of a Separation Agreement, you may be able to rely on a built-in review clause to revisit the issue of support. Most Separation Agreements contain a dispute resolution clause which may be the first place to start in this endeavor. In the case of a Final Order, you will likely want to bring a Motion to Change a Final Order if you and your ex-spouse cannot agree on the appropriate adjustment out of court. A qualified lawyer can assist with making this process as seamless as possible.

Parenting

It is not likely that your loss of income will impact settled parenting arrangements. However, you may find yourself needing to reduce your parenting time with the children in order to focus on finding a new job. In this scenario, you may likely need to rely on the dispute resolution clause in your Separation Agreement or bring a Motion to Change a Final Order altering an access schedule in order to achieve the desired relief.

The Ghost of GM Present: Current Family Law Matters

If you are currently going through a legal separation from your spouse, the loss of employment income may affect a number of aspects in your separation, including but not limited to, support, assets and liabilities and alternative career planning.

Child support and spousal support

You may have credible grounds by which to vary a temporary Order for support in your legal proceeding. As an Order for support would have been based on your GM income at the time, the Order may be varied by the new circumstances. You may seek such relief at a pre-trial conference or by bringing a motion. It is not likely, however, that your loss of income resulting from being laid off will extinguish your entire obligation to pay support. Rather, you may still be required to pay support on the basis of employment insurance income or imputed income. However, the extent of any such continuing obligation depends on the particular facts of your case.

Assets and liabilities

The loss of employment income may result in a budgetary deficit, impacting your ability to keep the matrimonial home. If you are no longer able to maintain your share of the mortgage and bills associated with the matrimonial home, it may have to be listed for sale—which may be the most poignant of all of your post-closure concerns. Worry not. There may be options available to you for preventing this outcome such as, a buy-out, borrowing or disposition of investments, RRSPs, RRIFs or your GM pension. However, the viability of these options to save the matrimonial home will need to be assessed against the surrounding issues in your proceeding such as support, equalization and other issues relevant to your case.

Alternative career planning

You may wish to delay your re-entry into the workforce to obtain credentials in a more stable industry. While this will yield economic benefits in the long run, your current financial obligations of support and solvency will be deciding factors. Delayed income generation caused by alternative career training may likely be manageable provided that the financial obligations of your ongoing separation are minimal. However, your freedom and ability to pursue such an undertaking may require a corresponding compromise and will depend on the unique facts of your case.

The Ghost of GM Future: Potential Family Law Matters

If you have been planning to separate from your spouse, the loss of employment income can have significant family law implications on a number of obligations arising in separation, including but not limited to, support, parenting and family property.

Child support and spousal support

It is not likely that being laid off will defer support obligations. You may be obligated to pay support if you receive employment insurance income sufficient enough to meet legislative minimums. If you do not qualify for employment insurance, your spouse may still seek support by imputing an income on you commensurate with your work experience, whereby you will be required to pay support. In either scenario, the obligation to pay child support and spousal support may survive the loss of income depending on the facts of your particular situation.

Parenting

It is likely that being laid off will mean expanded parenting time. While increased parenting time may yield social benefits, it may also impinge on your economic rehabilitation. Your spouse may expect you to dedicate your new found time to caring for young children who are not in school. These, and other significant changes to parenting time after initiating your separation, may likely hinder your re-entry into the workforce. A properly drafted parenting agreement can help by moderating unrealistic expectations.

Family property

You will have a legal duty upon separating from your spouse to avoid the reckless depletion of family property. While you may wish to list personal or real property for sale to help make ends meet, it is not likely that you will be able to freely dispose of family property after your date of separation without your spouse’s prior consent or proper accounting. You will have to be mindful of how you manage family property as mismanagement may prejudice the equalization of net family property and may result in a Court order.

Bottom line

The closure of GM’s Oshawa assembly plant in 2019 will disrupt the lives of many families, the impact of which might be felt most by those dealing with a potential, current or settled family law matter. Contacting a lawyer for legal advice tailored to the particular facts of your case is a proven way to mitigate the effects of an imminent disruption to income. While it may seem impossible to afford a lawyer at this time, there may be options available to finance the cost of much-needed legal representation.

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.

Did Wife’s Lawyer Know of Husband’s Asset?  And Can Court Assume Wife Knew, Too?

Did Wife’s Lawyer Know of Husband’s Asset?  And Can Court Assume Wife Knew, Too?

In a family law decision called Anderson v. McWatt, the Ontario Court of Appeal addressed a narrow evidentiary point:  If one party is truly unaware of a certain fact, but his or her lawyer may have known about it, can a court impute that knowledge to the party?

The background facts involved a former couple who were interior designers with a successful business.  They started living together in 1980, married in 1989, and separated in 2000, after which point they became embroiled in a full 15 years of high-conflict litigation.

Part of that litigation involved apportioning the spouses’ respective interests in a commercial property in Toronto.  Just prior to their 1989 marriage the husband had bought the property, and led the wife to believe was owned by a development corporation that had been set up.  In reality, he put title in his own name only – a fact he did not reveal in his sworn affidavits and financial statements for over a decade after their 2000 separation.  The wife only learned of the true state of affairs in 2012.

The date of her awareness as to title was key:  One of the issues was the point at which her claim to the commercial property was barred under the two-year limitation period. Indeed, the wife amended her pleadings about two years after making the discovery, to add claim based in equity (i.e. claims for unjust enrichment and constructive trust);  however, if it could be shown she knew or should have known earlier, then her legal claim would be barred.

At trial, the judge confirmed that the wife herself did not actually know that the husband held title to the property until 2012, but ruled that she should have known in 2001.  This is because (as the judge concluded) her own lawyer seemed to know about it, based on some comments he made while questioning the husband in 2001.  The upshot of the lawyer’s comments was that the wife “may very well have a claim against the property” and that “We will make our claim as and when we feel we have sufficient facts to base it on.”

On later appeal, the Court of Appeal rejected the trial judge’s conclusion on this point.The lawyer’s statement did not prove that he – or by extension, the wife – knew the husband was the actual owner of the commercial property. At the time of that questioning in 2001 – and for the next decade – the husband had been hiding the facts of his ownership in his sworn court documents. The wife was allowed to rely on this false information, and her own lawyer’s indication that she “may” have a claim was not an admission sufficient to trigger the limitation period. In fact, the Court found that the wife did “all she reasonably could to determine the truth that the [husband] was concealing.”

For the full text of the decision, see:

Anderson v. McWatt, 2016

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