Courts generally respect the arrangements negotiated by parties in separation agreements. However, under the Family Law Act, there are several grounds on which a court can “set aside” (cancel) a separation agreement. A party seeking to set aside a separation agreement must show the court their matter falls within one of these grounds and then convince the court to exercise its discretion in their favor and set aside the agreement. A recent case illustrates two of the most common grounds to set aside a separation agreement: (i) if a party did not understand the nature or consequences of the domestic contract; and (ii) where there is duress, undue influence, fraud, misrepresentation, or for public policy reasons. Radosevich v Harvey involved an appeal of a lower court decision. The appellant, Ms. Radosevich, had sued her former family law lawyer, Ms. Harvey, for being negligent in the negotiation of her separation agreement. … Read More
Three Things To Know About Separation Agreements
Separation agreements are legal contracts created by two spouses, after separation. Separation agreements set out each spouse’s rights and obligations on issues such as parenting, finances, property, and support. Both married spouses and common-law spouses can enter into a separation agreement. Separation Agreements are Faster and More Economical Than Going to Court Traditional court litigation can be time-consuming and expensive. It can take years to reach a resolution in court. With litigation, the courts decide when and how a matter moves forward. Even at the best of times, many courts have a large backlog. Since the beginning of the COVID-19 pandemic, the courts have an even larger backlog. The court process is also expensive, and the costs are unpredictable. When negotiating a separation agreement outside of court, parties get to decide the pace and are in more control of the costs. Issues to Address in a Separation Agreement Separating spouses … Read More
Limitation Periods in Family Law
A limitation period is the amount of time within which the law permits one to bring a legal claim or action. Claims started after a limitation period has ended can be barred. Under the Limitations Act, there is a general two-year limitation period. In family law there are several different limitation periods that prospective and current family law clients should be aware of. Under the Family Law Act, married spouses may make a claim for equalization of net family property within the earliest of (a) two years after the marriage is terminated by divorce or judgement of nullity; (b) six years after the spouses separate and there is no reasonable prospect that they resume cohabitation; or (c) six months after the first spouse’s death. The court may extend the limitation period for bringing an equalization claim, if it is satisfied that (a) there are apparent grounds of relief; (b) relief … Read More
Corona Divorce: Worldwide Increase in Divorce Rates and Inquiries After Coronavirus Quarantine
Divorce rates and inquiries have dramatically increased across the world because of lockdowns brought by governments intended to stop the spread of COVID-19. The stress of the pandemic, coupled with being confined in close quarters for weeks, added financial worries and increased childcare responsibilities are thought to be behind this increase. Back in March, Baroness Shackleton of Belgravia, one of the UK’s most eminent family law lawyers told her peers at Westminister: “The prediction amongst divorce lawyers is that following self-imposed confinement it is very likely that the divorce rate will rise.” She further noted: “”One only has to imagine what it’s going to be like when families are sealed in a property for a long period of time.” As China emerged from lockdown in March, numerous cities across China reported large increases in divorce filings. Specific numbers are not available as China only releases statistics on divorces annually. Saudi … Read More
Five Common Myths about Divorce
Both Spouses Need to Consent to Divorce In Canada, if one spouse wants to divorce, they do not need to seek their spouse’s consent to divorce. Canadian courts will grant a divorce under three grounds: if spouses have been separated from each other for a year without reconciling; if a spouse has proven adultery occurred during the marriage and they have not absolved their spouse; and if one spouse proved they received mentally or physically cruel treatment from their spouse. The Spouse Who Earns Less Income Always Receives Spousal Support Unlike child support, separated and divorced spouses do not have an automatic right to receive spousal support when their marriage ends. Separated spouses may be entitled to receive spousal support. There are several factors which give rise to an entitlement to spousal support. These factors include the length of the marriage or relationship, the roles each spouse played in the … Read More
Five Reasons Why You Should Choose Collaborative Divorce
