Frequently Asked Questions

Find out the answers to some of the questions we are frequently asked with regard to family law, as well as other general legal issues.

If I am receiving spousal support, from my ex-spouse what happens if I remarry another?

The repartnering or remarriage of a support recipient affects spousal support under the Spousal Support Advisory Guidelines. It is to be noted that repartnering and remarriage does not necessarily mean that there is an automatic termination of spousal support.

The following factors often have an impact on determining the quantum of spousal support when a support recipient repartners or remarries:

1. Whether the support recipient is in receipt of compensatory or non-compensatory spousal support. Compensatory spousal support is often treated differently than non-compensatory spousal support.

2. The standard of living in the recipient’s new household.

3. The length of the first marriage is often a relevant factor to be considered.

4. The age of the spouse receiving spousal support.

In extreme situations, it is easier to attempt to predict the outcome of the recipient spouse repartnering or remarrying. For instance, remarriage by the recipient of spousal support may well terminate spousal support if the first marriage was short in duration, the spousal support is non-compensatory and the recipient is young. This ability to predict is not sufficient to provide a formula that can be applied across the board in these cases.

If you are a recipient of spousal support and you are considering repartnering or remarrying, contact the experienced divorce lawyers at Krol & Krol for a consultation at 905.707.3370.

I am married. Is it too late to sign a marriage contract?

A marriage contract (also referred to as a prenuptual agreement) determines specified issues between a married couple if the marriage comes to an end. These contracts may deal with issues such as spousal support and property.

Once you are married, you and your spouse may still sign a marriage contract.

If you are the party who would like a marriage contract in place and you get married without a marriage contract, your spouse may thereafter decline to sign the contract. Therefore, it may be preferable for these issues to be determined before the marriage takes place.

I own jewelry worth $5,000. If I get married, does this jewelry become shared property?

No. In Ontario, when you marry your jewelry remains your own.

If the jewelry increases in value during the marriage, upon separation your husband will be entitled to share in the increase in the value of the jewelry.

If you have a marriage contract (or a prenuptual agreement), it may outline that if your marriage comes to an end your jewelry is your property and any increase in the value of the jewelry during the marriage will not be shared with your spouse.

Can my partner and I retain the same lawyer to negotiate terms of our separation agreement?

No. In your family law matter, you and your partner need different, independent lawyers.

Spouses’ and common-law partners’ interests may be and often are conflicting. In view of this, each party in a family law matter requires his or her own lawyer.

Your lawyer should fully explain the law to you on each individual issue as well as the strengths and weaknesses of your case. Your family lawyer must be free from any conflict of interest so that he or she can effectively represent your interests.

I am involved in a family law dispute, should I change my will?

The answer to this question is likely yes. If you are involved in a family law dispute, even if you and your spouse have settled all of the issues in your family law matter amicably, you should likely have a new will (and powers of attorney) drawn up.

A will sets out how a person would like his or her assets distributed upon his or her death. (A power of attorney sets out who you would like to appoint as an attorney to act on your behalf. An attorney is a person or persons whom you appoint to carry out your wishes during your lifetime.)

A separation and divorce does not nullify your will or undermine the validity of your will. Nontheless, once you are separated you will likely find that its terms are no longer appropriate. For example, while you were married you may have left items to your spouse. In view of the separation, you may now want to leave these items to your children or to another loved one.

At Krol & Krol, we provide guidance with respect to family law estate planning so that you can properly plan how your assets will be distributed upon your death.

The solicitors at Krol & Krol have experience with a broad range of family law issues in Ontario, as well as issues with respect to wills and estates. For a consultation with one of our solicitors with respect to a family law issue in Ontario, call 905.707.3370 today.

I want a divorce in Toronto. What happens to our property?

There is a specific structure relating to property division when people who are married decide to divorce in Toronto, Ontario:

Upon separation and divorce in Toronto, on the request of one of the parties, each spouse calculates his or her ‘net family property.’ This is done by deducting the value of a spouse’s net asset position (being assets minus debts) on the date of marriage from the value of the spouse’s net asset position on the date of separation. The spouse with the greater net asset position will be required to pay one half of the difference to the spouse that has the lower net asset position. This payment that is made from one spouse to the other spouse is called an ‘equalization payment.’

There are exceptions to these rules, known as excluded property. Excluded property is property that does not have to be included in a spouse’s net family property in a divorce in Toronto. The value of that item is, therefore, not included in determining the equalization payment. For example, excluded property includes gifts or inheritances that are received during the marriage from a third party, so long as that money was not inextricably co-mingled with the other spouse’s assets.

In addition, a court has the power to award a spouse an amount that is more or less than half the difference between the parties’ net family properties upon a divorce in Toronto. This depends on whether an equalization would be considered “unconscionable” under s. 5(6) of the Divorce Act.

What is a matrimonial home in family law?

Matrimonial Home Definition: 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 his or her spouse as their family residence (s. 18(1) of the Family Law Act).

Parties may have more than one matrimonial home in family law.

A matrimonial home in family law is significant as it is given special treatment in the context of married spouses in two distinct ways:

1. Both spouses have an equal right to possession of the matrimonial home.

2. If a home is a matrimonial home at the time of separation and was the same home that the spouses resided in on the date of marriage and if it is only registered in one spouse’s name, the spouse on title cannot deduct the marriage date value of the matrimonial home when calculating his or her net family property. However, the value of the matrimonial home is still included as a valuation date asset of the title holder. If all else is equal, the result of this is that the titled spouse shares half the value of the house as of the date of separation with the non-titled spouse.

The solicitors at Krol & Krol have experience with the variety of issues that can surround a matrimonial home. For a consultation with one of our solicitors, call 905.707.3370 today.

How will child support be determined in my family law case?

With respect to child support in Ontario, in family law, the parent with whom the child primarily resides is entitled to a basic or a Table amount of child support in Ontario to compensate him or her for money spent on the day-to-day care of the child. The Table amount of child support in Ontario is determined on the basis of the income of the payor (the person who is paying support) and the number of children that he or she has. Ontario has a separate Table in order to determine this amount.

In addition to the basic amount of child support in Ontario, you may have an obligation to pay for section 7 expenses for the child. According to section 7(1) of the Federal Child Support Guidelines, examples of some of these expenses include:

(a) child care expenses incurred as a result of the custodial parent’s employment or illness;

(b) the portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; and,

(e) expenses for post-secondary education.

In addition to the expenses listed above, the Guidelines also identify “extraordinary expenses” in family law, being extracurricular activities for the children. One of the issues regarding extraordinary expenses is that it is difficult to ascertain the nature and extent of those expenses considered ordinary and captured in the tabled amounts as opposed to those that are extraordinary.

The guiding principle in family law is that section 7 expenses are to be shared by the parties in proportion to their incomes. If the child is able to contribute to an extraordinary expense, the court will likely order that the child do so.

There are exceptions to the above-noted scheme of child support in Ontario. For example, if you earn more than $150,000.00 per year, judges have the discretion to depart from the Table amount of child support in Ontario. In this case, the parent seeking an order that departs from the Table amount bears the onus. The lifestyle of the family when it was intact is relevant to this determination.

If my mature child refuses to speak with me, do I still have to pay child support?

If a child refuses to have a relationship with a parent and therefore repudiates the relationship with his or her parent the question of whether that parent is still required to support the child is one of fact.

To make this determination, a three-step analysis is applicable (Wegler v. Wegler; Caterini v. Zaccaria). First, is the person for whom support is sought a child of the marriage? Second, is the table amount in the Guidelines “inappropriate”? If not, then the Guidelines amount should be awarded. Third, if the answer to step two is “yes,” what level of support is appropriate?

A parent who seeks to avoid or terminate child support on the basis of a mature child’s repudiation of the relationship has the onus of proving this defence. The onus is a high one. As part of this onus, the parent must show that they have made meaningful efforts to maintain a positive relationship with the adult child (Menegaldo v. Menegaldo).

The focus of the analysis is whether there has been a “unilateral termination of the relationship” by the child (Caterini v. Zaccaria). In recent jurisprudence, courts may reduce, cancel or suspend support to a mature child if that individual has rejected a parent for no apparent reason, unreasonably refuses to communicate with the parent and if the adult child fully appreciates the consequences of his or her repudiation (Law v. LawLampron v. Lampron; Lawrence v. Mortensen). A parent should not be a “wallet” for an adult child’s needs (Lawrence v. Mortensen). A child that repudiates his or her relationship with a payor parent still has an obligation to have “some sensible discussion” with that parent on the matter of education (Whitton v. Whitton).

Nonetheless, a court’s analysis is holistic and repudiation of a relationship is one factor of many that are taken into account in each case (Farden v. Farden). The courts draw a line where it sees it fit and proper in all of the circumstances of the case, having due regard to the conduct of the parties, and the conditions, means and circumstances of each of them. More specifically, courts consider:

1. Whether the child is in full-time or part-time attendance at school;

2. Whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

3. The age of the child;

4. The ability of the child to contribute to his or her own support through part-time employment;

5. The child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

6. The career plans of the child. i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do, as well as the plans made by the parents for the education of their children;

7. Whether the child, who is mature and has reached the age of majority, has unilaterally terminated contact with the payor parent (Farden v. Farden).

According to a recent decision of the Ontario Superior Court of Justice, a restrictive approach to the consideration of repudiation is appropriate when making a determination on child support. This, since placing the child’s conduct on trial places the child in the centre of family law litigation and undermines the goal of promoting family healing and resolution (Caterini v. Zaccaria).

In order to learn more about your rights and obligations relating to family law, contact us at 905.707.3370.

Costello v. Costello: Where the person paying child support is charged criminally & terminated from employment, child support not reduced

Family Law Issue:

The father in this family law case sought to reduce his child support obligation where he was terminated from his employment because of 2 criminal convictions.

Facts:

In this family law case, the parties initially entered into a Separation Agreement dated June 1, 2005.

In 2008, the father was charged with a drinking and driving offence. In 2009, the father was charged with another drinking and driving offence.

As a result of these charges the parties entered into an Amended Separation Agreement in April of 2009. Among other items, it outlined that the father pay child support to the mother based on an income of $70,941.00 based on the Federal Child Support Guidelines.

In July of 2009, the father was terminated from his employment because of his criminal convictions.

The father sought to vary his child support obligation in his family law proceeding as of the time he lost his employment.

Conclusion & Analysis of the Ontario Court of Justice:

The Ontario Court of Justice determined that it would not vary the father’s current child support obligation.

The Court found that in order to vary an existing support order, there must be a change in circumstances since the order was made. In this case, the father had to prove, on a balance of probabilities, that there has been a change of circumstances since entering into the Amended Separation Agreement.

The Court outlined that it may impute income to a parent as it considers appropriate in the circumstances, including where the parent is intentionally under-employed or unemployed (s. 19(1) of the Federal Child Support Guidelines). In imputing income, the Court does not need to determine that there has been a specific intent to evade child support obligations.

The Ontario Court of Justice also confirmed that where a payor payor parent quits his or her employment for selfish or “bad faith” reasons, the courts will not grants a variation of support because of a material change in the income of the Applicant (Ronan v. Douglas Walsh).

Furthermore, where a payor loses his or her employment because of a criminal conviction, an event within the control of the convicted, the Court should not condone the conviction and should not allow the payor to rely on the loss of employment to reduce his or her arrears of support (Luckey v. Luckey).

In the family law case of Costello v. Costello, the Court found that the father’s evidence regarding his income did not contain the appropriate supporting documentation and was “not trustworthy”, it would not condone the father’s criminal conduct, when the father signed the Amended Agreement he was likely aware that there was a risk of losing his job, and that the father had not made any sincere efforts to find other means of employment since his termination.

As a result, the Court decided not to exercise discretion to vary the father’s current support obligation. According to the Ontario Court of Justice, “The father certainly cannot expect a court to exercise its discretion to reduce his child support obligation, when he loses a well paying job because of his own reckless behaviour, fails to abide by court orders for disclosure, fails to provide any proof of any sincere efforts to find alternate employment and when he is content to work part-time for minimal income.”

Fein v. Fein: Grandparents & child support in family law

Facts:

In Fein v. Fein, a family law case, the grandparents funded the family’s lifestyle and underwrote the grandchildren’s education, health, welfare and upbringing generally. The grandparents directed decisions pertaining to issues of education, recreation, religious training and the moral upbringing of the grandchildren. They also provided the family with substantial amounts of money, which enabled them to enjoy a lifestyle beyond their means. When the parents’ marriage began to deteriorate, the grandparents withdrew their assistance from the mother and the grandchildren, and they suffered a dramatic decline in their lifestyle.

Family Law Issue in relation to Child Support:

According to family law, whether the mother was entitled to child support from the grandparents.

Conclusion & Analysis of the Superior Court of Justice:

The claim for child support could not stand against the grandparents.

The Ontario Superior Court of Justice found that grandparents are not liable for child support of grandchildren where the grandparents do not live in the same house as the grandchildren & the grandparents have not established a parental role in relation to the grandchildren. The Court noted that it is not enough that the grandparents had played a very influential, controlling or interfering role in the family as a whole, or had been financially very generous towards the family. Furthermore, a grandparent who treats his or her grandchildren as grandchildren does not thereby assume the role of a parent even if his or her continued financial assistance is necessary to maintain the children’s lifestyle.

It is interesting to note that in this case, Perkins J. allowed the action to proceed against the grandparents for breach of contract and breach of fiduciary duty.

Who may apply for custody in Ontario?

Biological parents, adoptive parents, step-parents, grandparents, or other third parties may apply for an order for custody in Ontario or for access to a child in Ontario.

Under the Divorce Act, a spouse or a former spouse may apply for custody in Ontario or for access to a child in Ontario. In addition, according to section 16(3) of the Divorce Act, another person may apply to the court for a custody in Ontario or for an access order with leave of the court.

According to section 21(1) of the Children’s Law Reform Act, a parent of a child or any other person may apply to the court to determine custody in Ontario or access in Ontario. Section 21(2) outlines that such an application must be accompanied by an affidavit containing:

1. The person’s proposed plan for the care and upbringing of the child;

2. Information regarding the person’s current and previous involvement in any family law proceedings relating to child protection or in any criminal proceedings; and,

3. Any  other information relevant to the best interests of the child, the person’s past conduct, and whether the person has at any time committed violence against a specified category of people (being his or her spouse, a parent of a child related to the application, a member of the individual’s household or any child.)

In addition, according to section 21.1, 21.2 and 21.3 of the Children’s Law Reform Act, additional requirements are imposed on non-parents who apply for custody in Ontario.

The solicitors at Krol & Krol have experience with issues of access and custody in Ontario. For a consultation with one of our solicitors, call 905.707.3370 today.

De Somer v. Martin: Child support orders made in two countries – which prevails?

Family Law Issue:

The Appeal in the family law case of de Somer v. Martin arises out of competing child support orders made in two jurisdictions, Ontario and Nancy, France.

Facts:

In this family law case, the parties lived together in Toronto when their son was born. Shortly afterwards, the parties separated. They resolved all of the issues relating to family law.

The parties’ Agreement specifically made mention of the following:

a. Ms. Martin, who was to have custody of the child, would be moving to France.

b. The Canadian Federal Child Support Guidelines was to be used in order to determine Mr. de Somer’s child support obligations.

c. The parties did not want any court to change the terms of the Minutes of Settlement.

Overview of Lower Court Decision:

In 2004, O’Connell J. on consent of the Mr. de Somer and Ms. Martin, granted judgment in accordance with the parties’ agreement and ordered that the father, Mr. de Somer, pay child support in accordance with the Federal Child Support Guidelines.

In 2007, Mr. de Somer brought a motion before the Ontario Superior Court for an order terminating his child support obligation in his family law proceedings on the basis that he had no income. The motion judge dismissed this motion.

In January of 2011, Mr. de Somer brought an Application in France to revise the above-noted Ontario order. Justice Sombrin of the High Court of Nancy granted the revision of child support.

Mr. de Somer subsequently brought a motion before the Ontario Superior Court for a declaration that France was the proper forum to make a determination for child support, an order staying the proceeding in Ontario and an order ending his support and related obligations as outlined in the various Ontario court orders. The motion judge, among other things, dismissed this motion.

Mr. de Somer appealed the motion judge’s decision.

Conclusion & Analysis of the Court of Appeal:

Mr. de Somer’s Appeal was ultimately dismissed.

The Court of Appeal applied the forum non conveniens test. In other words, the Court looked at whether France is “clearly the most appropriate” forum for the determination of child support.

The Court applied the following non-exhaustive factors applicable to the forum non conveniens test as outlined by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda to make this determination:

a. the location of the parties and witnesses;

b. the cost of transferring the case to another jurisdiction; and,

c. issues related to recognizing and enforcing judgments.

The Court of Appeal placed significant weight on the parties’ terms of agreement as outlined in the Minutes of Settlement, which was executed with the help of experienced lawyers.

Furthermore, while Mr. de Somer argued that the French courts could apply the Federal Child Support Guidelines, his previous behaviour clearly illustrated that he did not seek to have the French court apply these Guidelines. In fact, the order from the French court provided for a significantly reduced quantum of child support.

The Court of Appeal then addressed the issue of comity (or the need to show respect for an order made by another jurisdiction.) The Court did not give significant weight to this factor given that Mr. de Somer brought an Application in France in order to reduce his child support obligation only for the benefit of himself.

In paragraph 46, the Court summarized its position as follows:

“Staying the Ontario proceedings in favour of those in France would allow Mr. de Somer to resile from the clear terms of the agreement he freely entered into with Ms. Martin for their benefit and for the benefit of their son.  This should not be sanctioned by this court without compelling reasons.  Here, there are none.  Furthermore, and in any event, the other factors identified above, relevant to the test for the determination of the most appropriate forum for the resolution of child support, unequivocally lead to the conclusion that Ontario is the appropriate forum.”

Gordon v. Goertz: Mobility in family law cases

Mobility issues arise where one parent wants to take the child or children and move away from the other parent.

The leading case on mobility where one party wants a change to child custody and access arrangements is Gordon v. Goertz. In this case, the Supreme Court of Canada summarized the applicable test as follows:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of illustrating a material change in the circumstances affecting the child.

2. If the threshold is met,the judge on the application conducts a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the parents to satisfy those needs.

3. This inquiry is based on the findings of the judge who made the previous order and based on evidence of the new circumstances.

4. The inquiry does not start with a legal presumption in favour of the parent who has custody of the chid, although the custodial parent’s views are entitled to great respect.

5. Each case is dependent on its own unique circumstances.

6. The focus is on the best interests of the child, as opposed to the interests and rights of the parents.

7. More particularly the judge should consider, among other things: the custody arrangement currently in place and relationship between the child and the custodial parent, the access arrangement currently in place and the relationship between the child and the access parent, the desirability of maximizing contact between the child and both of the parents, the child’s views, the custodial parent’s reason for moving, only in the exceptional situation where it is relevant to that parent’s ability to meet the needs of the child, disruption  to the child of a change in custody, and disruption to the child consequent on removal from family, schools, and the community he or she knows.

What is abundantly clear from the above-noted case law is that an assessment of a mobility case must be based on the best interests of the specific children involved, without a presumption in favour of either parent.

Pensions in family law after Jan. 1, 2012

In the context of family law, Bill 133 has made the following amendments affecting Ontario registered plans:

1. There is a new method used to value all pensions.

2. If asked, the pension administrator must perform a valuation based on the new rules. Financial Services Commission of Ontario (FSCO) Form 1, 2 (and 3) along with supporting documents and the required fees constitute the valuation request.

3. The plan administrator is not permitted to implement a pension transfer/division in your family law case until he or she has prepared a valuation.

4. In order for a division to be implemented, the spouses must have an executed separation agreement or a court order that clearly addresses this matter.

5. If the member is not retired at the date of separation, there can be a lump sum transfer to a Locked-In Retirement Account (LIRA). This is also known as a locked-in RRSP.

Funds locked in a LIRA can generally only be accessed after the spouse reaches a pensionable age (this is usually at age 55). Once the pensionable age is achieved, the LIRA only provides periodic retirement income through a RRIF, LIF or annuity. At this time, there are “financial hardship” exceptions that allow for immediate lump-sum withdrawals. However, there can be significant tax consequences that result from immediate lump-sum withdrawals.

According to the new rules, a pension division is not automatic, and it is not mandatory.

A decision regarding pension division in your family law case should be made only after canvassing all of the relevant facts and strategies in your particular case. Prior to making this decision that can greatly impact on your family law case, it is prudent to obtain expert advise.

The solicitors at Krol & Krol have experience with pensions and how they are addressed in family law in Ontario. For a consultation with one of our solicitors with respect to a family law issue involving a pension, call 905.707.3370 today.

Ward v. Ward: Equalization of net family property and unconscionability

In Ward v. Ward, the wife stayed home to raise the family while the husband earned a high salary. The wife’s father gave the wife $200,000.00 and the husband pressured the wife to use $180,000.00 of that gift to pay down the line of credit on the jointly owned matrimonial home when the marriage was already in trouble. Two months later, the husband left the wife. The Court of Appeal Judge held that the Trial Judge was correct in finding that an equal division of net family property would be unconscionable.

V. (B.) v. V. (P.): Access schedules in family law

Family Law Issue:

V. (B.) v. V. (P.) is noteworthy because of the Ontario Court of Appeal’s remarks on what constitutes an appropriate access schedule in family law.

Lower Court Decision:

In this case, the Trial Judge determined that the mother was the primary caregiver for the child during the marriage, that the child had specific educational and social needs and that the father had been controlling toward the mother. The Trial Judge determined that the father should have access to the child on alternating  weekends (being from Friday after school to Monday morning), one overnight per week, and three weeks in the summer.

Conclusion & Analysis of Court of Appeal:

The Court of Appeal held that the above-noted access schedule, as ordered by the Trial Judge, was minimal and failed to address the “maximum contact principle” outlined in section 16(10) of the Divorce Act. The Court determined that the father ought to have access to the child 35% of the time.

This case emphasizes the courts’ tendency to award generous access to non-resident parents.

How does a judge determine custody and access to a child?

When children are involved in a separation and/or divorce in Ontario, custody, residency, and access to the child or children in question will need to be established for both parties. If parties cannot come to an agreement on their own on issues of custody and access, the issue can be brought before the courts.

In Ontario, in accordance with the Children’s Law Reform Act and the Divorce Act, decisions made regarding custody and access must be made in the “best interest of the child”. When establishing custody and access, the following factors may be taken into consideration by the courts:

1. The ability of each parent to care for the child;

2. The amount of stability each parent will provide for the child;

3. The emotional ties between the child and each parent;

4. The stability of the child’s current living arrangements;

5. Each parent’s plan to care for the child in the future;

6. The child’s wishes (this will be given greater or lesser weight depending on the age and level of maturity of the child);

7. Which of the parents is most likely to ensure contact between the opposing party and the child; and

8. Which parent is the most willing to care for the child.

When making decisions on custody and access, the judge must take any incident of violence or abuse into consideration.

At Krol & Krol, you can obtain  information about your rights and obligations with respect to child custody and access. If you are currently involved in a separation or divorce where child custody and access is an issue, please contact our Toronto family law firm at 905.707.3370 to schedule a consultation with one of our experienced lawyers who will provide you with information about the law, guidance about your case, and startegize about your matter.

Can my spouse and I be considered to have entered into a legal separation in Ontario even though we are living in the same house?

Yes. According to Ontario law both you and your spouse can be considered to be legally separated in Ontario regardless of the fact that you are living in the same residence. This, however, depends on the facts that surround your current relationship.

If it is your position that, although you and your spouse are living at the same residence, you are legally separated in Ontario, and your spouse is denying or claiming otherwise, the courts usually will require clear evidence that you are no longer in a spousal relationship. Some of the factors used in order to determine if you and your partner have a legal separation in Ontario include, but are not limited to the following:

1. Do you still engage in physical intimacy?

2. Do you still engage in social activities together?

3. Do you and your spouse do household chores for the other (such as cooking, housekeeping, laundry, etc)?

4. The court may take into consideration evidence that illustrates the intent of the parties. In other words, did you in fact hold yourself out to your friends and family as separated, as opposed to maintaining the status of the relationship to third parties. For example, were forms of any kind completed stating that you are “separated” as opposed to “married”.

If you are unsure of whether or not your circumstances constiute a legal separation in Ontario, contact our Toronto family lawyers at Krol & Krol at 905.707.3370 for more information with respect to a legal separation in Ontario and to schedule a consult to discuss legal separation in Ontario.

Can a family court order be varied or changed?

Yes, it is possible to change a family court order in the right circumstances.

If you believe that there is a valid reason to vary or change a family court order in your case,  you may be able to bring a Motion to Change the family court order.

To amend a family court order for child support where both parties agree, you will need to fill out and file the following documents with the Court:

1. Form 15D: A consent motion to change child support. This form must be signed by both of the parties (and the assignee, if the support order has been assigned to a third party or to a social assistance agency),

2. 5 copies of Form 25: draft order, which you are requesting that the judge sign,

3. Stamped envelopes addressed to each party involved;

4. A support deduction order information form and a draft support deduction order.

If you believe that the Court made an error in a family court order, then you may be entitled to file an appeal. In order to file an appeal, you must state why you are requesting that the court order be amended or that a new hearing be held.

To inquire about a Motion to Change or an Appeal with respect to a family court order, contact a Toronto family lawyer at Krol & Krol at 905.707.3370 to discuss your options as well as your rights and responsibilities.

Do I need an Ontario family lawyer to represent me in my case?

You do not need to have an Ontario family lawyer in order to obtain a divorce in Ontario. In more simple circumstances where the divorce is uncontested, and where matters involving division of property, custody and access, child and spousal support do not exist or are very simple, you may decide that hiring an Ontario family lawyer is not necessary in your situation. Under these circumstances you can try to proceed with a simple divorce through the Courts.

In circumstances where the divorce is contested or more complicated, you still are not required to hire an Ontario family lawyer. However it is highly recommended that you consult with an Ontario family lawyer before proceeding just to make sure you are aware of and understand your rights and obligations.  Am Ontario family lawyer is in the best position to offer advice on your legal rights and obligations. In addition, an Ontario family lawyer can help you understand the consequences of your decisions and help you ultimately decide how to proceed in your case. An Ontario family lawyer can help guide you through the divorce process and help your case proceed in an efficient and constructive manner.

If you do decide to go to court, you are allowed to represent yourself. However it is important to understand that court staff are not able to give either party any form of legal advice. If an individual is representing himself or herself they are expected to have informed themselves of the law, timelines, and court procedures. Individuals who decide to represent themselves are supposed to be held to the same standard as the parties who have an Ontario family lawyer representing them.

Are the terms of a mediation in Ontario binding on the parties?

The terms of an agreement established during a mediation in Ontario are not binding until they have been incorporated into a written separation agreement or minutes of settlement, that have been signed by both parties and witnessed.

It is highly recommended that both parties obtain independent legal advice with respect to any resolution arrived at in a mediation in Ontario before finalizing any agreement or minutes of settlement. This is to ensure that the agreement or minutes of settlement are strong and less susceptible to attack. Independent legal advice is also important because it ensures that both parties fully understand their rights and obligations, as well as the effect the proposed agreement will have on their circumstances.

The terms resulting from a mediation in Ontario can also be incorporated into a binding court order.

Mediation in Ontario is a voluntary process. Both parties must agree to participate and neither party can force the other to engage in mediation in Ontario.

Mediation in Ontario can be commenced at any time (prior to the commencement of a Court Application and during the court process).

Mediation in Ontario is only appropriate in certain circumstances. In a situation, for instance, where there has been a historical imbalance of power between the parties, mediation in Ontario may not be in the interests of the less dominant party. Based on your specific circumstances, you and your family lawyer ought to determine whether pursuing mediation in Ontario is a reasonable strategy in your matter.

Mediation in Ontario usually takes place before a senior family law lawyer. While mediation in Ontario can often resolve a matter faster than the court process, there are additional costs of hiring a mediator which must be taken into account. The costs will vary depending on the mediator chosen. That being said, if a matter is resolved via mediation in Ontario, it is highly likely that this process will ultimately be less costly than the legal fees one would incur if their matter proceeded through the Courts. This however, can be a double-edged sword, as the mediator cannot force parties to resolve the matter and cannot make orders. Accordingly, the parties may pay the costs of a mediation and, if they cannot ultimately resolve the dispute with the assistance of the mediator, they may still need to resort to the court process.

The solicitors at Krol & Krol have experience with mediation in Ontario, as well as separation agreements, minutes of settlement, and in obtaining court orders. For a consultation with one of our solicitors with respect to a mediation in Ontario, call 905.707.3370 today.

What is the Mandatory Information Program (MIP) in Ontario?

In response to the facts and issues outlined in the Application, the applicant and respondent may be required to attend the Mandatory Information Program (MIP).

The Mandatory Information Program is an in-person session, which may be led by a lawyer, a social worker or some other facilitator. The Mandatory Information Program provides parties with information about separation and the legal process, and may include information on topics such as:

1. The options available for resolving differences, including alternatives to going to court;

2. The impact the separation of parents has on children; and,

3. Resources available to deal with problems that arise from the separation (Family Law Rules, Rule 8.1(3)).

The Applicant(s) and Respondent(s) each attend the Mandatory Information Program separately.

In Toronto in the Superior Court of Justice, in a family law case the parties must attend a Mandatory Information Program if there are claims other than for a divorce and costs or the incorporation of terms of an agreement or prior court order (Family Law Rules, Rule 8.1(1)).

The purpose of the Mandatory Information Program is to provide both parties with:

1. Insight into the impact of both separation and divorce on their lives and the lives of their children; and,

2. Information on alternative options to going to trial, information on different legal issues, as well as the court process.

The Mandatory Information Program is designed to ensure that individuals understand the effect of separation, their rights as well as responsibilities, and to provide individuals with information on options of how to proceed.

The solicitors at Krol & Krol have experience with and can provide you with information on the Mandatory Information Program in Ontario. For a consultation with one of our solicitors, call 905.707.3370 today.

What is a family law motion in Ontario?

A family law motion is brought in Ontario when one party requires a decision on an issue and cannot wait until for a trial to take place, where a decision will be made on all outstanding issues in the case.

Either party can bring a family law motion to the courts following the completion of an initial case conference. In situations of urgency or situations involving extenuating circumstances, a judge may make the decision to hear a family law motion before the parties attend a case conference.

In a family law motion, there is a moving party and a responding party. The moving party is the person who brings the family law motion. The responding party is the individual who answers the family law motion and responds to the demands of the moving party. Sometimes, the responding party will bring their own cross motion asking the courts to address their own concerns.

The family law motion is commenced when the moving party serves the responding party with a Notice of Motion and an Affidavit.

The Order  is the decision made by the judge after hearing the motion. Two kinds of Orders can be made following a family law motion in Ontario, being a temporary Order and a final Order. A temporary Order occurs when a judge makes a temporary decision on an issue and outlines the arrangements that are to be followed by both parties until a final decision on the issue is made. A final Order on a family law motion would be for a very specific issue which the judge feels can be determined at the stage of a motion and which does not require a trial for a final determination.

If you want more information about a family law motion in Ontario, if you wish to file a family law motion in Ontario, or if you have been served with a family law motion in Ontario, contact Krol & Krol at 905.707.3370 to schedule a consultation.

Should I try family law mediation?

Family law mediation may help parties resolve family law matters outsides of the court process. Family law mediation is voluntary (so both parties must agree to participate). Family law mediation can be commenced at any time by agreement of the parties, even if the parties are in the middle of the court process.

In a  family law mediation, the mediators should be qualified to assist in resolving issues pertaining to the divorce process, such as child custody and access, child and spousal support as well as the division of property. In a  family law mediation, family mediators who are especially qualified may aid with matters such as child protection disputes. Family mediator offices are located both at family court locations, or the parties can attend at the mediator’s office outside of the court. Some family law mediation may be provided for free or at a low cost at the court, or the parties can privately hire a mediator of their choice. If you and your spouse have agreed that you want to resolve the outstanding issues in your divorce outside of the court process, family law mediation may be a viable option.

There are certain situations in which  family law mediation is not advisable or appropriate. For example, in situations where one party has historically dominated or abused the other, mediation may not be in the best interest of that party.

The solicitors at Krol & Krol have experience with family law mediation in Ontario, as well as separation agreements, minutes of settlement  and obtaining court orders. For more information on whether or not the family law mediation process is appropriate for your specific circumstances, call our solicitors at 905.707.3370 to arrange a consultation.

Reciprocating jurisdiction: Are orders of child support from another country valid in Ontario?

On the issue of a reciprocating jurisdiction, there are only certain circumstances whereby a child support order from another country would be recognized as valid in Ontario.   In order for Ontario to recognize orders from another country, the area from which the original child support order was made must participate in a “reciprocating jurisdiction” relationship with Ontario.

A “reciprocating jurisdiction” relationship means that Ontario and the area in question have entered into a formal arrangement wherein they have agreed to enforce each other’s support orders. In the event that the country in question does in fact have a reciprocating jurisdiction relationship, then the order may be enforced in Ontario.

If you wish to have Ontario recognize a foreign child support order as valid, you are required to register the documentation with the courts in Ontario. Once the documentation has been filed with the Ontario courts, you may move to have the child support order enforced in Ontario.

In the event that you wish to have Ontario enforce child support payments, you may register the documentation with the Family Responsibility Office (FRO).

To learn more about reciprocating jurisdictions, contact Toronto divorce lawyers at Krol & Krol at 905.707.3370.

What are the differences between custody and access?

Custody and access are two diverse legal terms used in family law matters.

Custody deals with decision-making that affects the child in question. Custody typically deals with decisions about the child’s education, religious instruction, and important medical issues.

In contrast, access deals with how much time the child will spend with each parent and how that time will be structured. Access arrangements can vary dramatically depending on the circumstances of the case. For example, in some cases children live primarily with one parent and have regular visits with the other. In other cases children divide their time almost equally between the residences of both parents.

Custody and access can be resolved through an agreement made between the two parties. In the event that the parties cannot come to an agreement on custody and access arrangements, then the matter may be brought before the courts for a determination on the issues of custody and access.

The courts will generally make a decision based on what they then believe is in the best interest of the child, or children, in question. The courts may take the following factors into consideration:

1. The ability of each parent to care for the child;

2. The amount of stability each parent will provide for the child;

3. The emotional ties between the child and each parent;

4. The current status quo with respect to custody and access;

5. The strength of each parent’s plan to care for the child in the future;

6. The wishes of the child;

7. Which of the parents is most likely to ensure contact between the opposing party and the child; and,

8. Which parent is the most willing to care for the child.

There are circumstances where the courts will take past behavior into consideration, such as any incidents of violence or abuse.

If you are currently involved in a family law matter which involves issues of custody and access, contact our Toronto family law firm at 905-707-3370 to schedule a consultation.

What is an unequal division of net family property

The division of net family property and establishing how much money each spouse is legally entitled to upon the dissolution of a marriage is referred to as the “equalization of net family property”.

According to the Family Law Act, the formula in determining one’s net family property requires a calculation of one’s net asset position on the date of marriage and on the date of separation. The basic parameter upon which the “equalization of net family property” is established as follows:

The first step is to calculate each party’s net asset position on the date of separation. It is then necessary to subtract any legally permitted exclusions. Legally permitted exclusions may include but are not limited to, inheritances, specific kinds of gifts, as well as items that both individuals have agreed to keep excluded from the division of property.

It is then necessary to calculate each party’s net worth at the date of his or her marriage.

The net worth of each spouse the day that they got married is then subtracted from each of their net worth on the date of the separation.

Finally, the party with the higher net family property pays the party with the lower net family property one-half of the difference between their respective net family properties.

The above-noted scheme outlines the basic formula upon which an equalization payment is determined in Ontario. There are times, however, when other factors may affect the equalization of the net family property.

The legal system takes into consideration situations whereby equal division of the net family property would be unfair given particular circumstances. The threshold required in order to establish an unequal division of net family property is a high one. Specficially, if an equal division is unconscionable, an unequal division may be ordered by the Ontario Courts. With that being said, there are situations whereby Ontario Courts will grant one spouse an amount that is more or less than half the difference between the net family property.

These circumstances include but are not limited to:

1. When a spouse neglects to inform the other spouse of debts or other liabilities that existed at the date of the marriage;

2. When a spouse incurs debt recklessly;

3. When a spouse intentionally depletes his or her net family property;

4. When there is some form of written agreement between the parties that outlines another agreement when it comes to the way in which they intended on dividing their net family property;

5. When the amount of money one spouse is considered legally entitled to is disproportionately large compared to the years that they have lived together.

Call 905.707.3370 to book a consultation with one of our lawyers to discuss your specific situation and to canvass whether or not your case may be a candidate for an unequal division of net family property.

Can my spouse quit his or her job to avoid paying child support in Ontario?

My spouse quit his/her job, and I believe that s/he did this so s/he would have to pay less child support in Ontario. What can I do about this?

The amount of child support in Ontario that each parent is obligated to pay is determined by numerous factors as outlined in the Child Support Guidelines. These factors include but are not limited to:

1) The child’s or children’s needs;

2) The number of children;

3) The income of both parties;

4) The custody arrangements.

