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Posts tagged ‘Family Law Act’

Is the Our Definition of “Spouse” Evolving?

spouse

Is the Our Definition of “Spouse” Evolving?

In Ontario, the Family Law Act (FLA) is the key legislation governing the “the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the [marriage] partnership”, as the FLA’s preamble expressly states. For the purpose of that exercise, the term “spouse” is defined in section 1 to include two persons who are actually legally married, or who in good faith entered into a marriage that turned out to be void or voidable. (And note that the definition is not limited to male-and-female partnerships only; the definition expressly uses the gender-neutral “two persons”).

However, the FLA also broadens the definition of “spouse” for certain purposes, most notably for determining support obligations between ex-spouses and between former partners in common-law relationships. In section 29 of the FLA the term “spouse” is expanded to encompass two unmarried persons who a) have cohabited for no less than three years, or b) are “in a relationship of some permanence” and have a child together.

That last term – a “relationship of some permanence” – might be somewhat difficult to quantify, and courts sometimes struggle to put their collective judicial finger on where the line is to be drawn.

In an interesting recent decision from the British Columbia Court of Appeal called Weber v. Leclerc, the Court grappled with the meaning to be given to the analogous term – namely cohabiting in a “marriage-like relationship” – that is found in the equivalent family law legislation in the province. In particular, the Court considered the effect that societal norms may have on precisely where that fine line may be drawn.

The court had been asked to determine whether two unmarried former partners, who happened to keep respective finances separate throughout their now-ended union, nonetheless met the legislative criterion for a “marriage-like” relationship. In this context the B.C. Court of Appeal observed:

“Marriage-Like Relationship”

The parties have referred to three decisions of this Court that have addressed the scope of definitions of “spouse” similar to the one in the FLA … It is noteworthy that the cases span a considerable period of time – a significant factor in terms of an expression like “marriage-like relationship”. Social norms surrounding marriage have changed considerably over the years, and it should not be surprising that, along with those changes, evaluations of what relationships are “marriage-like” have also evolved.

Later in the judgment, the Court added:

[The woman] argues that approaches like that taken in [those prior Court decisions] are nothing more than “checklists”, and do not adequately analyse the nature of a relationship. While I agree that a checklist approach is not appropriate, it is my view that cases like [those] are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship.

With that said, the Appeal Court did acknowledge that the parties’ intentions – particularly the expectation of a long, indeterminate relationship – may also be important when assessing whether the “marriage-like” standard has been met in any given case. However, it also stressed that mere intentions are not enough; rather they must be coupled with objective evidence of the parties’ lifestyle and interacts.

Should family-legislation concepts and terms such as “a marriage-like relationship” or “a relationship of some permanence” be influenced by social norms and expectations? What are your thoughts?

For the full text of the decision, see:

Weber v. Leclerc, 2015 BCCA 492

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

Was Your Marriage Contract Signed “Under Duress”?

duress

Was Your Marriage Contract Signed “Under Duress”?

About-to-be-married couples are wise to protect themselves by signing a marriage contract beforehand. But the key to having those agreements hold up is that they must be freely and voluntarily executed.

We’ve all heard stories of pre-nuptial contracts being signed by the happy couple on their wedding day, virtually on the altar. Or else cases where the couple are negotiating the agreement for months, against the backdrop of a year of planning and thousands of dollars in deposits laid down, and it’s finally signed at a time when pre-wedding stress is at an all-time high.

Are marriage contracts signed under these conditions worth the (embossed) paper they are written on?
In Ontario, the Family Law Act and the related jurisprudence says: “it depends”. First of all, the legislation lays out certain types of clauses that are never valid (such as a clause attempting to prohibit a spouse from remarrying after separation), and sets out various scenarios that can prompt the court set aside all or part of a marriage contract. Among those scenarios – by general reference to basic contract principles established in the cases – is the concept that a contract that was signed under duress will not be enforced in law.