One: It’s Faster Traditional litigation can be a lengthy, time-consuming process, and it can take years to reach a resolution. With litigation, the courts decide when and how a matter moves forward. Even at the best of times, many courts have a large backlog. Since mid-March 2020, the courts in Ontario have suspended regular operations due to the COVID-19 pandemic. While the courts have continued to hear emergency matters and have recently expanded their scope of operations, they will not resume normal operations until July 6, 2020 at the earliest. There inevitably will be a large backlog when the courts reopen. Most collaborative professionals, along with mediators and arbitrators, continue to work during the pandemic by offering their services virtually. Two: It’s More Economical Collaborative divorce often costs less than going to court. The court process is expensive, and its costs are unpredictable. Traditional litigation requires a lot of preparation, … Read More
The Impact of COVID-19 / Coronavirus on Family Law
The current COVID-19 pandemic has dominated our working and private lives. It is not surprising that the pandemic has greatly impacted all areas of family law and has created unprecedented challenges for separated parents. Self-isolation and social distancing orders have presented a host of challenges for parents dealing with access and parenting arrangements. Many parents have lost jobs or suffered other economic losses during the pandemic which has left them unable to fulfill their current support obligations. An increase in domestic violence has been another unfortunate result of the pandemic, which may increase the need for restraining orders and peace bonds. While the Ontario Superior Court of Justice and the Ontario Court of Justice have suspended regular operations, they continue to hear urgent family law matters. The closure of the courts highlights the need for cooperation between parents and their counsel during these times. At Gilbertson Davis LLP, we have … Read More
Divorce and Separation: Spouses jointly owned business’
When parties separate, tensions are high with both parties making lifestyle adjustments, attempting to divide assets and often negotiating parenting arrangements. In the case where parties share business interests or are partners in business, this can lead to increased stress, where the business and therefore the spouses current and future financial security remains entwined with a soon to be ex-spouse’s. In the case of Danecker v. Danecker, 2013 ONSC 1605, the husband and wife were both physiotherapists. Their marriage ultimately broke down in late 2009 and at the date of separation, they were equal partners in an unincorporated physiotherapy clinic. The husband attempted, without success, to set up his own separate clinic but eventually was employed by a local hospital. Upon the separation, the wife bought out the husband’s share of the building and continued to operate for three years without any profits being shared with the husband. As part … Read More
Divorce: How are business assets split?
When parties separate, there are often disputes over one party’s entitlement to the other party’s shares or interest in a private or family business. If a marriage contract was executed validly, this contract may govern the splitting of business assets. Where there is no marriage contract, there is no specific method of valuating a business under the Family Law Act and parties should always be aware that different methods can result in different values with different tax consequences. Parties often hire two separate valuators and if both parties cannot agree, the issue will end up in the Family Courts. Entitlement to a share of the business Whilst a family business which has been inherited or gifted to one party may result in the business interest being exempted from matrimonial property, the value of a private business interest not inherited or gifted will fall presumptively into the category of matrimonial property … Read More
COVID-19 / Coronavirus: The Ontario Superior Court of Justice Expects to Further Expand the Scope of Matters to be Heard Virtually
On May 5, 2020, the Ontario Superior Court of Justice issued a Notice to the Profession, Litigants, Accused Persons and the Media advising of the Continued Suspension of in-court matters to July 6, 2020. This Notice further advised the Superior Court will continue to hear matters virtually and expects to shortly further expand the scope of matters that will be heard virtually. On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled family law hearings were adjourned until further notice. However, the Ontario Superior Court of Justice continued to hear urgent family law matters such as: requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); urgent issues that must … Read More
What can I do if I suspect my spouse is hiding assets?
The Ontario Family Law Act governs the division of property following a breakdown of relationship. This includes real estate, bank accounts, pensions, benefits and social assistance alongside any additional assets the couple owns. Why do spouses attempt to hide or misrepresent assets? Often parties attempt to take matters into their own hands, hiding or misrepresenting assets before they inform their spouse of their intention to separate. They may feel this is justified as they believe that the courts will order them to split or pay more than they would, or they may believe that the laws of property division or support will result in their assets being divided in a way they do not agree with. In certain cases, they may wish to hide specific behaviour or purchases from their spouse or they may wish to reduce or attempt to avoid paying child support or spousal support. What are common ways that … Read More
Divorce and Separation: Who gets the family pet?