Although it is not common, there are those who believe that by quitting their job, or deliberately reducing their income, they can minimize or completely eliminate their obligation to pay child support in Ontario.

If a court believes that a parent is deliberately reducing his or her income to lower or to avoid child support payments, the Child Support Guidelines in Ontario provide the courts with the power to impute income to a parent. This essentially means that, despite what a parent’s actual income is or what the parent’s tax return states, the court can determine the level of income a parent has for child support purposes and order child support in Ontario based on this ‘imputed’ level of income.

Situations whereby the court can, under the Child Support Guidelines, impute income to a parent  include, but are not limited to, circumstances whereby the courts believe a parent is:

1) Intentionally under-employed or unemployed;

2) Diverting income in a way that affects the amount of child support that is required in the circumstances (pursuant to the Child Support Guidelines;

3) Failing to use property in a reasonable way to generate income;

4) Failing to disclose all income information;

5) Making unreasonable deductions from income;

6) Failing to be honest when it comes to earnings;

7) Hiding income;

8) Purposely working a job that is not suitable based on level of experience and/or education;

9) Failing to make a reasonable effort to look for suitable work; and,

10) Failing to provide good reason for quitting a job.

If a court believes that the parent is engaging in the foregoing to avoid paying child support in Ontario, the judge may impute what he or she feels is the parent’s appropriate level and order child support accordingly.

For more information on child support payments and obligations, contact Krol & Krol at 905.707.3370 to schedule a consultation.

Am I obligated to pay child for my ex-spouse’s biological children from a previous marriage?

With Ontario’s divorce rate, it is now less rare for individuals to be involved in multiple relationships throughout the course of their lives, and therefore the existence of the step-parent and step-child relationship is increasingly more common. In view of this, the question of whether an individual in Ontario is obligated to pay child support for a stepchild has come to light.

It is possible for a stepparent to be obligated by the courts to provide their stepchildren with financial aid, despite the fact that the parent and child are not biologically related. According to section 5 of the Child Support Guidelines, where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is such amount as the court considers appropriate.

Such a child support award is established based on a non-biological parent acting “in loco parentis”. In loco parentis is a legal concept that describes the relationship similar to that of a parent and a child. It refers to an individual who assumes parental responsibilities and a parental relationship more generally for another, usually a youngster, who is not his or her biological child. In other words, if an Ontario Court finds that you stood in the place of a parent, you may be required to pay child support for that child, despite the fact that you and the child are not biologically related.

There are many factors that are taken into consideration by the courts when establishing whether or not a stepparent needs to pay chid support in Ontario. These factors include but are not limited to where the child resides (i.e. with which parent); and the nature and quality of the relationship between the stepparent and the stepchild. For example, does the child relate to the individual as one of his or her parents?

The core issue that a court looks at is whether the individual has stood in the place of a parent for the child. If so, a stepparent may be obligated to pay child support for his or her stepchild.

For more information on the services we provide relating to family law, contact Krol & Krol at 905.707.3370 for a consultation today.

How is basic or table child support established?

At the outset, it is important to note that:

1. Child support is mandatory in Ontario; and,

2.  Child support in Ontario is comprised of two components: the table or basic amount of child support as well as an amount for special or extraordinary expenses. This article shall deal exclusively with the former category.

The parent with whom the child primarily resides is entitled to a basic or a table amount to compensate them for money spent on caring for the child on a day-to-day basis. The amount of basic or table child support that person paying support (also known as the payor) is required to pay is outlined under the Child Support Guidelines. The Child Support Guidelines determine the amount of child support on the basis of two factors. The first factor is the annual income of the paying parent, and the second is the number of children in need of receiving child support.

There are circumstances in which it is appropriate that the amount of child support deviate from the above-noted formula. Such circumstances include cases where parents share residency of the child, or where the payment of child support would result in undue hardship for the parent providing the support. Furthermore, when a payer’s income is over $150,000.00 the court maintains discretion in terms of determining the quantum of child support owing.

For more information on child support in relation to family law matters, contact Krol & Krol at 905.707.3370.

What are Section 7, special, or extraordinary expenses?

During a marriage, both parents generally provide financial support for their children and provide provisions for the children’s financial needs. When spouses separate or divorce, and children are involved this obligation continues. Even if the children remain in the custody of only one party, the majority of the time both parents are required to continue supporting their child, or children financially.

The financial support that both parents are legally obligated to provide is referred to as child support. The Child Support Guidelines calculate how much each parent is obligated to contribute to support the child or children.

Child support is divided into two different components: the monthly ongoing basic payment and an amount for what is known as section 7 special or extraordinary expenses. These special or extraordinary expenses are addressed in section 7 of the Child Support Guidelines.

The basic or the table amount of child support deals with the amount of money a parent is obligated to pay for a child’s day-to-day expenses. The non-residential parent is obligated to pay child support based on the province in which the child resides, based on his or her income, and based on the number of children receiving the support. The Child Support Guidelines contain Tables, which outline the fixed amounts based on these factors.

Child support is paid  in after tax dollars, meaning that the recipient is not required to pay tax on the amount, and the parent paying the support does not receive any tax breaks on the amount.

Whereas, the basic monthly amount outlined in the Child Support Guidelines is meant to cover the support payers portion of daily needs, Section 7 of the Child Support Guidelines address the special or extraordinary expenses that go beyond the regular daily needs of a child. Special or extraordinary expenses can include, but are not limited to, private school expenses, recreational activities such as competitive dance or hockey, medical and dental expenses, childcare, and post-secondary expenses. When it comes to special or extraordinary expenses, both parents are required to proportionately share the cost. The amount each is obligated to provide is relative to their respective salaries.

For more information of child support and to schedule a consultation, contact Krol & Krol at 905.707.3370.

Ashak v. Ontario: Can I Sue the FRO?

In the case of Ashak v. Ontario, the Court canvassed the issue as to whether the Family Responsibility Office (commonly referred to as the ‘FRO’) can be sued when they are negligent and/or act in a substandard manner.

In the case of Ashak v. Ontario, the husband was ordered by the Ontario Courts to pay both child and spousal support to his former wife and children. Like many other spousal and child support orders, the wife filed the order with the FRO.

Following the finalization of the divorce, the husband fled the country. He left to Iraq, a country upon which Canada had no reciprocal support enforcement agreement. This means that Iraq did not enforce orders made in Canada. The husband did not pay any support to his wife or children, and therefore his Canadian passport was suspended by the FRO.

The husband then went to the FRO as he wanted his passport to be reinstated.  The FRO advised the husband that they would only do so if he pays all of his support arrears or if he secures a variation of support (either court ordered or agreed upon by the parties).

Subsequently, the husband went to the FRO claiming that he and his lawyer were waiting for the variation order. The FRO proceeded to remove the suspension of the husband’s passport. The husband then left Canada and has yet to return.

The wife proceeded to sue to see the FRO for damages, claiming that there was a breach of duty, negligence, gross negligence and breach of a fiduciary duty.

The FRO attempted to have the charges dismissed by bringing a summary judgment motion. In other words, they attempted to have the action dismissed. They stated that there was no genuine issue for trial because the wife (a private citizen) had no cause of action against the Family Responsibility Office (a public agency).

However, the Ontario Superior Court of Justice allowed the case to proceed to court. Therefore, this matter will be proceeding to trial. The outcome of this case will be very interesting, as it will provide insight as to if and when the FRO may be sued when they are deemed to have acted in a negligent manner and/or breached their duty.

Call Krol & Krol today at 905.707.3370 for more information on the FRO.

The children of the marriage refuse to go to an access visit with my ex spouse. What do I do?

Most of the time, divorce is difficult on the children of the marriage. It is often hard to come to terms with, as well as to move forward from the shock that a child or children’s experiences when the marriage of their parents breaks down and comes to an end. At times, children of the marriage will harbour resentment towards one or both of the parents. This could therefore result in a child not co-operating when it comes to access visits with their non-custodial parent.

In the event that the children of the marriage do not show up to access meetings and the custodial parent is alienating the non-custodial parent, it is possible that the custodial parent may be charged with contempt. This means that the parent who holds custody over the child, or children, could be considered to not be complying with the court order and will be held accountable.

When there is no evidence to the contrary, it is generally assumed that it is in the best interest of the child or children to have maximum contact with both parents. Therefore, and assuming there is no danger to the children or children, it is important to demonstrate that you are taking reasonable steps in order to encourage your child to attend access meetings. It is the custodial parent’s obligation to create a dialogue with their child or children, to find out why they do not want to see their other parent and to use their best efforts to reason with them accordingly. The custodial parent is then expected to communicate the difficulties, as well as the progress with the non-custodial parent so that they are privy to what is going on.

Should you require more information on access and visitation, please contact Krol & Krol at 905.707.3370 for a consultation.

How to serve documents in Ontario in family law: Rule 6 of the Family Law Rules

When serving documents in Ontario with respect to a family law issue, there are two methods of service, being regular service while serving documents in Ontario, or special service while serving documents in Ontario. Selecting a method for serving documents in Ontario is to be done in accordance with Rule 6 of the Family Law Rules, outlined below.

Using Regular service, there are five methods for serving documents in Ontario. They include:

1. Mailing a copy of the documentation to the individual’s lawyer, or if they have yet to retain a lawyer, to them, personally;

2. Using a courier to send a copy of the documentation to the lawyer, or if they have yet to retain a lawyer, to them, personally;

3. Depositing a copy of the documentation at a document exchange in which the individual’s lawyer is taking part of;

4. Faxing a copy of the documentation to the lawyer, or if they have yet to retain a lawyer, to them, personally;

5. To carry out special service.

Carrying out a special service of a document can be carried out in one of four ways.

1. The first way is to leave a copy:

(a) with the person to be served.

(b) In the event that the person appears to be mentally or emotionally incapable in respect to the issues outlined in the documentation, then the documentation may be left with the guardian of the persons property, or if there is no guardian of the persons property, then with the Public Guardian and Trustee.

(c) If the individual is a child, then the documentation must be left with the child and with the child’s lawyer, if one has been retained.

(d) If the institution being served is a corporation, then the documentation may be served on an officer, director of the corporation, agent of the corporation, or with any individual working for the corporation who appears to be managing the institution.

(e) If the institution being served is the children’s aid society, then the documentation may be served on an officer, director or employee of the society.

2. Another form of special service is to leave a copy of the documents with the individual’s lawyer who is the lawyer of record, or with a lawyer who in writing accepts the service of the documentation.

3. Special service can also entail mailing a copy of the documentation of the individual, along with prepaid postage, an envelope with the senders return address, and an acknowledgement of service. This is so that the recipient may send an acknowledgement of service to the to the applicant. If one chooses to serve documentation in this way, then the documents will only be viewed as valid if the acknowledgement of service is signed and returned to the individual serving the documentation.

4. One may also leave the documentation in an envelope at the residence person being served. The documentation must be left in an envelope clearly addressed to the individual, with any individual also residing in the residence who appears to be an adult with the same address. In addition to doing this, the applicant must mail a copy to the recipient soon thereafter.

For more information on serving or filing your family court documents, contact Krol & Krol at 905.707.3370 to schedule a consultation.

What is an offer to purchase or an agreement of purchase and sale?

An offer to purchase is also commonly referred to as an agreement of purchase and sale.

An offer to purchase (or agreement of purchase and sale) outlines the terms upon which the buyer agrees to purchase the property from the seller. It takes the form of a written legal contract between two parties, being the buyer and the seller. Usually, an offer to purchase is a legal document drafted by a lawyer and witnessed by a third party. That means that the contract is legally binding, and that the purchase is subject to the terms outlined in the offer to purchase.

In addition, it often outlines the price upon which the buyer will buy the property from the seller. An offer to purchase can come in one of two forms. It can be firm, or conditional.

A firm offer contains no conditions. The agreement is straightforward and clear cut. It outlines that the sale will take place and the way in which the sale will proceed. This type of offer does not outline specific conditions that need to be met in order to go ahead with the sale.

A conditional offer is another type of offer to purchase. This type of offer to purchase is subject to specific conditions, outlined within the document itself. Usually, there is an indicated time period within which the conditions outlined in the conditional offer must be completed in order for the purchase to go through. With this type of agreement of purchase and sale, if the conditions are not met, then the buyer may back out of the deal.

The conditions outlined in a conditional offer may include, but are not limited to, financing, or the sale of an existing home and so forth.

For more information on offer to purchases, also known as agreements of purchase and sale, contact Krol & Krol at 905.707.3370.

What is the Family Responsibility Office (FRO)?

The Family Responsibility Office (often referred to as the ‘FRO’) is an agency that has the authority to enforce support payments from a payor to a recipient.  In other words, when a spousal support order or child support order is filed with the Family Responsibility Office (FRO), the onus to collect and distribute the support is then shifted from the parties onto the Family Responsibility Office (FRO).

The Family Responsibility Office (FRO) does not deal with issues such as custody, access and orders with respect to equalization payments.

The goal of the Family Responsibility Office (FRO) is to collect, distribute, and enforce both child and spousal support orders.

The Family Responsibility Office (FRO) may sanction the payor if he or she does not pay the person who is supposed to receive support. The powers of the Family Responsibility Office (FRO) that it may use in order to enforce support, include, but are not limited to:

a) Taking the support payments directly from the payor’s employer;

b) Suspending a payor’s driver’s license;

c) Garnishing a payor’s bank accounts, investments accounts, RRSP’s, etc.; and,

d) Suspending a payor’s passport.

For more information on the Family Responsibility Office (FRO), contact Krol & Krol at 905.707.3370.

What are wills in Ontario? What happens if I choose not to have a will?

Wills in Ontario are legal documents that outline how one wishes to distribute their property upon their death. Without a legal will, your assets may not be distributed in the way that you wish.  Wills in Ontario also minimize the possibility of tension between the surviving family members after the death of an individual. There are various types of wills; these include holographic wills, oral wills, and living wills.

Holographic wills are not witnessed by a third party and therefore seldom hold up in court. Oral wills have no written documentation and are rarely taken into account from a legal perspective. Living wills, in contrast to the other forms of wills, do not come into effect after the person in question passes away. A living will deals with who should be held responsible for decisions regarding medial care if an individual is not in a position to make such decisions for his or herself.

The best way to structure wills in Ontario in order to ensure the best odds of it standing up in court is to have the will in writing, and signed and witnessed by a third party.

There are many specific items that are not covered in the will. These items include but are not limited to money obtained by life insurance policy payouts, assets from retirement, assets owned by more than one individual, and so fourth.

If you do not have a will and you pass away without creating one, you are considered to have died intestate. If an individual dies intestate, one’s assets will be distributed according to the law through a set formula. This can lead to financial and emotional difficulties of family and friends, as the house may be sold, your family may be unable to continue to maintain their standard of living, and so on.

For more information on wills in Ontario, or to retain a lawyer to draft a will for you, contact Krol & Krol at 905.707.3370.

Can I make child support payments directly to my spouse, or must I pay the Family Responsibility Office?

Whether or not you are obligated to make your child support payments through the Family Responsibility Office will depend on the cooperation of the party receiving the support. If the recipient agrees to not have the payments proceed through the Family Responsibility Office, then child support payments are allowed to be made directly to the recipient. This will typically be the case when parties have arrived at a resolution of their matter via negotiation and the ultimate execution of a separation agreement.  There will often be a clause in the separation agreement providing that the payor will pay directly to the recipient and not to the Family Responsibility Office. In addition, there will often be a term in the separation agreement that stipulates that if the payor defaults on his or her payment for a specified amount of days, then the recipient can take the steps to notify the Family Responsibility Office of the default and the Family Responsibility Office can then commence enforcement of the separation agreement.

In the event that both parties agree to proceed in this way, they will proceed by completing and signing a Notice of Withdrawal which is then provided to the Family Responsibility Office. If the Notice of Withdrawal has not been completed, or has yet to be filed with the Family Responsibility Office, the Family Responsibility Office will continue to enforce the support payments.

To learn more about the Family Responsibility Office, and the enforcement of support orders and/or agreements, call 905.707.3370 to schedule a consultation with one of our Toronto divorce lawyers.

What is mortgage amortization?

When one refers to the mortgage amortization period, they are referring to the amount of time that it will take until the entire mortgage debt will be repaid. The mortgage amortization period is important, as it affects the amount of interest one will be required to pay on their mortgage, as well as the amount that they will have to put down on their home when they sign the mortgage.

If you obtain an amortization period of less than 25 years, then you will be obligated to pay less interest on your mortgage each month, and will be required to make monthly mortgage payments for a shorter period of time.

If you choose to do this, then you will be required to put down more money when it comes to the principal balance, however this means that you will be mortgage free sooner rather than later.

If, however, you choose to have a 25 year long amortization period, you would pay a larger interest rate over a longer period of time. This means that the amount owed monthly would be less, however due to the extension of the pace of the mortgage, you would end up paying a larger amount of interest in total and would be required to pay your mortgage for an extended period of time.

More frequent payment schedules, like bi-weekly payments, can save interest costs by reducing the outstanding principal balance more quickly.

For more information on mortgage amortization contact Marilyn Krol at Krol & Krol at 905.707.3370, extension 22.

Can I change the locks to the matrimonial home?

As the sole spouse on title, can I change the locks to the matrimonial home?

If the property in question is the home that you and your spouse lived in at the date of separation, this home will be considered a “matrimonial home” under the Family Law Act.

According to the Family Law Act, irrespective of whether the matrimonial home is jointly owned or if only one spouse in on title, both spouses have a right to possession of the matrimonial home.

Despite the fact that the property may be registered solely in your name, you will not simply have the right to change the locks and bar your ex-spouse from continuing to reside in the matrimonial home.

That being said, there are circumstances that may warrant the granting of “exclusive possession” of the matrimonial home to one spouse to the deprivation of the other spouse. This means that until the parties arrive at a resolution of the matter, or the court makes a final order in the matter, there are circumstances where it may be appropriate for the court to grant a temporary order allowing one spouse to exclusively possess the home.  An individual may be granted exclusive possession of the matrimonial home for a variety of reasons. For example, one may be granted exclusive possession of the matrimonial home following an assault by one spouse against the other spouse or a child.

Once one of the parties is granted an order providing for the exclusive possession of the matrimonial home, the other party may not enter the matrimonial home.

For more information on the matrimonial home, exclusive possession with respect to the matrimonial home, or your family law matter generally, contact Krol & Krol at 905.707.3370 to schedule a consultation with one of our experienced family law lawyers.

Preparing a will: How do I prepare a will? Can I change my will?

A will is a legal document that is used to determine the division of an individual’s assets following their death. Preparing  a will begins with the completion of a list of both your assets as well as your debts. This list should ideally include the components of any safety deposit boxes that you currently hold in your name, any items of sentimental value, and any family heirlooms you hold in your possession along with anything else you wish to pass down to anyone following your death.  Then in preparing a will you must determine what goes to whom.

In situations whereby the estate in question is a large sum of money, or whereby the situation is legally complex for whatever reason, it may be in your best interest to hire a lawyer to assist you in preparing a will that best suits your situation. Another reason to obtain an attorney to help in preparing a will is to ensure it is legally binding and is resistant to being overturned, should there be disagreement with respect to the will after your death.

It is possible to change your will after the initial draft. Doing so requires either preparing a new legally binding document to take the place of the old one, or simply amending the present will.

It is important that you are of sound mind and in good health when creating as well when preparing a will, or altering a will in any way. If you are not sound of mind, and the will is contested, it is possible that the will not hold up in a court of law.

Once the will is completed, you must continue the process by giving the document to an executer, or some form of professional advisor.  It will be the executer or the professional advisor’s responsibility to ensure that the will is read to the individuals included.

For more information on wills, or to retain a lawyer to draft a will, telephone Krol & Krol at 905.707.3370.

What is an ex parte order?

In certain circumstances, a party can request an ex parte order from the courts by bringing an ex parte motion. In Latin, ex parte literally means “from one party.”

This type of motion is requested by one of the parties, without notice to the other party involved. The opposing party usually only hears about an order granted after it is already being enforced.

Ex parte orders are usually only granted in response to extreme situations and in circumstances when an immediate temporary order is necessary.  Often, these orders are sought when an immediate decision is necessary in order to protect a child or for the moving party’s own protection.

When a party brings an ex parte motion, the situation is presented only from the point of view of the party who is requesting the order. Accordingly, only the moving party’s version of the facts will be presented to the judge, without the judge hearing both parties’ perspectives and both sides of the story.

The onus in on the party bringing the ex parte motion to convince the judge that it is imperative that the requested order be granted. It is important to present all the facts of the case and not to conceal anything relevant to the issue. If a deliberate attempt to conceal a relevant fact is brought to the attention of the courts, the moving party will lose credibility and the ex parte order may be immediately overturned.

When a judge issues a temporary order on an  ex parte motion, the issue must return to court within 14 days so that the opposing party’s position can be heard and a decision on the issue can be made. That being said, ex parte motions will often be required to return to court earlier than the 14 day limitation period.

For more information on ex parte orders, ex parte motions and for assistance with any aspect of your family law situation, contact Krol & Krol at 905.707.3370 to schedule a consultation with one of our experienced Toronto family lawyers.

Should I move out of the matrimonial home?

At all times, individual are, of course, within their rights to leave the matrimonial home, for any reason. However, in certain situations and for strategic/tactical reasons, leaving the matrimonial home may be highly discouraged.

Depending on your case and the unique factors that surrounding a particular set of circumstances, leaving the matrimonial home can have a detrimental effect on the outcome of a case and may result in a situation that is to the other party’s favour.

Leaving the matrimonial home affects individuals when it comes to areas such as custody and access, possession of the matrimonial home, the financial aspects of the case, and so forth. For example, if you leave your children in the matrimonial home with your spouse and leave the property, this may have a negative effect on your position when establishing custody and access rights.

There are however circumstances whereby leaving the matrimonial home is necessary and recommended, such as situations whereby one spouse faces domestic violence, physical or verbal abuse, etc. In those sorts of situations, for your own protection as well as for the protection of your children you may decide that it is best to leave the matrimonial home. It ought to be noted that it is also possible that, depending on the circumstances, you may be able to obtain a court order for exclusive possession of the matrimonial home and ensure that you are the party that will continue to care for your kids while an abusive spouse is kept away from you, the children, and the matrimonial home.

The decision to stay or leave the matrimonial home can have important consequences on your family law matter. It is important to consult with an experienced and knowledgeable family lawyer in Ontario to determine the the best course of action to take with respect to the decision to stay or leave the matrimonial home.

For more information on issues involving your matrimonial home, and and to schedule a consultation with one of our experienced Toronto family law lawyers, contact Krol & Krol at 905.707.3370.

What is a Certificate of Appointment with a Will? Why would I need to obtain one?

A certificate of appointment with a will means that the courts have acknowledged and stamped the will as legitimate and binding.

Certificates of appointments are created so that financial institutions (for instance: banks) can protect their institutions. If not for certificates of appointments, in the event that the deceased had more than one will, with two different beneficiaries, the financial institutions may be in a situation whereby they may make a pay out to the wrong beneficiary.

In response, these financial institutions require legal proof that you are the sole estate trustee and beneficiary, and that they are paying out the estate to the proper person.

Once the financial institutions see a certificate of appointment with the will, then they are protected financially, and are no longer liable if they pay out the estate to the wrong individual.

In addition, a certificate of appointment with the will is needed in order for a beneficiary to sell or transfer the deceased’s real estate, as well as in order to transfer shares from the deceased to the estate trustee.

There are also situations whereby the content of the will may difficult to understand. By obtaining a certificate of appointment with the will you are clarifying the content of the will, ensuring you are caring it out in the right way, legally, and that your actions cannot be contested.

The will must be submitted to an Ontario court in order to be granted a certificate of appointment. In order to obtain one, the estate trustee must pay probate fees, which are also recognized as court fees.

It is also important to note that whether or not a certificate of appointment with the will is required depends on the estate in question and the circumstances surrounding the will and the estate left behind by the deceased.

For more information on wills and certificates of appointment, contact Krol & Krol at 905.707.3370.

If my parent was paying child support before s/he passed away, am I entitled to support from her/his estate? Can I contest a will in Ontario?

There are situations whereby a parent, who was before death legally obligated to pay child support, dies and leaves nothing in a will for the children. In this type of a case, the children may have rights against the estate of their deceased parent.

If your parent was a resident of British Columbia when s/he passed away, it is possible that s/he is obligated, under British Columbia law, to name his children beneficiaries in his will.

In contrast, other provinces, such as Ontario, do not require an individual to name his or her children as beneficiaries of their estate and assets.  If you were not named a beneficiary, and your parent was under a legal obligation to support you, it is possible for you to challenge, or contest, your parent’s will.

This is, however, extremely difficult to succeed at. When an individual writes their will, they are granted the ability and right to leave their assets with whomever they choose. In order to contest a will in Ontario, you must have a legal basis to do so.

An example of a legal basis upon which you can contest a will in Ontario, is if you fall under the criteria of having a right to your parent’s estate under the Succession Law Reform Act. The criteria an individual requires in order to contest a will in Ontario under these circumstances include being a member of a specific class, along with having a specific kind of relationship with the deceased. Then, the individual must prove that their parent was supporting them, or was legally obligated to provide support for them.

When the court is assessing your case to contest a will in Ontario, they will take into account your ability to support yourself, your heath, your needs, how close you and your parent were before the death, etc.

Then, the court will take your claim and balance it against the claims of other individuals (including other individuals that your parent supported before death and the beneficiary’s situation as outlined in the will).

Every case depends on factors are case specific. Factors that affect the decision of the court include, but are not limited to, the relationship between the individuals and the deceased prior to passing away, the deceased’s mental health, when the will was drafted, if it was a redraft, your claims as well as the claims of other individuals, and so on.

If you wish to contest a will in Ontario, you must do so within six months from the time that the court has issued a Certificate of Appointment of the will (i.e. within six months of the court legitimizing the will as legally binding). If you do not apply within this designated time period, and the estate has already been distributed, you will not be able to contest for the items already distributed.

For more information on contesting a will, contact Krol & Krol at 905.707.3370.

My spouse just quit her/his job, and I believe it’s so that s/he will not have to pay child support. Is that legal?

The amount of child support that a parent is obligated to pay is determined by numerous factors as outlined in the Child Support Guidelines in Ontario. These factors include but are not limited to:

  • The child’s or children’s needs;
  • The income of both parties;
  • The custody arrangements.

Some individuals believe that by quitting their job, or deliberately reducing their income they can minimize or completely eliminate their obligation to pay child support.

If a parent believes that the other parent is purposely avoiding payments in this way, they are within their rights to bring their case to the Court’s attention.  If the Court believes that the parent is deliberately minimizing or lying about their income to avoid child support payments, the Child Support Guidelines in Ontario empower Courts to impute income to that parent. This means that a Court will estimate what the parents’ income should be and create a support order accordingly.

Situations whereby the court is empowered to do so, under the Child Support Guidelines include, but are not limited to circumstances whereby a Court believes that a payor parent is:

  • Intentionally under-employed or unemployed;
  • Failing to disclose all of their income information;
  • Taking unreasonable deductions from their income;
  • Failing to be honest when it comes to what they are earning;
  • Hiding money;
  • Purposely taking on a job that is not suitable for them;
  • Failing to reasonably look for suitable work;
  • Failing to provide good reason for quitting a job;
  • Taking a job with a lower salary on purpose that does not match up to his or her level of experience and or education.

For more information on child support payments and obligations, contact Krol & Krol at 905.707.3370.

 

What is financial disclosure? What happens if I do not disclose all of my assets?

Financial disclosure requires that both parties disclose their full financial circumstances to one another.

There are three different areas of one’s finances that each party needs to provide documentation for, relating to support and property. These three areas include employment-related documents, documentation on assets and documentations on debts and liabilities.

When it comes to employment-related documentation, the documents that are commonly used in order to prove an individual’s salary includes, but is not limited to copies of the individual’s employment contracts, income tax returns (including all attachments and schedules), any notices of assessment or reassessment, recent pay stubs, financial statements, and so forth.

When it comes to the documentation for the individual’s assets, documentation that may be requested includes bank statements for all bank accounts, brokerage accounts, RRSPs, as well as any other investments, pension plan documentation, life insurance plan documentations, Canada Savings Bonds, trust documents, trust financial statements, title documents for all property both spouses own and documentation that proves the origin of any gifts, inheritances or personal injury awards and so on. When the parties are married, this documentation is to be provided as of the date of marriage, the date of separation and currently.

When it comes to the area of debts and liabilities, one must submit statements for all credit cards and lines of credit, mortgage statements.  When the parties are married, this documentation is to be provided as of the date of marriage, the date of separation and currently.

In the event that one party does not provide the other party with full financial disclosure and a contract or settlement is reached, the Family Law Act permits a Court to set aside such a contract or settlement based on a lack of financial disclosure.

If an individual believes that his or her spouse is concealing information or assets, or simply not providing complete disclosure, then s/he may apply to the Court to compel the spouse to disclose the missing information.

Due to the fact that full disclosure is obligatory, many ask what documents each party is obligated to provide in order to have completed the process of financial disclosure.

Finally, a lawyer can assist you in determining the issues relevant to your case as well as the financial disclosure requirements.

For more information on financial disclosure, and information on the specific documentation that is required when providing financial disclosure, contact Krol & Krol at 905.707.3370.

Do I have to tell my lawyer all of the personal details of my life when getting a divorce in Ontario (even things that I consider to be private)?

When getting a divorce in Ontario, it is often difficult to tell your lawyer all of the personal aspects of your marriage and your separation. Therefore, people are often reluctant to share certain information with their lawyer.

It is important to remember that when getting a divorce in Ontario, the more informed your lawyer is and the more aware he or she is about all of the relevant aspects of the marriage, the more capable and prepared your lawyer will be to defend you and your case.

With that being said, you are not obligated legally to disclose all of the details of your relationship to your lawyer, however, it is highly advised that you do so. Information that may otherwise seem meaningless and unusable to you may in fact become important once the case continues to unfold.

As the case continues to progress, there is a possibility that if you do not disclose all of the relevant details of your relationship, that some of the details that were not disclosed may be used against you. It is in your best interest that your lawyer is well prepared to respond to the situation if it does surface.

It is never a good idea to deliberately misrepresent information to your lawyer. If while you are getting a divorce in Ontario, it comes to light that you have purposely withheld important information from your lawyer, it could seriously damage your credibility and result in a breakdown of the relationship between yourself and your lawyer.

For more information on getting a divorce in Ontario, contact Krol & Krol at 905.707.3370.

After we’ve separated, can I use text messages and emails my spouse has sent me as evidence?

It is common for couples to stay in touch with one another after becoming separated for various reasons. For example, the parties that have separated may have children together and need to communicate on issues relating to those children. Sometimes, your spouse may contact each other to talk about their separation and the circumstances surrounding being separated.

Today, it is common for separated spouses to communicate through text messages, emails, Facebook as well as other types of social media.

Often times, when separated spouses engage in disagreements through these forms of communication. It is easy for the parties to become upset and exchange a series of heated messages back and forth.

It is important to be very careful with what you say to your spouse through these forms of communication. Your must keep in mind that the messages that are sent through these methods of communication can be accessed by the Court, used by your lawyer – to support your position or by the opposing party – to hurt your position.

Clearly, if your spouse has sent you malicious, angry messages, you are within your rights to obtain a copy of those messages and present them to the Court in order to support your case.

For more information on collecting evidence for your case, contact Krol & Krol at 905.707.3370.

Can I use information obtained from Facebook as evidence in court?

Social networking has become an extremely common way for people to share the details of what is going on in their lives with the larger society.

With that being said, a common question that has come to light is whether or not one can you information obtained from Facebook as evidence in court in a divorce case and a family law matter. It is clear that postings, photos and friends lists can be used as evidence in family related litigation matters.

Facebook can be used to reopen a case if it brings to light new evidence that can cast doubt on previous evidence upon which the previous verdict was established.

In addition, Facebook profiled have been used in order to draw conclusions on an individual’s character, judgment, and credibility.

Therefore, it is evident that parties can and do use information obtained from Facebook as evidence in court, if the evidence being brought forth has merit and bearing on the matter at hand.

It is important that you are cautious about the information displayed on Facebook as it relates to you, since this information can be used against you in the court of law.

My ex spouse left behind many possessions when permanently moving out of the residence. According to Ontario family law, how do I properly go about disposing of these items?

It is common for separating individuals to want to rid themselves of the constant reminders of their ex, and therefore, to want to dispose of the remainder of their ex’s items that the ex has left behind in the residence. Based on Ontario family laws, it is, however, strongly advised that you not do so.

Though the reasons behind doing so may be understandable, both for practical and emotional reasons, especially once your ex spouse has permanently moved out of the residence, Ontario family law does not permit you to simply go ahead and get rid of their property. Ontario family law governs specific parameters under which you may go about this process.

If you fail to abide by these Ontario family laws, you may be held accountable for returning these items to your ex spouse. It is possible that you may be responsible for replacing them in the event that you cannot produce them.

According to Ontario family law, you ought to provide your ex spouse with significant notice to retrieve their items so that they may make the proper arrangements to do so before you go ahead and get rid of them. Your ex spouse ought to be granted a fair opportunity to retrieve the items before you are considered to be within your right to dispose of them.

Therefore, it is strongly advised that you provide your ex spouse with a notice, in writing, of when you are planning on getting rid of the items if he or she does not retrieve them. It is imperative that this notice provides him or her with a reasonable amount of time to retrieve the outlined items before you proceed to get rid of the items on your own.

If you have given your ex-spouse a written notice with an outlined date, and he or she has yet to come retrieve the items by the designated date, then you may be permitted to dispose of the items accordingly.

It is further advised that you retain a copy of the written notice that was sent to your ex spouse, along with any receipts substantiating the method by which you got rid of the items. For example, if you donate the clothing, the date upon which you donated the clothing can be provided by the charity via a receipt. This only further proves that the clothing was in your possession up until the designated date written on the notice.

Contact Krol & Krol at 905.707.3370 for more information on how you should go about disposing of an ex spouse’s items that remain in your possession.

Is it possible for a third party to obtain custodial rights over a child of a couple obtaining a divorce?

Usually, one or both of the parents partaking in a legal divorce are granted custodial rights over the child, or children involved in the matter. However, there are situations whereby a third party, whether it is grandparents, extended family, or close friends, are able to obtain custodial rights of the children.

According to the provisions outlined in the Children’s Law Reform Act, a non-parent may apply for the custodial rights over a child, or children, only if they possess specific qualifications.

There are specific requirements and documentation that is requested from the a non-parents of a children, or children, requesting custodial rights under the Children’s Law Reform Act. These requirements include, but are not limited to:

1. The results of a recent police records check; and,

2. Reports from any Children’s Aid Societies.

For more information on third party applications for custodial rights, contact Krol & Krol at 905.707.3370.

During the divorce process in Ontario, can the court order third, outside parties to provide information or documentation relating to the divorce?

According to Ontario law, both parties involved in the divorce process in Ontario are required to disclose specific information to one another. For example, they are required to provide financial disclosure to each other in order to properly divide their financial affairs.

Whether or not the obligation to disclose information during the divorce process in Ontario extends to third parties, also known as individuals who are not the two people trying to obtain a legal divorce, is not as clear-cut.

It is possible that the court will compel third parties to produce specific documents, to testify, or provide evidence that apply to the divorce process in Ontario. Circumstances whereby one party is acquiring additional non-disclosed income, and the evidence to prove so lies with a third party, are circumstances whereby the court may require individuals besides the two parties getting divorced, to provide evidence.

If an individual wishes to have a third party compelled by the Ontario courts to disclose specific evidence, they must prove the following:

  • That the information is necessary to prove an aspect of the court case;
  • That the information is relevant to the issues at hand;
  • That it would be unfair to the individual if the information was not produced;
  • It is also important to ensure that by acquiring this information the court is not infringing on the rights of the opposing party.

The court will take the above factors into consideration and examine whether or not it is necessary to reach out to a third party during the divorce process in Ontario, based on the case’s unique circumstances.

If you are entering the divorce process in Ontario, phone one of our experienced Toronto family lawyers today for a consultation at 905.707.3370.

Why should I hire a real estate lawyer?

Each party (the vendor and the purchaser) to a real estate transaction needs a separate, independent real estate lawyer in order to close a real estate transaction in Ontario.

In addition, you will have questions with regard to what your legal rights are and what the best way is for you to proceed with the buying and/or selling of the property. Not only will hiring a real estate lawyer relieve stress that comes along with the legal transaction, but they will also ensure that you are fully aware of the implications of your actions and aware of what you are entitled to.

A real estate lawyer serves a number of roles in the legal process of obtaining and selling a property:

1. Help you prepare the purchase contact;

2. Ensure that you understand the purchase contact;

3. Prepare and register all other legal documents;

4. Negotiating terms and conditions on your behalf; and,

5. Review contracts prior to the closing.

A real estate lawyer should be involved in the process as soon as possible, so that he or she can begin to start working to protect your interests. It is suggested, however not mandatory, that you obtain a lawyer before you sign any agreements with real estate agents.

It is important that you hire a real estate lawyer that is knowledgeable and experienced in real estate law.