“Duress” is colloquially regarded to mean those situations where one intended spouse has put some sort of pressure on the other spouse to sign what is usually alleged after-the-fact to be an unfavourable, unfair, or one-sided agreement.

Legally, the meaning is a bit more precise, even though the Family Law Act itself does not contain a definition for this term. However, in a case called Ludmer v. Ludmer, the court examined the nature of duress, stating:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

So what forms does “duress” take, in the real world? In the case we commented on last week, Shair v. Shair, the court considered whether the wife had been subject to duress in signing a marriage contract that she later complained had stripped her of certain support rights that she would otherwise have under the Family Law Act and Divorce Act.

However, the court rejected her claim that she signed the agreement out of duress, finding instead that she:

“…chose to sign it voluntarily as she wanted to be married and she trusted that the Applicant husband would treat her fairly independent of the clear language of the marriage contract. The option of not signing the marriage contract in the form as presented and returning to Romania, or extending her visa, were both open to her and she pursued neither.”

For the full text of the decisions, see

Ludmer v. Ludmer, 2013 ONSC 784, [2013] O.J. No. 699

Shair v. Shair, [2015] O.J. No. 4883, 2015 ONSC 5816

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

In Family Law, “Disclosure” Means “Full Disclosure”

disclosure

In Family Law, “Disclosure” Means “Full Disclosure”

In a recent case the court examined in detail the so-called “disclosure” that had been provided by the husband in a matrimonial dispute, and the effect any deficiencies might have on the legal validity of a negotiated marriage contract that relied on that information.

As background, the spouses had met almost 20 years ago in the now-47-year old wife’s native Romania where she worked as a cosmetician. She also owned her own condominium while studying social psychology. The husband, now aged 61, had sponsored her to come to Canada. After having a traditional marriage for 18 years, they decided to separate.

At the time of their union they had entered into a relatively straightforward marriage contract in which each of them waived spousal support from the other. The validity of this marriage contract became an issue requiring the court’s determination, since its purported effect was to foreclose the wife from pursuing the spousal support to which she would otherwise be eligible under Ontario law.

The wife complained that the marriage contract was unfair: It’s In the actual wording of the contract the husband had failed to disclose the full extent of his assets, liabilities and debts, and had been vague and incomplete in his job description, all of which might have affected the calculation of any spousal support entitlement she might have had under the contract.

The wife’s allegations of non-disclosure were important because section 56(4) of the Ontario Family Law Act specifically allows a marriage contract to be set aside if one of the spouses fails to disclose significant assets, debts or liabilities when the marriage contract was made.

The court considered the circumstances, and pointed out that in the context of negotiating a domestic contract, the duty to make full and honest disclosure is required to protect the integrity of the result of negotiations undertaken in the “uniquely vulnerable circumstances” inherent in marital disputes. In this case, the court observed:

It cannot be said that the Applicant husband provided complete, fair and frank disclosure of his relevant financial information. Clearly he did not. The marriage contract refers only to his job as a mechanic, not a business owner, and his ownership of a family residence, not a commercial building. It is not enough that he told the Applicant wife he owned his home and worked as a mechanic. It is further not enough if he told her he owned the Bloor Street property and his own mechanic business. The Applicant husband never disclosed the market value of his home, the market value of the Bloor Street property, or any mortgages thereunder. He never disclosed the value of his companies, or his belongings including his tools which he values at $25,000-$30,000. The Applicant husband did not tell the Respondent wife anything about his income and he did not produce his income tax returns or bank statements to her or [her lawyer]. I have concluded, therefore, that the Respondent wife has satisfied her onus of proving her circumstances fall within s. 56(4)(a) of the Family Law Act.

(The court was quick to add that the husband had no lied about this information; rather it found he “simply did not disclose his assets, debts and liabilities in a meaningful way”).

