Sep 5
Wednesday’s Video Clip: Justice Brownstone & Children’s Lawyers
Do children need lawyers? Yes, in some circumstance they do. In this episode, Justice Brownstone interviews two lawyers from the Ontario Office of the Children’s Lawyer.
Justice Brownstone also introduces us to his TV series family matters.
Daughters Named as Beneficiaries, But Widow’s Right to Million-Dollar Insurance Policy Proceeds Determined by Ontario Succession Law
In Matthews v. Matthews Estate, the husband and wife – who had two daughters together – separated in 2006. The separation and divorce was typical, and included the usual requests for relief including a divorce, child and spousal support, child custody, exclusive possession of the matrimonial home, and equalization of Net Family Property. Over the next few years, the parties managed to settle and resolve most of these matters, with the exception of spousal support and equalization which still remained to be determined.
However, there were a few little twists in the story.
The first is not unusual: at the time of separation, the husband had a $1 million life insurance policy, and had named his two daughters and sister as beneficiaries. The daughters were to share $900,000 of the policy proceeds upon the husband’s death, with his sister taking the remaining $100,000.
The second twist, however, was that the husband died in the summer of 2010, just after the trial on the remaining matrimonial had begun (in May), but before the judge had written up the reasons for judgment (in August). It is important to note that just before the husband’s death, the court in the process of sorting out the parties’ matrimonial issues had made an order vesting the life insurance policy in the wife, designating her the sole beneficiary, and making her responsible for paying all the premiums, going forward.
The third twist is that the without the $1 million life insurance policy, the husband’s estate did not have enough money to satisfy the wife’s spousal support needs. In fact, at the time of the husband’s death, the matrimonial home had not yet been sold, the husband’s estate was insolvent, and the question of spousal support entitlement and an equalization payment to the wife were still unresolved.
As a result – and despite the fact that the deceased husband had named the daughters and his sister as beneficiaries – the entitlement to the proceeds of the policy was still an issue; the wife was asking for these proceeds to be used in order to pay the support that she was entitled to, as a dependent widow under the Succession Law Reform Act. (That legislation provides that where a deceased has not made adequate provision for the support of his or her dependants (whether by testamentary document or otherwise), the court may order that funds from the deceased’s estate be used for the dependant’s proper support).
As the court put it, after reviewing the history of the litigation and interaction between the various parties:
It soon became clear that the real contest between the parties was centred on the one million dollar insurance policy.
The court reviewed the interplay between the beneficiaries’ rights under the policy and the law of dependant’s relief. It concluded that the Succession Law Reform Act makes it clear that the proceeds of the husband’s life insurance policy can be treated as part of the deceased husband’s estate, and can be used to pay support to the dependant wife – notwithstanding the fact that the husband may have irrevocably designated the daughter and sisters as beneficiaries under the policy. In other words, if the assets of the husband’s estate were insufficient to meet the husband’s obligations to support his wife as a dependant, then the court must look to his other assets – including the life insurance policy proceeds – which pass by right of survivorship or pass outside the will. Moreover, in such cases the family litigation is converted into a claim under the Succession Law Reform Act.
However, the court added a caution for these kinds of cases: Given that by virtue of the Act the proceeds of the husband’s life insurance policy (which is not normally part of a deceased’s estate) are nonetheless being brought into the estate, this will naturally affect the beneficiary daughters and sister detrimentally. As such, care must be taken to ensure that the burden of any support order in favour of the wife is first borne by the traditional assets of the deceased’s husband’s estate, before any encroachment is made upon on the insurance proceeds.
(As a side note, the court also observed that Spousal Support Advisory Guidelines were not an appropriate tool for determining the spousal support obligations of the deceased husband. Rather, there were to be determined pursuant to s. 62 of the Succession Law Reform Act, which sets out those circumstances that are to be considered in determining the amount and duration of spousal support.)