For inquiries about hiring a real estate lawyer throughout Toronto, Richmond Hill, Thornhill, Maple, Concord, Markham, Vaughan and Aurora, contact our experienced real estate lawyers at Krol & Krol at 905.707.3370.

What happens if someone defaults on child support payments and what is the role of the Family Responsibility Office?

When an order is made in relation to child support, the order is immediately forwarded to the Family Responsibility Office for enforcement. The Family Responsibility Office is responsible for ensuring that the terms of the court order are enforced. In the event that the payor parent is not abiding by the court order, and that payments are not being made according the provisions outlined in the court order, the Family Responsibility Office, or recipient of support, is in a position where they may take steps to enforce payment of the child support that is owed.

Methods that may be used by the Family Responsibility Office in order to collect child support payments include obtaining child support payments directly from the payor’s employer, garnishment of the payor’s bank accounts or RRSPs, or filing writs against property that the support payor owns. The Family Responsibility Office can also ask the Ontario family courts to suspend the support payers drivers license, passport, or other federal licences.

If you wish for the Family Responsibility Office to enforce child support payments and you and your spouse have withdrawn from the services of the Family Responsibility Office (by filing a Notice of Withdrawal), you will have to re-file the order or agreement with the Family Responsibility Office so that the Family Responsibility Office can commence enforcement of the support order and take the steps necessary to ensure that the payor makes the required support payments.

For more information about the Family Responsibility Office and your family law case in general, call 905-707-3370 to schedule a consultation with one of our experienced Toronto family law lawyers.

What are my options in terms of legal representation in my case?

Every party has to make a decision as to their legal representation in a given legal matter. Every party has the option to:

1. To be represented by a lawyer;

2. To be represented by a person or individual who is not a licensed lawyer, but who the court permits to represent the party regardless.

3. Appear in court without a lawyer or any form of representation, and to represent themselves.

In the event that a party passes away after a case has begun, and if it is necessary, the court is allowed to appoint the estate trustee to represent the party’s best interest.  If the party did not previously have an estate trustee, then the court may allow for an individual who was previously approved by the party before he or she passed, to represent the party as long as they are considered to be an appropriate person to represent the party.

In cases where children are involved, the court may authorize a lawyer to represent the child and the child’s interests. In other words, the court is able to authorize either a Children’s Lawyer or a Public Guardian and Trustee to represent the party.

If a party decides to change lawyers during their case, they may be required to file a Notice of Change in Representation. The Notice of Change in Representation must include the party’s address for service if they wish to proceed without a lawyer, or the new lawyers address for service if they are hiring another attorney.

For more information on your options in terms of representation contact Krol & Krol at 905.707.3370.

If my spouse engages in an internet-based relationship, does that constitute a “breakdown of the marriage” entitling me to a divorce?

An individual is entitled to obtain a legal divorce if there has been a “breakdown of the marriage” according to the Divorce Act. A “breakdown of the marriage” includes but is not limited to adultery.

In recent years, with the development of technological advancements, the question of what constitutes “adultery” has become a more relevant issue.

Whether or not “adultery” in Ontario extends to communications and actions conducted online (for example, text-based sexual message exchanges) has yet to be addressed. However, the more evidence one has on the escalation of the online relationship, the greater the chances of convincing a judge that a spouse has, in fact, committed adultery. The determination of whether or not cyber communications and relations constitue adultery will often be a fact-specific inquiry.

It ought to be noted that the “breakdown of the marriage” is not often established by proving that one spouse has committed adultery. This is because it can be costly and take a long time in order to prove the adultery. In most cases, the “breakdown of the marriage” is often demonstrated by establishing that the parties have been separated for one year. This is the primary ground used to establish that there has been a “breakdown of the marriage”.

For more information on the “breakdown of the marriage”, contact a Toronto family lawyer at Krol & Krol to learn about the best way to proceed in your family law matter.

Overview of the consultation, negotiation, and the court process

Although the practice of family law is rarely straight forward, there are certain basic steps in the procedure of conducting a divorce.

The process begins with a consultation between the client and the lawyer. This involves information gathering, a listening period, and a time for discussing and strategizing. Subsequently, the process continues with a negotiation between the two parties involved in the family law case. Finally, if the negotiation does not yield an agreement, the litigation process begins.

The consultation is the first meeting between the client and the lawyer. The meeting begins with an introduction in which the lawyer greets the client and informs them of the structure of the consultation. Afterward, the lawyer will inform the client of the overview of the relevant points of family law, the options that are available to resolve the dispute, and a strategy the lawyer would like to employ. The informing session is followed by a period of discussion to conclude the consultation. If the client retains the lawyer (by providing him or her with a retainer) a retainer agreement is then provided to the client, outlining the lawyer’s hourly rate and the general terms of the retainer.

The negotiation process is extremely important in maximizing the potential of settling a case. The parties may negotiate the terms of an agreement on their own, which should then be “papered” by lawyers into a separation agreement, or it may be negotiated through the lawyers.

Even once the parties are in court, the case can still be settled, assuming that the parties are able to come to an agreement.

This litigation process involves an application, continuing record, court appearances, a case conference, a motion, orders, and possibly a trial.

To learn more about the consultation, negotiation, and the court process, contact the Toronto family lawyers at Krol & Krol at 905.707.3370.

What is meant by the legal term “party” in family law?

When the term “party” is used in as a legal term, it refers to either the individual who is making a claim or the individual against whom the claim is being made.

With regards to motions, the term party is used when referring to any individuals who are  directly affected by the motion in question. However, this rule does not extend to the children who are affected by the motion when referring to motions related to custody, access, child protection, adoption or child support.

The party who is making a claim is commonly referred to as the applicant of a claim, Consequently, the individual against whom the claim is being made is called the respondent of a claim.

According to the Child and Family Services Act, any parent or person who has taken care of the children involved in the case, with the exclusion of foster parents, are considered to be a party involved in the matter, unless ordered otherwise by the court.

In addition, the court is within its right to decide if any other individuals should be a party, and therefore should be added as parties in a given matter.

In the event that an individual, or party, decides to bring upon a motion to change an order, or a status review application, the description of the parties as applicants and respondents is required to stay the same. This rule excludes situations dealing with child protection and status review, applications for an openness order, enforcement or an appeal.

In addition, in an enforcement of a payment order, the parties involved may be described as the payors, recipients and garnishees, as opposed to applicants and respondents.

In appeals of previous motions, the parties are usually required to adopt the names of applicants and respondents.

In the event that the application is brought under section 145.1.2 of the Child and Family Services Act, though the individual who is brining the application should still be referred to as the applicant, the Children’s Aid Society as well as any other party entitled to notice should be referred to as respondents.

For more information on who is considered to be a party when referring to a case, contact family lawyers in Richmond Hill at Krol & Krol at 905.707.3370.

What is a retainer agreement in my family law case?

When an individual hires a lawyer on a family law case, they will be asked to sign a retainer agreement. A retainer agreement sets out the parameters and terms of the relationship between the client and the firm.

A retainer agreement is obligated to include specific terms outlined by the Law Society of Upper Canada.

The contents of a retainer agreement include, but are not limited to, outlining the specific expectations and goals, the nature of the services that the firm will provide, as well as any limitations on the scope of the case.

In addition, the retainer agreement also encompasses the agreement of the client to pay the firm for the services that they are providing. It outlines the way in which a client will be charged for the matter, whether it is on an hourly basis or fixed-fee. It may also state how often the client in a family law case will receive a statement of account.

The individual will also be asked to pay a “retainer fee”, which is a specific outlined amount of money up front to the law firm. The “retainer fee” acts as a deposit on account of future fees and services. The retainer fee is not a predictor of what a legal case will ultimately cost.

What is the preservation of property in family law?

Individuals in a family law case may have valid concerns their spouse will hide property or deplete their assets. Your family law attorney has many different tools that he or she can use to protect property in the context of a family law dispute.

Under section 12 of the Family Law Act, a court may order that property owned by either of the spouses is to be preserved during the litigation. A court may make a final or a temporary preservation order.

Preservation can have many different meanings. For example, the court can, among other things:

  • Preserve a specific asset so that it may not be sold or encumbered;
  • Freeze bank accounts so that no-one is able to deal with them until further court order;
  • Make an order pertaining to the safekeeping of property.

If you are concerned about preserving your property in your family law case, contact an experienced family law attorney at Krol & Krol today.

Can a divorce be split from all other claims in a family law matter?

According to Rule 12(6) of the Family Law Rules and section 11(1)(b) of the Divorce Act, a divorce may be split from all other claims (e.x.: support, custody, access) if neither spouse will be disadvantaged by such an order and if reasonable arrangements have been made for the support of the children.

A spouse may be disadvantaged by the granting of a divorce order in different ways. For example, the granting of an order for exclusive possession can only be made with respect to a “spouse”, so the granting of a divorce order may disentitle one of the parties to the special protections relating to a matrimonial home under Part II of the Family Law Act.

The request to split a divorce should be brought by a motion for summary judgment under Rule 16 of the Family Law Rules. 

After the order splitting the divorce is granted, the moving party may continue with the paperwork to obtain a divorce order. The order confirming the splitting of a divorce should include a clause, which outlines that the remaining issues continue as a corollary relief proceeding.

What are my options to resolve family law issues in Toronto?

To resolve a family law issue in Toronto, your options to resolve the family law issue in Toronto include:

1. Negotiating an agreement;

2. Collaborative family law;

3. Arbitration; and,

4. Going to court (also known as litigation).

Different options are/become more appropriate depending on the circumstances of each individual case.

Negotiating an agreement on your family law issues in Toronto requires that the couple in question comes to a consensus on the terms of the divorce.

Collaborative family law is a method to obtain a legal divorce in Ontario while avoiding the court process and the uncertain outcome of taking the case to trial. In collaborative family law, the couple in question attempts to achieve a settlement that meets both of their specific needs and the needs of their children. The process requires both spouses to voluntarily sign a contract, often referred to as a participation agreement that binds each one of them to the process and states that they forfeit the rights of their lawyers to defend them in any form of litigation.  There are pros and cons to this type of family law and those need to be vetted and understood prior to the signing of any participation agreement.

Arbitration in Ontario is considered to be another method of alternative dispute resolution, which is a method of resolving disputes while avoiding the courts. Arbitration in Ontario requires that both parties agree to negotiate, and on issues upon which they cannot come to an agreement, they agree to let an individual referred to as an arbitrator to make a binding decision. This means that a third party will be granted the right to review the information presented by both sides and make a legally binding decision.

Alternatively, if both spouses cannot come to an agreement on the terms of their divorce, they may present their cases in front of an Ontario judge. Ultimately, the Ontario judge then takes the positions presented before them into consideration when making a legally binding decision, referred to as a court order, on the terms of the divorce.

What is the difference between various types of mortgages?

Mortgages are loans that are secured against homes. There are many different kinds of mortgages a person can obtain.

There are three types of mortgages: a closed mortgage, a convertible mortgage, and an open mortgage.

A closed mortgage cannot be changed. TIn this regard, the buyer is not allowed to prepay or renegotiate the terms of a closed mortgage until the term outlined has been completed. The only way that a borrower may be able to convince the lender to alter the mortgage is by paying an interest penalty.

A convertible closed mortgage is a closed mortgage whereby the borrower is able to change the mortgage from a short-term mortgage, to a long-term mortgage, depending on the financial needs of the borrower.

An open mortgage is one that can be prepaid, paid off, or renegotiated at any time and in every amount without interest or penalty. Usually, even if the term in both the closed and open mortgages are the same, the interest rate on an open mortgage is higher than it is on a closed mortgage.

A pre-approved mortgage is obtained before you go looking for the home you wish to purchase. It outlines how much, based on your qualifications and personal credit ratings, the bank feels you can afford to borrow from the bank. By being pre-approved, you know in advance what funds you will have available in order to negotiate your purchase price.  Additionally, if the property is very desirable you can put in an offer without it being conditional on financing and then the sellers may be more inclined to negotiate an offer of purchase with you.

A conventional mortgage is a loan that does not need to be insured against default.

A high-ratio mortgage is a loan that needs to be insured against loss by either Canada Mortgage and Housing Corporation (CMHC), a Federal Government Corporation, or GE Capital, a private insurer. For information about premiums added to the mortgage amount, or the premiums paid at closing, please refer to CMHC Borrowing Costs.

For more information on mortgages and which are best to suit your interests, contact Marilyn Krol, an experienced partner and real estate lawyer at Krol & Krol, at (905) 707-3370.

What are some of my options in a situation of domestic violence in my family law case?

In a family law case, any violence committed by a spouse against another spouse or against the children ought to be immediately reported to the police. The safety and well-being of the parties’ involved is paramount.

Restrictions can be put on the abuser’s conduct in the context of criminal proceedings.

Abuse of any threats may also be grounds for issuing a peace bond (also known as a recognizance). A peace bond or a recognizance is a court order that requires the defendant to keep the peace and be of good behaviour Conditions may be attached to ensure the good conduct of the defendant. For example, a peace bond may delineate that the defendant not possess any firearms or ammunition.

In addition, abuse by a partner may be the grounds for certain tort actions, like the tort action for assault, battery, intentional infliction of mental suffering.

These tort claims can be brought with the family law case. A separate action does not have to be started. In McLean v. Danicic (2009), 95 O.R. (3d) 570 (S.C.J.), tort damages were awarded for intentional infliction of mental suffering in the context of family law proceedings.

In this family law case, Harvison Young J. stated:

[84]   More generally, s. 21.9 of the Courts of Justice Act, R.S.O. 1990, c. C.43, grants a Family Court jurisdiction, with leave of the judge, to hear and adjudicate upon related matters. Thus, though not pleaded explicitly, I can award damages under the tort of intentional infliction of mental suffering and emotional distress as was done in MacKay v. Buelow, [1995] O.J. No. 867. Because the allegations of fact in the statement of claim provide the basis for finding the necessary elements of the tort, I can consider whether the tort was in fact made out even though the tort itself was not pleaded.

[88] An order will also issue restraining Mr. Danicic from harassing, molesting or annoying Ms. McLean or her counsel …

If, in fact, the abuser does not have any financial resources, one may able to get compensation from the Criminal Injuries Compensation Board.

What is a case conference?

The case conference allows the parties in dispute to hear the judge’s perspective on their positions. A judge must conduct at least one in every case where an answer is filed.

No motion may be heard and no notice of motion may be served until a case conference dealing with the issues in the case has been completed. However, if there is a situation of hardship, a case conference is not mandatory.

The purposes of a case conference include, but are not limited to: exploring the chances of settling the case, identifying the issues that are in dispute, exploring ways to resolve the issues that are in dispute, ensuring disclosure of all relevant evidence, and setting a specific timetable, if necessary, for the steps to be taken in the case before it comes to trial.

Each party must serve and file a Brief. A party who asks for a case conference shall serve a Case Conference Notice (Form 17) on the opposing party. This must be served on the other side and filed with the court at least seven days prior to the case conference.

Unless the court makes an order, these briefs are not included in the continuing record. The case conference briefs are either returned to the lawyers following the case conference or destroyed by the court staff.

For more information on case conferences, contact Krol and Krol, Barristers and Solicitors at 905.707.3370.

What are the benefits of negotiation in a family law case?

The negotiation process is extremely important in settling a case. Negotiation between the parties can help avoid the litigation process, which is often expensive and time-consuming.

There are instances where spouses simply cannot resolve the family law issues between them, or there may be a genuine question of law that only the Courts can decide. Nevertheless, in many cases there can be real benefits to proceeding with your family law matter via negotiation.

The resolution of a matter can be documented in several ways, including, but not limited to, a separation agreement (a contract between the parties outlining their various rights and obligations with respect to the other party), Consent Orders (order(s) where both parties have agreed to the terms), and Minutes of Settlement.

A case can be settled if the parties negotiate the terms of an agreement on their own, and then each retain a lawyer in Toronto to prepare a formal written separation agreement. Alternatively, the negotiation may be conducted through the lawyers, who will then prepare a formal separation agreement.

Negotiation can occur at any time during the case. In order to have an effective negotiation, lawyers and clients should fully understand the strengths and weaknesses of their case. If the negotiation fails, the information gleaned through negotiation may be useful in assisting the lawyer in preparation for the litigation process.

For more information on the negotiation process, contact Krol & Krol, Toronto divorce lawyers, at 905.707.3370.

Stevens v. Stevens: Spousal support & large property award

In Stevens v. Stevens, the wife stayed at home and raised the children during a 16-year marriage. The Superior Court of Justice ordered that the wife was entitled to compensatory support despite the fact that she would receive $8 million in assets. Accordingly, the husband was ordered to make a lump sum retroactive spousal support payment in the amount of $136,182.00.

What are the service requirements when starting an Application in a family law case?

An individual starting a family law case files a document called an “Application”. This person is called the “applicant” and the opposing party(s) is called the “respondent(s)”.

There are different application forms, depending on the case. An application may contain a claim against more than one person and more than one claim against the same person. Applications require the applicant to set out the grounds for such claims.

Once the application is filed, it is to be served immediately on every other party by “special service” which includes: leaving a copy with the respondent, leaving a copy with the respondent’s lawyer, mailing a copy to the respondent kr, or leaving a copy at the respondent’s residence with anyone who appears to be an adult and mailing a copy to the same address that or the following day.

There are three options if the respondent cannot be served by way of special service. If the respondent is evading service, the lawyer of the applicant can apply for an order for substituted service. The applicant must show detailed evidence in their affidavit of the steps taken to locate the respondent along with proof that a substituted service can reasonably be expected to bring the document to the respondent’s attention. Substituted service can be affected if the court orders that the documents may be served on a person other than the respondent who will bring the documents to the respondent’s attention. If all efforts to service the respondent have failed, an order that service is not required called “dispensing” with service, must be applied for.

For more information on Applications and service requirements contact Krol & Krol, Barristers and Solicitors at 905.707.3370.

Where is a family law case supposed to be filed, and where is a family law case supposed to be heard by the courts?

A family law case can begin in one of three places:

1. In the municipality where one of the parties currently resides;

2. If the matter is dealing with a subject pertaining to the children, for example custody, then the case is usually filed in the municipality where the child currently resides;

3. The case can also begin in a municipality agreed upon by both parties, which has been accepted by the court of that municipality in advance.

According to sections 21.8 and 21.11 of the Courts of Justice Act, a motion in a family law case may be heard in another municipality under the following circumstances:

1. If there is a threat that the child will be removed from Ontario;

2. If there is a threat of any danger in terms of the child’s health, safety or well being.

However in these circumstances, once the party has had their motion in a family law case heard by the courts of the other municipality, the case will usually be transferred to a municipality that it should have been started in initially (unless the court in a family law case orders otherwise.)

If one attempts to file a family law case in the wrong municipality, then the court clerk may refuse to accept the application for filing.

Unless the case is transferred to another municipality, all the steps of the case will take place in the municipality where the case was originally filed and heard.

In terms of enforcing a support payment, or attempting to suspend a support payment, the motion in a family law case must take place in the municipality where the recipient resides. If, however, the recipient does not reside in Ontario, then the order pertaining to the support payment shall be filed in the municipality where the order is filed with the court for enforcement. In the event that the recipient agrees, the motion may be filed in the municipality where the support payor resides. It is also possible, according to the Family Responsibility and Support Arrears Enforcement Act, 1996, section 26, that the motion may be filed where the income source resides.

When it comes to orders pertaining custody or access to a child in a family law case, then the order shall be filed in the municipality where the child resides. If, however, the child does not reside in Ontario, then the motion in a family law case must be filed in the municipality with which the child has the largest connection.

If an order involves property, then the order must be filed in the location where the property is located, or where the person enforcing the order resides.

In the event that all parties agree upon a municipality that is not outlined above, with the permission of the court of that municipality, they will be allowed to advance accordingly in that municipality.

If for some reason it is clear that it would be significantly more convenient to deal with the case in another municipality, then the court may order that the case be transferred there regardless of what either party would prefer.

Additionally, where the motion in a family law case pertains to a child, and the Children’s Aid Society with the evidence to support the motion resides within another municipality, then the motion may take place in the municipality where the Children’s Aid Society that holds the evidence is located.

For more information on where to begin a family law case in Ontario, depending on the unique circumstances of the case, contact Toronto family lawyers at Krol & Krol at 905.707.3370.

What are the obstacles or ‘bars’ to divorce in Ontario?

According to the Divorce Act, there are three bars or obstacles to divorce in Ontario.

The first bar to divorce in Ontario is collusion. Collusion is defined as an agreement or conspiracy where the Applicant is a direct or an indirect party attempting to subvert the administration of justice. For example, an arrangement to fabricate evidence to mislead the court would be colluding. Collusion does not include an agreement to the extent that it provides for the separation between parties, financial support, division of property or the custody of any child of the marriage.

The second bar to divorce in Ontario is if the court determines that reasonable arrangements for the support of the children have not been made. In other words, the court must satisfy itself that reasonable arrangements have been made for the support of the children before granting a divorce. If such arrangements have not been made, the court will stay the granting of the divorce until these arrangements are made.

The third bar to divorce in Ontario is condonation or connivance. In other words, if the divorce is based on the breakdown of the relationship established through adultery and the Applicant condoned or connived in the adultery, the Application may be dismissed. According to case law, connivance has been defined as a corrupt intention by a spouse in promoting the initiation or the continuation of the adultery of the other spouse.

What is the Office of the Children’s Lawyer (OCL)?

If there is a dispute about a child’s custody and/or access, a court may appoint the Office of the Children’s Lawyer (also known as the OCL) to give the court independent information as to the wishes of the child and additional information relating to the best interests of the child.

In addition, after a court action about custody and/or access is initiated, the parties in the case may request that the Office of the Children’s Lawyer be appointed.

Pursuant to section 112 of the Courts of Justice Act, the Office of the Children’s Lawyer may investigate, make a report and make recommendations to the court.

In most cases custody and/or access cases, children are not represented by the Office of the Children’s Lawyer.

The Office of the Children’s Lawyer is most often involved in high conflict custody and/or access cases.

For more information on the Office of the Children’s lawyer, contact Krol & Krol at 905.707.3370.

What is contempt in custody and access cases?

The breach of an order for custody or access (whether it is a final or a temporary order) constitutes contempt in custoday and access cases.

A contempt motion in custody and access cases may be brought under section 38(1) of the Children’s Law Reform Act or Rule 31 of the Family Law Rules. These motion materials must be served on the Respondent personally.

Contempt in custody and access cases is quasi-criminal and courts may fine the individual found in contempt or impose imprisonment on that party.

The standard required in order to establish contempt is as follows: the Applicant must prove that there has been a breach of the order beyond a reasonable doubt and that the breach was wilful. It is difficult to meet this standard and to succeed on these types of motions. For example, it is difficult to prove that a denial of access was wilful, given that the person can state that the child was ill or that he or she mixed up the schedule.  Therefore, a contempt motion in cusotdy and access cases should be approached with caution.

To learn more about contempt in custody and access cases, contact the family lawyers at Krol & Krol today at 905.707.3370.

 

Is spousal misconduct related to spousal support?

According to subsection 15.2(5) of the Divorce Act, spousal misconduct in a marriage is not a proper consideration in determining an order for spousal support.

According to section 33(10) of the Family Law Act, the obligation to provide support for a spouse exists without regard to the conduct of the spouses. Nonetheless according to this section, a court may consider spousal misconduct in relation to determining the amount of spousal support order only in the rare case where the misconduct is so unconscionable as to constitue an obvious and gross repudiation of the relationship.

What are the potential tax consequences of spousal support?

Spousal support payments received in a specific calendar year are taxable to the recipient and deductible to the payor so long as:

  • The parties are living separate and apart by reason of the breakdown of their marriage at the time the payments are made;
  • The payments are considered an allowance payable on a periodic basis;
  • The payments are made for the maintenance of the recipient so that the recipient has discretion as to how the support is used;
  • The payments are made directly to the recipient spouse or are considered third-party payments;
  • The payments must be made pursuant to a court order or written agreement; and,
  • The agreement or order must refer to the amount as “spousal support amount” or “spousal support”.

Spousal support payments paid by an estate are not taxable to the recipient or deductible by the estate.

A lump sum spousal support payment is not taxable in the recipient’s hands or tax deductible to the payor.

To learn more about spousal support payment, contact the family lawyers at Krol & Krol today at 905.707.3370.

What is the continuing record in a Toronto family law case?

The continuing record in a Toronto family law case is the record made under Rule 9 of the Family Law Rules containing all the documents filed with the court in a case. The Applicant must serve the continuing record in a Toronto family law case on the other party involved in the case. The Applicant must then file an Affidavit of Service proving that the continuing record in the Toronto family law case was served on the other side.

The continuing record includes an endorsements volume and documents volume.

The endorsements volume will contain a cumulative table of contents, an endorsements section, and an orders section.

The documents volume is comprised of all documents filed in the case, including the Application, Answer, Reply, Affidavits, Financial Statements, and Trial Management Conference Briefs.

When preparing and maintaining a continuing record under Rule 9 of the Family Law Rules, the parties shall meet the requirements set out in the document entitled “Formal Requirements of the Continuing Record under the Family Law Rules”, dated July 1, 2006, published by the Family Rules Committee and available on the internet at the following URL: www.ontariocourtforms.on.ca.

Instead of one single continuing record, the continuing record may be divided into separate records for the Applicant and for the Respondent pursuant to the following:

1. In a case other than a child protection case, the court may order separate records at the request of either party on motion or at a case conference, settlement conference or trial management conference or by its own initiative.

2. If the court orders separate records and there is more than one applicant and respondent, the court may order separate records for each applicant and respondent.

3. If the record contains separate records, the separate records are called the applicant’s record and the respondent’s record.

If the continuing record has not been separated, both parties are jointly responsible for adding to the record under the court clerk’s supervision. However, if the record is separated, each party is responsible for adding the documents the party files to their continuing record.

A party shall not serve or file any document that is already in the continuing record. No document may be removed from the continuing record in a Toronto family law case without a court order. To refer to a document in the continuing record in a case, a party must reference it by its tab number.

For more information on the process involved in your Toronto family law case, contact Krol & Krol, Toronto family lawyers at 905.707.3370.

Family Law Key Terms – Part II

The following is a continuation of the information found in Family Law Key Terms – Part I:

Click here to see the list of Family Law Key Terms – Part I.

Matrimonial Home

The home in which the family habitually resided during the marriage. Either one or both spouses may own the matrimonial home, which can be assets such as a house, condominium, mobile home or trailer. Regardless of which spouse is the registered owner of the matrimonial home, each spouse has a one-half interest in the home and has the same right to use and reside in the home.

Mediation

Mediation is a type of alternative dispute resolution in which a trained, impartial mediator helps the parties reach agreements about issues such as custody and access and sometimes also about child support, spousal support, and the division of matrimonial assets and debts.

Payee

The person who receives child and/or spousal support.

Payor

The person who pays child and/or spousal support.

Respondent

A person against whom a legal action or application is brought.

Separation

Two people who are married to each other but who are living separate are considered separated in the eyes of the law.

Separation Agreement

A contract between two spouses to live apart on certain terms and conditions, which usually include custody and access, support, and the division of property.

Service

The delivery of Court documents to the required person, usually to give him or her notice of a legal proceeding.

Settlement Conference

A meeting with a judge who is not going to be hearing the trial. At this meeting, the parties briefly explain to the judge their own positions on each issue. The judge then gives a brief opinion based on how he or she thinks the case could be resolved.

Spousal Support

Money paid by one spouse to another to contribute to the other’s living expenses. The support can be paid either by a set amount every month, one lump sum or as a transfer of property.

Statement of Financial Information (or a Financial Statement)

A document that sets out all sources of gross income, assets and expenses. If child support is being addressed, the statement of financial information must also include the information required by the Child Support Guidelines.

Will

The legal expression in written form of a person’s wishes as to the distribution of his or her property after he or she dies.

To learn more about family law, contact the law firm of Krol & Krol at 905.707-3370 for a consultation.

Family Law Key Terms – Part I

The following are a list of key terms that are used in family law cases in Ontario:

Affidavit

A written statement of fact that is sworn under oath as being the truth. A party or witness may sometimes file an affidavit as a way of giving evidence to the Court.

Alternative Dispute Resolution

Ways to settle disputes or differences without a Court trial, such as mediation or negotiation.

Appeal

After a judge has made a decision in a trial or hearing, if either party is not satisfied, they may be entitled to “appeal” the decision to a higher Court. This means asking a higher Court to review the decision and make changes if necessary.

Applicant (in a divorce proceeding)

A person who commences a divorce application.

Application

Filing an application is a way of asking the Court to make an order. An application states what type of order the person is seeking.

Case Management Conference

An informal meeting between a judge, parties or their counsel to discuss and to potentially resolve issues related to the management of Court proceedings.

Certificate of Divorce

The final document issued by the Court at the end of a divorce proceeding. Either party may apply for this certificate 31 days after the divorce has been granted.

Child Support

Money paid by one parent to the other parent for the support of a child or children.

Child Support Guidelines

Rules for calculating how much child support an individual will have to pay. The guidelines include support tables for each province and territory, as well as rules for calculating special or extraordinary expenses, claims of undue hardship, and child support amounts in cases of split or shared custody.

Court Order

A decision by a Judge which must be followed by the parties.

Custody

This describes the arrangement made for the care of the children after parents separate. Custody refers to decision making and responsibility for the children. Parents may have joint custody, meaning they are both involved in decision-making for the children, or one parent may have sole custody, meaning s/he has all of the decision-making authority.

Divorce

The legal ending of a marriage.

Interim Order

A temporary order dealing with some matters until the final decision of the Court. An interim order may also be referred to as an Interlocutory Order.

Litigation

Legal action.

To learn more family law and divorce, contact Krol & Krol at 905.707.3370 for a consultation today.

Appealing an order in a case

When a final order is made in the Ontario Court of Justice, a party must serve a notice of appeal on the opposing side within 30 days of the order or decision being appealed. The notice of appeal must be filed in court within 10 days of it being served.

If a temporary order is being appealed, the notice of appeal must be served with seven days of the temporary order.

The name of a case in an appeal is the same as the name in the case in the order appealed from. The name of a case in an appeal identifies the parties as appellant and respondent.

Appeals from the Ontario Court of Justice are heard by a judge of the Superior Court of Justice.

Appeals from the Superior Court of Justice are heard by either the Court of Appeal or the Divisional Court, depending on whether the order being appealed is final or temporary, and the amount in issue. If the order being appealed is temporary, or if the order is final and the amount in issue is less than $50,000 then the appeal is heard by the Divisional Court. If the order being appealed is final and the amount in issue exceeds $50,000, the appeal is heard by the Court of Appeal.

Appealing a temporary order from the Superior Court of Justice requires permission or a “leave” to appeal. Leave to appeal is only granted if there is a conflicting decision by another judge or court in Ontario and it is in the opinion of the judge hearing the motion, desirable that leave to appeal is granted; or the motions judge believes that there is good reason to doubt the correctness of the order.

Once the appeal has been filed, the appellant must serve every other party two document: the appeal record and a factum. The appeal record contains the notice of appeal, the order appealed from, the reasons for the order, a transcript of the oral evidence, and any other evidence necessary for the appeal. The factum contains an overview of the case, the issue on appeal, a summary of facts, a copy of all relevant legislative provisions, and the order sought.

To learn more about appeals in a family law matter, contact the family lawyers at Krol & Krol at 905.707.3370.

My spouse died. Should I change my will?

If a spouse or a partner of yours passes away it is important to, when you are emotionally ready, make sure that the death of your spouse is taken into account in your will. There are certain things that individuals must look for when altering their will following the death of their spouse or partner.

Firstly, you need to make sure that you did not name your spouse or partner as the estate trustee. If you have, then you must name another. There are situations whereby you can, in your will, put in a clause that states that there will be a secondary estate trustee in the event of the initial estate trustee passes away. It is important to ensure that if your will has that clause, you are sure that the individual previously chosen is still the person you want to hold power over your estate following your death.

In addition, it is important to make sure that you name someone to be a power of attorney for property and personal care, other than your deceased spouse, in the event that you are not able to make decisions relating to these areas for yourself.

When looking over your will, you should also look to see if you had previously designated your spouse or partner as the beneficiary under your Registered Retirement Savings Plans or Registered Retirement Income Funds.

In addition it is important to note that if you remarry, your previous will becomes void. You must make a new will following the marriage.

For more information on wills in Ontario, contact Krol & Krol at 905.707.3370.

What happens if the payor of spousal support has an increase in income after the date of separation?

In order to calculate the quantum of spousal support payable, the incomes of the parties must be determined. The respective incomes of the parties is then used in order to calculate a range of spousal support applicable in  given case.

There are two issues that arise when a payor of spousal support has a post-separation increase in income. First, whether an income increase should be reflected in increased spousal support. In addition, if it ought to be included, how much of the increase should be included in determining the income of the payor for the purposes of spousal support (i.e. all, some , or none of the increase ought to be taken into account in calculating spousal support). In making determinations on these issues, the following factors are taken into account:

1. The length of the marriage;

2. The roles adopted during the marriage;

3. The time that has elapsed between the date of separation and the post-separation increase in income;

4. The reason for the income increase. For instance, has the payor assumed a new job or did he or she receive a promotion within the same job?)

According to the Spousal Support Advisory Guidelines, the upper limit or outer boundaries upon any increased spousal support in these cases should be the numbers generated by the formulas.

Should you wish to learn more about the laws surrounding spousal support and a payor’s post-separation income increase in family law, telephone Krol & Krol for a consultation at 905.707.3370.

What are costs in a family law case and how are costs determined?

An award of costs (where one party has to pay a portion of the other party’s legal fees) in the context of a family law case is governed by Rule 24 of the Family Law Rules, as opposed to the Rules of Civil Procedure. Under the Family Law Rules,  the reasonableness of the parties in litigation is an extremely important consideration in the determination of costs.

Under Rule 24, there is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. This means that there is a presumption that the unsuccessful party will have to pay a portion of the successful party’s legal fees. However, this presumption does not apply in a child protection case or to a party that is a government agency. Moreover and despite this presumption, a successful party who behaves unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. In deciding whether a party has behaved reasonably or unreasonably, the court examines offers to settle.

Courts are directed to award costs to a successful party where a party is more successful than his or her offer to settle. Accordingly, offers to settle are extremely significant and can either neutralise a party’s success or be the cause of further penalty to a losing party.

According to Rule 24, if a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step, the court shall award costs against the party unless the court orders otherwise in the interests of justice. Also, if one party acts in bad faith. the court can order that a substantial amount of costs be paid immediately.

The person setting the amount of costs considers the following factors in an award of costs: the importance, complexity or difficulty of the issues; the reasonableness or unreasonableness of each party’s behaviour in the case; the lawyer’s rates; the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order; expenses properly paid or payable; and any other relevant matter.

Costs are intended among other things, to indemnify successful litigants for the cost of proceedings, encourage settlement, and to discourage inappropriate behavior in litigation.

For more information about costs in your divorce case, contact the experienced family lawyers at Krol & Krol at 905.707.3370.

Can I use material from social networking websites as evidence in court?

Today, social networking websites have become an extremely common way for people to share the intimate details of their lives with the larger society.

With that being said, a common question that has come to light is whether or not one can use postings on social networking sites as evidence in court. It is clear that specific postings, photos and friends lists can be used to the benefit of a party as evidence in family- and divorce-related litigation matters. In addition, social networking profiles have been used in order to draw conclusions on an individual’s character, judgment, and credibility. In short, one can, in fact, use information found on social networking websites as evidence in court, if the evidence that is being brought forward has merit and bearing on the matter at hand.

It is important that people know this before posting information about themselves online, where it is accessible to the public.

Before placing any personal information on a online forum, it makes sense to consider what a third party viewing this information may glean from such information. At the very least and in the interest of privacy, it is reasonable to restrict one’s privacy settings on Facebook.

For more information on social networking websites as they relate to family law matters, contact Krol & Krol at 905.707.3370.

What is a Power of Attorney for Property?

An attorney for property is an individual who you appoint to handle any financial or property decisions, which are specified in this legal document. The document commonly known as a Powers of Attorney for Property ensures that the individual who you choose to be the guardian appointed to handle your finances has the right to make decisions regarding them. It ensures that this individual will not need to go through a costly court process to attempt to prove that he or she is in a position to handle your finances.

If you designate a Power of Attorney for Property, they will be authorized to do almost anything that you can do with regard to your finances, except make a will. However, these individuals only have this authority over your finances when you are still living. In the event that you pass away, executors will take over.

By law, the attorney you appoint is required to act within specific boundaries. The attorney is required to, avoid any conflicts of interest, keep all financial records, and to have his/her work audited by the court if found necessary.

You are able to outline within the Power of Attorney for Property whether or not you will be paying your attorney in accordance to the rates set out by the government regulations.

In the event that your Power of Attorney documentation is found to be out of date, lost, or does not comply with the new legal standards, then the documentation may be set aside and found invalid legally.

You should only name someone in your Power of Attorney that you know that they will accept the responsibility of being your agent, and therefore it makes sense to obtain their consent when naming them. You should also outline a backup attorney just in case there are any problems with the initial attorney named.

As a legal document, a Power of Attorney or Property can be interpreted by a judge and executed according to this interpretation. Therefore, it is of the utmost importance that precise and correct wording is used.