Still, the court made several factual findings that precluded a decision to set the marriage contract aside entirely, including the observation that even with full disclosure as to assets and incomes, the wife’s spousal support entitlement would not have changed (since the contract itself did not refer to the business, commercial building, property value, income, or the value of his various companies). The contract remained legally valid because the husband’s “shortcomings in disclosure did not impact significantly upon the final agreement reached between the parties”. More importantly, the wife had independent legal advice prior to signing it, and ample written opinions from lawyers advising against doing so, which advice she chose to ignore.

Still, the court set the contract aside because it left matters in an unconscionable state in light of the sacrifices the wife made to come to Canada from Romania almost 20 years ago: she was allowed to pursue a claim for spousal support pursuant to the provisions of the Family Law Act.

For the full text of the decision, see:

Shair v. Shair, [2015] O.J. No. 4883, 2015 ONSC 5816

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

Should Court Grant Restraining Order to Block Ex from Posting “Private Intimate Information”?

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Should Court Grant Restraining Order to Block Ex from Posting “Private Intimate Information”?

The legal question in a recent case called Lawrence v Bassett was a straightforward one: Under the Ontario Family Law Act, is a court authorized to grant a Restraining Order preventing someone posting scandalous details about their Ex on the internet?

In that case, after the former couple split up the woman had asked for the court’s assistance to prevent the man from carrying out his threats to publish what the court termed was information about her “private intimate relations” on the Web. The woman considered these threats to be harassment, and felt they were intended by the man as a way of deterring her from seeking remedies from the court.

They ended up settling their differences, with the man voluntarily agreeing in writing to refrain from “disseminating, posting on the internet, distributing or publishing in any manner whatsoever (including in documents filed with the court), whether directly or indirectly, any statements, depictions, descriptions or commentary that reference by name or innuendo anything related to the [woman’s] personal intimate relations.”

The court granted a temporary Order in these exact terms, but when the woman wanted to have it extended, the matter came back before the court for its fuller consideration of the legal issues at stake.

The woman had sought the court’s help based on the provisions of the Ontario Family Law Act, which under section 46 allows the court to grant a Restraining Order if the woman had “reasonable grounds” to fear for her own safety. Looking at the section’s wording and at previous cases, it was clear that to succeed in getting the Order the woman’s fear:

1) had to be reasonable;

2) could be entirely subjective as long as it was legitimately-held; and

3) could involve psychological safety as well as physical safety.

Also, the purpose of this provision was to allow both parties the chance to conduct their litigation in “as reasoned an atmosphere as may be possible”, and to provide them with “some element of order in the context of difficult and acrimonious litigation”. This, the court emphasized, was especially important when there is a child involved, as was the case between the man and woman here.

In accepting the woman’s evidence that the man was using his emailed threats as a weapon to deter her from proceeding to court, the court noted that it had to be responsive to the changing nature of the type of conduct that could give rise to “reasonable grounds” to fear for one’s safety, as section 46 required. Courts also needed to bear in mind the “evolving nature of the internet and the profound, pervasive and permanent impact such communications could have.”

In this case, even if it was a subjective fear on her part, the woman had reasonable grounds to fear that without the Restraining Order her psychological and emotional safety were at risk. Since she also had custody of the child, it could be inferred that she had reasonable grounds to fear for his psychological and emotional safety as well, particularly given “the risk of this information leaving a digital footprint for years to come, of which the child may well become aware in the future.”

The court therefore extended the original Restraining Order indefinitely, until there was a further court order otherwise.

For the full text of the decision, see:

Lawrence v Bassett, 2015 ONSC 3707 (CanLII)

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

Does Wife Get Unequal Share Due to Husband’s Extra-Marital Affairs?

aff

Does Wife Get Unequal Share Due to Husband’s Extra-Marital Affairs?

An interesting question arose in a recent Ontario case: Should a wife get an unequal share in the division of family property upon divorce, based on the fact that the husband had extra-marital affairs?