Upon separation or divorce, a contentious issue is often which party gets to keep the family pet. Despite furry friends often being just as important to the family as children, Ontario’s courts have refused to make custody orders in respect of family pets. Justice Timms in Warnica v Gering stated “Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise… Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children.” … Read More
COVID-19 / Coronavirus: Can I take my child out of the province or out of the country?
Given the recent COVID-19 crisis which has caused significant upheaval for many families across the world, many parents may be considering the impact of COVID-19 on their ability to travel or relocate with their child. Relocating or travelling with a child following the breakdown of a relationship is a commonly contested issue as any relocation by one party may make access or visitation with the child difficult. The relocation may be due to a new job, moving closer to family following the separation, moving to a new school or simply for a change of scenery; regardless of the reason, parties should be aware of their rights, and the other parents rights, to move their child or children out of the province or to another country. The leading Supreme Court of Canada case on this issue is Gordon v. Goertz, which developed a two-fold test to determine whether the move should … Read More
The Matrimonial Home: What Happens Post Separation?
The matrimonial home is often viewed as sacred ground for divorcing couples and disputes commonly arise over the ownership and possession of the property. In Ontario, special status is given to the matrimonial home due to it often being the most valuable and sentimental asset that a couple or family possesses. What is a ‘matrimonial home’? Section 18 of the Ontario Family Law Act defines the matrimonial home: “every property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and their spouse as their family residence”. Can there be more than one ‘matrimonial home’? There can be more than one ‘matrimonial home’ as long as at the date of separation, all of the properties are “ordinarily occupied” by the spouses as the “family residence”. The residence(s) being claimed as the ‘matrimonial home’ must … Read More
Common Law Couple Entitlements
Common Law Couples A common law relationship is not defined universally in law. Federal and provincial legislation use differing criteria to define common law relationships. For example, Ontario’s Family Law Act, defines common law relationships as one where parties reside together for at least three years or where parties are in a relationship of some permanence and have a child. Whereas, under the Income Tax Act, a common law relationship is defined as one where parties are in a conjugal relationship and living together for at least twelve continuous months. When you reside as common law spouses you are ‘spouses’ for the purpose of Government programs or benefits, except for those specifically applicable to ‘married spouses’. There is no formal separation process which must be followed. Married Couples A married couple is a couple who have chosen to commit their lives together and have undertaken to legally bind their relationship. … Read More
Do I have to split an inheritance I’ve received in my divorce?
During a divorce, couples often argue over whether an inheritance received by one spouse is to be included in the assets and property to be divided. As a rule, inheritances or gifts received by one spouse are excluded from the property division calculation used when spouses separate and divorce. Be aware that the inheritance or gift must not be treated as matrimonial property or placed into a joint account, as this will create complex accounting issues in your joint finances which will be difficult to unravel to prove the ownership of the inheritance or gift. At the time of the divorce, the inheritance or gift must still be in existence, whether this is in the form of a physical object, or non-tangible property such as stocks and shares. Upon receipt of inheritance or a gift, unless a spouse wishes for it to form part of the matrimonial property, a spouse … Read More
2020 – Does the 20th year of marriage mean an indefinite spousal support obligation?
With 2020 now upon us, it seems appropriate to consider the impact of reaching your twenty-year anniversary and what impact this may have on your spousal support obligations. The Spousal Support Advisory Guidelines suggest that where spouses have been together for twenty years or more, the duration of spousal support should not end at a specified point, in essence rendering the obligation to be indefinite. However, the Courts will look at the particular circumstances of the spouses including the requirement to become self-sufficient, the standard of living that the spouse grew accustomed to throughout the marriage and the age and employment potential of the spouse claiming spousal support. In the recent case of Cowan v Cowan (2019) , the parties were married for 21.5 years. The wife was an anaesthesiologist and associate professor earning over $300,000 annually, and her husband who claimed spousal support was a teacher earning $92,000 per … Read More