Contact Krol & Krol at 905.707.3370 for more information on the services we provide in the area of Wills & Estates.

What is title insurance and what does it cover?

It is important, when purchasing a property in Ontario, that you obtain one with clear ownership, which is also known as “good title”.

Title insurance is a form of insurance policy to insure the homebuyer and mortgage lender (when involved), against the loss or damage sustained as a result of surveyed title risks and defects. Title insurance helps to ensure that the quality of the legal title that you are purchasing when purchasing the property is unproblematic. In other words, it transfers the risks connected with the property title from the homebuyer and mortgage lender to the title company.

Title insurance is a form of insurance that has recently become more commonly accepted by different mortgage lenders.

Title insurance can provide coverage in the event that the following circumstances arise:
1. Work orders which arise from the failure of previous owners to obtain proper permits;
2. Cover a purchaser for issues that an up to date survey might reveal;
3. Access-related problems;
4. Any mortgage or lien affecting the property;
5. The unmarketability of title to the property;
6. Another entity having ownership over the property or any other interests, whether or not it appears on the registered title;
7. Liens that result from court orders, property tax arrears, or public utility arrears;
8. Any unregistered hydro easement;
9. Any uncompleted, unsigned or unregistered documents;
10. The invalidity of your title due to fraud, forgery, duress, incapacity or impersonation.

It is important to note that title insurance will not necessarily fix any issue that is discovered on title, however it will often times protect the owner from financial loss for issues which may not be discoverable through regular investigations.

For more information on real estate law, contact Marilyn Krol (partner at Krol & Krol) at 905.707.3370.

What do I do if I cannot attend the court date that has already been arranged?

Postponing a court date is most commonly referred to as an adjournment. 

If you are in need of an adjournment, it is imperative that you tell your lawyer, along with the opposing party, that you will not be able to attend that court date that has been previously assigned as soon as possible.

In order to be granted an adjournment, you are obligated to serve the other party involved in the case with a motion form. In addition to serving the other party with a motion form, the form must be filed with the court. In this form you are required to outline whether the other party has or has not agreed to the adjournment.

If the opposing parties have not agreed to an adjournment, then a representative will be required to go to court on your behalf on the scheduled court date, in order to explain why the adjournment was necessary and why you were unable to attend.

For more information on adjournments in your family law case, contact Krol & Krol at 905.707.3370.

I have been served with an application in my family law case. What do I do now?

Once you have been served with an application, if you intend to do so, it is crucial that you retain a lawyer immediately or if you have already retained a lawyer, it is important to provide the application to your lawyer as soon as possible. If you intend to represent yourself in your matter, it is important that you comply with the deadlines as outlined in the Family Law Rules. Once you have been served with an application, there are time deadlines that must be adhered to.

An application in a family law case initiates a court case and sets out the grounds that the person starting the case is relying upon and the orders that they would like the court to make.

The way to respond to an application is dependent on whether or not you agree with the claims being made in the application that has been served. If you disagree with the claims being made in the application, and the application was served within Canada, there a 30-day window to reply to these claims.

In the event that a legal application is served outside of Canada or the United States, the individual is allotted 60 days to respond, as opposed to 30.
A legal answer is the document prepared that acts as a response to the application.

In the event that you decide not to file an answer, the applicant is entitled to ask the court to file an order in response to the claims outlined in the application. Under these circumstances, the order would be made based on the claims outlined in the application, due to the fact that the claims went through unopposed. The judge would not hear from you and therefore you will not be entitled to participate in matters pertaining to these claims with regard to the case any further.

For more information on applications and answers as well as the service our firm provides in the realm of family law, contact Krol & Krol at 905.707.3370.

What is a motion in Ontario?

A motion in family law is a procedural device that enables either party to bring an issue before a court for decision. In other words, when a party makes a request during a court case and before trial, asking the court for a decision or a ruling, that request being submitted to the court requires the requesting party to bring a motion. Both parties reserve the right to bring a motion to the courts at any time following the completion of the initial case conference. In situations of urgency or situations involving extenuating circumstances, a judge may make the decision to listen to a motion before the parties attend a case conference.

The parties in a motion are referred to as the moving party and the responding party. The moving party is the person who is brining the motion. The responding party is the individual receiving the motion, and responding to the demands of the moving party.

The motion begins when the moving party serves the opposing party with a notice of motion. Upon receiving notice that the motion has been filed, the responding party is able to come up with their own position on the matter and evidence to support their position.

The order that is derived from a motion is the documentation that outlines the decision made by the judge on the motion. There are two different kinds of orders in Ontario, being temporary and final. A temporary order occurs when a judge makes a temporary decision on the motion. It outlines the arrangements that are to be followed by both parties until a final decision on the issue can be made. A final order on a motion, outlines more permanent arrangements to be followed.

If you wish to file a motion in Ontario with the court, have received a motion in Ontario and need to respond, or simply are looking for more information on services we provide in the area of family law, contact Krol & Krol at 905.707.3370.

What are the Spousal Support Advisory Guidelines?

The federal Department of Justice introduced the Spousal Support Advisory Guidelines (SSAG) but the federal government has not legislated the SSAG. In this sense, the SSAG are not obligatory.

Nonetheless in Fisher v. Fisher, the Ontario Court of Appeal approved of the use of the SSAG and provided that the SSAG should be applied as follows:

  • The SSAG are applicable to cases of first instance. However, they are not automatically applicable on variations or reviews or where a previous agreement provides for support, although the court may consider the SSAG in these cases.
  • The SSAG do not necessarily apply to payor spouses who earn more than $350,000.00 per year.
  • The reasonableness of the SSAG calculation must be weighed in light of the particular facts of each case.

It is important to note that the SSAG do not determine as to whether a person is entitled to spousal support.

The SSAG provides three figures or quantums of support payable from the higher-earning spouse to the lower-earning spouse. Specifically, it provides a high, mid and low figure. As well, the SSAG outlines the duration of spousal support. In the context of a long-term marriage, the duration of spousal support may be indefinite.

To learn more about spousal support in the context of family law, call 905.707.3370 to arrange for a consultation today.

What is a pre-nuptial agreement or a ‘pre-nup’? What is a post-nuptual agreement?

A pre-nuptial agreement is also known as a marriage contract or a ‘pre-nup’.

A pre-nuptual agrement is a type of domestic contract that can be made in the province of Ontario between two individuals who intend to get married. The pre-nuptual agreement itself lays out what will happen if the parties divorce in the future (i.e. the terms of any divorce). Provisions in these types of agreements may include, but are not limited to, division of property and spousal support in the event that the couple gets a divorce in the future.

In order to make the agreement more resistant to attack in the future, parties ought to:

1. Exchange financial disclosure;

2. Each party must have independant legal advice.

In order for a pre-nuptial agreement to be legally binding, the agreement must be in writing, signed and witnessed.

A post-nuptial agreement is similar to a prenuptial agreement. The only major difference between the two is that a post-nuptial agreement is executed after the couple is legally married.

For more information on both pre-nuptial agreements and post-nuptial agreements and to learn about the services provided by Krol & Krol in the area of family law, call 905.707.3370.

What do I do if I want to move provinces with my child/children?

In order to move provinces with your child/children, you will usually need either:

1. Some form of court order or agreement that specifically outlines permission to leave the province you currently reside in. In the event that you are not in possession of such documentation, you should speak to your family lawyer in order to gain a further understanding of the appropriate steps that need to be taken before you are able to proceed with the move.

2. If you and your partner cannot agree to the terms of the move, the authority is placed in the hands of the court to come to a final solution regarding the issue. The judgment established by the court will determine whether or not you are authorized to move the children out of the province. In family law, this type of issue is referred to as a mobility issue. At the center of the court’s analysis will be determining what is in the best interest of the child/children.

For more information on matters concerning moving with your child/children, contact the experienced family lawyers at Krol & Krol at 905.707.3370.

When does a family law case go to trial? What happens at a trial?

Usually, a family law case will only go to trial if the conferences that take place beforehand prove to be unsuccessful in helping the two parties come to an agreement.

Conferences are designed in order to help both parties come to a resolution with regards to their case with the aid of their own, individual lawyers, and at times in the presence of the judge.

If the opposing parties cannot resolve the issues at hand on their own or before a judge, it may become necessary to take the case to trial, where a judge will make a final ruling on the issues being discussed.

At trial, both parties present the judge with the information and evidence relative to, and in support of, the position that they are arguing. During this process, individuals are granted the opportunity to bring witnesses to court in order to ask them questions that relate to their case. Individuals will also be allowed to address and question the opposing parties witnesses.

At trial, the judge will come to a final decision based on the information and evidence provided by both parties. This decision will then be outlined in a judgment, and both parties will be legally obliged to follow the ruling set out by the judge.

For more information about the trial process in Ontario and the services that Krol & Krol provides in the area of family law, telephone 905.707.3370.

What are the differences between temporary, joint, sole custody?

The term custody refers to the right to make decisions on behalf of a child. The areas include school enrolment and education programs, religion and medical care.

The term custody does not indicate where the child of the marriage resides, or with whom they spend more time with. As such, a child may spend equal amounts of time with each parent, however only one may have custody over the child. Additionally, a child may live with only one parent, however both may have custodial rights over the child.

Temporary custody deals with who will be granted temporary custody over the children in question during the interim period (where the decisions regarding custody are still being negotiated and have yet to be determined by the court). Temporary custody is enforced until the couple either comes to a consensus on the custody of the children on their own, or when a judge makes a determination on the matter.

Usually, the parent who is granted temporary custody is given an advantage when establishing final custody orders, as most judges do not like to disturb the living arrangements that the child has become used to during the period of separation.

Sole custody means that one parent has the right to make all major decisions on behalf of the child.

Joint custody means that both parents have equal rights when making decisions that affect the children of the marriage. This means that both parents need to come to an agreement in order to make such decisions.

In the event that the courts do not feel as though the parents will be able to co-operate with one another and work together in order to make these decisions, they are more likely to grant sole custody to a parent rather than joint custody.

For more information about custody and child-related issues, contact Krol & Krol at 905.707.3370.

Do I need a lawyer when buying or selling property?

Whether you are buying a property, or selling your house, you will need a lawyer to represent you and your interests.

In Ontario, the recording system for land ownership is computerized in such a way that lawyers are allowed to enter this system to change ownership over land as well as to register and delete mortgages relating to the land in question. Lawyers hold this role and are supposed to guard against fraud in order to make the system safer.

The seller of the land also has to assure the purchaser that he or she is in a position whereby “good title” is transfered with respect to the land in question. In order to do so, the seller needs to understand both real estate law and procedure. The lawyer who is representing the purchaser will be aware of the appropriate concerns about the land that is in question.

Lawyers will also ensure that the proper papers are prepared and signed prior to the transfer of the land. Having a lawyer helps guide you through the process of buying or selling a home, ensuring that your legal rights and financial interests are protected.

The Rules of Professional Conduct have certain requirements when dealing with purchase and sale transactions, which usually include the presence of a different lawyer on both sides of the transaction.

To speak to a lawyer at Krol & Krol about the real estate services we provide, contact us today at 905.707.3370.

My spouse is self-employed. How is this related to the calculation of child and spousal support?

Does the fact that my spouse is self-employed affect the calculation of child and spousal support?

Operating a business and being self-employed has various benefits. Some of these benefits include, but are no limited to, choosing how corporate revenue is allocated and deducting legitimate business expenditures in order to reduce one’s own personal net taxable income.

Being self-employed is directly related to spousal and child support given that support is based on income. When it comes to child support, the income of the payor determines the basic or table amount of support payable. S. 7 expenses are divided proprtionally based on the income of both spouses. When it comes to spousal support, the incomes of both parties are used to determine the quantum of spousal support owing.

When going through a divorce and dealing with the related issues, both you and your spouse will be required to provide a financial statement and supporting financial disclosure (including the past three years of Income Tax Returns and Notices of Assessment).

As a result, financial statements are expected to be updated before every court appearance, by either updating an outdated financial statement, or by providing an Affidavit that states that the circumstances have not changed since the serving and filing of the previous financial statement.

It is to be noted that the court may adjust the income outlined in the financial statement and in an Income Tax Return/Notice of Assessment in order to take into account the money that is available to the corporation. In addition the court can select an amount that reflects the compensation that it believes your spouse is entitled to.

Issues pertaining to self-employment as it relates to support payments are complex and will often require the involvement of an accountant and/or a valuator who may be called on to produce an income assessment.

For more information with regard to support payments and the services we provide in the area of family law, contact Krol & Krol at 905.707.3370.

Information on provincial pensions and how my divorce lawyer can help

In the event that you and your spouse/former spouse are both members of the same pension plan, you will both be required to make two separate applications to get Family Law Value for each pension. This will likely result in both you and your spouse paying two separate fees, if fees are required. You will fill out certain forms, issued by the Financial Services Commission of Ontario, to your Plan Administrator. After completing the required forms, the Plan Administrator will provide you with a family law value – in other words the value of the pension that relates to the period of the spousal relationship (married or common-law) for the Plan Member and the spouse/former spouse of the plan member.

In Ontario, it is permitted for one to authorize another individual, who may be their lawyer, to communicate with your Plan Administrator on your behalf. The appointed individual will be allowed to both communicate and receive the information on your behalf. In order to authorize this individual to act on your behalf legally, you must complete the Contact Person Authorization (FSCO Family Law Form 3), and send it to the Plan Administrator. This form needs to be completed in its entirety and signed by you in order to be processed properly.

In the event that you choose to change the person who is authorized to communicate and receive the Plan Administrator, you need to provide the Plan Administrator with another Contact Person Authorization (FSCO Family Law Form 3), with the information pertaining to the newly desired contact.

In the event that you have previously appointed a power of attorney for property or a court order, that individual may be allowed to act on your behalf with regards to Plan Administrator in specific situations.

In the event that you are acting on behalf of a Plan Member or spouse/former spouse of a Plan Member under a court order, you are authorized to complete the Application for Family Law Value (FSCO Family Law Form 1). Additionally, you are allowed to legally sign the form on his or her behalf in the event that you have been allotted that power through a court order. In this situation, you are required to include a certified copy of the court order along with the form. You are additionally required to identify yourself in either Part C or Part D of this Application Form.

For more information on the services provided by our team, divorce law, pensions and Plan Administrators, contact Krol & Krol at 905.707.3370.

Why should I retain a Toronto divorce lawyer?

There are many reasons as to why you ought to hire a Toronto divorce lawyer. Some of these reasons are as follows:

1. Your family lawyer will approach your matter with all of his or her legal knowledge and skills to present you with viable strategies in your family law case.

Lawyers are trained professionals and family lawyers, who specialize in family law and divorce law, are armed with knowledge in this area. This knowledge is absolutely essential when dealing with issues surrounding divorce (for example – custody, access, child support, spousal support, and equalization of net family property.) Given this specialized knowledge, family lawyers are able to provide you with reasonable options in your case.

2. Your lawyer will approach your divorce case in a dispassionate manner.

Divorce is a very emotional time for the people who are involved. Given this, it is important to have a lawyer represent you so that he or she may provide a reasoned, dispassionate perspective on your case.

3. A lawyer will assist you in navigating through complex paperwork, especially where court is involved.

A divorce case often involves complicated materials. It can be overwhelming for you to attempt to navigate these documents. Your lawyer should draft documents on your behalf and explain any and all documents of substance received from the other side.

4. A lawyer will have experience in divorce matters and in court.

A lawyer’s experience in family law (both in negotiations and court appearances) cannot be underestimated. It is extremely important that you hire a lawyer, who is experienced in divorce law and family law, so that they may assure the best possible outcome in your divorce case.

To learn more about the Toronto family lawyers at Krol & Krol and the services we provide, contact 905.707.3370 for a consultation today.

An explanation of different types mortgages

A mortgage is a loan that is secured against real estate.

If you want to purchase a home, it is always a good idea to get pre-approved on a mortgage. The pre-approval will outline how much, based on your qualifications and personal credit ratings, the bank feels you can afford to borrow. By being pre-approved, you will then know in advance what funds you will have available in order to negotiate your purchase price.  Additionally, if the property is very desirable you can put in an offer without it being conditional on financing and then the vendors (or the party selling the property) may be more inclined to negotiate an offer of purchase with you.

There are many different kinds of mortgages a person can obtain.

A conventional mortgage is a mortgage that does not exceed 80% of the purchase price of the property. Accordingly, this type of mortgage does not need to be insured against default.

A high ratio mortgage is a loan that needs to be insured against loss by either Canada Mortgage and Housing Corporation (CMHC), a Federal Government Corporation, or GE Capital, a private insurer. If you don’t have 20% of the lesser of (a) the purchase price, or (b) the appraised value of the property, your mortgage must be insured against default by a Mortgage Insurer. For information about premiums added to the mortgage amount, or the premiums paid at closing, please refer to CMHC Borrowing Costs.

For more information on mortgages and the services provided by Krol & Krol, contact Krol & Krol at 905.707.3370.

What happens if I pass away without a will?

If a person dies without a will that person will have died “intestate”, meaning that the person who passed away gave up all of his or her power and freedom to choose beneficiaries, how much of the estate each beneficiary would obtain, when the beneficiaries would obtain their inheritance, etc. If a person dies intestate, one must look at the Succession Law Reform Act to determine who gets what.

In the event that a person passes away intestate and without issue, meaning without children or grandchildren, and the spouse by marriage is still living, the spouse will be given the entire estate.

If the person dies intestate and has issue, the spouse will generally be entitled to the Preferential Share which is prescribed by law and which is currently the first $200,000.00 of the estate. The balance of the estate will be divided between the married spouse and the deceased’s issue, depending on how many issue there are. If there is one married spouse and one issue, then the remainder of the estate will be divided 50/50. If there is more than one issue the married spouse will get 1/3 and the issue will equally share 2/3 of the remainder of the estate.

In the event that the beneficiaries are under eighteen years old, the court will hold onto the inheritance until the issues’ eighteenth birthday. In order for your surviving spouse to obtain the right to control your issues’ inheritance instead of the Court, he or she would be required to make an application to the Court in order to be appointed as the Guardian of the Property. In the event that the inheritance is needed by the living spouse in order to care for the issues, then it is possible to submit an application for prepayment to be made by the Court.

In the event that a person passes away intestate, and does not have any surviving spouse by marriage or surviving issue, the estate will be given to the next of kin.

If there is no next of kin or any individual of blood relation, the estate will become the property of the government of Ontario.

In the event that a person is in a common law relationship and dies intestate, the surviving common law spouse does not have a right to the estate.

In contrast, if one has a proper will, is will be enforced at the time of death. The deceased can, in the will, appoint an Estate Trustee or several Estate Trustees, which gives the individual of your choosing the power to manage all of your affairs immediately following your death. Without naming an Estate Trustee, someone, usually your next of kin, will ask the Court to be appointed as Administrator. They will have to obtain a Certificate of Appointment of Estate Trustee Without a Will.

Spouses who are married have the right to bring an application for an “equalization” of family property instead of taking the share that they were prescribed, even when there is a will that is being implemented. However, strict limitation periods apply and one should immediately consult with a lawyer.

For more information on the services we provide relating to wills and the distribution of estates if one dies intestate, contact Krol & Krol at 905.707.3370.

Information on adoptions and what happens to adopted child(ren) if there is a breakdown in the marriage?

(a) Information on adoptions

There are four ways in which a child may be adopted in Ontario. They are as follows:

1) By a family member or step-parent. In making this determination on Application, a court will focus on the best interests of the child.

2) Through a Children’s Aid Society. For example, the Catholic Children’s Aid society and Jewish Family and Child Services.

3) Through a licensed individual or private adoption agency.

4) Through an Ontario licensed international adoption agency and Ontario licensees. For example, Kids Link International Adoption Agency, operating as Imagine Adoption, managed by Mission of Tears.

For contact information of the various international adoption agencies, click here.

(b) What happens to the child(ren) if there is a breakdown in the marriage?

The process of adoption allows for individuals to take on the commitment of being able to care for a child. Through the adoption process, individuals are granted the legal right and responsibility to care for a child.

An adopted child has the same rights throughout the divorce process as any biological child. Negotiations surrounding residency, access and custody are equally applicable to spouses’ biological and adopted children. Furthermore on the issue of child support, by committing to a legally binding adoption, both spouses agree to provide for the child.

For more information on the services provided by Krol & Krol, adopting a child and the rights of adopted children throughout the divorce process, contact Toronto family lawyers at Krol & Krol at 905.707.3370.

Will Ontario courts enforce a mahr?

A mahr is a type of marriage agreement that contains particular conditions regarding payments, in the form of cash or in the form of property, that the husband would be required to give his wife in the event of divorce, or if he dies.

In the Muslim tradition, Muslim marriage contracts must include a mahr, even if the marriage takes place in Canada, the United States, or elsewhere. A concept upon which a mahr is drafted is as a gift that a husband agrees to give his wife at the time of marriage; however, usually this payment is only given and enforced if the marriage ends, or if the husband dies.

The value outlined within this form of marriage agreement varies, depending on the financial situation of the husband at the time of the marriage. Though usually the parameters refer to money, the agreement may outline jewelry, gold or any other valuables or property that the husband owns.

The purpose underlying the drafting and signing of a mahr is that wives, in the Muslim tradition, obtain some form of financial security in the event that she can no longer rely on her husband to support her financially.

In Canada, there have been different responses by courts with regard to whether or not they move to legally enforce the mahr. Some Canadian courts recognize the mahr as a type of domestic contract, and as such, enforce it as a domestic contract in the context of Toronto divorce law. There is a body of case law that identifies the standards of a mahr as similar to a pre-nuptial agreement, and thereby enforceable. In contrast, some Canadian courts have ruled that the agreement is a religious document and as such, claim it is outside their legal abilities to enforce the terms outlined in the documentation.

Due to the fact that the standards surrounding a mahr closely resemble the standards of any other domestic contract, the court will usually consider the specific facts of each, individual, unique case while determining whether or not they are in a position to legally enforce this documentation.

At the outset, a mahr must fit certain criteria in order to potentially be enforceable. As such, it must be in writing, signed by both parties, and witnessed. In the event that the contract fails to meet these criteria, the court will not enforce it. The mahr needs to be specific and detailed when referring to the amount that will be granted to the wife, as well as the timing and circumstances upon which the amount will be given.

It is important to note that a mahr does not replace a woman’s claim to spousal or child support, or the equalization of net family property at the time of a marriage breakdown. The wife is granted the amount outlined in the mahr in addition to whatever she is entitled to legally in Ontario as outlined by the support guidelines and equalization of property.

For more information on legally enforceable marriage agreements in Ontario and divorce law, contact Krol & Krol at 905.707.3370.

Is my dower from Iran enforceable in Ontario?

In my marriage certificate (dower) from Iran, it states that my husband must pay me a sum of money on demand. We now live in Ontario. Is this contract enforceable in Ontario?

According to section 58(a) of the Family Law Act: “The manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract, except that, a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario’s internal law.”

Furthermore, according to section 52(1)(d) of the Family Law Act: “Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including, any other matter in the settlement of their affairs.”

In addition, pursuant to section 55(1) of the Family Law Act: “A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.”

In Ghavamshirazi v. Amirsadeghi, the parties entered into an marriage bill in Iran on April 17, 1991. Under the bill, the husband was obligated to pay the wife, on demand, 500 gold coins (Cdn. $102,371.35) as dower or in respect of that obligation. The trial judge found that the Iranian marriage contract between parties, including provisions relating to the dower, was valid and enforceable. The Respondent then brought a motion to set aside the Order. His Motion was dismissed. Ultimately, G.A. Campbell J. held that the marriage bill entered into in Iran was a valid marriage contract capable of being enforced in Ontario. He reasoned that section 58(a) of the Family Law Act provides that a marriage contract made outside of Ontario is valid if entered into in accordance with Ontario law. Furthermore, he noted that section 52(d) of the Act provides that a marriage contract may deal with any matter in the settlement of the parties’ affairs and that the dower obligation could fall into that category.

However, it is equally important to note that there have been decisions which have determined that such contracts are not enforceable.

To learn more about the services provided by Krol & Krol in the area of family law, contact 905.707.3370 today.

What is undue hardship in the context of child support payments?

At the outset it is important to explain the concept of the table (also known as the basic amount) of child support. The table amount of child support that a payor (or the support-paying spouse) is required to provide is determined in accordance of Federal Child Support Guidelines. The amount takes into account the support payor’s income, the number of children in need of support financially and so forth. There are, however, situations upon which the court may permit the support payor to pay an amount that is different from that outlined in the Federal Child Support Guidelines. (For example, in a situation of undue hardship to the spouse making the request or a child in respect of whom the request is made.)

Undue hardship” means serious financial difficulty for either the spouse making the request or a child in respect of whom the request is made.
The following may cause a spouse or child to undergo undue hardship:
1) The spouse has responsibility for unusually high level of debts reasonably incurred to support the spouse and children prior to separation or to earn a living;
2) The spouse has unusually high expenses relating to exercising access to the child;
3) The spouse has a legal duty in accordance with a judgment, order or written separation agreement to support any person.
This list is not exhaustive and other circumstances may cause a spouse or child to suffer undue hardship.

For more information on what constitutes undue hardship and on the services provided by Krol & Krol, contact Krol & Krol at 905.707.3370.

You have booked your first consultation with a family lawyer. Now what?

You have made the difficult choice to separate and have booked an initial consultation with a family lawyer. Now what?

In many family law situations, the initial consultation with a family lawyer will not be free of charge and will likely cost you several hundreds of dollars. If you are going to be paying for this time with a prospective family lawyer that you may wish to then hire, it makes sense to utilize this time in the most efficient manner possible.

A separation and divorce can be one of the most emotional and difficult experiences a person will ever have to go through. As a result, the prospect of taking this step and attending at a first consultation with a family lawyer can be a stressful and overwhelming thought for many people.  This is especially the case if you have not had much experience dealing with lawyers and especially if you have never personally been involved in a potentially contentious legal dispute.  The stress level can be exacerbated if you are consulting with a lawyer during or shortly after the catalyst or event that led to the decision to separate.

In order to ensure that your initial consultation is a productive meeting and that you get good value for the money you are spending on such a meeting, the following are several basic recommendations that are important to keep in mind:

Before your initial consultation, take some time to think about and formulate a list of topics that are important to you and that you wish to discuss with the lawyer. During the consultation, the family lawyer should ask you about the important facts of your situation. Based on what you tell the lawyer, the lawyer should then explain to you the law surrounding these issues and give you an indication of your rights and obligations.

If you have any court documentation that you have been served with, or any documentation which you feel may be pertinent to the meeting, make sure to bring these documents with you and bring them to the lawyer’s attention. Especially when it comes to being served with court documents, timing is crucial and can have a serious impact on your case. You want to ensure that the lawyer is aware of any deadlines with respect to filing documents or the dates of any upcoming court appearances.

It is always a good idea to prepare a list of questions that you wish to discuss during the meeting. An unfortunately common occurrence during an initial consultation is that the prospective client will forget an important question they had wished to discuss and will only remember what that question was once they have already left the lawyer’s office.

Lastly, make sure that you do not leave out any important details about your situation. Your discussion with the family lawyer you have consulted with will be most useful if the lawyer is aware of all the important facts of the case. Although many of the issues may be extremely private and you may feel embarrassed or uncomfortable discussing these topics, it is extremely important for you to be honest and candid with the lawyer.

In order to schedule an initial consultation with one of the experienced family lawyers at Krol & Krol, call 905.707.3370.

Spousal support where one parent is the caretaker of a disabled child

Spousal support where one parent is the caretaker of a disabled child

Jans v. Jans is a 2013 decision from the Alberta Provincial Court.

Issue: The issue of spousal support arose where a parent is the only caregiver to a disabled child.

Facts: The parties started living together in 1989, married in 1991, and then separated in 2010. The wife was a stay-at-home mother for most the marriage and the father was the breadwinner. The youngest child of the marriage has Down Syndrome and the lives with the wife .It was clear from the facts of this case that the child will require a significant amount of care from the mother on a continuing basis. The wife worked part time with a yearly income of $25,850.00 and the husband earned $41,250 per year in seasonal work.

Decision: The wife has a compensatory claim for spousal support.

Justice P.E. Kvill of the Alberta provincial Court notes that the Spousal Support Advisory Guidelines (commonly known as the SSAG) are not mandatory piece and are only advisory. He finds that the SSAG do not adequately address a situation where one parent is the sole caregiver for a disabled child and therefore, orders that the mother should receive a lump sum of spousal support (equalling slightly more than what would be ordered based on the SSAG.

Contact the experienced divorce lawyers at Krol & Krol at 905.707.3370 to learn more about spousal support and the services provided by Krol & Krol.

How to hire a divorce lawyer

You may have made the decision to separate from your spouse or you may simply be looking for information on your rights and obligations if you get a divorce; but now you are facing the sometimes daunting task to find and hire a divorce lawyer.

There are several reasonable ways to find and hire a divorce lawyer; however irrespective of which way you choose, always make sure to properly research any lawyer your choose to consult with.

One of the most common ways to find and hire a divorce lawyer is to obtain a referral from a trusted friend or colleague who has already gone through the process. When you take this route, you have the benefit of getting an opinion from someone you know and trust. This may save you a lot of future complications and may also save you the time and energy it takes to find and hire a divorce lawyer.

Another way to find and hire a divorce lawyer these days is to do an internet search for a divorce lawyer in your region. You can do a simple Google search, or you can also use specific websites such as Lawyer Ratingz to assist you to find and hire a divorce lawyer. These sites are helpful because you can find a lawyer in your geographic region and you can read reviews from former clients of the lawyer you choose. Of course, whenever you are hiring any professional, you should always do your own research into that person, and this is also true when it comes to internet referrals.

Finally, the Law Society of Upper Canada has a lawyer referral service. You can call the Law Society and they will refer you to a lawyer in your area that practices family and divorce law. In addition, the lawyers referred by the law society will provide you with a free half hour consultation with respect to your case.

The lawyers at Krol & Krol are experienced in all aspects of divorce law. To book a consultation with an experienced divorce lawyer at Krol & Krol, call 905.707.3370.

Child Support in Ontario

If you are the access parent (i.e. the chid is living primarily with your spouse), you will be required to pay child support. Child support is made up of two parts:

(1) a basic or table amount. The basic or table amount of child support can be found in the Child Support Guidelines. Click here to access the tables for Ontario.

(2) a proportionate share of special or extraordinary expenses. This covers expenses such as the portion of medical and dental insurance premiums that relate to the child, health-related expenses that exceed insurance reimbursement by at least $100/year, and expenses for secondary school education or for any other educational program that meets the child’s particular needs. The cost of extra-curricular activities may be included in this category. Whether or not an extracurricular activity is considered a special or extraordinary expense will be determined by factors such as whether the child engaged in said activity prior to separation and the means of the parties.

Child support, according to the law, is the right of the child, as opposed to a right of the parents. the money is supposed to be used in order to support and maintain the child. Child support is mandatory in Ontario and is legislated by the Child Support Guidelines.

Where the payor (or the person required to pay child support) is a salaried employee, the calculation of his or her income is a more straightforward exercise. Where the payor is self employed, complexities can arise involving the determination of that person’s income.

If you are the parent receiving the child support payments, it is important that the actual current quantums of special or extraordinary expenses are outlined. This is because the Family Responsibility Office (often referred to as FRO) will only enforce quantums that are specifically specified in an order or an agreement.

Click here to learn more about the services provided by the team at Krol & Krol. Telephone 905.707.3370 for a consultation today.

My spouse is abusive, and I want to get a restraining order. How do I go about doing that?

If your spouse is abusive, it is imperative that you come up with a plan to protect both your well being and the well being of your children.

The legislation pertaining to restraining orders in family law matters is found in section 46 of the Family Law Act. This section is applicable to spouses and former spouses.

Section 46 of the Family Law Act permits the court to issue a restraining order against a spouse or a former spouse, preventing him or her from “molesting”, “annoying” or “harassing” the person asking for the order and his or her children.

Should the court consider it appropriate, they make a restraining order with one or more of the following provisions:

1. Restraining the individual, in whole or partly, from directly or indirectly contacting or communicating with the Applicant or a child in the Applicant’s lawful custody.

According to case law, “annoying” means conduct which a reasonably minded person would consider as disturbing or as a substantial source of anxiety/irritation. This section does not capture trivial annoyances (Sniderman v. Sniderman, [1981] O.J. No. 1119 (Ont. H.C.J.)).

2. Restraining the person from coming within a specific distance of one or more locations.

3. Specifying an exception(s) to the provisions outlined above.

4. Any other provisions that the court considers appropriate.

The court usually only grants restraining orders in the event that it is demonstrated that there is reason to believe that you, and/or your children are in danger. In order for a court to establish this basis for a restraining order, the judge will look at the unique facts and circumstances of every individual case.

If a restraining order is granted and the respondent contravenes the restraining order, the individual can be reported to the local police. This can result in either an arrest, and/or fines. Specifically, a spouse who is convicted of violating a restraining order under the Family Law Act may be liable for a fine of $5,000.00 and/or three months of imprisonment.

It is important to note that once the restraining order is granted, the individual who filed for the restraining order is also not allowed to attempt to communicate with the individual upon whom the restraining order applies. In the event that you do attempt to communicate with the individual, then it is likely that the courts will not enforce the order in the future, or that the order will be lifted and your credibility challenged.

For more information on the services provided by the team of lawyers at Krol & Krol, click here.

Contact Krol & Krol at 905.707.3370.

My ex spouse and I tried mediation initially. Will the information disclosed in the mediation and the negotiations be disclosed to the court?

There are different kinds of mediators; mediators who are social workers, lawyers, psychologists, and members of other professions. Any of these professionals can become licensed to be a family mediator.

The purpose of partaking in a mediation is to attempt to reach an agreement with your former spouse on varying issues that require resolution following the breakdown of a marriage. These issues include, but are not limited to, child support, spousal support, the division of property, access and custody, and so forth.

Before deciding to see a mediator, it is recommended that both spouses speak to lawyers (each spouse will have to seek advice from a different lawyer) to make sure that the parties are aware of their legal rights and entitlements throughout the divorce process.

Whether or not the information from a mediation will be available to a court is dependent on whether the mediation itself was an open or closed mediation.

In the event that you were partaking in an open mediation, the mediator is allowed to keep a written copy of a report that outlines the items discussed in mediation, and each spouse’s response. If you partook in an open mediation, then the information that is recorded throughout the mediation is available to the court.

In the event that you partook in a closed mediation, then the events that are recorded throughout the mediation process are not completely available to the court. The only information available to the court after a closed mediation is the agreement(s) reached between you and your former spouse.

Generally, if the process of mediation proves itself to not be effective, then you and your former spouse may make the decision to see separate lawyers and move the issue to be heard by a court of law.

Click on this link to explore more articles dealing with mediations in Ontario.

For more information on open and closed mediations, contact Krol & Krol at 905.707.3370.

If my ex’s income increased dramatically after separation, am I entitled to an increase in spousal support and child support payments?

At the outset, it is important to note that child support, pursuant to the Child Support Guidelines, is supposed to be recalculated on a yearly basis.

On the issue of child support payments, the child is entitled to benefit in the payor’s post-separation increases income in the form of increased child support payments. In situations where there is an existing order and/or agreement, one would bring an application to vary the existing order and/or agreement. If the application to vary the existing order is granted, then the amount will be adjusted in accordance to the new income of your former spouse.

The issue of a payor’s post-separation income increase and spousal support is less clear. Lawyers and judges alike continue to grapple with this issue.

While this question usually arises during a review, it can also arise during the time of the initial order.

The following are some general principles applicable to this issue:

1. It would be incorrect to suggest that the Spousal Support Advisory Guidelines dictate that the parties’ incomes at the time of separation is the only relevant income in determining spousal support.

2. It is also incorrect to suggest that the Spousal Support Advisory Guidelines dictate that the spouses’ post-separation incomes always ought to be used in determining spousal support.

3. Some factors to be considered on this issue are the length of the marriage, the immediacy of the increase (1 year vs. 10 years after separation), and whether spousal support is compensatory or non-compensatory (since non-compensatory spousal support would present a less compelling argument that the payor’s post-separation increase should be shared).

In situations where there is an existing order and/or agreement, and there has been a material change in circumstances, one would bring an application to vary. If the application to vary the existing order is granted, then the amount of spousal support will be adjusted in accordance to the new income of your former spouse.

For more information on what you are entitled to in the event that your spouse’s income increases, contact Krol and Krol at 905.707.3370.

My former spouse and I separated, and since then I have had custody over my children. Does that mean I will be granted legal custody over my children in a court of law?

The fact that you have had sole custody of the children after separation (or de factor sale custody) sets a status quo in your matter. This status quo has momentum. However, this momentum is not determinative. If your matter ultimately proceeds to court, a judge will, at that time, determine custody based on the best interests of the children.

There are many different situations whereby a parent has de facto sole custody. De facto sole custody:

1. Implies that one parent has taken on the assumption of sole custody but that this parent has no legal documentations to support the claim.

2. Means that you currently have legal custody of your children and that you have been making all decisions with regard to the care and upbringing as if you had full legal custody over them.