The facts involved a couple who had been married 29 years. They had met when the wife was 15 years old and in high school, and he was 24. He worked full-time since their marriage, and the wife worked until the birth of the first of their two children.
They separated, and as part of their divorce proceedings the wife applied to have the family property divided under the Ontario Family Law Act (FLA). When it came time to equalize the couple’s Net Family Property under the provisions of the Family Law Act, the wife claimed that she was entitled to an unequal share on various grounds, including the fact that the husband had had repeatedly cheated on her during the marriage.

The court reviewed the FLA provision (namely, s. 5(6)) that allows for a spouse to get an unequal share where “unconscionability” arises in defined circumstances. That section contains eight factors a court is entitled to consider in assessing the unconscionability of what would otherwise be an equal division:

a) Lack of disclosure of debts/liabilities at marriage;

b) There are debts/liabilities claimed to reduce NFP which were incurred recklessly or in bad faith;

c) A spouse’s NFP consisted of gifts from the other spouse;

d) A spouse intentionally or recklessly depleted his or her NFP;

e) Where the couple lived together less than 5 years, the share received by a spouse would be disproportionately large;

f) One spouse incurred a disproportionately larger amount of debt/liability than the other, in order to support the family;

g) There is a written agreement between spouses that is not a domestic contract; or

h) Any other circumstance relating to acquiring, disposing, preserving, maintaining or improving property.

The court determined that – no matter how morally objectionable or emotionally hurtful the husband’s conduct may have been – the court was not entitled to compensate for it with a higher award to the wife in this case. On a straightforward reading of the eight factors, the husband’s affairs did not fall into any of the categories; most notably, the husband’s affairs did not have any significant effect on the couple’s debts, liabilities, or property. As the court wrote:

Husband’s affairs

[47] The wife seemed to think that the nature, extent, or duration of the extramarital affairs engaged in by the husband, his having left evidence of the affairs where the wife could and did find it, or his having allowed one or more women to discover where he was living, so that the wife had to speak to or otherwise deal with one or more of these women, came within the enumerated considerations in section 5(6).

[48] A somewhat similar argument was raised before me in Biant v Sagoo, [2001] OJ no 1685 (SCJ Fam Ct), where the wife sought compensation under section 5(6) for a sum of between $20,000 and $50,000 spent by the husband over a number of years on jewellery and travel for “the mistress”. In rejecting the wife’s claim, I said (at para 126),

It would be a novel proposition that a philandering spouse is responsible under subsection 5(6) for paying to the other spouse a sum equal to the cost of an affair, either direct costs (jewellery and such) or indirect costs (diminished profits from business). … There was no evidence that the husband’s expenditures materially affected the family in any way and certainly no evidence that the wife has been called on to shoulder any portion of them.

[49] However morally objectionable or emotionally harmful the husband’s conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. There was no evidence in this case that the husband’s affairs had any significant effect on the parties’ debts, liabilities, or property. There is accordingly no remedy under section 5(6) for the matrimonial misconduct of the husband. Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.

Having rejected this line of argument, the court went on to assess other legal aspects of the parties’ respective claims.

For the full text of the decision, see:

Cosentino v. Cosentino (2015), 2015 CarswellOnt 196, 2015 ONSC 271

 

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 Mortgages Home Without Wife’s Knowledge, Based on False Statement – Yet Mortgage Not Set Aside

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Husband Mortgages Home Without Wife’s Knowledge, Based on False Statement – Yet Mortgage Not Set Aside

In this unusual recent case, the outcome on a motion is not what you’d likely expect: the lender to a likely-fraudulent husband – who unbeknownst to the wife got a mortgage on the home they shared – was successful (for now) in resisting the wife’s motion to have that questionable mortgage set aside.

The couple had been married for 17 years, but throughout the course of the marriage the title to the matrimonial home was in the husband’s name only. Without the wife’s knowledge or consent, the husband obtained a $45,000 mortgage on the home from the lender; to achieve this, he had an untrue statement registered on title to the effect that “I am separated from my spouse and the property was not ordinarily occupied by us at the time of our separation as our family residence.” The same false statement was also repeated on the registration of the mortgage, and on a signed statement given to the lender by the husband.

