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Posts from the ‘Transfer of Property’ Category

Tick, Tock: What’s the Legal Deadline for Trying to Set Aside a Separation Agreement?

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Tick, Tock: What’s the Legal Deadline for Trying to Set Aside a Separation Agreement?

In a recent case called F.K. v. E.A. the court was asked to rule on a novel question: If a spouse wants a court order setting aside his or her signed separation agreement as invalid, what is the deadline for applying? And when does it begin to run?

The couple began their relationship in 2000, and the husband proposed in 2004. The wedding itself was hastily-planned over a period of less then 30 days, and took place in June of 2005. Against that background, the couple entered into what they called a “Prenuptial Agreement” based on a template that the wife found on the internet. It was witnessed by a mutual friend. In it, the couple agreed that each of them:

1) Waived the right to claim spousal support from each other, and

2) Would remain separate as to property, and not be subject to an equalization of Net Family Property.

The Agreement also purported to confirm in writing two events that did NOT actually happen, namely:

1) That the parties had provided fair and reasonable financial disclosure to each other before signing, and

2) That both of them retained their own lawyer and received independent legal advice.

The wife later explained that they did not bother “going through the motions” to fulfil these two duties because the Agreement was wholly uncontentious: Both before and after the wedding they had conducted themselves with financial independence; the Agreement merely confirmed and documented that agreed status.

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Unfortunately, the spouses split in October of 2012, after 7 years of marriage. The wife gave the husband $1,600 to help with first and last months’ rent, but made it clear he could expect nothing further from her.

He then went to a lawyer to discuss his legal options, and explained the lack of legal advice and financial disclosure in particular. Although his lawyer advised that the Agreement was “not worth the paper it was written on”, the husband took no concrete steps at that time.

A full five years later, in 2017, he applied to the court to have the Agreement set aside. In addition to its other shortcomings impacting validity, he claimed it was signed after the wife issued an ultimatum; this left him feeling rushed and in a state of duress, he said.

The wife countered by stating the husband was simply out of time to have the Agreement set aside. She said this type of claim was subject to a two-year limitation period set by provincial legislation, and that the husband had failed to take any steps with the court within that deadline. She asked the court to grant her summary judgment.

The court addressed the various legal arguments. First, it concluded that husband’s bid to set the Agreement aside was indeed tantamount to a legal “claim”, and was theoretically subject to the general two-year deadline. The more pressing question, however, was precisely when the clock on that two-year period began to run.

In law, this “discoverability” threshold was the point at which the husband knew or ought to have known that:

1) He had suffered some loss, and

2) A legal proceeding was the appropriate method for trying to redress it.

In this case, that point was back in 2012, when the husband first attended his lawyer’s office post-separation.

At that point, he knew there was some potential legal issue with the validity of the Agreement and the circumstances in which it was signed, based on the advice from his lawyer. He also knew he could expect “nothing further” from the wife after separation, beyond the $1,600 in rent money, and that all other financial issues were off-the-table. So he knew in 2012 that he was facing a potential loss, and he knew that a legal claim would be the only way to potentially recover it.

Since it was now 7 years past that discoverability point, the husband was too late to bring his claim to set the Agreement aside.

As a last-ditch argument, the husband had also asked for special forbearance in the circumstances: The law should not be applied to him, since his case was the first time in all the Ontario jurisprudence where a claim to set aside a marriage contract was being foreclosed by the two-year deadline.

But the court rejected this argument too. The husband’s error or ignorance about the limitation period did not stop it from running, it said. All citizens are presumed to know the “law of the land”, and it applied equally to his situation even if the husband’s thwarted claim was the “test case”.

Since the husband was out of time to bring his claim, there was no genuine issue for trial. The court granted the wife’s application for summary judgment.

For the full text of the decision, see:

F.K. v. E.A., 2019 ONSC 3707 (CanLII),

How To: Make a Valid Separation Agreement

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

Russell Alexander Collaborative Family Lawyers’ First Annual Holiday Toy Drive

Poster for Russell Alexander Collaborative Family Lawyers' Toy Drive

 

Russell Alexander Collaborative Family Lawyers are pleased to announce the start of their First Annual Holiday Toy Drive. This year the drive will be supporting Bethesda House located in the Durham Region and A Place Called Home located in The City of Kawartha Lakes.

New, unwrapped gift donations can be made in the Brooklin office for the Bethesda House. They have informed us of the lack of gifts for children 13-17 years of age. Some gift suggestions for them include:

  • Sports equipment
  • Art supplies
  • Games
  • Movie passes and gift cards
  • Purses and backpacks
  • Make-up, lotion, perfume
  • Hats and scarves

The Lindsay office is accepting new, unwrapped gifts to be donated for A Place Called Home. There is no recommended age for donations for this organization.

If you wish to donate to the toy drive this year, it will be running from November 1, 2018 through to December 7, 2018. You may drop by with your donation in the Brooklin or Lindsay office any time between 9:00 a.m. and 5:00 p.m. on Monday to Friday. For further details, feel free to give our office a call at 905-655-6335.

Transfer of Property in Ontario Separation or Divorce – video

 

Wednesday’s Video Clip: Transfer of Property in Ontario Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video, Rita explains how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

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, click here.

Transfer of Property in Ontario Separation or Divorce – video


 

Wednesday’s Video: Transfer of Property in Ontario Separation or Divorce 

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video we examine how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

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.