For example, in the event that you and your spouse split up, and your spouse has moved out of the apartment and only sees the children of the marriage once in a while, then you would technically have de facto sole custody.

In the event that your spouse have formally accepted that you ought to have sole custody, it is unlikely that a court would over rule this agreement and unlikely that the court will make any changes to your situation.

In the event that your former spouse does not formally agree to this arrangement, in the form of a court order or agreement, then the custody arrangement may only be temporary, depending on the ultimate ruling of the court.

De facto joint custody is a situation where you and your former spouse, from the time of the official split up, have shared the custodial rights over the children of the marriage.

For more information on custody, contact Krol & Krol at 905.707.3370.

I married my spouse as a single mother and now we are getting divorced. My child is going to primarily live with me. Is my former spouse required to pay child support for my child from a previous marriage?

In the event that your former spouse has accepted the responsibilities of being a parent to your child from a previous marriage throughout the duration of your marriage, then the child may be considered to be a child of your current marriage. If the child is deemed a child of the marriage, then you have a right to ask your spouse to pay child support, even though he or she is not your child’s biological parent.

In other words, if a judge rules that your former spouse acted as a parent to your child (or what is referred to as acting ‘in loco parentis’), then your spouse will be required to pay child support in accordance with the Child Support Guidelines. While referred to as ‘Guidelines’, this legislation is mandatory.

According to section 5 of the Child Support Guidelines: Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is an amount that the court considers appropriate, having regard to the Guidelines and any other parent’s legal duty to support the child.

However, you should be careful when asking for support payments from your spouse, who is not the biological parent of the child, as there may be unintended consequences. It should be noted that if the judge does believe that your spouse is obligated to pay child support, then your spouse may also be granted other rights of being a parent. Specifically, your spouse will be able to ask either you, or the court, for access or custody of the child, even though they are not biologically related.

Based on the information provided in this article, it is clear that acting in the place of a parent for a child can have significant consequences. Nevertheless, many stepparents and/or partners do not understand the potential financial obligations that may result from this sort of situation.

For more information on custody, support, and the services provided by our team of experienced lawyers, contact Krol & Krol at 905.707.3370.

Is my spouse entitled to the value of property that I inherited in the event that we obtain a divorce? Do I need to draft a marriage contract to protect these items?

According to the Family Law Act, property (other than a matrimonial home) that is acquired, either as a gift of in the form of inheritance from a third party, even if it was received after the date of marriage, is property that will be excluded from the equalization process. This property must be existence on the date of separation. In addition, in order for the entirety of the inherited funds to qualify as an exclusion, it must have been kept separate and not co-mingled in a joint account.

Therefore, technically, the property that you acquired through inheritance is your property. Accordingly, your spouse is not and will not be entitled to the value of your inheritance. However, there is an exception to this general principle. In the event that the property you have inherited, or the gift that you have obtained, increases in value throughout your marriage, then your spouse may be entitled to half of the increase in value since the time of the marriage.

In the event that you want to protect any gifts or inheritance from a third party, either before or following the time of marriage, and you do not wish to have the increased value vulnerable to equalization, you may retain a lawyer to draft a marriage contract. A marriage contract can be pre-nuptual or signed before the wedding. Alternatively, it may be post-nuptial and signed after marriage. In this marriage contract, you are able to outline parameters that state that the property inherited is not to be subject to equalization under any circumstances. Furthermore, should you wish, you can instruct your lawyer to draft a contract stating that any increase in value in the property shall not be shareable property and shall not be subject to a division of net family property, should there be a breakdown in the marriage. In the event that you do that, you will not be required to share the increase in value with your former spouse.

For more information on equalization and exclusions, get in touch with Krol & Krol at 905.707.3370.

Estephan v. Estephan: British Columbia Court of Appeal on setting aside separation agreements

Estephan v. Estephan is a family law case that has recently been decided by the British Columbia Court of Appeal on the issue of specifically attacking Separation Agreements.

Facts:

The parties started living together in 1986, married in 1996 and separated in 2005. The parties has two children. The wife was the primary caretaker for the children throughout the marriage and the husband was a successful lawyer. The wife has serious health issues that prevented her from working on an ongoing basis.

After a mediation. the parties purportedly settled all financial and parenting issues, including the wife providing a release of spousal support in return for a lump sum. The parties had obtained independent legal advice, there was financial disclosure prior to any mediation, the husband did not hide any assets, and the wife received an unequal division of family property.

The wife then moved to overturn the Agreement through the family law courts. She also asked the court for spousal support. At trial, the cruz of the issue was whether the agreement was signed in “unimpeachable circumstances”.

Decision at Trial:

The trial Judge found that the separation agreement was binding.

Decision on Appeal:

The British Columbia Court of Appeal allowed the appeal and sent the matter back for a retrial.

According to the British Columbia Court of Appeal, the trial Judge erred in not explicitly testing the provisions of the separation agreement as against the factors outlined in sections 15.2(4) and 15.2(6) of the Divorce Act. According to sections 15.2(4), in making an order for spousal support a court should consider the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by the spouses during cohabitation; and,

(c) any order, agreement or arrangement relating to support of either spouse.

Moreover, section 15.2(6) states that an order for spousal support ought to:

(a) recognize economic advantages or disadvantages to the spouses arising from the marriage or the breakdown of the marriage;

(b) apportion between the spouses financial consequences that arise from the care of any child of the marriage over and above any obligation for the support of any child;

(c) relieve any economic hardship of the spouses arising from the marriage breakdown; and,

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The Court, furthermore, noted that the wife had a strong claim for compensatory spousal support and that such a claim  needed to be analyzed in order to reach the conclusion that the agreement substantially complied with the Act. Since the record did not provide adequate details and facts for the Court of Appeal to make this assessment, the matter was sent back for a retrial.

The decision by the British Columbia Court of Appeal is contentious as seems to require trial judges to engage in a complex analysis. In this case, that analysis is complicated by the fact that the wife in this proceeding did not seem to provide the requisite information so as to allow the trial Judge to engage in this analysis.

To inquire about our services, spousal support and separation agreement, the team of family lawyers in the Greater Toronto Area can be reached at 905.707.3370.

 

Can one lawyer act for the buyer and seller of real property?

According to the Rules of Professional Conduct, one lawyer cannot act on behalf of both the buyer of real property (otherwise known as the transferee) and the seller of real property (also known as the transferor) except under limited circumstances.

In the following series of circumstances, and so long as there is no violation of rule 2.04 of the Rules of Professional Conduct, a lawyer may act for the transferor and the transferee when transferring title with respect to real property:

(a) the Land Registration Reform Act allows the lawyer to sign the transfer on behalf of both parties.

(b) the parties are “related persons” (“Related persons”, according to section 251 of the Income Tax Act (Canada) include but are not limited to the following:

  • People connected by blood relationship, connected by marriage, common-law partnership or adoption. 
  • A corporation and a person who controls the corporation (assuming that the corporation is controlled by one person.
  • A corporation and a person who is a member of a related group who controls the corporation.

(c) the lawyer’s practice is in a remote location where there are no other lawyers that either the transferor or the transferee could retain for the transfer, without causing them undue inconvenience.

In any of the above-noted exceptional circumstances, the lawyer must advise the clients that:

(a) the lawyer has been asked to act for both parties;

(b) None of the information that is received relating to the matter from one may be treated as confidential so for as the other is concerned; and,

(c) if a conflicts ensues that cannot be resolved, the lawyer will not be able to continue to act for both parties. In such a situation, the lawyer may have to withdraw completely from the matter.

Should you wish to learn more about transfers of title to real property, contact Marilyn Krol, partner at Krol & Krol, at 905.707.3370 ext. 22.

Desjardins v. Bouy: How do I determine whether I’ve passed the 40% threshold when calculating child support?

The case of Desjardins v. Bouy is a 2013 case that comes from the Alberta Queen’s Bench.

Facts: The father argued that he had the children at least 40% of the time. Given this, he requested a reduction in child support.

The Law: According to section 9 of the Federal Child Support Guidelines:

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and,

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

In this regard, this Court adopts the position that in such a situation one is to count by hours (as opposed to days). Furthermore, having physical custody of the child for the purposes of section 9 means actually having the child in that parent’s care. In situations where the child is not in the physical care of either party (e.x. while the children are in school), the question is who has the responsibility for the child.

This section does not mean that the person who has the child for not less than 40% of the time is automatically entitled to an adjustment to child support.

Decision of the Alberta Queen’s Bench: The father did not have the children 40% of the time or more. The Court also said that even if he had crossed the 40% threshold, the father did not provide the Court with a records that supported an adjustment based on the factors listed in section 9 of the Federal Child Support Guidelines.

Is the the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applicable to family law proceedings?

According to case from the Ontario Superior Court of Justice, Satchidanthan v. Sivanesan, if the person being served resides in a jurisdiction that is a State party to the Convention, then  service may well have to conform to the requirements of the Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

It ought to be noted that:

1. The Convention does not apply where the address of the person being served is not known.

2. According to the Convention, each contracting state must designate a central authority which will undertake to receive requests for service that originate from other contracting states

3. Requests for service must conform to a model that is provided for in (i.e. annexed to) the Convention itself.

The following are examples of contracting States to this Convention: Albania, Argentina, Australia, Denmark, Finland, Germany, Greece, and Romania. For a complete list as well as a complete guide to country’s  reservations, declarations and notifications, visit the following website.

Click on this link for more information on this Convention.

To learn more about practical operation documents, click here.

This Convention is becoming increasingly more significant, as based on the decision in Satchidanthan v. Sivanesan, it appears that courts may, in fact, be willing to invalidate service that does not conform to these rules.

It remains to be seen as to whether the Family Law Rules actually permit service on a contracting state that is not in accordance with the Convention on the Service Aborad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Contact the family lawyers at Krol & Krol at 905.707.3370 for a free  initial telephone consultation on your family law proceedings.

Richmond Hill Family And Divorce Lawyers

Richmond Hill Family and Divorce

At Krol & Krol we serve our Richmond Hill Family and Divorce clients from our Richmond Hill office conveniently located off Yonge Street just north of Highway 7. Our address is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated lawyers at Krol & Krol practice primarily in all aspects of family law, including separation, divorce, custody, residency, access, child support, spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues such as incorporations.

Contact us at 905.707.3370 or click here for our detailed contact information.

For a Google Map of our location in Richmond Hill, see below:


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For additional information on our firm and how we serve our Richmond Hill Family and Divorce clients, click here.

 

Newmarket Family And Divorce Lawyers

 we serve our Newmarket Family and Divorce

At Krol & Krol we serve our Newmarket Family and Divorce law clients from our Richmond Hill office conveniently located off Yonge Street just north of Highway 7. Our address is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated lawyers at Krol & Krol practice in all aspects of family law, including separation, divorce, custody, residency, access, child and spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues.

Contact us at 905.707.3370 or click here for our detailed contact information.

For a Google Map of our location in Richmond Hill and to obtain directions from Newmarket to our Richmond Hill office, see below:


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For additional information on our firm and how we serve our Newmarket Family and Divorce law clients, click here.

Aurora Family And Divorce Lawyers

Aurora Family and Divorce

At Krol & Krol we serve our Aurora Family and Divorce law clients from our Richmond Hill office conveniently located off Yonge Street just north of Highway 7. The address is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated lawyers at Krol & Krol practice in all aspects of family and divorce law, including separation, divorce, custody, residency, access, child and spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues.

Contact us at 905.707.3370 or click here for more detailed contact information.

For a Google Map of our location in Richmond Hill and to obtain directions from Aurora to our Richmond Hill office, see below:


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For additional information on our firm and how we serve our Aurora Family and Divorce law clients, click here.

Markham Family And Divorce Lawyers

Markham family and divorce

At Krol & Krol we serve our Markham family and divorce law clients from our Richmond Hill office conveniently located off Yonge Street just north of Highway 7. Our address is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated lawyers at Krol & Krol practice in all aspects of family and divorce law, including separation, divorce, custody, residency, access, child and spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues.

Contact us at 905.707.3370 or click here for our detailed contact information.

For a Google Map of our location in Richmond Hill and to obtain directions from Markham to our Richmond Hill office, see below:


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For additional information on our firm and how we serve our Markham family and divorce law clients, click here.

Vaughan Family and Divorce Lawyers

Vaughan family and divorce

At Krol & Krol we serve our Vaughan family and divorce law clients from our Richmond Hill office conveniently located off Yonge Street just north of Highway 7. Our address is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated lawyers at Krol & Krol practice in all aspects of family and divorce law, including separation, divorce, custody, residency, access, child and spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues.

Contact us at 905.707.3370 or click  here  for our detailed contact information.

For a Google Map of our location in Richmond Hill and to obtain directions from Markham to our Richmond Hill office, see below:

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For additional information on our firm and how we serve our Vaughan family and divorce law clients, watch the video below.

Are Child Protection Societies who hire private investigators required to provide the other side with the resulting surveillance tapes?

The case of Chatham-Kent Children’s Services v. T. (R.) from the Ontario Court of Justice speaks to this issue.

Facts: The mother in this case discovered that she was under surveillance by the Society and wanted the Society to disclose the surveillance evidence.

Ruling on Motion: The surveillance did not need to be disclosed given that the Society did not seek to rely upon it. He states that “[t]he fact that surveillance took place at certain times with negative results is … irrelevant and a waste of the court’s time and resources …”

Held on Appeal: The Appeal judge applied to test enunciated in Stinchcombe and determined that the mother was entitled to receive the information with respect to the surveillance so long as it was not protected by litigation privilege (which attaches to documents obtained by a lawyer or his or her agent from third persons, if they were obtained for the dominant purpose of litigation). The Judge found that even if the work products were protected by litigation privilege, the Society was still required to provide the mother with the particulars surrounding the surveillance, including:

1. Dates, times, and location of surveillance;

2. Specifics relating to the activities and the observations that were made; and,

3. The names and addresses of the individuals that conducted the surveillance.

Accordingly, Justice Heeney ordered that the Society provide the mother with an Affidavit outlining the above-noted particulars.

Should you require more information on the issue of surveillance in your family law case, contact Krol & Krol, a boutique law firm specializing in family law at 905.707.3370 for a consultation today.

How do courts determine whether to award occupation rent on a matrimonial home?

In Casey v. Casey, the Saskatchewan Court of Appeal reviewed the principles on the issue of occupation rent. The following are some of the factors that are relevant to the determination of an award of occupation rent on a matrimonial home in a family law case:

1. Generally, the conduct of both spouses, inclusive of a party failing to pay support, the circumstances under which the non-occupying spouse left the home, as well as if and when the non-occupying spouse moved for a sale of the matrimonial home.

2. While the conduct of parties is one factor to be taken into account, a spouse leaving the matrimonial home in a family law case unilaterally is not a bar to awarding occupation rent.

3. Where the children are residing and who is supporting the children.

4. If a demand for occupation rent was made in the family law case. If so, consideration is made as to when such a demand was made.

5. Any financial difficulties that the non-occupying spouse has encountered caused by being deprived of the ‘equality of the home’.

6. Who is paying for the expenses associated with the matrimonial home in the family law case (i.e. mortgage payments, property taxes, insurance.)

7. Has the occupying spouse increased or decreased the selling value of the matrimonial home?

8. Other competing claims in the matter that may serve to offset an award of occupation rent.

If there is no mortgage on the home, then occupation rent may be granted in order to equalize the parties’ accommodation expenditure post-separation (Sarvajc v. Turner (1996) 140 Sask. R. 101 (Sask. Q.B.)). The Saskatchewan Court of Appeal remarked that despite the fact that there are few decisions from the Court of Appeal on this issue, there are decisions stemming from the Queen’s Bench that acknowledge that occupation rent may, at times, be appropriate.

To learn more about occupation rent in the context of a family law case, contact Krol & Krol at 905.707.3370 for a consultation today.

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Thornhill Family and Divorce Lawyers

Thornhill Family and Divorce

At Krol & Krol we serve our Thornhill family and divorce law clients from our Richmond Hill office conveniently located off Yonge Street just north of Highway 7. Our address is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated lawyers at Krol & Krol practice in all aspects of family and divorce law, including separation, divorce, custody, residency, access, child and spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues.

Contact us at 905.707.3370 or click here for our detailed contact information.

For a Google Map of our location in Richmond Hill and to obtain directions from Thornhill to our Richmond Hill office, see below:

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For additional information on our firm and how we serve our Thornhill family and divorce law clients, watch the video below.

What does “mentally incapable” mean in the context of Wills and Estates?

Being deemed “mentally incapable” means different things in different situations. What it means in a particular case depends on the context, and the unique factors pertaining to one’s circumstances.

Being “mentally incapable” means that that you are considered, legally, to not be in the right state of mind, for whatever reasons, to understand the information relevant to signing legal documentation. In other words, a person who is “mentally incapable” cannot make informed decisions about issues such as finances, health, etc.

It is important that people appoint someone to take the position of Power of Attorney in case he or she is ever deemed “mentally incapable”. A Power of Attorney is a legal document that gives someone of your choosing the ability to act on your behalf under specific circumstances. This means that the individual appointed will be granted the ability to make decisions regarding your personal life and estate in the event that you are deemed “mentally incapable”

You are able to appoint more than one person to be your Power of Attorney. In the event that you do choose more than one person, unless you outline in the documentation, “jointly and severally”, all the individuals will be required to agree on every decision that is made on your behalf while you are deemed “mentally incapable”. This is only possible if the Power of Attorney has been duly executed.

It is generally highly advisable that you consider taking every step necessary to protect yourself by executing a Power of Attorney.

For more information relating to a Power of Attorney, contact the Toronto lawyers at Krol & Krol at 905.707.3370. To learn more about Wills & Estates, click here.

My spouse has threatened to leave me in the past. What are some steps that I can take to protect myself?

There are certain steps that one can take in order to best protect themselves in the event of a separation and divorce.

The first step that one may take in order to protect themselves is to put personal financial papers, records and items of value (such as jewelry) in a safe location.  You may consider re-directing your mail and bank statements the home to your place of work.

In the event that your spouse has received mail from any financial institutions, and it is in plain sight, then it is suggested that you take note of the return address that is printed on the envelope.

If your spouse leaves out any financial information, and it is in plain sight and accessible, it is suggested that you record the information that you see, and take note of it.

In the event that you and your spouse share a joint account, then it is recommended that you consider closing the account in question. If you do not wish to do so, for whatever reason, then it is highly suggested that you closely monitor the account activity on a highly regular basis.

In the event that you both have joint lines of credit (that are not completely utilized), it may well be advisable that you consider closing or freezing them.

It is important that you take extreme caution when communicating with your spouse, both in person and over different media outlets.  Writing angry text messages, Facebook messages, and/or emails, can hurt your case if you and your current spouse do go through a divorce. Anything in writing can end up as an exhibit in an Affidavit.

It is also important to hire an experienced Toronto family lawyer and talk to your divorce lawyer about any concerns that you may have. Your lawyer at Krol & Krol will ensure that your interests are protected.

For more information on ways to make sure that your interests are protected, contact Krol & Krol at 905.707.3370.

Toronto Family Law

Toronto family law

At Krol & Krol, our Toronto family law lawyers serve our Toronto family law clients from our Richmond Hill family law office conveniently located off Yonge Street just north of Highway 7. Our address  is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated Toronto family law lawyers at Krol & Krol practice in all aspects of family law and divorce law, including separation, divorce, custody, residency, access, child and spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues.

Contact us by telephone at 905.707.3370, email us at mkrol@krol.ca or click here for our detailed contact information.

Toronto family law clients can view a Google Map of our location in Richmond Hill and obtain directions from Toronto to our Richmond Hill family law office by clicking on the Google Map below:


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For additional information on our firm and how we serve our Toronto family law clients, watch the video below.

Toronto Divorce Law

Toronto divorce law

At Krol & Krol, our Toronto divorce law lawyers serve our Toronto divorce law clients from our Richmond Hill divorce law office conveniently located off Yonge Street just north of Highway 7. Our address is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated Toronto divorce law lawyers at Krol & Krol practice in all aspects of divorce law and family law, including separation, divorce, custody, residency, access, child and spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues.

Contact us by telephone at 905.707.3370, email us at mkrol@krol.ca or click here for our detailed contact information.

Toronto divorce law clients can view a Google Map of our location in Richmond Hill and obtain directions from Toronto to our Richmond Hill divorce law office by clicking on the Google Map below:


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For additional information on our firm and how we serve our Toronto divorce law clients, watch the video below.

Brampton Divorce Law

Brampton divorce law

At Krol & Krol, our Brampton divorce law lawyers serve our Brampton divorce law clients from our Richmond Hill divorce law office conveniently located off Yonge Street just north of Highway 7. Our address is 9 Oak Avenue, Richmond Hill, Ontario, L4C 6R5.

The experienced and dedicated Brampton divorce law lawyers at Krol & Krol practice in all aspects of divorce law and family law, including separation, divorce, custody, residency, access, child and spousal support, and division of property. We also assist our clients with real estate transactions, wills and estates, and business law issues.

Contact us by telephone at 905.707.3370, email us at mkrol@krol.ca or click here for our detailed contact information.

Brampton divorce law clients can view a Google Map of our location in Richmond Hill and obtain directions from Brampton to our Richmond Hill divorce law office by clicking on the Google Map below:

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For additional information on our firm and how we serve our Brampton divorce law clients, watch the video below.

Launchbury v. Launchbury: What is the applicable law where the matrimonial home is put in one spouse’s name to shield the property from creditors?

Prior to Launchbury, it was often thought that if a matrimonial home was put into one spouse’s name for the purpose of shielding it from creditors, the non-titled spouse could not then come to the Court arguing that it was theirs in the context of family law.

According to the Ontario Court of Appeal in Launchbury, this is no longer so.

Facts: In Launchbury, the wife was employed by a telephone company and the husband was a constable with the policy. The matrimonial home was purchased from funds in a joint bank account. However, the home was put into the wife’s name alone in order to, among other reasons, shield it from potential creditors. The house was valued at $450,000.00 at the time of separation and the wife sold the home two years after separation for $586,000.00.

Issue: The husband claimed an interest in the value by way of resulting trust (i.e. he argued that the wife held one half of the matrimonial home for him).

Trial Decision: The trial judge found that because joint fund were used to purchase the home and the home was only placed in one of the parties’ names, the presumption of resulting trust was applicable. Justice Van Melle found that the wife here did not rebut the presumption of resulting trust. Furthermore, no creditors were prejudiced in this case and the husband did not intend to gift his half of the home to the wife.

Appeal: The Court of Appeal found that in this type of situation the presumption of resulting trust comes into play. According to this presumption, the burden was on the wife to rebut the presumption and show that a gift was intended by the husband. Moreover, given the dangerous work done by the husband, there was a legitimate purpose in placing the home in the wife’s name alone and no creditors were prejudiced in doing so.

My ex spouse has moved outside of Canada. How can I ensure that the order pertaining to our divorce will be enforced?

Whether or not the court order will be enforceable depends greatly on where exactly your former spouse has relocated. Different places around the world have different agreements, or no agreement at all, with Canada, in terms of enforcing court orders.

There are some jurisdictions that have, what is commonly referred to as, reciprocal enforcement agreements with Canada. For example, if your ex spouse were to relocate to a jurisdiction within the United States, then the court order would be enforceable.

In the event that your spouse is moving to an area that does not have reciprocal enforcement agreements with Canada, you ought to consider and discuss the following with your lawyer:

  1. Requesting lump sum support.
  2. Obtaining security in order to compensate you in the event that things such as support payments were unenforceable, or in the event that your ex spouse is in contempt of the order. This property would be held “in trust”, meaning that you would not freely have access to it. In the event that your ex spouse does not provide the requisite support, that property will be available to you.

For more information on the options available to you, to protect yourself, in the event that you’re ex spouse is planning on moving outside of Canada, contact Krol & Krol at 905.707.3370.

My spouse does not want a divorce. Does that affect my ability to divorce him/her?

A divorce is simply a severing of the marriage. It allows both parties to remarry.

It is not rare for one partner to seek a divorce, while the other individual wishes for the marriage to continue.

Whether or not your spouse agrees to filing for a divorce, will by no means affect your ability to obtain one.

There are different reasons for filing for divorce. The most common grounds is a one years separation.

You are entitled to separate from your spouse and do no require his or her permission. This can be done by physically residing separately. This can also be articulated through the use of a written letter from your lawyer to your spouse, indicating that the separation has occurred.

Following the completion of a 1-year separation period, then you are able to apply for a divorce with the court. The divorce is likely to be granted without the desire of the other party, unless there is a legitimate and valid reason for opposing the divorce.

For more information about applying for a divorce alone, contact Krol & Krol at 905.707.3370.

My spouse has changed his numbers and I do not know his current address nor do I have any means by which to contact him. The individual I sent to serve him also seems to be unable to locate him. Can I still obtain a divorce in Ontario?

If you are unable to locate your spouse and serve the divorce papers, it is still possible to obtain a divorce in Ontario. The way in which to properly proceed in such a situation depends on the unique circumstances pertaining to your individual case.

It is important that you use every method at your disposal to attempt to locate your spouse in order to serve them with the divorce papers. There are many different methods you may employ to do so. For example, you may decide to hire a company to locate the individual.  If the company is unable to locate the individual, you should ask them for a report indicating that their search was unsuccessful.

In the event that you have used every means possible to locate your spouse, and still cannot seem to find a place to locate or reach him, in order to obtain a divorce in Ontario, you may be required to obtain an Order for either substituted service or dispensing with service. In this case, you most prove to the judge that you have exhausted all reasonable ways to contact and/or locate your spouse.

For more information on divorces, where you are unable to locate your spouse, contact Krol & Krol at 905.707.3370 to book a consultation today.

I am not a Canadian citizen; can I still file for a divorce in Ontario?

This question relates to an issue of jurisdiction.

Even if you do not hold Canadian citizenship, you may still be within your legal rights to file for, and obtain, a legally recognizable divorce in Canada. It is also possible to obtain a divorce in Canada even in the event that the marriage took place outside of Canada.

In most cases, in the event that you are not a Canadian citizen, you have to apply for a divorce in the province where either you, or your spouse, have been living for at least one year.  More specifically, according to section 3(1) of the Divorce Act, “A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

The court may require that you provide evidence of this. Not being able to provide such evidence may impair your ability to obtain a divorce within that province.

For more information on applying for a divorce, if you are not a Canadian citizen, contact Krol & Krol at 905.707.3370.

Crown Wardship orders: the important factors that courts take into account

A Crown Wardship order is an order that allows the Court to take someone’s children from them. After determining that it is in the best interests of the child that he/she no longer live with his/her parents and there are no other options left for the child, the Province will accept all rights and responsibilities for the child.

In the case of Children’s Aid Society of Toronto v. U. (E.), Justice Sherr ruled that a 10 year old child required protection. Justice Sherr referred to Section 37(2) of the Child and Family Services Act to define exactly which children are in need of protection. He also highlighted the distinctive nature of child protection proceedings as opposed to other prevalent forms of civil litigation that, in the former, evidence of whether the child required protection could be introduced and admitted at any time until the day of the court hearing, so long as there was adequate disclosure to all parties.

In his ruling, Justice Sherr emphasized that if the court is to come to a decision whereby the child will be taken from his parents (crown wardship), it must take extreme caution in carrying out the order, there must be compelling evidence that supports the order, and the court must have taken into consideration all possible alternatives.

Finally, Justice Sherr reiterated that due to the distinctive nature of the proceedings in child protection cases; that evidence could be admitted up the date of the court hearings, in order for the court to return the rights and responsibilities of the child to his/her parents, the court must be convinced of the fact that the risk present at the time of the apprehension of the child has been dealt with and that it would be in the child’s best interests to return home to his/her parents.

To learn more about how dividends affect child support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Determining child support when a spouse receives his/her income as a dividend

Section 5 of Schedule 3 of the Child Support Guidelines (Guidelines) states that when a spouse determines his/her income for the purposes of determining child support payments, the spouse must “Replace the taxable amount of dividends from taxable Canadian corporations received by the spouse by the actual amount of those dividends received by the spouse.”

In a recent case titled Rawluk-Harness v. Harness, the husband was receiving his income as a dividend from a corporation he solely owned. Although he was receiving an actual dividend of $50,000 plus a 25% gross up for a total taxable dividend of $62,500, he relied on Section 5 of Schedule 3 of the Guidelines to shield the grossed-up portion of his dividend from being included in his income for child support payments.

His wife argued that it was unjust to allow him to elect to receive his income as a dividend rather than a salary, yet not include the grossed-up portion of his dividend in his income for child support purposes to reflect the portion of taxes he was saving.

In his ruling, Justice Mitrow conveyed that in these particular cases where the husband owned the whole of the corporation, the process by which one would go about calculating his/her income for child support purposes includes an additional step. After analyzing Section 5 of Schedule 3 of the Guidelines, one must apply section 19(1)(h) of the Guidelines which states that, “The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include …. the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.”

Therefore, as cases like Austin v. Austin, Riel v. Holland and Henderson v. Casson depict, the dividend income calculated for child support purposes from a payor that wholly owns the corporation, should include the full amount of the grossed-up dividend.

To learn more about how dividends affect child support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Continuing access rights in crown wardship orders

In the case of Children’s Aid Society of Toronto v. U. (E.), Justice Sherr analyzed whether parents of a crown ward should have continuing access.

Justice Sherr stated that there had been recent amendments to the Child and Family Services Act in Bill 179 regarding continuing access in adoption cases, and he referred to the approach taken in Catholic Children’s Aid Society v. M.M. In that case, Justice Ellen Murray stated that although an access order will not prevent the child from being placed for adoption, a Notice of Intent to place the child for adoption will terminate the access order, ultimately leaving the parents with the option of applying to the court for an openness order.

Justice Ellen Murray elaborated on what the court will take into account when ruling on an openness order. Justice Murray quoted the newly amended Section 59 (2.1) of the Child and Family Services Act whereby “the Courts of first instance will only make a Crown Wardship Order with access if the Court is satisfied that:

(a) the relationship between the person and the child is beneficial and meaningful to the child; and
(b) the ordered access will not impair the child’s future opportunities for adoption.”

In her ruling, Justice Murray stressed the importance of allowing a child to remember his/her roots, and she highlighted the fact that courts were no longer burdened with choosing between securing an adoption placement for the child and the possibility of the child maintaining some sort of connection with his/her biological family. Now with the amendments in place, the court would be permitted to allow the child to benefit from both options.

To learn more about access rights as well as the services provided by Krol & Krol, call 905.707.3370 today.

“Double Dipping” in spousal support

As conveyed in the case of Boston v. Boston, there is no absolute prohibition against a spouse recovering double of his/her share in spousal support (commonly referred to as “double-dipping”).

However, the Court of Appeal in MacQuarrie v. MacQuarrie stressed the fact that courts will attempt to steer away from a ruling that awards a “double-dipping” of spousal support when it is fair to do so.

It is worth noting, that in MacQuarrie, Justice McQuaid pointed to the reality that some cases will call for a double recovery of spousal support in the interest of the principle of fairness.

Recent case law suggests that the principle against “double-dipping” surfaces when spousal support is awarded on a compensatory basis rather than one predicated upon necessity.

In Senek v. Senek, the Court ruled that, despite a material change in circumstance where the husband had recently retired, the wife was entitled to “double-dip” and receive spousal support from her husband’s pension simply on the basis of necessity. Therefore, when a Court is faced with the dilemma of awarding a double-recovery of spousal support, the Court will render a decision based on principles such as fairness and necessity.

To learn more about double dipping as well as the services provided by Krol & Krol, call 905.707.3370 to book a consultation today.

Are there consequences with respect to disobeying a court order?

In Ontario, family courts have and do sanction the behavior of a spouse if he/she has not complied with a court order.

In McAllister v. McAllister, Justice Campbell of the Ontario Superior Court of Justice reversed an earlier ruling that granted the wife permission to relocate with her son and live with her new boyfriend. Despite being awarded access rights to his child, the father was blocked and deprived from seeing his son, as the mother had relocated and made every attempt to sever the relationship between her child and his father.

In his ruling, Justice Campbell, scolded the mother for disobeying the lower court’s ruling, which explicitly expected that the father of the child would have the opportunity to visit and continue building the relationship with his son. Justice Campbell ruled that he was of the opinion that the mother was “gate keeping” and alienating her former husband from performing his right of access to his child, and thereby reversed the lower court’s ruling, forcing the mother to opt for one of two choices:

(a) Maintain custody of the child but return home so as to ensure that the father’s access rights are upheld, or;

(b) Do not return home, lose custody of the child and pay child support.

The critical point to take away from Justice Campbell’s ruling is that one must always abide and facilitate the orders of a Judge, otherwise one will face severe consequences as was evident in McAllister.

To learn more about double dipping as well as the services provided by Krol & Krol, call 905.707.3370 today.

Dual spouses and their entitlement to benefits of pension plans

In determining the beneficiary of a deceased member’s pension plan, Ontario’s Pension Benefits Act defines the term “spouse” as either two persons who are married to each other or are not married to each other but are living together in a conjugal relationship continuously for a period of not less than three years.

Subsection 48(1) of Ontario’s Pension Benefits Act adds that when the member dies, his/her spouse is entitled to a lump-sum payment equal in value to the deferred pension.

Subsection 43(3) of Ontario’s Pension Benefits Act states that Subsection 43(1) does not apply where “the member, former member or retired member and his or her spouse are living separate and apart on the date of death.”

Finally, Subsection 48(6) of Ontario’s Pension Benefits Act permits member to designate beneficiary to their deferred pension plan upon death, in cases where the member has no spouse or was separated from their spouse at the time of death.

As was demonstrated in Carrigan v. Carrigan Estate, it is important for a member to understand and familiarize themselves with Section 48 of Ontario’s Pension Benefits Act, in situations where a member dies and leaves behind dual spouses.

In Carrigan v. Carrigan Estate, at the time of his death, Ronald Carrigan was involved in a common law relationship, and he had never gotten around to divorcing his original spouse whom was living separately from him for 10 years.

The question then became, who is entitled to the benefits under his pension plan?

The trial judge held that his common-law spouse was entitled to the benefits. He reasoned that while his wife was technically a spouse, she was a separated spouse, and thereby the only spouse that was living with the deceased at the time of his death was his common law spouse.

In the appellate Court, the judge reversed the decision and declared that neither one was a spouse by the standards of the Act. The judge explained Subsection 48 of the Act did not encompass common law spouses, and that the only spouse by its standards was living separately from the deceased at the time of his death.

In light of the above, it is imperative that one take control of the situation and , as subsection 48(6) states clearly, designate a beneficiary that is entitled to the member’s pension plan benefits upon his death.

To learn more about dual spouses as well as the services provided by Krol & Krol, call 905.707.3370 today.

The distinction between a review and a variation of spousal support

The difference between a court order directing a review of spousal support and an order to vary support is critical and imperative to understanding what courses of action a judge can take in either circumstance.

If a judge has ordered to review support at some specific point in the future, then upon review, the case is completely reopened and the judge may take whatever measures he sees fit in accordance with the objectives of the Divorce Act.

In cases where a court is presented with a variation order of support, the judge is restrained from completely reopening and reviewing the case. The only option left for the court is to vary spousal support based on a material change in circumstance.

This distinction between a review and variation of spousal support was demonstrated in the case of Marche v. Wagstaff. In this case, the Court of Appeal sent the matter back to the trial court because, in its view, the trial judge had failed to apply the proper course of action when dealing with a variation of spousal support. The Court of Appeal ruled that allowing the husband to discontinue spousal support payments on the basis that his wife did not make a reasonable effort to seek employment was reopening the case which is a measure only allowed when reviewing support. Since the matter dealt with a mere variation of support, the only aspect the judge was allowed to take into account was the material change in circumstance.

To learn more about spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Do common-law spouses need to obtain a divorce?

The exact way in which a common law relationship is defined depends on the context and circumstances surrounding the legal right being referred to. The working definition of a common law relationship, as well as the exact legal definition also varies within the boundaries of each province within Canada. Therefore, it is important to note that while one may be considered to be a part of a common law relationship under one specific statute in Ontario, it is possible that they will not be attributed the status of common law relationships in other circumstances, involving a different statute.

It is important to note that common-law couples’ rights in Ontario are not the same as the rights attributed to people who are legally married in Ontario. For example, common-law spouses in Ontario are not entitled to an equalization of net family property in Ontario. Nevertheless, trust law may be applicable to circumstances involving common law spouses. Moreover, common law couples maintain rights of spousal support.

Accordingly, while divorces are only required for people who are legally married to one another, it is important that upon the dissolution of the relationship, common-law spouses come a settlement of the relevant issues and execute a Separation Agreement reflecting that settlement.

For more information on the process of separation for common law spouses and the family law services we provide, contact Krol & Krol at 905.707.3370.

 

There is a court order that my children attend counselling with my ex-spouse. I do not think that this is in my children’s best interest. Is there anything I can do to stop it?

When a judge makes an order, the order is mandatory for the parties involved. Judges’ orders have to be followed by the parties to whom they are directed, regardless of one’s personal feelings and beliefs regarding the situation. The only option that one has, with regard to stopping the order, is to get the court order reversed.

In order to get the court order reversed, you are required to seek either to appeal of the order, or to vary the order, within the prescribed timelines.