(This deceptive statement was necessary because otherwise, under s. 21(1) of the Ontario Family Law Act, a spouse cannot “dispose of or encumber” an interest in the matrimonial home unless the other spouse consents, or if a separation agreement or court order allows it. And because the wife’s name was not on title in this case, the lender did not get notice that it was (or may be) a matrimonial home).

Not surprisingly, the wife brought a motion to set this mortgage aside, claiming among other things that the husband’s self-serving affidavit should not have been relied on by the lender to advance the mortgage funds. The lender opposed it, on the basis that the mortgage was actually valid and had been made in good faith, and that at the time it was given, the lender did not have notice that the property was a matrimonial home.

(The lender’s stated position sought to bring the transaction within the wording of s. 21(2) of the Family Law Act, which states that if a spouse encumbers the home in breach of s. 21(1), then the transaction can be set aside unless the person holding the interest (in this case, the lender) acquired it “for value, in good faith and without notice … that the property was a matrimonial home”. The other possible exception, under s. 21(3), is where the encumbering spouse makes a statement that he or she is separated, and that the property was not ordinarily occupied by the spouses as a family residence).

Perhaps surprisingly, the wife’s motion to set aside the mortgage was dismissed.

In a nutshell, there was insufficient evidence in the wife’s favour. There was nothing to suggest that the lender knew the couple, or that the lender and the husband were in collusion. The particular circumstances did not give rise to a scenario that would invite suspicion by the lender, to the extent that it should reasonably required to make inquiries about the home’s status or obtain a statement from the wife that the property was not a matrimonial home.

Instead – and absent other evidence – the court was duty-bound to assume that this was an arm’s-length transaction, and that the lender was a bona fide third-party lender. Here, there were no hallmarks that would put the lender on notice that the property was occupied as a family home; these were generally things such as the couple having the same address, or the mortgage application having information suggesting this was a family residence.

Rather, for Family Law Act purposes, the husband’s statement (though false) was sufficient “proof” that the property was not a matrimonial home – unless the lender had notice to the contrary. In this particular case, the lender did not, and the husband’s bald statement that he was separated did not put the lender on inquiry to determine the property’s status.

As the court put it:

It is certainly unfortunate that a borrowing spouse would make a false self-serving statement which results in an encumbrance on a matrimonial home without the knowledge or consent of the other spouse. Nevertheless, the issue here in whether the lender acquired the mortgage for value in good faith and without notice that the property was a matrimonial home.
The law has not yet advanced to the stage where lenders are required to look behind the statements of the borrowers. The lender was not required to obtain a statement from the wife that the property was not a matrimonial home.

In the circumstances the court could not justify setting aside the mortgage, and – because only the husband held title to the matrimonial home – the wife was not entitled to make a claim for equity in the home. Rather, she was only entitled (eventually) to an equalization payment based on the husband’s ownership.

(In simpler terms: the mortgage was not immediately set aside, but the parties’ respective rights would be untangled during later Family Law proceedings).

With that said, the court did order that there were to be no further dealings with the property, until the parties resolved their issues in those Family Law proceedings or until another court ordered otherwise. The wife was awarded her legal costs, however.

For the full text of the decision, see:

Yasmin v. Tariq, 2015 CarswellOnt 3825, 2015 ONSC 1248

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

Protecting your Inheritance: Lesson’s learned

Protecting assets

Protecting your Inheritance: Lesson’s learned

We recently came across Jeff Lander’s article Divorcing Women: Here’s How to Protect Your Inheritances and Gifts published in Forbes. Jeff provides some valuable insight into the lessons that can be learned for Americans from the divorce of Karen from her estranged husband, Gary before it’s too late for others to protect their inheritances.