Transfer of Property in Ontario During a Separation or Divorce – video

 

 

Wednesday’s Video Clip: Transfer of Property in Ontario During a Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video we examine how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

Transfer of Property in Ontario Separation or Divorce – video

 

Wednesday’s Video Clip: Transfer of Property in Ontario Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video, we explain how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

Did These Separated Spouses Intend to Change Title to their Matrimonial Home?

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Did These Separated Spouses Intend to Change Title to their Matrimonial Home?

The question in a recent Ontario case called Hansen Estate v. Hansen was whether the husband and wife had engaged in a “course of dealing” that established that their joint tenancy in the matrimonial home was severed, so that they became tenants-in-common. (And the question of whether the husband’s daughters could inherit his share of the matrimonial home hung in the balance).

The two spouses owned the matrimonial home as joint tenants: this meant that if either of them died, the other would obtain the right to exclusively own the home – a concept known as the “right of survivorship” under the law of joint tenancy.

On the date of the husband’s death, however, he and his wife were legally separated, and were in the process of dividing up their matrimonial assets. His Will, which had been drawn up slightly before his death, provided that his entire estate would be left to his four daughters from a previous marriage.

The problem was that his estate consisting mainly of the matrimonial home, the entirety of which the wife would inherit through her right of survivorship. (In law, the right of survivorship takes precedence over any disposition in a joint tenant’s will).

Two of the daughters went to court to claim that although title to the matrimonial home was jointly held, the conduct by the now-separated husband and wife immediately before his death showed that they intended to sever that joint tenancy and create a tenancy in common instead. This would mean that, under the law relating to that style of title ownership, one-half of the matrimonial home would become part of the estate and available to be distributed under the Will.

The Ontario Court of Appeal agreed with the daughters. It said the “time-honoured test” for determining whether a joint tenancy was intended to be severed was to see whether there was a “course of dealing to intimate that the interests of the parties were mutually treated as constituting a tenancy in common.”

In this case, the conduct the Court cited to support a mutual change to a tenancy in common included:

• The wife moving out of the home and rented accommodation elsewhere,

• The husband taking over payment of the expenses, and his putting the bills in his own name,

• The locks being changed on the home,

• The husband making a new will that named his children (rather than the wife) as beneficiaries (and the matrimonial home was his only significant asset),

• The husband and wife closing their joint bank accounts, and each opening a separate account,

• Both of them retaining their own lawyers,

• Both of them agreeing to exchange financial information to carry out their property division.

The wife had also offered that the husband could “buy out” her interest in the home; the husband did not object to her suggestion that it would otherwise need to be sold.

Here, there admittedly was no explicit agreement between the husband and wife at separation to sever the joint tenancy. However, in light of the course of dealing between the spouses – and taking into account the matrimonial context – there was evidence that this was what they intended.

Therefore, rather than the full ownership going to the wife, the court ruled that one-half of the interest in the matrimonial home was part of the husband’s estate, and available to the daughters as beneficiaries.

What is the lesson to be learned? If separated spouses truly intend to sever their joint tenancy, they may want to enter into an interim agreement to this effect. Alternatively, they may want to change the manner in which they hold title: they can arrange for a registered transfer to themselves, but as tenants in common rather than joint tenants.

Similarly, future spouses who are considering getting married may want to enter into a cohabitation agreement which includes a provision that if the relationship breaks down, title held jointly is automatically severed.

For the full text of the decision, see:

Hansen Estate v. Hansen, 2012 ONCA 112  http://canlii.ca/t/fq6xz

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.

Divorcing? Think About Necessary Changes to Insurance

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Divorcing? Think About Necessary Changes to Insurance

Although it’s usually the “bigger picture” items between divorcing spouses that garner most of the focus, there are many smaller details that must be attended to as well. Many of these can be easily overlooked.

For example, parties who are in the process of divorcing should review their existing arrangements in connection with their various insurance policies, in order to update the information on record with the insurer, to change/add new insurance, and to change beneficiaries as needed. This applies to many different types of insurance, such as automobile insurance, homeowner’s or tenant’s insurance, life insurance, and group benefits through employment.

The most obvious among these relates to existing homeowner’s insurance on the former matrimonial home; if that home has been sold then the ex-spouses will have to obtain separate coverage for their respective new residences. This may involve obtaining tenant’s insurance if a former spouse’s post-divorce accommodation is a rental.

Changes to automobile insurance policies will likewise be required. Individual insurance may have to be arranged, and any young drivers must be added to the policies of the parents with whom they live after divorce. If the parents share custody and their children have access to both parents’ vehicles, then consideration should be given to adding these young drivers to both policies.

Comparatively speaking, life insurance may not have to be altered to any great extent, other than to change the beneficiary designation from the former spouse. (However, where one ex-spouse is paying support to the other, it may be wise to keep the recipient ex-spouse as the designated beneficiary to that the funds become available to him or her for support purposes, in the case of the death of the insured ex-spouse). Employment-related group health or dental coverage may also have to be updated post-divorce to reflect the fact that legally the insured no longer has a spouse who is eligible for such benefits.

With that said, it is important to know that if the spouses are merely separated (i.e. have not yet divorced) then making the necessary changes to a joint policy can involve an added consideration: they must both consent to it. For example, if both separated spouses are “named insureds” on a policy of insurance, then the policy cannot be cancelled or changed, nor can one separated spouse be removed, unless the consent of both parties has been obtained.

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 http://www.russellalexander.com/practice/ontario-divorce/

 

 

 

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