Whether or not the court will accept the appeal, and therefore whether the order is varied, depends on whether or not you have, as seen by the court, a valid reason to want the order to be reversed. You ought to provide evidence in order to further prove the validity of your position.

In the mean time, however, the parameters and requirements that are outlined by the court order must be followed. Not following the order would put both you and your children are in contempt of the order. Being in contempt of the order may actually, in the long run, work against you when you apply for the appeal.

If there is a concern with respect to the safety of the children, an emergency appearance ought to be brought before a judge and this information and evidence should be put before the court immediately and without delay.

For more information on varying court orders, contact Krol & Krol at 905.707.3370.

DNA Paternity Testing

Generally, any father seeking leave to obtain DNA testing to confirm that he is the father of his wife’s child, may do so. However, the Court ruled in F. (M.) v. S. (R.) that a father’s application seeking leave for DNA paternity testing will not be granted where the child’s health may be affected or the request to have the DNA paternity test is made in bad faith.

In the case of Griggs v. Cummins, the father sought leave to have a DNA paternity test performed on his young child, to which the court ruled that, barring any health concerns or bad faith intentions, it would be in the best interests of the child to be made aware of his/her real biological father. Additionally, the court noted that it would also be in society’s best interest to know who the obligation of support falls upon. Thus, the judge allowed for the DNA paternity testing of the child.

However, subsequent recent case law has suggested that DNA may not be in the child’s best interest, and courts should perhaps be reluctant to granting the DNA paternity tests, as it may result in a possible outcome where the child is left fatherless.

Interestingly, Justice Howden in Griggs v. Cummins, required that the father pay for the DNA test, despite the possibility that the DNA paternity test may point to an alternative biological father.

To learn more about DNA paternity tests as well as the services provided by Krol & Krol, call 905.707.3370 today.

Beneficial Ownership and Family Property

The Court of Appeal in Schimelfenig v. Schimelfenig, outlines the difference between “legal ownership” and “beneficial” ownership.

In Schimelfenig, the issue was whether the home was owned by the husband – which would then be subject to division with his wife, or if it was owned by his parents, as they had transferred title of the home to themselves and their son in joint tenancy.

The Trial Judge neglected to highlight the difference between legal ownership and beneficial ownership. He ruled that the husband did not own the home (and therefore the home was not subject to division of property between him and his wife) because there was an abundance of evidence that his parents did not intend to give the home to their son as a gift. The transfer of ownership was clearly intended for estate planning purposes.

On appeal, the Court disagreed with the Trial judge in terms of his reasoning, however, agreed that the husband was not entitled to a portion of the home.

Unlike the Trial Judge, the Court of Appeal held that the husband was the legal owner of the property as his name was on title. However, as the evidence clearly conveyed, because the husband did not have any beneficial interest in the property whatsoever, he could not claim any portion of the land. Therefore, the property was not to be subjected to division between the husband and his wife, as it did not fall under the realm of “family property”.

All in all, the case clearly portrays how beneficial ownership interests can affect a family property claim.

To learn more about Beneficial Ownership and Family Property as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

 

Dependant Relief Claims In Ontario

The Succession Law Reform Act has recently been interpreted to possibly allow for the addition of non-parties to a Dependant’s relief claim.

In the case of Brash v. Brash Estate, the Superior Court of Justice ruled that the applicant’s children were under an obligation to support the applicant (their mother), and thus should be added to their mother’s dependant relief claim.

The case saw a 90 year old widow opt for an equalization payment against her late-husband’s estate, as she claimed to fall under the legal realm of a “dependant” under the Succession Law Reform Act. (Part V – Section 57 of the Act defines the scope of the term “dependant”) She had been left with practically nothing under his Will, and therefore sought compensation from the Estate; that was now in the hands of his children. Being that she had four children of her own that were within their means to support their widowed mother, his children sought to add them as parties to the proceeding.

In the interest of justice to the Act and especially to the estate of the late husband, Justice Cornell ruled that her children should be added as parties to the proceeding. Justice Cornell pointed to the Case of Baddeley v. Baddeley, and acknowledged that her children may wind up bearing the obligation to support their widowed mother.

To learn more about dependant relief claims as well as the services provided by Krol & Krol, call 905.707.3370 today.

Marriage Annulments

Section 31 of the Marriage Act states:

If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence. R.S.O. 1990, c. M.3, s. 31; 2005, c. 5, s. 39 (5).

 

The case of Matthews v. Mutiso summarizes the four requirements necessary in order to fall under the legal regime of section 31.

  1. The marriage must have been solemnized in good faith;
  2. The marriage must have been, at least, intended to be in compliance with the Act;
  3. Both parties were legally qualified to contract into the marriage; and,
  4. Post solemnization, the parties must have lived together and cohabited as a married couple.

 

Interestingly, in Matthews v. Mitrow, Justice Mitrow did not delve into whether the couple had consummated the marriage at any point. Justice Mitrow found that although the two had been separated for quite some time and were not living together, coupled with the fact that the marriage was considered an “unlicensed solemnization” (the person performing the ceremony was unlicensed to do so), because the parties had lived together as a married couple, albeit for a short period, they now were legally married and were required to seek a divorce rather than an annulment.

To learn more about marriage annulments as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Child Protection: Can I get my child back because my section 7 Charter rights have been violated?

It is crucial to understand that family law Judges and courts will always put the child’s best interests above any other factor when rendering a decision.

In the case of Children’s Aid Society of Oxford County v. C. (W.T.), a biological mother argued that due to the delay in the court-proceeding process, she never had a chance in her appeal to take her child back from the adoptive parents, and thus her section 7 Charter rights were breached.

The case witnessed an institutional delay regarding the preparation of certain transcripts that allowed the adoptive parents to hold on to the child and create an uninterrupted four-year bond with no access awarded to the biological mother.

During that time, the biological mother put her life together and claimed to be sufficiently capable of mothering her child.

The Court recognized the progress she had made during the four year period and acknowledged that she would now be deemed fit to raise her child. However, the Court did not rule in her favor.

The Court of Appeal emphasized the bond the child had made with the adoptive parents during these four years, and declared that the child’s best interests were to be place above all other interests.

Therefore, although the biological mother was now deemed capable of raising her own child, and despite the fact that the delay in the appeal process was not her fault – ultimately breaching her section 7 Charter rights, the Court was obligated to put her child’s best interests first, and thus awarded the child to his/her adoptive parents.

To learn more about Child Protection as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Can I pay child support to my child directly?

The law is set forth in Strecko v. Strecko which quotes Glaspy v. Glaspy, that it is uncommon and out of the ordinary for a parent to pay child support directly to his/her child. As the Court reasoned in Strecko:

“The policy basis for the Court’s reluctance is a desire to avoid involving children in this issue and the accompanying conflict and the need for the parent incurring the expense relating to rearing a child to receive a contribution from the other parent.

I agree that the Court must be reluctant to order child support to be paid to the child, given that the child support payments are to meet some of the parenting costs of the payee parent and associated with the child “living” in the payee’s parent’s home all or part of the time.”

(Strecko v. Strecko)

Consequently, in the case of MacEachern v. MacLeod, Justice Boudreau referred to the Strecko and Glaspy case, and ruled that the father could pay s.7 child support expenses directly to his son as s.7 expenses “do not involve the respondent (the wife) directly.”

To learn more about child support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Concurrent Jurisdiction

The importance of understanding and defining exactly what the term “concurrent” jurisdiction implies can be more confusing and misleading than one would have thought.

The case of Johanns v. Fulford is a perfect example of a party misinterpreting what it means for a court to have “concurrent” jurisdiction.

In a messy custody an access conflict, the father attempted to change an order made in the Provincial Court by applying to the Ontario Court of Justice.

Justice Cohen of the Ontario Court of Justice finally settled any confusion moving forward on what the law means when it states that the Superior Court of Justice and the Ontario Court of Justice have concurrent jurisdiction with respect to custody, access and child support matters.

Justice Cohen put it simply:

“Concurrent jurisdiction means that, under provincial family law statutes, both courts can deal with issues of custody, access, and support, as courts of first instance. It does not mean that where a court has made a final order in an application, the motion to change can be brought in the other court. It does not mean that an order made in one court can be varied in the other court, where the other court acts as a court of first instance. It does not mean that a party can pursue actions for the same relief in both courts at once. It does not mean that a party can begin an application in one court and bring a motion in another court for the same relief. It does not meant that a party bringing a motion in an application can find the court with the most convenient date, and bring the motion in that court.”

To learn more about family law jurisdiction as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Life Insurance and Child Support

Many times a court will require the spouse paying support to secure the payment by obtaining a life insurance policy in the name of the recipient of the support. This way, in case the support-payor dies amidst his obligations, the children and/or spouse will be awarded the life insurance proceeds arising from the payor’s death in lieu of future support payments.

In the Ontario Court of Appeal case Katz v. Katz, the court ordered the father to purchase a life insurance policy for $500,000 and designate his children as beneficiaries and their mother as trustee. Furthermore, the judge also required the father to obtain the policy within 60 days of the release of reasons for judgment.

Just as the Court of Appeal held in Katz, the parties were made well aware that once the father’s child support obligations ceased to exist, the requirement to maintain the policy in his children’s names and have their mother act as trustee of the policy would no longer stand.

Interestingly, in Katz, the father had a medical condition that prevented him from purchasing life insurance. Upon hearing the news, the mother of the children brought a motion for contempt based on the fact that the father was not complying with the court’s original order to obtain life insurance.

Finally, the motions court ruled that there was nothing more the husband could do, and thereby it refused to make any further order with respect to the father purchasing life insurance.

To learn more about life insurance and child support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Shared Parenting

In the case of Hammond v. Nelson, Justice Chipman created a non-exhaustive list of what the court should review and analyze when one parent is seeking an order for shared parenting.

In his analysis of the 8 relevant considerations, Justice Chipman states:

Nova Scotia Courts have determined shared custody arrangements require an even greater level of cooperation and communication between the parents than joint custody arrangements. Parents must not only foster and encourage meaningful, regular and frequent contact between the children and the other parent they must also cooperate in providing similar routines and value systems in each household for the children.

The 8 considerations that a court should take into account when ruling on a shared parenting order are as follows:

  1. In different circumstances would the Court consider each of the parents to be an appropriate “primary parent”? Equal joint and shared custody essentially places both parties in that position.
  1. If a parent resides with a partner the Court must be satisfied that the partner is fully supportive of the parenting plan, that the child and the parent’s partner have a good relationship, that the parent’s partner is an appropriate secondary support to the parent and is a suitable role model to and influence on the child. Evidence of instability in the relationship between the parent and his/her partner may also be a consideration.
  1. Does anyone else reside with the parent, such as other children, roommates, boarders and the like, and if so, what would be the effect of their presence in the same household on the child?
  1. Do the parents live in close proximity of each other? A shared parenting arrangement should not be at the expense of the child’s ability to maintain relationships with his/her peers. Ideally the residences of the parents should be sufficiently close to each other that the child, when old enough to be outside the home without the direct supervision of her or his parents, should be able to easily walk from one parent’s home to the other and, just as important, should be able to maintain friendships in his/her neighbourhood and to go to and from school as easily from one parent’s home as the other. If the parents’ homes are not in close proximity then more than likely the child’s social network will suffer.
  1. The age, maturity and personality of the child and how those factors may impact the child’s ability to cope with shared custody. If a child is very young such that they are napping and/or breastfeeding then shared parenting may not be workable. Further, the younger the child the more dependent the child is on the parents for transportation, social activities and the like. Older children tend to be more resilient, independent and more able to go from one parent’s home to the other and to connect with their friends. Also, some children may adapt to a shared parenting arrangement more easily than others. Every child is different. While efforts should be made to minimize costs, the opinion of an expert in this area would almost always be helpful to the Court.
  1. The wishes of the child if ascertainable. The child’s preference is often relevant and the weight to be given to the child’s opinion would, as always, depend on, among other things, the age and maturity level of the child.
  1. The communication level between the parents and their ability to cooperate with each other and make decisions together. It is easy to say that parents should put aside their differences and do what is necessary to serve the best interests of their children but the Court must recognize human nature for what it is. Many couples are able to set aside their personal differences for the sake of their children and frequently are able to agree upon a shared parenting arrangement that works for them and their children. The Court sees it in agreements that accompany consent orders. However, frequently parents whose relationships have broken down are unable to achieve the necessary degree of cooperation in spite of their best efforts. A shared custody arrangement requires an unusual level of cooperation between the parents on a day in and day out basis. As Justice Coady said in Bryden(supra), it is “the rare case, the rare parents and the rare children” who can make shared parenting work.
  1. Ultimately the Court must consider what is in the best interests of the particular child who is the focus of the inquiry. It is difficult to argue against the fairness of shared parenting. If a parent truly loves his/her child and wants and is prepared to parent them, then it would seem completely unjust to them to have to accept anything less than an equal opportunity to do so. The Court’s focus however is on the child. The wishes of the parents, although important and require serious consideration, come second to what the Court believes is best for the child.  (Hammond v. Nelson)

To learn more about shared parenting as well as the services provided by Krol & Krol, call 905.707.3370 today.

Which courts will hear my family law matter?

In Ontario, there are 3 courts that hear family law cases; the Family Court of the Superior Court of Justice or the Superior Court of Justice (Family Court), the Superior Court of Justice, and the Ontario Court of Justice.

The Family Court of the Superior Court of Justice (otherwise referred to as the Superior Court of Justice (Family Court)) hears family law matters of all sorts. It deals with every possible aspect of Family Law.

The Family Court of the Superior Court of Justice is prevalent throughout the Province of Ontario. It is unique as it consists of specialized judges.

In regions where a Family Court of the Superior Court of Justice cannot be found, the Superior Court of Justice is next in line to hear the family law matter. Unlike the previous court, the Superior Court of Justice will not hear matters concerning child protection or adoption proceedings. It will hears cases with respect to property, divorce, custody and access, and support.

Also unlike the Family Court of the Superior Court of Justice, the Ontario Court of Justice will not deal with every aspect of family law. It will hear cases on custody, success, support, child protection, and adoption. The Ontario Court of Justice will not hear cases regarding divorce or property issues.

However, what is common among all 3 courts is that the Family Law Rules will apply to all family law proceedings.

To learn more about family law courts as well as the services provided by Krol & Krol, call 905.707.3370 today.

Special Service of a court application in Ontario

Once the claimant has filed his/her court application, the application must be immediately served on every other relevant party to the proceeding.

The method of service of the court application on all other parties in family law matters is predominantly “special service.”

Special service can take effect in 4 ways:

  • By leaving a copy with the opposing party/respondent;
  • By leaving a copy with the opposing party/respondent’s lawyer of record, or alternatively, with a lawyer who accepts service in writing on the document;
  • By mailing a copy to the opposing party/respondent and having the respondent send back a signed form referred to as an “acknowledgement of service”; and,
  • By leaving a copy at the opposing party/respondent’s home with someone who appears to be an adult and mailing another copy to the same address that same day or the next.

In cases where the opposing party/respondent cannot be served through special service, there are 3 other ways of serving the respondent:

  • If the applicant does not know of the whereabouts of the respondent, counsel for the applicant can apply for substituted service;
  • If the applicant reasonably believes that substituted service would also fail, then the applicant can apply to have service “dispensed” with; and,
  • If the applicant has served the application by means of service which ahs not been approved by the court, however the court is convinced that the respondent accepted, the court can “validate” an “irregular” service.

To learn more about special service as well as the services provided by Krol & Krol, call 905.707.3370 today.

What is the point of a case conference in family law?

The case conference is the most important and vital step in family law litigation. It allows the parties to the matter to consult with a judge and get his/her take on the case at an early stage. A fundamental rule with respect to the case conference is that no motion may be hear nor served until the case conference has taken place. The rule is intended to give the parties a good grasp of the issues at hand, thus creating a scenario where negotiation and resolution is more likely, as opposed to the parties spending countless dollars on motions to figure out the differences between them.

Rule 17(4) of the Family Law Rules summarizes the role the case conference plays in the early stages of litigation, and its multi-purposes.

  • As mentioned earlier, the case conference enables the parties to reach a settlement earlier due to the influence a judge’s opinion may have on both sides.
  • The case conference also clarifies what is in dispute and what is actually resolvable. Once the parties have gone through a case conference, there may be issues that were once thought to be serious and irreconcilable, which are actually not in dispute between the parties. Or, there are instances where parties come out of a case conference with things they thought were passable issues, but are in reality contentious.
  • A focal point of the case conference is that it ensures financial disclosure. Thus, both lawyers are fully able to advise their clients properly.
  • With respect to procedural flow, the case allows both parties to sit together and schedule upcoming litigation. The parties can, therefore, leave the conference with a specifically outlined timetable.

To learn more about case conferences as well as the services provided by Krol & Krol, call 905.707.3370 today.

What can I do if my spouse refuses to consent to my religious divorce?

If the parties were married religiously and there are religious barriers to divorce, there may be instances where one of the spouses will refuse to consent to the divorce. If one of the spouses refuse to consent to a religious divorce (thereby preventing the other spouse from leaving the marriage and obtaining a divorce), the other spouse may file an affidavit with a civil court conveying the controlling actions of the first spouse and that the first spouse is using this barrier to religious marriage to prevent the other spouse from remarrying.

Cases such as Bruker v. Markowitz have confirmed that the victimized spouse may bring an action in the civil courts for damages caused by the first spouse’s actions.

The victimized spouse may bring a motion to strike out any other pleading or affidavit filed by the controlling spouse or to dismiss the controlling spouse’s application altogether.

As was evidenced in Bruker v. Markowitz, a prime example of barriers to religious marriages occurs in the Jewish Religion. When a Jewish couple makes the decision to obtain a “Get” (divorce order) in order to remarry, they must go to a beth din. The beth din will only grant the “Get” if both parties consent to it.

In 2007, the SCC ruled in Bruker v. Markowitz,that the victimized wife was permitted to have her case for damages heard in the civil courts, and thereby the Court awarded her damages on account of the husband’s reluctance to consent to the “Get” and allow her to move on with her life.

However, recent case law has suggested that once the controlling spouse rectifies his/her behavior and removes such barriers to the religious marriage, he/she may move to have his/her original claims heard and adjudicated.

To learn more about religious divorce as well as the services provided by Krol & Krol, call 905.707.3370 today.

Best Interests of the child

Judges will resolve custody and access disputes by keeping the best interests of the child ahead of all else. The test is given statutory credibility by means of the Divorce Act (s.16(8)) and the Children’s Law Reform Act (s.24). The Court will analyze the following factors when applying the test:

  1. The physical well-being of the child;
  2. The emotional well-being and security of the child;
  3. The plan in-motion for the child’s education and maintenance;
  4. The financial needs and requirements of the child;
  5. Religious and ethical upbringing;
  6. Whether the parent understand the needs of his/her child;
  7. As the child gets older, the child’s preference;
  8. The importance of keeping siblings together; and,
  9. The bond that has been created between the child and his caregiver.

The Court will also ensure that the “maximum contact principle” is being complied with to the highest degree.

The “maximum contact principle” essentially advocates that the child should have as much contact as possible with each parent if it benefits the child. Therefore, Judges will investigate into whether the either parent has fully complied with the principle or has placed various bulwarks that hinder the relationship of the child with the other parent.

The principle is codified in section 16(10) of the Divorce Act, and although there is no comparable section in the Children’s Law Reform Act, courts also apply this principle under the CLRA.

To learn more about the best interests of the child principle as well as the services provided by Krol & Krol, call 905.707.3370 today.

Can the courts set aside my spousal support agreement?

The Divorce Act and the Family Law Act both recognize that spouses may subsequently seek to set aside the spousal support agreements they have already negotiated domestically.

The Divorce Act states that a court is permitted to take the following approach, albeit a narrow one, in determining whether to set aside the domestic contract:

  • The court will review the context and circumstance of the agreement. This should point towards whether the agreement was in substantial compliance with the objectives and spirit of the Divorce Act. (i.e. finality, autonomy, and certainty); and,
  • The court will also depict whether the agreement is still a reflection of the parties’ original intention and whether it still complies with the objectives of the Divorce Act.

Ultimately, as was evidenced in the leading case Miglin v. Miglin, if the terms were unimpeachably negotiated, the agreement is a comprehensive one, and it stands in compliance with the Divorce Act, the courts will predominantly uphold the terms of the agreement.

However, The Family Law Act states that a court has the jurisdiction to set aside an agreement entailing a waiver of spousal support if it was negotiated within unconscionable circumstances; that is if the circumstances during the execution of the contract, the results of the support clause, and the parties’ circumstances at the time of the hearing were unconscionable.

To learn more about setting aside spousal support agreements as well as the services provided by Krol & Krol, call 905.707.3370 today.

The nuts and bolts of spousal support

Married spouses or divorced spouses may apply for spousal support under the Family Law Act and the Divorce Act. If the claimant of support has already divorced his/her spouse, the claimant must bring his/her claim under the Divorce Act. On the other hand, spouses that have not yet been granted a divorce, must bring their claim under the Family Law Act.

The Divorce Act defines “spouse” as either of the two people who are married to each other. (Section 2 of the Divorce Act) The Family Law Act defines “spouse” more broadly as follows:

  • either of two persons who are married to each other or have entered into a marriage that is voidable or void in good faith;
  • either of two persons who are not married and have cohabited continuously for a period of at least three years in a conjugal relationship; and,
  • either of two persons who are not married but who are in a relationship of some permanence if they are the natural or adoptive parents of a child.

Both, the Family Law Act and the Divorce Act, recognize that the task courts are faced with when confronting a spousal support claim is for just compensation of the economic realities and consequences of spousal relationships. Thus, relevant factors that judges take into account when ruling on a spousal support claim are” the duration of the relationship, the financial circumstances of the parties, and what roles they played while they were together.

Bracklow v. Bracklow is a leading case in the sense that it created three different conceptual models when awarding spousal support.

First, a judge will investigate whether there were any agreements or contracts made between the parties. This is referred to as the contractual basis for support.

Second, courts will compensate the spouse who has experienced an economic disadvantage on account of the marriage. Alternatively, the Court will also compensate the spouse who has contributed to the economic advantage of his/her spouse. This method is referred to as the Compensatory basis for support.

Finally, the court will determine whether one spouse is in need of support based on their financial circumstances. This is referred to as the Needs-Based method of support.

To learn more about spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Common law spouses and property rights

As was evidenced in the case of Canadian Charter of Rights and Freedoms in Nova Scotia (AG) v. Walsh, common law spouses, unlike married ones, do not have statutory property rights. Thus, when a common law spouse claims a right in property against his/her former partner, the case to be made is one of constructive and/or resulting trust.

When making a claim based on resulting/constructive trust, the imperative principles to prove are as follows:

  1. The defendant was enriched;
  2. The plaintiff has suffered some sort of deprivation; and,
  3. There is no juristic reason for the enrichment.

In sum, the court will look to reimburse the unjust enrichment.

The case of Kerr v. Baranow posited that where a common law spouse makes a property claim based on constructive/resulting trust, the court is not restricted, in its decision, to award a portion of the property to the claimant. As is most commonly awarded today, courts can award the claimant monetary compensation for their share in the property.

The Supreme Court of Canada in Kerr v. Baranow explained that if a monetary award is to be handed over to the claimant, then the economic approach would be one of “value surviving.” This would essentially prove just if the claimant put money into a house that dropped in value over the course of the relationship. The “value surviving” approach would ultimately pay the claimant the proportion of what was put into the house and the house’s worth.

To learn more about common law spouses as well as the services provided by Krol & Krol, call 905.707.3370 today.

Joint applications for divorce and adultery

The case of Niyazov v. Tkatch is one of extreme importance to those filing a joint application for divorce.

Although, a court can grant a divorce based on the fact that one of the parties committed adultery, that only applies in uncontested divorce applications. However, when the parties file a joint application for divorce, if one of which committed adultery, the joint application will not be granted.

Justice McGee explained in Niyazov v. Tkatch that  aparty may not file for divorce on the basis that he/she committed adultery due to the court’s duty to uphold the sanctity of marriage. As Justice McGee stated:

“The institution of marriage requires special protection. It is not merely the private concern of the parties, and although such sentiment may [ . . . ] at first glance strike the reader as antiquated, it remains alive and well within the present day preamble of the Family Law Act…….. The jurisdiction of the Court in divorce matters differs from that in other ligation adventures. The Court is vested with a peculiar duty of protecting the sanctity of marriage and the family in the exercise of its responsibilities, in so far as it can. I find that the relevant sections of both the Divorce Act and the Family Law Act operate to prevent a co-application from seeking an order for divorce based on adultery. Section 8(2)(ii) of the Divorce Act states that a divorce based on adultery can only be brought by the innocent spouse against the party that itself committed the adultery, and not by the guilty spouse. In a joint-application, the guilty party would be one of the co-applicants brining the application, which is not permitted under s.8(2)(ii).”

To learn more about joint applications for divorce as well as the services provided by Krol & Krol, call 905.707.3370 today.

Financial disclosure and the Family Law Rules

Section 56(4)(a) of the Family Law Act depicts the importance of having full financial disclosure in family law matters.

It states that if one of the parties fail to provide full financial disclosure to the other, any agreement made between the parties may be set aside. Failing to adhere to section 56(4)(a) of the Family Law Act squanders any opportunity at achieving fair, cost-effective and final results in any family law proceeding.

Rule 13 of the Family Law Rules is intended to ensure that parties provide full and adequate financial disclosure to each other. For instance, rule 13(1) of the Family Law Rules requires that a party making any sort of claim grounded in support, property or exclusive possession, must serve a financial statement along with the claim. However, an exception to 13(1) is when the applicant only makes a claim for child support and does not include any claim with respect to property or exclusive possession.

Rule 13(10) is another rule intended on forcing the parties to make full financial disclosure as it states that the court clerk is prohibited from accepting an application, answer, reply, notice of motion, or affidavit in response to filing if the Rules require that a financial statement accompany the document stating the claim, and no financial statement has been provided.

Rule 13(11) furthers the obligation to provide adequate financial disclosure by permitting the court to order that if a party has not responded to a request for further information with 7 days, that the party give the requested information or serve a fresh financial statement.

To learn more about financial disclosure as well as the services provided by Krol & Krol, call 905.707.3370 today.

Spousal Support and the Tax Implications

Marriage is type of economic partnership and thus experiences certain tax implications at its dissolution. The most notable of which are support payments.

Spousal support payments are deductible to the payor’s taxable income if they have certain required features. These features are as follows:

  • The parties must be living separate and apart when the payment is made;
  • The payments must be considered an allowance payable on a periodic basis;
  • The support payments were made for spousal support or child support (or both), and the recipient has total control over how the support payment is used;
  • The support payments must be made directly to the recipient spouse;
  • If the payment is made to a (former) spouse,
    1. The parties must be living apart by reason of a breakdown of the marriage
    2. The support payment must be made pursuant to an order of a tribunal or written agreement (such as a separation agreement); and,
  • The agreement/order must label the amount as “spousal support” or “spousal support amount”.

If the support payments have these required features, then it is not only deductible from the payor’s income, but it is also taxable to the recipient.

To learn more about spousal support and the applicable tax implications as well as the services provided by Krol & Krol, call 905.707.3370 today.

Child Support Taxation

As mentioned previously, marriage is an economic union and partnership that has tax implications upon its breakdown.

One of the ways marriage is taxed is through child support.

Child support is defined as a support amount that is not solely for spousal support. Thus, all the support paid will be considered child support for tax purposes unless a portion of the payment is clearly considered support for a spouse, former spouse, and/or parent of the child.

Child support is not deductible to the payor nor taxable to the recipient. However, child support that is paid pursuant to a judge’s order or an agreement before May 1, 1997 can be deductible and taxable. They will be deductible and taxable if they have the following features:

  • The parties must be living separate and apart when the payment is made;
  • The payments must be considered an allowance payable on a periodic basis;
  • The support payments were made for spousal support or child support (or both), and the recipient has total control over how the support payment is used;
  • The support payments must be made directly to the recipient spouse;
  • The support payments were made in the year or year prior to the judge’s order or agreement;
  • If the payment is made to a (former) spouse,
    • The parties must be living apart by reason of a breakdown of the marriage
    • The support payment must be made pursuant to an order of a tribunal or written agreement (such as a separation agreement); and
  • The support payments were made pursuant to that order or agreement.

It is interesting to note that if a judge orders both spousal and child support, payments will first be treated as child support and then spousal support for tax purposes. That means that all child support must be paid to the recipient before the payor can claim a deduction on his income taxes for spousal support.

Also, if the judge orders that payments be made to a third party (i.e. doctor’s bills), then those payments will be considered child support and not spousal support. Therefore, they will not be deductible nor taxable.

If the recipient receivers his/her child support by means of a lump-sum amount, the payment is generally not deductible.

To learn more about child support and the tax implications as well as the services provided by Krol & Krol, call 905.707.3370 today.

Mediation

There are times, usually when the parties are seemingly amicable from the outset, when parties seeking a divorce will resort to mediation.

Mediation is an alternative dispute resolution mechanism whereby a third-party professional assists the parties in coming to some form of agreement. Family Mediation Canada defines mediation as follows:

“Family mediation is defined as a co-operative, problem-solving process, in which a qualified and impartial third party neutral, the mediator, assists mediation participants to resolve their disputes by mutual agreement. The resolution is to be voluntary and based upon sufficient information and advice for each person involved in the dispute.”

The purpose and goal of mediation come hand in hand. The purpose of the mechanism is to help the parties understand the harsh realities about their situation, listen to the interests of their spouse and meet in the middle. Thus, the goal is ultimately to get both parties to agree on terms and save them their time and expense bringing one another to court.

As is stated in Family Mediation Canada’s “Code of Professional Conduct”, the essential goals of the process are as follows:

  • The goal of family mediation is a fair and workable agreement that meets the participants’ mutual needs and interests (not a settlement at all costs);
  • The primary responsibility for the resolution of the dispute rests with the participants. At no time should the mediator coerce participants into an agreement;
  • The mediator’s role is that of a facilitator, i.e., to assist the participants to reach an informed and voluntary agreement that meets their mutual needs, interests and concerns, along with those of others affected by the dispute; and,
  • The mediator has a responsibility to promote the participants’ awareness of the interests of others affected by the dispute and by the proposed agreement and to assist them in considering the separate and individual needs of such other persons.

To learn more about mediation in Ontario as well as the services provided by Krol & Krol, call 905.707.3370 today.

Exclusive Possession

In domestic abuse cases, often the victimized party will request to take exclusive possession of the matrimonial home. This must be specifically outlined in the application for divorce. Also, unmarried parties are unable to request for exclusive possession of the matrimonial home.

Section 24(1)(b) of the Family Law Act tempers section 19 which states that both parties have an equal right in the matrimonial home, as the former states that a court may rule that one party possess the matrimonial home exclusively.

Section 24(3) of the Family Law Act sets out the criteria that must be considered before a court can award one of the parties exclusive possession of the matrimonial home, and one of which is if any violence was committed by a spouse against the other spouse or the children.

The court will distinguish an isolated incident of abuse from a pattern of abuse. Therefore, the application for divorce should clarify and specify when exclusive possession of the matrimonial is being requested based on a history of abuse. However, where the single incident involved physical violence, the court will consider the request for exclusive possession due to the precarious and dangerous situation of allowing the abuser back in the home.

To learn more about exclusive possession in Ontario  as well as the services provided by Krol & Krol, call 905.707.3370 today.

Can my spouse change the name of our child if I don’t have custody?

Spouses who have recently separated often look to change their name. The Change of Name Act outlines the steps and protocol if one were seeking to alter the name listed on his or her birth certificate.

Section 4(1) of the Change of Name Act depicts the prerequisites that one must satisfy before applying for a change of name are that he/she must be at least 16 years old and ordinarily resident for at least 1 year prior to the application.

Section 4 of the Change of Name Act deals with applicants over the age of 16, while section 5 of the Act deals with a parent’s wish to change the name of their child. Consent by each person with lawful custody of the child will be required prior to the change of name, and depending on whether the child has reached the age of 12, consent from the child may also be required.

Relevant to this matter is whether an access parent, who does not have custody of his child, can take measures to prohibit his (former) spouse from changing their child’s name. In the case of Zho v. Chen, the court ruled that a separation agreement preventing the custodial parent from changing the child’s name is not guaranteed to stand uncontested in a court of law; that is, a court has jurisdiction to look at the whole matter and rule contrary to what the separation agreement prescribes.

Similarly, there have been cases that prove the above-mentioned notion that a separation agreement preventing the custodial parent from changing the name of the child is enough to prohibit the name change from occurring. (Felix v. Fratpietro)

To learn more about custody as well as the services provided by Krol & Krol, call 905.707.3370 today.

Indian or Native Child Protection

When courts are faced with family law cases involving issues such as adoption, placement and custody, they are obligated to render their decision with the best interests of the child in mind.

This is especially relevant when the court is faced with an issue regarding an “Indian or native” child. The Child and Family Services Act compels the judicial system to always emphasize the seriousness of recognizing the uniqueness of the Indian and native heritage, culture and traditions, and thereby allow the child the opportunity to retain his native cultural values.

It is interesting to note the measures that the Child and Family Services Act is willing to take to attempt to preserve and perpetuate the cultural identity of the Indian or native child. For example, section 47(2) of the Act states:

47. (1)Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

(2)As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the child’s name and age;

(b) the religious faith, if any, in which the child is being raised;

(c) whether the child is an Indian or a native person and, if so, the child’s band or native community; and

(d) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed

As is stated above, the Act obliges the court to probe into whether the child in need of protection is Indian or native, so as to ensure that it takes into account the necessary factors to preserve the Indian/native identity of the child.

Finally, section 57(5)(c) furthers the notion that the court must place an emphasis on facilitating the ongoing Indian identity within the child as it states that an Indian or native child shall be placed with “another Indian or native family.”

To learn more about Indian or native child protection as well as the services provided by Krol & Krol, call 905.707.3370 today.

Customary Adoption

In the Aboriginal culture, customary adoption is a vital aspect and is thus prevalent in Aboriginal communities. The case of Re Tagornack outlines the four criteria for a customary adoption to have legal implications and take effect:

  • Proof that the custom existed back in time as far as living memory;
  • It must be a reasonable custom;
  • It must be “certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the person whom it is alleged to affect”; and,
  • It must have never been interrupted since it started.

What was noteworthy about the case was that the judge rules in favor of the customary adoption despite the father not being from Indian or native background. The judge ruled in favor of the adoption due to the fact that the father had accepted the native customs and the native people had accepted him. Everyone involved in the adoption; namely the prospective parents and the community, stood behind the adoption.

The court in Tagornack also strengthened its position by citing the Constitution Act 1982 section 35(1) which states as follows:

35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

To learn more about customary adoption as well as the services provided by Krol & Krol, call 905.707.3370 today.

Restraining orders

It is not uncommon for a spouse to seek a restraining order against the other upon the breakdown of their marriage. The Children’s Law Reform Act and the Family Law Act have been amended so as to accommodate those fearing for their children’s safety and even their own.

Subsection 35(1) of the Children’s Law Reform Act states:

  1. (1)  On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.

Provisions of order

(2)  A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

  1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
  2. Restraining the respondent from coming within a specified distance of one or more locations.
  3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
  4. Any other provision that the court considers appropriate. 2009, c. 11, s. 15.

Transition

(3)  This section, as it read on October 14, 2009, continues to apply to,

(a) any prosecution or other proceeding begun under this section before October 15, 2009; and

(b) any order made under this section that was in force on October 14, 2009. 2009, c. 11, s. 15; 2014, c. 7, Sched. 4, s. 1.

 

Subsection 46(1) of the Family Law Act states as follows:

  1. (1)  On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

Same

(2)  A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

Provisions of order

(3)  A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

  1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
  2. Restraining the respondent from coming within a specified distance of one or more locations.
  3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
  4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

Transition

(4)  This section, as it read on October 14, 2009, continues to apply to,

(a) any prosecution or other proceeding begun under this section before October 15, 2009; and

(b) any order made under this section that was in force on October 14, 2009. 2009, c. 11, s. 35; 2014, c. 7, Sched. 9, s. 8.

To learn more about restraining orders as well as the services provided by Krol & Krol, call 905.707.3370 today.

Costs in Family Law

In order to encourage and promote a just expeditious outcome between the parties in a matrimonial matter, the Family Law Rules penalize a party for being uncooperative during the course of the litigation and for being the unsuccessful party in court.

As Rule 24(1) of the Family Law Rules states:

“There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).”

However, Rule 24(4) lends some relief to an unsuccessful party that has dealt with an unreasonable party:

“Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs. O. Reg. 114/99, r. 24 (4).”

The Court will look at specific factors when ruling on costs. As the Family Law Rules state in Rule 24(5):

“In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).”

The Family Law Rules do take into account a scenario whereby the actions resulting in a high costs bill were on account of the party’s lawyer. In such a case, “the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

(c) order the lawyer or agent personally to pay the costs of any party; and

(d) order that a copy of an order under this subrule be given to the client. O. Reg. 114/99, r. 24(9).