The lesson’s provided in Jeff’s article can be applied similarly to Women in Ontario although the law is applied here in a slightly different way. One difference in Ontario is that instead of labeling property as “marital property” or “separate property” the Family Law Act simply looks at all of a party’s property at the date of marriage, and then excludes certain types of property from the final calculation. Jeff’s article is applicable because one of the types of property that can be excluded from the final calculation at the date of marriage is inheritances. This creates a similar result when considering inheritances as when Jeff uses marital vs. separate property.

Just like in America, in Ontario inheritances will only be excluded if they have not been “mixed” into martial property and can be easily traced. This means that like in Jeff’s article there are important financial planning considerations for any women receiving an inheritance in Ontario. The best solution for a party receiving a gift or inheritance is to simply keep the money involved in a separate investment account.

Jeff’s article also makes an interesting distinction between property distribution schemes in different states. In Ontario we use the term “net family property” which is calculated by looking at each party’s property at the date of separation and subtracting any property owned by that party at the date of marriage. The party with a larger net family property must make an “equalization payment” usually in cash but sometimes in property to the other party in order to equalize marital property. This scheme is much more similar to the community property distribution schemes described by Jeff then the equitable distribution schemes and as such it becomes clear why a party would want to exclude their inheritance from the net family property calculation.

Perhaps unsurprisingly, during their relationships most married couples are loath to even consider that they should take steps to protect themselves against their spouses. As a result it still remains a common problem in divorces that inheritances which were meant to be individual gifts ultimately end up as shared marital property.

To learn more about divorce in Ontario, contact Russell Alexander, Collaborative Family Lawyers. We focus exclusively on 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 our main site.

Top 10 Tips on Drafting Domestic Contracts

contract

Top 10 Tips on Drafting Domestic Contracts

Any domestic agreement (which in Ontario can include a marriage contract, cohabitation agreement or separation agreement), must be drafted with great care and attention to detail. After all, it is a binding legal contract that – when done right – will govern the rights and responsibilities of the spouses or relationship partners who have entered into it.

 

At the risk of stating the obvious:   If you want a good, airtight domestic contract, you should see an experienced lawyer who specializes in Family Law.   Among other reasons, this is because the provincial Family Law Act that governs many of the matters that are purportedly covered by domestic contracts, and it is vital to understand the interplay between the legislation and any agreement you may reach with your spouse.

 

But before you consult a lawyer, here are some tips that we can provide in order to help formulate the types of issues you want to address in your own domestic contract, and to help you understand and navigate the agreement-drafting process:

Tip 1:Be Thorough

  •  Any good domestic contract must cover all the legal points, avoid inadvertent loopholes, and withstand the passage of time. It should also contemplate certain tangential implications (such as income tax consequences), and should provide for a mechanism by which any disputes are to be resolved.

Tip 2: Be Precise

  •  The agreement must also be in clear precise language that you and your spouse can easily understand and follow.   Legal jargon – or “legalese” as it is sometimes called – should be avoided; this includes old-fashioned terms such as “party of the first part”, “aforesaid” and “hereafter”.

Tip 3: Confirm the Facts

  •  Makes sure that the statements and pre-suppositions that form the basis of the agreement are factually correct. This includes obvious things such each spouse’s legal name and the address of any homes or recreational properties; but it also includes making sure that any dates or date-ranges, business addresses and bank account numbers referred to in the agreement are reflected with precision.

Tip 4:  Be Specific

  •  Individual or family assets should be itemized and described in great detail, to avoid uncertainty and confusion. This naturally includes physical tangible objects, but can also include more esoteric items such as corporate shares, interests in timeshare properties, etc.   It is wise to include long lists of items in a Schedule to the agreement rather than the main body, to avoid cluttering the main part of the agreement, and to allow for easier amendment of those lists if necessary.

Tip 5: Avoid the Kits

  •  There are some domestic agreement “kits” on the market, that purport to provide legal clauses that can be customized to suit.   However, these should be avoided, because One Size Usually Fits None.   Indeed, it is dangerous to use any precedent unless you fully understand its meaning and the legal implications; that’s what lawyers are for.