For the full text of the decision, see:
Matthews v. Matthews Estate (2012), 2012 ONSC 933 http://canlii.ca/t/fq4rd
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.
Mobility Cases – B.C.’s Model for Reform
In my other Blog post this week, I outlined a little primer on “mobility”, which involves consideration of when and whether one separated or divorce parent should be able to move with a child so that the other parent’s custody or access rights are potentially affected – for example a move to take a new job or pursue a new relationship in a different city or province.
In this regard, family law principles across Canada have developed and proceeded along a roughly uniform path. However, in 2010 British Columbia put forth a comprehensive set of proposals for reform, as part of a White Paper put out by the government. This in turn resulted in amendments to B.C.’s Family Law Act, which were enacted in late 2011 but which are not yet in force. (The proposed in-force date is in approximately 12-18 months’ time). The aim of these reforms is to make the law on relocation more certain, by reducing the unpredictability of outcomes, by encouraging settlement, and by allowing parents to plan their lives better.
For one thing, the B.C. amendments impose some firm rules surrounding the question of which parent bears the burden of establishing that the proposed move does (or does not) serve the child’s best interests. Specifically, where the day-to-day care of a child is “substantially equal”, the parent who wants to move the child bears the burden of proof to show that the proposed relocation would be done in the child’s best interests, and in good faith. On other hand, if responsibility for the care of the child is not split in a manner that is “substantially equal”, then the burden falls to the parent opposing the move to show that it would not be in the child’s best interests. In either case, the parent who seeks to move the child is generally obliged to provide a concrete plan showing that “reasonable efforts” will be made to find ways to preserve the child’s relationship with the other parent.
In addition to these rules and presumption relating to burden of proof, the legislative changes also bring about certain enhancements in connection with mobility, including:
• Implementing mandatory notice of moves. Generally, there will be a mandated 60-day notice period, by which any parent proposing a move (with or without the child) must give the other parent advanced notice. (There are exceptions in cases where there is an ongoing risk of violence, or where the child has no relationship with the non-moving parent).
• Defining the concept of “relocation”. This definition focuses on the impact of the child’s on existing primary relationships, rather than using factors such as distance moved or travel times.
• Providing criteria for the courts’ assessment of “good faith”. Courts are specifically directed to consider such factors as: the reasons for the move; the likelihood it would enhance the general quality of life of the child and the guardian proposing the move, including improved financial, emotional or educational opportunities; and any existing restrictions on relocation in an order or agreement.
• Requiring courts to aim to preserve existing parenting arrangements to the greatest extent possible. This prevents the decision on whether to allow relocation from becoming an indirect re-litigation of the fundamental issues between the parents relating to custody and parenting.
In effecting these changes, British Columbia becomes the first Canadian to jurisdiction to address the legal issues surrounding mobility by way of specific legislation. It will be interesting to see whether other Canadian jurisdictions follow suit.
Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. We are located in Ontario, and serve the communities of Oshawa, Whitby, Pickering, Ajax, Markham, Brooklin, and City of Kawartha Lakes (Lindsay). To book an appointment, call: 1.905.655.6335
Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law
The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place. But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs. The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.
In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the custody and access arrangements that are in place.
In family law, this is known as a “mobility” issue.
In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment. As the court put it:
“The focus is on the best interests of the child, not the interests and rights of the parents.”
Courts are required to make a “full and sensitive” inquiry. This means that they are obliged to take into consideration a vast array of factors, including:
• the existing custody arrangement and relationship between the child and the custodial parent;
• the existing access arrangement and the relationship between the child and the access parent;
• the desirability of maximizing contact between the child and both parents;
• the views of the child;
• the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
• the disruption to the child of a change in custody; and
• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
It is worth pointing out that in making this assessment, there is no presumption in favour of either parent (whether the custodial parent or otherwise).
Incidentally, the authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation. Under the federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period). The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.
When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded. Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For more information or to book an appointment call 1.905.655.6335.
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