To learn more about costs in family law as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Grounds for Divorce

In Ontario, the only ground for divorce is that there has been a breakdown of the marriage. (Divorce Act, section 8(1)) The Divorce Act defines a breakdown of a marriage to be one of three things:

  • Both parties to the divorce proceedings have lived separate and apart for at least 1 year immediately before the determination of the divorce proceeding. The parties also had to be living separate and apart at the beginning of the proceeding;
  • A spouse who has committed adultery; or,
  • A spouse who has caused physical or mental cruelty to his/her spouse to the point where it would be deemed impossible for the parties to continue to live together.

Section 10 of the Divorce Act explains that the court has a duty to recognize when there is a possibility of reconciliation between the two parties to the divorce proceeding, and when present, must interfere and either adjourn the proceeding to allow the spouses the opportunity to reconcile, or nominate a “person with experience or training in marriage counselling or guidance” with the consent of both parties.

To learn more about the grounds for divorce in Ontario as well as the services provided by Krol & Krol, call 905.707.3370 today.

CPP and Credit Splitting

Depending on where spouses got married, more often than not, they will not be able to contract out of the obligation to split the member-spouse’s Canadian pension upon separation.

“Credit splitting” is the term that the Canada Pension Plan refers to when dealing with the splitting of a member’s pension for matrimonial purposes.

The section in the Canada Pension Plan that deals with credit splitting of a member’s pension is section 55.2. In section 55.2(2), the Canada Pension Plan explains that spouses may not contract out of the credit splitting of a member’s pension:

“Except as provided in subsection (3), where, on or after June 4, 1986, a written agreement between persons subject to a division under section 55 or 55.1 was entered into, or a court order was made, the provisions of that agreement or court order are not binding on the Minister for the purposes of a division of unadjusted pensionable earnings under section 55 or 55.1.”

However, the Canada Pension Plan does allow for the parties to contract out of section 55.2 and waive their spouse’s CPP credits in certain circumstance. Section 55.2(3) conveys the circumstances by which a contract stating that the parties waive their rights to each other’s CPP credits will be upheld. It states as follows:

“Where:

(a) a written agreement between persons subject to a division under section 55 or 55.1 entered into on or after June 4, 1986 contains a provision that expressly mentions this Act and indicates the intention of the persons that there be no division of unadjusted pensionable earnings under section 55 or 55.1,

(b) that provision of the agreement is expressly permitted under the provincial law that governs such agreements,

(c) the agreement was entered into

(i) in the case of a division under section 55 or paragraph 55.1(1)(b) or (c), before the day of the application for the division, or

(ii) in the case of a division under paragraph 55.1(1)(a), before the rendering of the judgment granting a divorce or the judgment of nullity of the marriage, as the case may be, and

(d) that provision of the agreement has not been invalidated by a court order,

that provision of the agreement is binding on the Minister and, consequently, the Minister shall not make a division under section 55 or 55.1.”

Currently, the only Canadian provinces to pass clear legislation that allows for parties to waive their rights to each other’s CPP credits are Quebec, Saskatchewan and British Colombia.

To learn more about credit splitting as well as the services provided by Krol & Krol, call 905.707.3370 today.

Contempt of Court

It is imperative that every party comply with all court orders during litigation. A party that is not in compliance with a court order is said to be in contempt of court, and will be penalized for such.

An intriguing and complex case that speaks to the issue of contempt of court and its ramifications is the recent case of Hughes v. Hughes. There, the majority of the Court of Appeal for British Columbia was faced with a mother who wrongfully removed the child to Italy, and thus the Court dealt with the father’s retroactive and ongoing child support payments.

The Trial Judge ruled that the mother was in contempt of court for removing the child to Italy, but also held that the father continue to pay child support for the following reasons:

“Child support is the right of the child. The child is currently with the [mother] in Italy. There is no way for me to know when the child will be returned to Canada and commence residing with the [father]. It would be wrong to deprive [the child] of reasonable child support from the [father] until such time as he provides support to her by providing her residence and for her day-to-day needs. Consequently, and notwithstanding the [mother’s] contempt for this court and its orders, I will order that the [father] continue to pay child support to the [mother] for [the child] until such time as [the child] comes into his care.”

After much debate between the majority opinion and Justice Chiasson (the minority opinion), the Court overturned the trial judge’s ruling that the father pay child support, and held that arrears be cancelled and payments come to a halt; all due to the mother being in contempt of court.

However, both sides disagreed about whether the father’s ongoing child support obligation would have continued had the mother not been in contempt of court. Justice Chiasson reasoned that because this was not an appeal from the order of the first instance court but was instead an application to vary child support, the father’s obligation should continue as there was no material change in circumstance since the mother took the child to Italy. On the other hand, the majority ruled that this was indeed an appeal, and that embedded in the Trial Judge’s original order was an implied assumption that the mother would return the child within due time. Once the mother neglected to comply with the court order, the circumstances were materially changed.

The lesson to take out of this case for the purposes of this discussion is to always comply with a court order and avoid being in contempt of court.

To learn more about the consequences for being in contempt of court as well as the services provided by Krol & Krol, call 905.707.3370 today.

The Effects of Declaring Bankruptcy

Section 69.3 of the Bankruptcy and Insolvency Act states:

69.3 (1) Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy.

(1.1) Subsection (1) ceases to apply in respect of a creditor on the day on which the trustee is discharged.

(2) Subject to sections 79 and 127 to 135 and subsection 248(1), the bankruptcy of a debtor does not prevent a secured creditor from realizing or otherwise dealing with his or her security in the same manner as he or she would have been entitled to realize or deal with it if this section had not been passed, unless the court otherwise orders, but in so ordering the court shall not postpone the right of the secured creditor to realize or otherwise deal with his or her security, except as follows:

(a) in the case of a security for a debt that is due at the date the bankrupt became bankrupt or that becomes due not later than six months thereafter, that right shall not be postponed for more than six months from that date; and

(b) in the case of a security for a debt that does not become due until more than six months after the date the bankrupt became bankrupt, that right shall not be postponed for more than six months from that date, unless all instalments of interest that are more than six months in arrears are paid and all other defaults of more than six months standing are cured, and then only so long as no instalment of interest remains in arrears or defaults remain uncured for more than six months, but, in any event, not beyond the date at which the debt secured by the security becomes payable under the instrument or law creating the security.

In Scott, Re, the court dealt with a husband invoking section 69.3 of the Bankruptcy and Insolvency Act so as to complicate the family law proceedings and wear his wife down.

On a motion brought by his wife to lift the stay, Justice Kershman ruled in her favor and stated that any person affected by section 69.3 of the Bankruptcy and Insolvency Act could apply to the court to have the section deemed inoperable. Justice Kershman outlined the test to have the section deemed inoperable as one that conveys the fact that the affected party is materially prejudiced by its operation, and that it would be inequitable to have the section stay the proceedings.

To learn more about the effects of declaring bankruptcy as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Is there a presumption of shared parenting?

The case of Ackerman v. Ackerman brought to life some significant features of the Divorce Act and the concepts of custody and access.

The Court of Queen’s Bench to the Saskatchewan Court of Appeal dealt with a mother’s attempt to reverse the trial judge’s ruling of shared parenting between the parties, by conveying to the judge that the parties did not get along and were in a constant state of conflict.

The court acknowledged that the fact that both parties do not get along would factor in to its decision to reverse an order for shared parenting, but that it was not the sole factor when weighing in on a decision to disregard shared parenting. Thus, the court turned its attention to the status quo between the parties.

The status quo tipped the access scales in favor of the mother, but once again, the court stated clearly that evidence of a status quo was only one factor to account for when ruling on an award to set aside the shared parenting plan between the parties.

The father attempted to bring to make an argument based on Section 16 (10) of the Divorce Act which states:

“In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

The father argued that the above-mentioned provision in the Divorce Act creates a presumption that courts should rule in favor of a shared parenting plan.

The court rejected the father’s attempt to create a presumption of shared parenting based on section 16 (10) of the Divorce Act. However, despite the judge stating that the status quo stood in favor of the mother, the court ruled that a shared parenting plan should stand and that a troubled relationship between two parties did not prevent the courts from ruling in favor of a shared parenting plan.

To learn more about shared parenting as well as the services provided by Krol & Krol, call 905.707.3370 today.

Financial disclosure: Are options to acquire shares considered money in the bank?

In the case of Reid v. Reid, the issue of whether options to acquire further shares should be calculated in a party’s assets, was the turning point of a case that saw the court rule in favor of the husband.

The Reid case featured a wife attempting to set aside a separation agreement due to the fact that it was contrary to objectives as set out in the Family Law Act and the Family Relations Act; specifically, that the husband’s financial disclosure was intentionally inadequate. The wife claimed that the husband’s major asset, his company, was undervalued based on the sale of the company, some years later, for a price higher than what was disclosed at the time of the separation.

The wife asserted that, despite a Pryce Waterhouse Cooper report disclosing the worth of the company at the time of the separation, the husband did not disclose the fact that he had an option to acquire more shares in the company at that time, and therefore financial disclosure was inadequate and misleading.

The Trial Judge disagreed with the wife and would not set aside the separation agreement. He ruled that an option to acquire more shares in a company is not “in the money”, and thus have no value.

Essentially, the Judge ruled that the agreement was not contrary to section 65 of the Family Relations Act, which states:

(1) If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to

(a) the duration of the marriage,

(b) the duration of the period during which the spouses have lived separate and apart,

(c) the date when property was acquired or disposed of,

(d) the extent to which property was acquired by one spouse through inheritance or gift,

(e) the needs of each spouse to become or remain economically independent and self sufficient, or

(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse, the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.

(2) Additionally or alternatively, the court may order that other property not covered by section 56, Part 6 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse.

(3) If the division of a pension under Part 6 would be unfair having regard to the exclusion from division of the portion of a pension earned before the marriage and it is inconvenient to adjust the division by reapportioning entitlement to another asset, the Supreme Court, on application, may divide the excluded portion between the spouse and member into shares fixed by the court.

To learn more about financial disclosure as well as the services provided by Krol & Krol, call 905.707.3370 today.

Pensions – Dividing at Source

On January 1, 2012, the Ontario Legislature passed new laws with respect to the division of a spouse’s pension.

The major change that affected spouses dealing with their pensions upon the breakdown of the marriage was that pensions could now be divided at source. That meant, instead of including a spouse’s pension in the net family property (and thus subject to an equalization payment), the parties would take the pension out of their respective financial statements and leave it in the hands of a third party (pension plan administrator) to evaluate and subsequently transfer the value of the member spouse’s pension in the form of a lump sum payment once the pension was payable.

However, what if the spouses cannot agree on whether to divide the pension at source or include it in their financial statements?

The member spouse can apply to the courts to have his/her pension divided at source. In order to obtain an order to have a pension divided at source, the judge must be satisfied that the evidence put before the court satisfies section 10.1(4) of the Family Law Act.

The criteria outlined in section 10.1(4) of the Family Law Act are stated as follows:

(4)  In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

  1. The nature of the assets available to each spouse at the time of the hearing.
  2. The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
  3. The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
  4. Any contingent tax liabilities in respect of the lump sum that would be transferred.
  5. The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

To learn more about pensions as well as the services provided by Krol & Krol, call 905.707.3370 today.

Spousal Support: Committal for non-payment

The case of Ontario (Director, Family Responsibility Office) v. Van Westerop was one that saw the court rule on an application by the Family Responsibility Office to have the husband imprisoned for non-payment of spousal support.

In this case, the husband owed the full amount of $900,000 in spousal support. The husband had consented to an order that he was obliged to make these support payments, and he had many opportunities to comply with the order over the course of thirteen years.

Because the husband was unable to prove his case, as was made in Ontario (Director, Family Responsibility Office) v. Buffan, that there was a material change in circumstances since he consented to the order, the Family Responsibility Office application for committal for non-payment of spousal support was granted. The Court of Appeal stated in its reasoning:

Recognizing that a statue gives the court the power to make a committal order as a term of a temporary order made in a default proceeding does not, of course, speak to the propriety of imposing that term in any given case. the FRSAEA and predecessor legislation dealing with the enforcement of default orders have always regarded imprisonment for non-payment of those orders as the enforcement mechanism of last resort. Something more than non-payment is required. The payer’s conduct must demonstrate a wilful and deliberate disregard of the obligation to comply with court orders: see e.g. Allen v. Morrison (1987), 11 F.R.L. (3d) 225 (Ont. Div. Ct.), at para. 11, aff’g on this point Allen v. Morrison (1986), 4 R.F.L. (3d) 113 (Ont. Dist. Ct.); Ricafort v. Ricafort (2006), 35 R.F.L. (6th) 210 (Ont. C.J.), at para. 49; Ontario (Director, Family Responsibility Office) v. Belic (2006), 30 R.F.L. (6th) 127 (Ont. S.C.J.), at para. 29.

However, it is important to note that the husband’s incarceration did not negate his obligation to pay the arrears of $900,000 and future spousal support payments.

To learn more about spousal support obligations as well as the services provided by Krol & Krol, call 905.707.3370 today.

Disclosure from non-parties

In child and/or spousal support cases, the issue of requiring non-parties to provide financial disclosure relating to one of the parties to the litigation, is often brought to light.

The relevant legislation with respect to non-party disclosure is found in the Family Law Rules of Ontario. Rule 19(11) of the Rules states as follows:

(11)  If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,

(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and

(b) order that a copy be prepared and used for all purposes of the case instead of the original. O. Reg. 114/99, r. 19 (11).

The case of Bailey v. Bailey explains rule 19(11), as the Court set out six criteria that must be met for the court to exercise its discretion and rule in favor of the party requesting disclosure from a non-party to the litigation. The six criteria are:

  • The documents requested are in a non-party’s control;
  • The documents requested are exclusively available to the non-party;
  • The documents requested are not shielded by legal privilege;
  • An order refusing to compel the disclosure of said documents would prove unfair to the party requesting its disclosure;
  • The documents requested are relevant and necessary; and,
  • Notice must be provided to the nonparty in possession the documents requested.

To learn more about disclosure from non-parties as well as the services provided by Krol & Krol, call 905.707.3370 today.

Adverse Witness

When a matrimonial matter proceeds to trial, each lawyer representing the parties involved in the dispute, is tasked with gathering, presenting and proving the evidence.

There are two different types of evidence that lawyers bring forth at trial; documentary and oral.

A lawyer attempting to convey oral evidence at trial will call witnesses with knowledge of the dispute. Opposing counsel may then cross-examine those “adverse witnesses”. The question is, who is considered an “adverse” witness? Is it merely those witnesses summoned by the opposing party? Do “adverse” witnesses need to be hostile to the opposing party or simply unfavorable?

In the case of Reference Re R. v. Coffin, Justice Kellock took an outdated position and one inconsistent with today’s definition. Justice Kellock defined an adverse witness to be hostile; specifically, “not giving the evidence fairly and with a desire to tell the truth because of a hostile animus towards the prosecution.”

Contrary to the former case, the Ontario Court of Appeal held in Wawanesa Mutual Insurance Co. v. Hanes, that a witness is adverse by simply being unfavorable. This has led Ontario courts to further expand on the scope of an “adverse” witness. Currently, an adverse witness encompasses a scenario where the witness has assumed a counter-position to the party calling the witness.

To learn more about adverse witnesses as well as the services provided by Krol & Krol, call 905.707.3370 today.

Parental Support

Family Law in Ontario often revolves around the topic of support. The laws with respect to child support are clearly established by the federal child support guidelines.

A second specie of support is that which relates to husband and wife; spousal support. Ontario courts have placed much confidence in the SSAG. (Spousal Support Advisory Guidelines)

However, on the rare occasion, Family Law advocates are posed with a question relating to parental support; are my children obligated to support me when I am unable to provide for myself?

Section 32 of the Family Law Act compels the children of parents in need of support, to assist them financially, as it reads:

“Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.”

 Recent Ontario case law has confirmed section 32 of the Family Law Act, and has rejected any fault-based defences that are brought to light by the children of the claimants.

To learn more about shared parenting as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Tax and Spousal Support

In Ontario, the issue of whether support payments made to a dependant are taxable or deductible often arises in family law courts.

The law in Ontario is that child support is not tax-deductible to the payor, and is free of taxation in the hands of the recipient. However, spousal support, on the other hand, is tax-deductible to the benefit of the payor, and taxable in the hands of the recipient.

It is interesting to point out that although courts do not have jurisdiction to award spousal support free of taxation, this past year in 2014, Justice Wong of the British Columbia Superior Court, did just that.

 

In the case of Boekhoff v. Boekhoff, a wife sought to claim over $100,000 in arrears of spousal support that had been owed to her since 2001.

 

Throughout the 13 years period where arrears had allegedly accumulated, the wife settled down with a new common law partner, and subsequently negotiated an agreement with her former husband that would see him pay a smaller amount in spousal support per month than was previously ordered.

 

Justice Wong ruled that the agreement was valid and that the fact that the wife had allowed the agreement to survive for a number of years without enforcing the original court ordered spousal support amount, re-enforced the notion that their had been a valid subsequent agreement reached between the former spouses.

 

Justice Wong thereby ruled that the wife was estopped from claiming arrears of spousal support corresponding to the original court order. However, he ordered that the amount originally ordered by the first instance court was justified, and therefore, the husband would continue paying the wife the amount of spousal support that had been originally ordered by the first instance court.

 

However, shockingly, Justice Wong concluded his ruling by allowing these future support payments to be “tax-free” in the hands of the wife; an order he did not have the right to make.

To learn more about shared parenting as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

 

Videotaped Recordings

Many clients seeking to capture a pattern of behavior demonstrated by either their spouse or children, attempt to videotape the behavior with the expectation of presenting the videotaped recording in court.

However, the admissibility of videotaped recordings is not straight-forward, and judges are usually reluctant to watch the recording and admit it into evidence.

In the case of Scarlett v. Farrell, a father who had been accused by his wife of sexually abusing the child, attempted to record his access meetings with the child on three occasions. The father wished to convey to the courts that the child was not frightened by interacting with her father, and that his wife had fabricated the allegations.

The wife argued that the videotaped recordings of the supervised access meetings with the child were recorded surreptitiously and without her consent. She sought to disallow the evidence from being admitted.

Justice Spence reviewed the case law on the issue, and after much deliberation ruled that in cases where the admissibility of videotaped recordings is at issue, the question the court must ask is whether it probative value outweighs its prejudicial effect.

In this particular case, Justice Spence ruled that because the mother was present during these access meetings with the child, the videotaped recordings were not made surreptitiously. He also found that the recordings did have a requisite degree of probative value, and thus allowed the recordings to be admitted into evidence.

To learn more about the admissibility of videotaped recordings as well as the services provided by Krol & Krol, call 905.707.3370 today.

Setting aside an arbitration award

The new regime for Family arbitration law in Ontario was created by the Family Statute Law Amendment Act (FSLAA) in February of 2006.

One of the significant changes it has made to the old regime of family law arbitration is that now a party to a family arbitration cannot simply waive their right to appeal the arbitration award.

Section 46 of the Arbitration Act outlines the various grounds a judge has at his/her disposal to set aside the arbitration award. However, the power that judges have to set aside the arbitration ruling has been rarely used, as courts still generally believe that a certain amount of deference should be awarded to the arbitrator’s decision.

In the case of Duguay v. Thompson-Duguay, Justice Perkins concluded that the arbitrator appeared biased towards one of the parties. As a result, Justice Perkins ruled that the family arbitration award be set aside pursuant to section 46 of the Arbitration Act.

Templeton J., in the case of Hercus v. Hercus, quoted Justice Perkins in Duguay and confirmed that in a mediation/arbitration forum, when the parties’ initial arbitration agreement falls through, it is incumbent on the arbitrator to assist the parties in reaching a new agreement prior to initiating the arbitration proceedings. If the arbitrator neglects to provide such assistance to the parties, the arbitration award could be set aside on a motion made by a party to the proceedings.

What stands out in Duguay above all, is the additional information set out in the court’s decision, which explicitly states that the Arbitration Act’s enforcement provisions “are not framed particularly for family law. Especially not for custody and access matters.” Many have thereby speculated that family arbitration awards are, indeed, not final.

To learn more about setting aside an arbitration award, call 905.707.3370 today.

 

Child Protection Trials

Once the parties are at the stage in the child protection proceedings where they are to attend a final hearing, the court has an obligation in child protection trials to primordially decide whether the child is in need of protection. Once the court has determined that the child is in need of protection, then it can decipher whether a court order is essential for the child’s protection.

The types of orders that a court may make in child protection trials are outlined in section 57 of the Child and Family Services Act (CFSA) and coincide with the legislature’s intent to allow the child to stay within his/her family and/or community:

57(1): “Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the child’s best interests:

Supervision order

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

Society wardship

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

Crown wardship

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months.”

In section 57.1 CFSA, the courts now have a new type of order at their disposal; specifically, the courts can grant custody to someone other than one of the foster parent.

To learn more about child protection trials and other services provided by Krol & Krol, call 905.707.3370 today.

The status quo on issues involving the children

One of the first things client ought to be aware of is the fact that either the client or the opposing party may be creating a “status quo.” The reason why lawyers emphasize this point, is because many parties involved in a family law proceeding are unaware of the fact that, despite all the efforts they have made to prove their case and disengage from any unbecoming behavior, courts rule in favour of the best interests of the child. Once a party has created a status quo on issues involving the children – something the child has now become accustomed to – the court is often reluctant to take the child out of that environment.

In the recent case of White v. Noel, the power of the status quo was conveyed clearly in a somewhat controversial ruling by Justice Penny Jones of the Ontario Court of Justice.

The case involved a father with a cocaine addiction, and a neglected wife desperately wishing to return home to her parents in New Brunswick. The couple had a young child together, and were constantly in court fighting for custody and access.

Despite there being a consent order that contained a clause prohibiting the wife from removing the child from relocating with the child outside of Ontario, the mother unilaterally decided to take her child and move back to New Brunswick. There, she proceeded to move for a change in the consent order, when her husband served her with a contempt motion.

Due to the fact that the father was self-represented, he opted to wait for his day in court and not take any interim action. This resulted in an oral hearing scheduled 2 years after he served his wife with the contempt motion.

At the hearing, Justice Jones ruled that because the child had settled into New Brunswick and made a stable home there for the past two, accompanied by the fact that the mother had found stable employment for the past years, a status quo had been created and the court would not prejudice the child by moving the child back to Toronto at this stage in the game.

To learn more about the status quo in Ontario  as well as the services provided by Krol & Krol, call 905.707.3370 today.

Relocating

When a couple decides to terminate the marriage and begin to live separate and apart from one another, it is often the case that one of the parties wishes to relocate and start fresh. If the couple had children, complexities arise as to whether the custodian parent wishing to relocate may bring the children with him/her. If the non-custodian parent objects to the relocation of his/her children, a motion will be brought before the court and the parties will submit their respective positions.

Upon hearing the motion, the issue that a Judge faces is whether to obtain evidence from the children themselves with respect to the potential relocation.

Justice Martinson, in G. (B.J.) v. G. (D.L.), 89 R.F.L. (6th) 103 (Y.T. S.C.), ruled that the Court must ascertain the wishes of the children if they were of an age and maturity where their wishes and preferences should be taken into account.

Interestingly, in the case of Kelly v. Harvey, Justice Forgeron neglected to obtain the views of the two children aged 10 and 14.

In that case, the mother planned to relocate from Nova Scotia to British Columbia with her two children, and the father opposed the relocation. The father had regular access but did not have a positive relationship with both children and was not receiving any overnight access with them.

Justice Forgeron ruled in favor of the mother and permitted the relocation.

To learn more about relocating with your children as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Crown Wardship – Best Interests of the Child

Family Law courts in Ontario constantly stress the pinnacle goal and objective when hearing a motion or ruling at trial; the best interests of the child will be the primary concern and basis for the court’s ruling.

There are circumstances when a Court will rule in favor of a Crown Wardship Order. These motions are brought by way of summary judgment for specific reasons. Ultimately, children should not be the victim of a delayed parenting plan. A parent should not be awarded the time to become a “good” parent. If the factual evidence proves that there is merely a triable issue that the best interests of the children are with the Crown and not the child’s biological parent, than a trial will take place without further delay.

As Justice Pazaratz stated in Children’s Aid Society of Hamilton v. M. (A.), 2012 CarswellOnt 15067 (Ont. S.C.J.),

“Summary judgment is a tool to control a child’s drift in litigation and allow for a permanent home for the child within a time-frame that is sensitive to the child’s needs. The legal process should not be used to “buy” a parent time to develop the ability to parent. (Children’s Aid Society of Toronto v. H. (R.), 2000 CanLII 3158 (ON CJ), [2000] O.J. No. 5853 (O.C.J.), paragraph 15)). In child protection proceedings, there is an overriding statutory imperative to ensure that the commencement of permanency planning for children is done in a timely fashion (Children’s Aid Society of Ottawa v. C. (S.), reflex, 2003 CarswellOnt 9373 (S.C.J.).”

 

Furthering this notion, Justice Harper, in Children’s Aid Society of Hamilton v. R. (K.), 2014 CarswellOnt 14930 (Ont. S.C.J.), stressed that the Child and Family Services Act highlights as its underlying theme the imperative responsibility of the courts to bring these cases as soon as possible so as not to compromise the well-being of the child.

To learn more about crown wardship orders as well as the services provided by Krol & Krol, call 905.707.3370 today.

Equalization claims – Limitation periods

The Family Law Act states lays out the limitation periods as follows:

(3)  An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,

(a) two years after the day the marriage is terminated by divorce or judgment of nullity;

(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

(c) six months after the first spouse’s death. R.S.O. 1990, c. F.3, s. 7 (3).

Cases such as Horner v. Horner, Rae v. Rae, Hart v. Hart and El Feky v. Tohamy, canvas the issue of a court using its discretion to allow for an extension of the above-cited limitation periods.

Generally, the case law suggests that judges will determine whether the applicant, in an application to extend the limitation period, has acted in good faith.

As section 2(8) of the Family Law Act explains,

(8)  The court may, on motion, extend a time prescribed by this Act if it is satisfied that,

(a) there are apparent grounds for relief;

(b) relief is unavailable because of delay that has been incurred in good faith; and

(c) no person will suffer substantial prejudice by reason of the delay.

Ontario jurisprudence has also dealt with the issue of whether the negligence of the applicant is considered to be acting in bad faith.

In Hart v. Hart, the Court stated:

Section 2(8) (b) enshrines in legislative form the concept of ‘good faith’. As is not infrequently the case, these words are not defined in the Act, and I do not believe that it would be either possible or useful to attempt to catalogue the possibilities that they embrace. However, I must attribute to these words their “plain meaning according to the understanding and practices of the times”: Cash v. George Dundas Realty Ltd.[1973], 1 O.R. (2d) 241 (CA) I believe, to establish ‘good faith’, it must be shown that the moving party acted honestly and with no ulterior motive it does not seem to me that the Legislature, anticipating the general newsworthy nature of the family property provisions or the Act, intended that the mere failure to make inquiries should necessarily negate ‘good faith’, provided that the absence of enquiry does not constitute willful blindness or does not otherwise, in all of the circumstances, fall below community expectations. As I have stated, my assessment of the evidence is that the wife was ignorant of her rights under the Act, and I believe that her state of mind was one of blameless ignorance. I am satisfied that the delay in issue was delay incurred in good faith within the meaning of the Section 2(8) (b).

To learn more about equalization claims as well as the services provided by Krol & Krol, call 905.707.3370 today.

Vacations – Non-Hague Countries

As was the central issue in the case of Purushothaman v. Radhakrishnan, courts are often faced with a parent requesting that the court prohibit his/her (former) spouse from taking a child on vacation to a non-Hague country.

In Mahadevan v. Shankar, Justice Pazaratz ruled that, when face with said motion, the Court must weigh the benefits of travelling as against the plausible risks. The weighing process is based on factual evidence, and therefore depending on the facts of a case, the decisions will vary in terms of whether to allow the parent to travel to a non-hague country with the child.

In the case of Purushothaman v. Radhakrishnan, the father applied to have the court prohibit the mother of their child from travelling back to India with the child.

The father cited various reasons in support of the motion. He argued that the mother would abscond to India with the child and never return based on the following facts:

  • The mother had all her family residing in India;
  • The mother had overstayed and delayed her previous vacation to India;
  • The mother is not yet a Canadian citizen; and,
  • The child is too young to benefit from the trip.

The mother presented the following factual evidence in support of her case to travel with her child to India:

  • She has lived in Canada for 8 years;
  • She has a full-time job;
  • She own a condominium;
  • She recently purchased a car;
  • She has submitted an application for Canadian citizenship; and,
  • Her child is a Canadian citizen.

The court performed the test as set out in Mahadevan v. Shankar, and found that the cultural benefits to the child significantly outweighed the risk that the mother would abscond to India.

To learn more about vacations as well as the services provided by Krol & Krol, call 905.707.3370 today.

Adult Child Support

Do parents have to pay for their children’s post-secondary tuition? If so, is this an absolute right whereby the children are automatically entitled to support payments upon enrolment?

The case of Lewis v. Correja dealt with the issues noted above, and stands for the principle that a parent paying support is not an automatic wallet with no rights.
In Lewis v. Correja, a father found himself paying for his unappreciative daughter’s post-secondary tuition. The father was not convinced that his daughter was continuously attending class, and therefore requested updated transcripts from his daughter. The daughter refused to provide her father with her grades, and eventually the father applied to the courts to compel his daughter to submit regularly updated transcripts.

Justice Veit stated in his decision that:

A minor child on whose behalf s.7 expenses are claimed for attendance at post-secondary educational institution must provide basic information to establish active attendance in the program; it is not sufficient for the debtor parent to be provided with information that their child is enrolled in a post-secondary education program. A requirement to provide information is not equivalent to requiring the child to maintain a filial relationship with the support debtor.

In his ruling, Justice Veit determines that proof of enrolment does not suffice with respect to the daughter’s ongoing obligation to provide information to her father.

Furthermore, Justice Veit states that an adult child that is not merely looking to be awarded s.7 expenses but also ongoing financial support, must definitely provide the father with her updated transcripts.

The Court also recognized that adult children may be obligated to pay for a portion of their s.7 expenses if they have an opportunity to work part-time.

To learn more about adult child support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Child Support – Including Pensions in Income

The issue of whether to include the income derived from a pension when calculating the quantum for child support, has been the topic of conversation since the decision in Manuge v. R.

The question is also posed as to whether the court should gross up the child support payor’s income based on the fact that certain pensions are not taxable.

The leading case in Alberta, Storey v. Simmons, held that pensions were not to be included in income as they are classified as property (despite the fact that they are paid on a monthly basis). There, Justice Veit’s analysis concentrated on the fact that pensions do not function to replace income but are compensation mechanism that deal with the loss of amenities of life.

However, since then, cases such as Darlington v. Moore and Ste-Marie v. Ste-Marie have come down with decisions that consider pensions as income replacement tools that are to be included in the income of a child support payor.

Furthermore, in the former case, the Court held that since the pension was a Veteran’s Affairs Canada Pension, the fact that it is not taxable should be accounted for when determining the quantum of child support. Thereby, the Court ruled that the disability income should be grossed up.

To learn more about child support and pensions as well as the services provided by Krol & Krol, call 905.707.3370 today.

Unequal Division of Property – Affairs

The law with respect to division of property between spouses in Ontario is governed by the Family Law Act. The Family Law Act dictates that the spouses must conduct a Net Family Property when dividing up their property. This Net Family Property will result in one party having to pay his/her spouse an equalization payment.

However, in exceptional cases, the Family Law Act allows for an “unequal” division of property. These circumstances are outlined in section 5(6) as follows:

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

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

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

A former spouse often attempts to make the argument that they should be awarded an amount that is more than the equalization payment on account of the direct and/or indirect expenses their former spouse incurred to finance his/her extra-marital affair.

Justice Perkins, in the cases Biant v. Sagoo and Consentino v. Consentino, clearly explains that the ultimate purpose of section 5(6) was to ensure that spouses were not arbitrarily punished for their matrimonial misconduct.

Justice Perkins stated as follows:

It would be a novel proposition that a philandering spouse is responsible under subsections 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 affect the family in any way and certainly no evidence that the wife has been called on to show any portion of them.

However, normally 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.

However, that is not to say that if the former spouse’s affair fit the description of one of the eight circumstances in section 5(6), an unequal division of property could not be awarded. Thus, if the affair is proven to have depleted the property of the marriage or to have incurred large amounts of debts and liabilities, the spouse who had committed the affair may be subject to a claim for an unequal division of property.

To learn more about division of property as well as the services provided by Krol & Krol, call 905.707.3370 today.

Financial Disclosure – Fishing Expeditions

When spouses decide to cut ties and sever their relationship, once each party has retained a lawyer to represent them on their behalf, the lawyers will exchange financial statements that their clients have prepared, and attempt to reach a settlement.

Often, one of the parties is reluctant to disclose how much they are currently spending and/or what they are purchasing with that money.

On a motion for disclosure, the applicant will usually succeed in terms of requesting information regarding the quantum of the expenses, as this is a relevant factor in determining issues such as spousal and child support. However, if the applicant attempts to get their hands on financial statements (i.e. credit card statements) so as to reveal what their former spouse has been spending his/her money on, the court will analyze whether the request is relevant to the fact-finding process or merely a fishing expedition.

In the case of Pilkington v. Barrack, Justice Stevenson explained:

” . . .  A party’s understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors . . . ” The dollar amounts are sufficient. Nothing is to be gained by the disclosure of line by line details of the Respondent’s spending and I accept the Respondent’s argument that this request really amounts to a fishing expedition. The totals alone will afford the Applicant an opportunity to challenge the Respondent’s income and to ascertain whether he has been truthful regarding his income.

To learn more about financial disclosure as well as the services provided by Krol & Krol, call 905.707.3370 today.

Imputing Income – Deadbeat Dads

The case of Tillmanns v. Tillsmanns is a crucial case for the sole purpose that it educates the reader about the concept of imputing income.

When a spouse learns that his/her (former) spouse is claiming to be earning less money than what he/she really earns or, alternatively, if the former spouse is earning less money than what he/she is actually capable of earning, a court has the discretion to impute income to that spouse.

There are many different factors that a court takes into account before ruling on the issue of imputing income. One of which, perhaps the most vital factor a judge will consider before imputing income, is whether the it is in the best interests of the children. Often, the case will convey that if one party is to have a higher income attributed to him/her, their former spouse will thereby obtain a reduction in child support. A judge may view this sequence of events as being contrary to the children’s best interests.

In Tillmanns, Justice Pazaratz explained the common theme that courts review in cases dealing with the imputation and attribution of income:

All of these principles have a common theme: reasonableness. Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of the children. Stewart (supra).

In light of the above, the Court ruled that the father’s decision to go back to school once he has lost his job/career, was reasonable. The decision to take a break from earning a livelihood by going back to school and creating a better future for himself and his children, should not be equated to that of a deadbeat dad, and he should not be punished by attributing more income to his current financial statement.

To learn more about imputing income to deadbeat dads as well as the services provided by Krol & Krol, call 905.707.3370 today.

Car Lease Payments and Financial Disclosure

In order for separating spouses to commence the negotiation process in Family Law, they must exchange financial statements and make full financial disclosure.

In cases such as Naidoo v. Naidoo and Sharman v. Sharman, the Court dealt with the issue of whether a party was justified in listing future car lease payments as a debt in their financial statement.

The Court in Naidoo, the leading case on the issue, ruled that because the car lease payments had not yet become due, rather they were merely a future debt, the party was not permitted to list the future car lease payment as a debt on his financial statement.

The Court in Sharman v. Sharman reiterated the ruling of Justice Howden in Naidoo, and stated as follows:

“At the time of separation, the wife still owed about $5000 on her car lease. The amounts were to be paid monthly. In fact, she paid the amounts, and returned the vehicle at the end of the lease, as she was entitled to do. I do not have the accounting evidence that Howden J. had in Naidoo v. Naidoo, [2004] O.J. No. 1458 (Ont. S.C.J.), but it seems to me that although the wife obliged herself before the separation to make these monthly payments, they were not due or collectable until after the separation. Accordingly I do not include them in the wife’s debts.”

To learn more about car lease payments and financial disclosure as well as the services provided by Krol & Krol, call 905.707.3370 today.

Matrimonial Home – Partition and Sale

The Court in Afolabi v. Fala dealt with a question that many courts in Ontario currently deal with on a daily basis; when should a judge refuse to grant a motion for partition and sale of the matrimonial home?

The Court in Afolabi and Fala brought down two specific cases that convey the standard by which a court may refuse the partition and sale of the matrimonial home; a prima facie right of each spouse.

In Latcham v. Latcham, Justice Emery set an extremely narrow standard by which a court will exercise its discretion to refuse the partition and sale of the Matrimonial home. Justice Emery explained:

The judicial trend in recent times has been to confine the discretion of the court to refuse an order for the partition or sale of jointly held property to a narrow standard. The Court of Appeal in Latcham v. Latcham (2002), 27 R.F.L. (5th) 358 (Ont. C.A.) confirmed that the proper standard for the exercise of judicial discretion to refuse partition under section 2 of the Partition Act required evidence of malicious, vexatious or oppressive conduct. The court held that this narrow standard for the exercise of discretion flowed from a joint owners’ prima facie right to partition.