Tip 6: Avoid Boilerplate, Too

  •  Similarly, even if you avoid the pre-fabricated agreements, it’s important to beware of using standardized “boilerplate” clauses, that are drafted broadly and aimed at covering off a wide range of scenarios and contingencies. Only rarely will these provide the best coverage of your unique situation.

Tip 7: Try to Guess the Future

  •  The agreement should contemplate that there may be gradual changes over time, or that certain likely events may arise in the future.   These might include changes in custody, or the re-marriage of one or both spouses, for example. These kinds of potential scenarios should be discussed with your spouse and reflected in the agreement whenever possible.

Tip 8: Watch Out for Loose Ends

  • In tandem with the need to address future contingencies is the need to identify “loose ends” and “loopholes” in the drafted agreement. This is another area where the advice of a good Family Law lawyer is particularly helpful.

Tip 9: Be Realistic

  • Although the agreement should be comprehensive, it cannot possibly purport to govern every aspect of either spouse’s day-to-day living.   Terms or obligations that are unrealistic or too difficult to live by will be the first ones that get breached, with a dispute between spouses being the inevitable consequence.

Tip 10: Get it Reviewed

  • Most domestic agreements are drafted during a point in time when the two of you are in a positive, happy, pro-relationship headspace (e.g. in the case of pre-nuptial contracts or cohabitation agreements), and it’s precisely the time when many important matters can get overlooked, glossed over, or brushed aside as “unimportant”.   It’s therefore particularly important to have such agreements reviewed by a lawyer specializing in Family Law: Not only will that lawyer know the law and apply a trained eye to the wording of the document, but he or she will emphasize the need for each of you to get independent legal advice.

These tips are just a starting-point, but they go a long way toward making sure that any domestic contract that you draft will have the intended effect between you and your spouse.   This in turn will avoid disputes – or worse, having the agreement (or parts of it) be overturned by a court.

 

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 our main site.

 

Does Large Age Gap Between Spouses Dictate an Unequal NFP Division?

 unequal

Does Large Age Gap Between Spouses Dictate an Unequal NFP Division?

The old-fashioned term for it is a “May-December” marriage, where one spouse is considerably younger than the other. Think Ashton Kutcher and Demi Moore (and we all know how that worked out!).

In a recent case called Dnistrianskyj v. Savard, the much-younger wife raised the argument that she should be awarded an unequal division of Net Family Property (NFP) because she had married very young to an older man, and that unless there was an adjustment she would not get sufficient financial support from him now that he was on the brink of retirement.

The woman worked as a babysitter for the husband and his first wife from the time she was approximately 12 years old. The woman and the first wife became friends, and she would sometimes accompany then on vacations to help with the care of the three children.

When the husband was 36 and the woman was 17, the first wife died suddenly from a heart-related issue. Only a few months later, the husband initiated a sexual relationship with woman; because the husband was an RCMP office and he was concerned about being found cohabiting with a minor, they hid the relationship for a time, especially from the children and the first wife’s parents. Nonetheless, they eventually moved in together “officially”, and were married in 1989. They separated about 20 years later.

The court chronicled the wife’s complaints in the period leading up to separation this way:

During that time, the relationship between the parties was experiencing difficulty. [The wife] indicated that there was a sense that [the husband] saw her role within the marriage as a “maid with benefits”, meaning that her job was to do the childcare, cooking and housekeeping, as well as to satisfy [the husband] in the bedroom. He insisted that she not be involved in family finances or in decisions regarding “his” family, notwithstanding that they were married and she was the primary caregiver for [the three children]. [The wife] said that she was young compared to him and vulnerable, as she was not working and was estranged from her family. If she argued with his authority, he would threaten divorce and, at times, would pack her suitcase and take her to a hotel. After staying a night she would need to beg him to be allowed to come back. He would, at times, take her car keys away from her. Letters written by [the husband] supported her view of the relationship during this time.

