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
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
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
COVID-19 / Coronavirus: Varying child support or spousal support obligations
Given the recent COVID-19 crisis, the circumstances of many individuals may have changed. As a result, spouses or parents may be looking to vary their child support or spousal support obligations. In Ontario, you can file for or change child or spousal support through the court, or by a written agreement. By Motion to Change Where a party applies to the court to change child or spousal support, the moving party i.e. the party who brings the application, must show that there has been a change in material circumstances. Such material circumstances may include a reduction in income of the paying spouse, loss of employment or evidence of undue hardship. Spousal Support Once a court makes a spousal support order, either spouse may bring a motion to change to decrease or increase the quantum of support. A material change of circumstance may apply if one spouse subsequently remarries and therefore changes their income and … 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