Furthermore, in the case of Bailey v. Rhoden, the Court ruled that the essential and ultimate factor that courts should take into account when ruling on such a motion is whether granting the motion would cause such hardship as would amount to oppression.

To learn more about the matrimonial home as well as the services provided by Krol & Krol, call 905.707.3370 today.

Spousal Support – Objectives of the Divorce Act

When determining spousal support, a court will look to the objectives listed in section 15.2 of the Divorce Act. Section 15(2) states as follows:

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

  • (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  • (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  • (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  • (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

In the case of Morneau v. Morneau, Justice Cole stated in response to a wife’s claim for a review of spousal support that although self sufficiency was an important objective of the Divorce Act, it should not be given priority over the other objectives enumerated in Section 15(2) of the Divorce Act. Justice Cole stated as follows:

The fact that a party has failed to take reasonable steps to become financially self-sufficient is a relevant factor to consider when deciding on the issue of spousal support. Insofar as marriage may have created dependencies, it is the duty of dependent spouses to strive to free themselves from their dependencies and to assume full self-sufficiency, thereby mitigating the need for continued compensation (Bracklow at para. 29).

However, the objective of self-sufficiency is only one of the objectives listed in s. 15.2 of the Divorce Act, and it should not be given priority over the other objectives (Moge at p. 853). In addition, a party’s failure to achieve self-sufficiency is not breach of “a duty” and is simply one factor amongst others to be taken into account (Leskun v. Leskun, 2006 SCC 25 at para. 27).

Therefore, it is important to understand that, although a change in spousal support could be awarded on a needs-based approach, a court will hold a recipient of spousal support accountable if he/she has not taken reasonable measures to become self-sufficient and independent of their former spouse.

To learn more about spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Mediation/Arbitration – Alternative Dispute Resolution

Mediation/Arbitration is a form of alternative dispute resolution. As important and beneficial as mediation/arbitration and all types of alternative dispute resolutions are, they have elements that temper and caution their application.

In the case of McClintock v. Karam, Justice Gray pointed out that mediation/arbitration is inherently counter-intuitive. He notes that many parties opt to have them heard by different adjudicators as each one performs a function that the other does not.

Justice Gray explained as follows:

As noted earlier, mediation/arbitration is of somewhat recent origin. Ordinarily, if the parties are to engage in both mediation and arbitration, they will feel more comfortable if a different person is used to perform each function. That is because the two functions are instinctively considered to be mutually exclusive.

Justice Gray cited section 35 of the Arbitration Act to support his comments. Section 35 of the Arbitration Act states:

35. The members of an arbitral tribunal shall not conduct any part of the arbitration as a mediation or conciliation process or other similar process that might compromise or appear to compromise the arbitral tribunal’s ability to decide the dispute impartially.

To learn more about alternative dispute resolution as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Child Support Arrears – Rescinding

When a spouse brings a motion before the Court to rescind child support arrears, the Court will analyze many factors in its determination as to whether the support payor should be relieved of his child support arrears.

The Court will generally focus its attention on whether the previous order that compelled the payor to provide child support at a specific quantum, was unjust or too burdensome based on the payor’s circumstances at the time of the judgment.

An interesting point brought forth by Justice Sherr in Baxter v. Beharry was whether the legal concept of Res Judicata applied.

Justice Sherr stated that in cases where income was imputed to the payor spouse, a motion to rescing child support arrears could possibly elead to problems associated with Res Judicata.

Justice Sherr explained as follows:

It is well settled law that, if income is imputed, then the issue will generally be res judicata on a motion to vary or change support. See: Bemrose v. Fetter, 2007 42 R.F.L. (6th) 13. Although the court always has discretion with respect to the issue of res judicata and can consider fraud, fresh evidence, additional disclosure or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits.

To learn more about child support arrears as well as the services provided by Krol & Krol, call 905.707.3370 today.

Spousal Support and Retirement

As is prevalent in most Family Law cases in Ontario, each matter is judged on its specific facts. The common law is considered to be judge-made law. This is because, unlike other Civil law traditions which are based on an actual code, the common law is predicated on the rulings of courts. Therefore, the common law is consistently and continuously evolving and changing.

In the case of Rozen v. Rozen, Justice Bernard was faced with a motion brought by the former husband, the payor, to vary spousal support due to his retirement and non-competition clause. The husband was earning significantly more money in the previous couple of years, and now felt as though he should not be paying the amount the parties had agreed upon in the year 2003 because circumstances had changed.

Justice Bernard rejected the husband’s position and ruled that because the support was based on compensatory grounds, coupled with the fact that had the case been brought when the SSAG existed – the actual quantum awarded would have been less than the mid-range SSAG quantum, the husband could not argue to vary the quantum of spousal support due to his recent retirement.

To learn more about spousal support and retirement as well as the services provided by Krol & Krol, call 905.707.3370 today.

Spousal Support – The Rule of 65

The case of Djekic v. Zai is a proper example and model of how the courts will and should determine the issue of spousal support.

When a Judge is tasked with the burden of issuing a ruling regarding spousal support, the Judge is required to look at the case as a whole. This means that the Court will look at all the circumstances that surround the parties to the matter. The issue of Quantum is related to the issue of duration.

In the above-mentioned case, the Court ruled in favor of the Applicant and varied the decision made by the Trial Court. The Court of Appeal explained that, in its decision to vary spousal support whereby the Applicant would be entitled to support on an indefinite basis, it was incumbent on the Court to consider all of the circumstances of the Applicant; including the fact that she was over the age of 65, disabled, and received a small pension.

This case has strengthened what Family practitioners and adjudicators have come to know as the “Rule of 65”; essentially, another consequence of courts taking all relevant circumstances into account when ruling on the determination of spousal support.

To learn more about spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Foreign Divorce – Recognition

The case of Essa v. Mekawi highlight various essential themes pertaining to the recognition of a foreign divorce.

In this case, the wife asked the Court in Ontario to declare that the divorce granted in Egypt not be recognized by the Ontario courts. The husband, residing in Egypt at the time, requested the return of his children. The implications of recognizing the divorce would spell the defeat of most or all of the wife’s claims.

In his ruling, Justice Campbell conveys the only scenarios whereby a foreign divorce ought not to be recognized. Justice Campbell refers to Section 22 of the Divorce Act and specifically points to Subsection 22(3):

(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

Justice Campbell explains that the scenarios whereby a foreign divorce should not be recognized are limited to divorces where there was no notice given, where the foreign order is not in accordance with public policy, where the court in the foreign jurisdiction did not have proper authority, or where fraud is present.

To learn more about foreign divorce as well as the services provided by Krol & Krol, call 905.707.3370 to book a consultation.

Interim Spousal Support

In many matrimonial cases, one of the parties will find themselves in a precarious financial situation. More often than not, a mother who sacrificed her career to take care of the children of the marriage, will find herself in need of interim spousal support upon the dissolution of the marriage.

Justice Douglas, in Horowitz v. Nightingale, outlined the various principals of interim spousal support as stated in the case of Driscol v. Driscol. They are:

  1. On applications for interim support the Applicant’s needs and the Respondent’s ability to pay assume greater significance;
  1. An interim support order should be sufficient to allow the Applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
  1. On interim support applications the court does not embark on an in depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
  1. The courts should not unduly emphasize any one of the statutory considerations above others;
  1. On interim applications the need to achieve economic self-sufficiency is often of less significance;
  1. Interim support should be ordered within the range suggested by the spousal support advisory guidelines unless exceptional circumstances indicate otherwise;
  1. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and
  1. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

To learn more about interim spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Gifts and Imputing Income

In order to determine the quantum of child support for a payor in Ontario, one must refer to the Child Support Guidelines.

A recipient of child support may not be satisfied with the financial disclosure of the opposing party, and may wish to impute income to the other party/child support payor.

The case of Horowitz v. Nightingale referred to the decision in Bak v. Dobell with respect to whether gifts should be included in income and whether the recipient of the gift should be imputed income.

In Bak v. Dobell, the Court of Appeal reasoned that gifts were not to be included in income. However, the Court did note that certain extraordinary gifts may call for the imputation of income. The Court stated as follows:

Since the legislature did not include gifts within the ambit of imputed income, it can be presumed, in the normal course, that the legislature did not intend the receipt of gifts to be “appropriate circumstances” in which to impute income. For this reason, usual gifts such as those given to mark a special occasion are not included as income  . . .

Although it seems the legislature intentionally did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstances under s. 19(1), a court will consider whether the circumstances surrounding the particular gift are so unusual that they constitute an “appropriate circumstance” in which to impute income.

To learn more about gifts and imputing incomet as well as the services provided by Krol & Krol, call 905.707.3370 today.

Imputing Income – Self-Employed contractors

Many parties find themselves in a situation where their income has fluctuated from one day to the next. For example, a self-employed contractor who has just received notice that his contract has terminated.

In Ontario, family law practitioners have often found themselves at odds with opposing counsel with respect to the determination of the income of a party whose contract has recently terminated and is left unemployed.

The issue arises in terms of both, child support and spousal support. Thus, it is left in the hands of the Court to determine whether the unemployment was caused intentionally; so as to avoid paying a higher amount of child and spousal support.

Professor Lewis Becker, in his book titled “Spousal and Child Support and the ‘Voluntary Reduction of Income’ Doctrine”, explores three ways that a Court will decipher whether a party has voluntarily reduced his/her income.

(i) a good faith test, which considers the actual earnings of a party rather than earning capacity, so long as he or she did not act primarily for the purpose of avoiding a support obligation;

(ii) a strict rule, which disregards any income reduction produced by voluntary conduct, as a parent or spouse has an obligation to earn to his or her capacity in order to pay support;

(iii) an intermediate test, which looks at various factors in determining whether to use actual income or earning capacity in making a support determination.9

Alternatively, the Court will be faced with a case where the party was merely a victim of circumstances, and thus the question of imputing income ought not to be applied.

If the party is proven to have terminated his employment by his own will, a Judge will have every reason to impute additional income and ultimately rule in favor of the support recipient.

To learn more about imputing income as well as the services provided by Krol & Krol, call 905.707.3370 today.

Expert Witnesses

When the negotiation stage of a matrimonial matter has run its course, the parties will resort to a trial to determine their outstanding issues.

At trial, it is not unusual for either one or both of the parties to call an expert witness to testify as to specific matters that require an expert opinion. For example, if there was a question as to the value of the matrimonial home or a specific property owned by one of the parties, an expert real estate valuator will be retained by one of the litigants and will testify as to the value of the property at a certain period.

In Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd., Justice Penny conveyed the three pinnacle guidelines that govern the law with respect to qualifying an expert. They are as follows:

  1. there is no property in a witness;
  2. even though a party has retained an expert and communicated privileged information to the expert, the expert can still provide an opinion for an opposing party and may be called as a witness at trial; but
  3. the expert may not be questioned concerning any privileged material he or she received from the opposing solicitor or disclose any opinion given in confidence to the opposing solicitor.

To learn more about expert witnesses as well as the services provided by Krol & Krol, call 905.707.3370 today.

Life Insurance Policies

In cases where a party is awarded spousal support, the recipient will want to obtain some sort of guarantee in the event the payor suddenly dies. It is for this reason that courts have the ability to compel a spousal support payor to alter his/her life insurance policies and name the recipient as a beneficiary to the life insurance policy.

As was witnessed in Schellar v. Scheelar, this can pose a significant problem if the payor dies without complying with the clause in the separation agreement that compels him/her to name the recipient as beneficiary to the policy. In such cases, if the parties included in the agreement a standard clause such as the following, “in the event that the husband should die without such life insurance being in effect, notwithstanding that he remain subject to the obligation to pay child and/or spousal support, the wife shall be entitled to a first claim upon the estate of the husband for the sum of $500,000”, then the payor must have assets for the recipient to collect on his/her spousal support entitlement.

In cases where the payor did not have sufficient assets, courts such as the one in Scheelar, refused to order that the life insurance policies be paid to the recipient nonetheless.

It, therefore, would be wise to make the payor and recipient joint owners of the policy. That way, if the payor decided to amend the designation of the beneficiary of the policy, the joint owner would be notified.

To learn more about life insurance policies as well as the services provided by Krol & Krol, call 905.707.3370 today.

Lump Sum Retroactive Spousal Support – Tax Consequences

When a court orders that one of the parties are entitled to a specific amount of spousal support in accordance with the SSAG, the Court will also award a lump sum retroactive spousal support award from the date of the application until the present day.

The first issue is how the Court determines said amount.

At first glance, it seems reasonable and obvious that the Court would multiply the amount awarded in spousal support per month by the amount of months in arrears. However, in reality, that is not a fair and reasonable figure as it does not take into account the fact that monthly spousal support payments are deductible to the payor and taxable to the recipient. Therefore, decisions such as Hume v. Tomlinson, Elgner v. Elgner, and Vanasse v. Seguin, stress the that the Court has an obligation to consider the tax consequences when ordering a lump sum retroactive spousal support award.

In Thompson v. Thompson, The Court explained its position on the matter as follows:

The quantification of retroactive spousal support, the range that is generated by the SSAG must be adjusted because these ranges are based upon periodic ongoing payments which are presumed to be taxable in the hands of the recipient and tax deductible by the payor. A retroactive award must be netted down to account for its non-taxable status in the recipient’s hands, and its non-tax deductible status in the payor’s hands.

To learn more about lump sum retroactive spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Gatekeeping and Alienation – Breastfeeding

The case of Squires v. Smith brought forth an interesting issue with respect to the access of a new-born baby.

The case revolved around the issue of whether a father’s request to have overnight access to his new-born child interrupted the child’s breastfeeding patterns, and thus the request should be refused. In its ruling, it was clear that the Court was not suggesting that the mother had engaged in gatekeeping or alienation, however, the Court did rule in favor of the father.

In coming to a decision that awarded the father overnight access to his child, the Court also ordered the mother to provide pumped and stored breast milk to the father so as not to interrupt the child’s eating habits.

The Court also noted several cases that conveyed clear principles with respect to the issue at hand. The following cases were highlighted by Justice Douglas Cook in his ruling:

Preserving a breastfeeding schedule for newborn children up to at least one year of age will often be protected; See McDonald v. Deagnon, 2009 SKQB 154, [2009] S.J. No. 249.

Similar feeding and sleep patterns in each parent’s home ensure and promote stability: See Cooper v. Cooper, 2002 SKQB 151, [2002] S.J. No. 226.

The goal of an access plan should be to avoid long separations from both parents to minimize separation anxiety and to have sufficiently frequent and broad contact with each parent to keep the infant secure, trusting and comfortable in each relationship. See: Cooper v. Cooper.

Limited overnight access has been successfully argued for infants as young as 12 months old: See Baird v. Webb 2002 SKQB 518, [2002] S.J. No. 748.

To learn more about Gatekeeping and Alienation as well as the services provided by Krol & Krol, call 905.707.3370 today.

Litigation Guardians and Child Support

Does the Family Law regime in Ontario require a children to appoint litigation guardians prior to their request for child support?

The case of M. (C.M.) v. C. (D.G.) overturned a decision by Justice Darla Wilson and ruled that a child does not necessarily need a litigation guardian to ask for child support.

Justice Sachs ruled that the Family Law regime is completely different from that of Civil Law in terms of children participating in litigation. The difference is that that in a Family Law case, the central focus is on whether the child is in need of representation. The Court is not faced with an obligatory task of finding the child a parent to receive and give instructions if the child is independent and does not require a litigation guardian.

Essentially, Justice Sachs highlighted the fact that nowhere in the Family Law Rules does it make mention of any sort of obligation on the child to appoint a litigation guardian prior to his/her request for child support. This was in contrast to the Rules of Civil Procedure, whereby Rule 7.01(1) clearly requires the appointment of a litigation guardian.

However, although the Family Law Rules do not specifically allude to an obligation to appoint a litigation guardian, earlier cases witnessed judges taking note of Rule 1(7) of the Family Law Rules which allow the trier of fact to resort to the Rules of civil procedure.

To learn more about litigation guardians as well as the services provided by Krol & Krol, call 905.707.3370 today.

Duration of Spousal Support

Unlike Child Support, concrete legislation does not exist with respect to Spousal Support. Instead, the legal realm has come to rely on the Spousal Support Advisory Guidelines. (SSAG)

The fact that judges do not have the law to resort to when face with the issue of spousal support, has proven difficult for the courts in determining the duration of spousal support.

In the case of Bracklow v. Bracklow, the Court conveyed the notion that circumstances where one of the parties are disabled or struggle with ill health, does not always require his/her spouse to pay lifetime spousal support. Although, it is interesting to note that the case of Bracklow did not involve a long-term marriage.

The SSAG dictate that a marriage that has lasted for 20 years or more will result in an obligation of “indefinite” spousal support. Justice Beryl MacDonald analyzes the term “indefinite” in his ruling in Bridgen v. Gaudet as follows:

I realize there are many who suggest there is a compensatory element to be considered because of the existence of a long term relationship. I have some difficulty with that analysis although there is support for it in Bracklow. (see “Spousal Support Post-Bracklow: The Pendulum Swings Again?”, Carol Rogerson, (2001) 19 Can. Fam. L.Q. 185) I prefer to consider compensatory support in the context of a known lost career advance or lost employment and benefits a person may have pursued, or received, but for the marriage. Many spousal recipients had no employment before marriage or their employment may have been in minimum wage endeavors that may still be pursued if the spouse’s health permits. There is no specific loss that can be identified. Long marriages do lull these persons into a permanent state of financial dependency but I would still categorize these as non-compensatory cases.

Given that the Supreme Court of Canada has directed illness does not mean an entitlement to lifetime spousal support some objective criteria must be developed to rationalize an appropriate time when support should end. Ability to pay is not a factor in determining as appropriate termination date unless we are to revert to the concept that, although on the one hand the court says marriage does not mean support for life, even if you’re disabled, if the payor spouse can afford it, then a spouse will receive lifetime support. I do not consider that to be an objective criteria upon which to analyze these very difficult situations.

To learn more about duration of spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Dividing Pensions

A complex area of Family Law in Ontario is dividing pensions among separating parties; specifically, dividing the pension at source.

The new laws in the Ontario Family Law Act with respect to dividing the parties pensions, outline that a pension should be divided at source.

Section 10.1 of the Ontario Family Law Act was intended to solve the problem of a court requiring the consent of both parties with respect to transferring the parties’ pensions from one to another.

Rule 10.1 Family Law Act states as follows:

  1. (1)A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may,

(a) declare the ownership or right to possession;

(b) if the property has been disposed of, order payment in compensation for the interest of either party;

(c) order that the property be partitioned or sold for the purpose of realizing the interests in it; and

(d) order that either or both spouses give security, including a charge on property, for the performance of an obligation imposed by the order, and may make ancillary orders or give ancillary directions.  R.S.O. 1990, c. F.3, s. 10 (1).

The case of VanderWal v. VanderWal clarified the fact that the new legislation regarding the division of pensions is not a presumption or statutory onus. The Court cited Nadendla v. Nadendla, which held that:

. . .  If the pension is not divided at source, the Applicant will have to deplete virtually all his liquid assets. In the result, his assets will be tied up in the pension while all of the Respondent’s assets will be liquid. In contrast if the pension is divided at source both the parties will have a reasonable balance between liquid assets and savings for retirement.

Ultimately, The Court in VanderWal conveyed that each case will be judged on its own facts and that s.10.1 of the Family Law Act “merely creates another way for an equalization payment to be made.”

To learn more about dividing pensions as well as the services provided by Krol & Krol, call 905.707.3370 today.

Assessing Interim Support

When courts are faced with the tall task of assessing whether one of the parties to a matrimonial matter are entitled to interim support, two components will be analyzed; whether the applicant is in need of the support and whether the respondent has the ability to pay.

In the case of Knowles v. Lindstrom, Justice Penny deals with the issue of assessing interim support and states as follows:

The parties agree that “need” in cases such as this relates not only to basic shelter and necessities but to a lifestyle that is commensurate with the lifestyle enjoyed during the relationship, provided the other spouse has the ability to pay. Thus, the accustomed standard of living during a relationship is the appropriate content in which a payee spouse’s need should be assessed.

Justice Penny further explains that an applicant who presented a modest expense budget in his/her Financial Statement, should not be penalized for failing to spend beyond their means or for failing to advance, as their monthly budget, lavish expenses they’re not actually incurring. In that regard, Justice Penny stated as follows:

The applicant has presented a modest expense budget of approximately $76,000. As noted above, I do not think the applicant should be penalized for failing to spend beyond her means or for failing to advance, as her monthly budget, lavish expenses she is not actually incurring. By the same token, I agree with the respondent that while the parties’ lifestyle during the relationship is relevant to the context for establishing the applicant’s needs, it is within the court’s discretion to draw the line at certain types of lavish expenditures, such as private jets.

To learn more about assessing interim support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Custody Reversal

The ultimate goal and principle that judges take into account when ruling on the issue of custody is the children’s best interests.

In a surprising and interesting case titled K. (L.D.) v. K. (M.A.), Justice Harvey used this crucial legal principle when ruling on a case that concerned itself with the issue of custody reversal.

The intriguing fact of the case was that the two children were ages 16 and 17.

In this case, a father had successfully alienated his two children from their mother, to the point where the children had not seen their mother for numerous years. Justice Harvey reviewed the evidence of alienation directed toward the mother, and agreed with the psychiatrist’s report with respect to how the matter should be dealt with.

Justice Harvey understood the implications of a custody reversal in this case, as evidenced by the fact that he stated that any ruling with regards to the 17 year old would have no effect upon the child turning the age of majority.

Ultimately, Justice Harvey ruled that both children should attend therapeutic reunification programs and that custody should be reversed from the father to the mother.

To learn more about custody reversal as well as the services provided by Krol & Krol, contact our lawyers at Krol & Krol at 905.707.3370.

Financial Disclosure and Striking Pleadings

It is crucial that a party to a matrimonial matter understand that there may well be significant consequences if he or she does not comply with his/her financial disclosure obligations.

In many cases, one of the parties withholds financial documents from the other in order to conceal the information contained in those documents or as a tactical delay in the proceedings.

As we were reminded in the case of Roberts v. Roberts, if parties do not comply with their financial disclosure obligations, they may have their pleadings struck by the Court, and as a consequence, may be susceptible to the opposing party proceeding with an undefended trial.

Justice Benotto of the Court of Appeal in Roberts v. Roberts discusses the importance that is placed on one’s obligation to disclose his/her finances as follows:

“The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.

The power to strike out the pleadings is to be used sparingly and only in exceptional cases. This is such a case. The appellant’s conduct in ignoring court orders and failing to follow the basic principles of family law litigation put him in the exceptional category of cases where the judge’s discretion to strike his pleadings was reasonably exercised…”

To learn more about the requirements with respect to financial disclosure, striking pleadings, as well as the services provided by Krol & Krol, call 905.707.3370 today.

CAS and the Duty of Care

In many matrimonial matters where a child’s safety and security is at risk, the Children’s Aid Society (“CAS”) will be involved in the matter.

CAS workers have a duty of care to the children they are mandated to protect. However, do they have a duty to the family of these children? If a parent was negligently wronged by a CAS worker, does he/she have a claim against the CAS?

In the case of Pereira (Litigation guardian of) v. Ontario, 2015 (Ont. S.C.J.), Justice Dunphy cites the leading case on the issue, Syl Apps Secure Treatment Centre v. B.D. (S.C.C.) and he explains that the CAS does not have a duty of care to the parents.

Justice Dunphy explains as follows:

“[T]o recognize such a legal duty to the family of a child in their care, would pose a real risk that a secure treatment centre and its employees would have to compromise their overriding duty to the child. I also agree with Sharpe J.A. that the duty of care pertaining to the relationship between children in need of protection and those who are charged with their care should be clearly defined on a categorical basis, rather than being left in a fluid state to be resolved on a case-by-case basis.

I would not, as a result, recognize such a new legal duty. It follows that, in my view, it is “plain and obvious” that the statement of claim discloses no reasonable cause of action against these defendants.”

It is to be noted that recently in R. (c) V.  Alberta (Director of Child and Family Services) 59 R.F.L. (7th) 124 (Alta. Q.B.) costs were awarded against the CAS in the amount of $11,000.00 where it was found that the director was far too one-sided and did not present a fair review of the situation to the Court.

To learn more about the CAS as well as the services provided by Krol & Krol, call 905.707.3370 today.

Imputation of Income – Reasonable Efforts

Child support and spousal support obligations are a function of the payor’s income. Given this, some payors attempt to conceal or undervalue the income he/she earns.

In those circumstances, the recipient of support may choose to bring a motion before the Court with respect to the imputation of income. In that case, the question is whether the payor is capable of earning more money and whether the payor is purposely under-earning with the intent to reduce their support obligations.

However, in a situation where the payor of support has not been in the workforce for many years and has, thus, made no reasonable efforts to secure employment, can a Judge rule in his/her favor with respect to the issue of imputation of income?

In the case of Toscano v. Toscano, Justice Blishen dealt with similar circumstances and rules as follows:

“Ms. Toscano was 46 years old at the time of trial, is in good health and has a Business Administration diploma. She had work experience both before marrying Mr. Toscano and with Talos Homes during the marriage. I recognize that Ms. Toscano has been out of the work force entirely for at least 13 years, and that her education and work experience continues to decrease each year she remains inactive. However, Ms. Toscano has presented no evidence that she has made any effort to obtain employment or upgrade her business administration skills in order to present a plan for her own support. Given that both children reside with Mr. Toscano, I find it reasonable that Ms. Toscano make all reasonable attempts to obtain employment perhaps in conjunction with re-training. I will impute income of $40,000 and order Ms. Toscano to pay $579 per month in child support for the children pursuant to the FCSG.”

To learn more about imputation of income as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Rectification

A concept in law that is (fortunately) uncommon to most, is that of “Rectification”.

Rectification is exactly what it sounds like. When parties have agreed to terms and have mutually settled their differences, they construct a contract agreement that conveys those terms. However, as infrequent as it may seem, errors and omissions do occur from time to time. The concept of rectification is present when one party argues that an error in the agreement was overseen, and the oversight is not what he/she had intended to agree upon.

In Sylvan Lake Golf & Tennis Club Ltd v. Performance Industries Ltd., the leading case on the issue of rectification, Justice Stewart outlines the legal test that should be used when adjudicating such an issue. Justice Stewart reasons that:

“. . .  If the other party ought to have known, that is sufficient. When the mistake was of such a character or in such circumstances that the defendant had good reason to know, or ought to have known, of the mistake and what was actually intended, this condition is satisfied.

Even in the context of a unilateral mistake, when assessing whether a party knew or ought to have known of the other party’s mistake, the inquiry is an objective one. The question is what a reasonable observer would have thought in the circumstances, taking into consideration the evidence of the parties and the documentary evidence.”

It is advisable to retain a lawyer to draft your Separation Agreement to attempt to ensure that no issues (such as rectification) arise in your matter.

Calculating Child Support & Annuities

In Tookenay v. Laframboise, a husband and a wife had separated after a seven year marriage. They had two young children, being 8 and 4 years old at the hearing of the trial in this case. The husband and the wife had difficulties communicating when it came to the care of the children.

The following two issues came before Justice Newton in this case:

  • Based on the particular facts of the case, was joint custody appropriate?
  • When determining the father’s child support obligation, should an annuity he receives from a personal injury claim (settled when he was 2 years old) be included in determining his income for child support purposes?

Justice Newton rules that joint custody was not appropriate in these circumstances. Justice Newton specifically noted that “[f[or joint custody to be ordered I must be satisfied that the parties could work together. Given the communication issues between the parties I conclude that it is in the best interests that Ms. Tookenay have sole custody of the children.”

With respect to the second issue, the father’s position was that the annuity should not be included in his income because it was intended to repair the damage he had suffered from an accident.

Justice Newton found that the monies used from the settlement for ordinary expenses ought to be included as income. However, monies from the settlement, which were used for medical expenses or rehabilitation expenses should not be imputed to the father as income. Justice Newton ultimately finds that half of the monthly annuity payments were income.

To learn more about our team of lawyers at Krol & Krol, click here.

Recordings

Many clients inquire as to whether they can use a recording of the other party made without his/her consent as evidence in Court. These recordings are often referred to as “surreptitious recordings”.

There is no universal yes or no response to this question. The answer is that it “simply depends”.

It is not legal to record a conversation between your spouse and another person without their knowledge. This is not a method of collection of evidence that is generally supported by the courts.

A court, however, must weigh the fact that such a recording ought to be inadmissible according to the laws of evidence with the fact that the recording may be extremely relevant. A court must determine if the content of these recordings are of “sufficient probative value, and if … the probative value outweighs the policy considerations against such recordings” (Scarlett v. Farrell). A court will conduct this analysis being mindful of the fact that a court must make decisions about the best interests of children “based upon sufficiently probative evidence that may be available to the court” (Scarlett v. Farrell).

For instance, if a surreptitious recording is presented to a court, evidencing that a parent has been abusive to a child and the court otherwise would not be made aware of this fact, a judge may admit this type of recording into evidence in such a case.

To learn more about these types of recordings as well as the services provided by Krol & Krol, call 905.707.3370 to book a consultation with a lawyer at Krol & Krol today.

The Importance of Negotiation

It is, in the ordinary course of a matrimonial matter, beneficial to attempt to reach a settlement through negotiation, where possible.

Justice Pentelechuk put forward the following remarks with respect to the foregoing notion in the case of Hameed v. Hameed:

“Family law litigation has broader societal implications than a typical commercial dispute; unquestionably where the best interests of children are involved. In matters involving a child’s bests interest, the courtroom, most often, should be the place of last resort. There are an increasing number of mechanisms and forums for parents to resolve their disputes outside traditional litigation. If these are utilized early, before positions become entrenched, an opportunity exists to move off the adversarial track and move toward rehabilitation of the former spouses’ post-divorce relationship. That is good for children and modern families generally.

. . .

So too is lack of predictability in family law litigation a disincentive to rational discussion, compromise and settlement. The party with the unmeritorious or ill-founded position may as well take their chances in a hearing or trial. In my respectful view, there is no surer path to unpredictability than an ill defined approach to evidence, where rules are adhered to some of the time on some of the issues and inconsistency exists between judges.”

However, there are case where litigation is required in order to advance a client’s position.

To learn more about negotiation as well as the services provided by Krol & Krol, call 905.707.3370 today.

Grandparents & Access

Some of the hardest and most emotional cases in family law deal with grandparents & access. More specifically – the issue of whether grandparents should have access to their grandchildren. It is to be noted that in a general sense, grandparents usually do not have independent rights of contact or access, which are exercisable in favour of their grandchildren.

Very often, the result of this type of litigation dealing with grandparents & access leaves the grandparents involved unsuccessful.

The case of Nichols v. Herdman dealt with an application made by grandparents seeking access to their grandchild. As is commonly the case, there were external factors that affected the relationship between mother and grandmother, and that led to a grandchild being unable to build a relationship with her grandparents.

In Court, Justice Stevenson reiterated the notion that only the parents of the child have rights of access, unless the grandparents can satisfy a 3-step test. The test is set out below.

The response to the following questions must be answered in the affirmative:

(i) Does a positive grandparent-grandchild relationship already exist?

(ii) Has the parent’s decision imperilled the positive grandparent-grandchild relationship?

(iii) Has the parent acted arbitrarily?

To learn more about grandparent & access in Ontario family law as well as the services provided by Krol & Krol, call 905.707.3370 today.

Support & Line 150 Income

When calculating a party’s child or spousal support obligation in family law, the payor’s obligation is based on his or her  income as indicated on Line 150 of his/her Income Tax Return/Notice of Assessment (subject to certain adjustments which are specifically stipulated in the Federal Child Support Guidelines).

However, there are cases where a payor’s Line 150 income does not correctly convey how much money s/he is actually earning in a given year. Common examples of this surface when an individual owns a business or is self-employed. In these cases, recipients of support often argue that the payor is, in fact, earning more income than is reflected on Line 150 of their Income Tax Return and Notice of Assessment.

It is also interesting to note that there are cases where a party’s Line 150 income is overstated. In the case of Stober v. Stober, the Court notes that child and spousal support obligations are based on the income available to the payor and not on his/her Line 150 income without regard to any other evidence. Clearly, the evidence available to the parties and to a Court is crucial to any such an argument. In Stober, much to the wife’s dismay, Justice Weatherill decreased the husband’s income from $1,000,000.00 (stated as his Line 150 income) to $600,000.00. It appears that based on the accounting evidence presented, the Judge was convinced that the husband did not have $400,000.00 available to him in the relevant year.

It is, nevertheless, to be noted that it is rather rare for judges to determine that the income available to a payor is less than the income stipulated on his/her Line 150.

To learn more about Line 150 income as is relates to a payor’s support obligations in your case, schedule a consultation by telephoning 905.707.3370.

Interim Spousal Support

Courts take a different approach in making a ruling on temporary spousal support during a Motion than the approach taken on a determination of a final award of spousal support at a trial.

Specifically, in determining whether a party is responsible to provide his/her spouse with temporary or interim spousal support, the Court will look to cases such as Thomas v. Thomas and Hughes v. Hughes. The jurisprudence (i.e. case law) conveys that an award of temporary spousal support should seek to allow the recipient to obtain support from the date of the commencement of the litigation until the final trial. An adjudicator should primarily take into account the needs and means of the recipient of support, and attempt to place the parties on equal ground with respect to the financial support available to them individually.

Interestingly, if a party feels as though he/she is disadvantaged due to the unlimited resources available to their counterpart, they may apply to the Court for “advance” costs to fund the litigation and place the parties on relatively equal ground. However, a motion for “advance costs” should not be relied on and should only be used in extreme cases, as Justice Gates pointed out in the case of Lakhoo v. Lakhoo.

To learn more about temporary spousal support as well as other issues relating to spousal support, call 905.707.3370 today.

Increase in Spousal Support

There may be instances where a spouse that is ordered or agrees to pay spousal support to a former spouse receives a raise or some form of an increase in income after the order is made or the agreement is signed.

The question in these cases is whether the recipient of spousal support can ask for an increase in his/her support based on the recent increase in the payor’s income.

Cases such as Fargey v. Fargey and Abernethy v. Peacock have dealt with this issue, and highlight various important factors as well as objectives that a court must consider prior to making a ruling on the matter.

The cited legislation that deals with varying/increasing spousal support is section 17 of the Divorce Act and section 37 of the Family Law Act.

Section 17 of the Divorce Act states that:

17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

  • (a) a support order or any provision thereof on application by either or both former spouses; or
  • (b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

17(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

17(7) A variation order varying a spousal support order should

  • (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
  • (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  • (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
  • (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

The cases of Abernethy and Fargey conveyed that the most vital factor that a Judge must consider when ruling on an Application to vary spousal support is whether there has been a material change in circumstances.

In the case of Abernethy, because there was a material change in circumstances, the Applicant was entitled to a variation of support based on “contract, on need, and on compensation.”

The Court in Fargey cited the case of Willick to properly define the meaning of a “material change in circumstances.” A material change in circumstances was defined as a change that, “if known at the time, would likely have resulted in different terms.”

To learn more about an increase in spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Krol & Krol is hiring a Family Law Clerk

We are looking for a legal clerk who is knowledgeable in family law to join our law firm.

Krol & Krol is located in the Greater Toronto Area (Richmond Hill).

The successful candidate will:

  • have 5+ years experience as a family law clerk, with a law clerk diploma
  • be able to draft correspondence, Affidavits, complete Financial Statements, etc.
  • be proficient in DivorceMate and PCLaw
  • be able to manage multiple priorities while remaining attentive to details
  • possess excellent interpersonal skills to easily interact with our clients
  • be dedicated to his or her work•
  • be able to work both independently and in a team oriented atmosphere

Salary is commensurate with experience.

We invite you to e-mail your cover letter, resume and references in confidence to rferrari@krol.ca.

Krol & Krol is Hiring an Associate Family Lawyer

We are looking for a family lawyer to join our law firm, located in the Greater Toronto Area (Richmond Hill).

The successful candidate must have a minimum of five years of experience in family law. The ideal candidate will be familiar with court forms and procedures and will be able to handle all family law matters including custody, residency, access, child spousal, spousal support, division of property, as well as drafting of domestic contracts.

We are looking for a motivated lawyer who works well with others.

Salary is commensurate with experience.

We invite you to e-mail your cover letter, resume and references in confidence to rferrari@krol.ca.

Krol & Krol Welcomes Alana Smith – Family Law Clerk

We welcome Alana Smith to our team at Krol & Krol.

Alana is a family law clerk who will be assisting Israel Apter, Stephanie Krol & Ashley Krol on a go forward basis.

Alana can be reached at 905.707.3370 ext. 27 and asmith@krol.ca.

 

Krol & Krol Welcomes Katie Hunter – Family Law Associate

We welcome Katie Hunter to our team as a family law associate at Krol & Krol.

Katie Hunter articled at a boutique family law firm. She has a Master of Social Work with a specialization in children and their families from the University of Toronto.

Katie won the 2015 Nicholas Bala Award for Excellence in Children and Family Law for her commitment to interprofessional work with families and children.

Katie can be reached at 905.707.3370 ext. 25 and khunter@krol.ca.