Against this background, and in addition to numerous other legal issues, the court considered the valuation of the wife’s share in connection with their respective NFP amounts. It noted that the court had the discretion to award a spouse an amount that is greater or less than the NFP in cases where to do otherwise would be “unconscionable”, having regard to various specific factors.

Noting that the test of unconscionability is exceptionally high, and that it covers scenarios that “shock the conscience of the court”, the court evaluated the wife’s claim that her overall circumstances were unfair considering her contributions to the husband’s family, the age difference, the need to be re-educated after separation, and especially the period of cohabitation before marriage when she was only 17 years old. She claimed that these considerations were not adequately addressed by whatever spousal support she might receive in the divorce settlement.

In response to this, the court said:

However, in her evidence [the wife] did not present herself as someone who was weak or oppressed, or wronged by what turned out to be her life. Without a doubt she was young and vulnerable when she started her relationship with [the husband]. But she was also headstrong and determined. Her parents tried to alter the path she was on, with no success. In her evidence, [the wife] said that she recognized her own responsibility in choosing her circumstances, and that she made those decisions as she loved [the husband] and she loved his children. With the hindsight of a 44 year old adult, she said that she did not regret much. She certainly grew and matured with time, dealing with some very difficult issues within the family with dignity and composure.

As a result, the court found that the requisite level of “unconscionabilty” was not met in this case, to the extent that an unequal division of NFP should be ordered. The court concluded:

[The woman] had a general sense of the unfairness of having married very young to an older man who was now seeking to withdraw from the workforce when she would benefit from his financial support. I accept that. However, I am unable to find that this rises to the level of unconscionability under [the Family Law Act] such that it shocks my conscience. I also find that the relief under [the Act] must be tied to the acquisition, disposition, preservation, maintenance or improvement of property, and that has not been made out in this case.

For the full text of the decision, see:

Dnistrianskyj v. Savard, 2014 ONSC 2152, 2014 CarswellOnt 4242

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

Canadian Divorce and Foreign Same-Sex Couples – Appeal Ruling Now In

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Canadian Divorce and Foreign Same-Sex Couples – Appeal Ruling Now In

Last year I wrote about an interesting Ontario family law case called Hincks v. Gallardo, [link to: ]. In a nutshell, the case hinged on the question of whether, for the purpose of divorce, a same-sex union in another country can amount to a “marriage” under Canadian law.

The couple, who were two men named Wayne and Gerardo, had exchanged rings and gone through a “civil partnership” ceremony in the U.K., under laws that recognized same-sex unions in that country. They moved to Ontario and later decided to divorce. Wayne asked for equalization and spousal support from Gerardo under the province’s Family Law Act (the FLA) and the federal Divorce Act (DA).

As a prerequisite to obtaining that divorce-related relief, Wayne had to prove they were actually married first. Gerardo claimed that the union between them was not a “marriage” under Canadian law.

The judge hearing the original motion disagreed and – in its judgment rendered recently – the Ontario Court of Appeal confirmed that decision. Emphasizing that the wording of the FLA and DA were to be interpreted in their entire context, and in their grammatical and ordinary sense in harmony with the scheme and purpose of the legislation, the Court of Appeal concluded:

The interpretation by the motion judge of the terms “spouses” and “marriage” is entirely consistent with the modern approach [to statutory interpretation] mandated by the Supreme Court of Canada [in a prior decision]. Her interpretation achieves one of the fundamental purposes of the DA and the FLA: it provides the parties with an equitable and certain process for resolving their economic issues arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims.

As a result, under the FLA two people who are in a relationship that is both formally and functionally equivalent to marriage may be considered spouses under that Act; likewise, they have the same standing for the purposes of the divorce legislation. The appeal was accordingly dismissed.

For the full text of the decision, see:

Hincks v. Gallardo, 2014 ONCA 494 (CanLII)

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 our main site.