My ex-spouse’s income has increased substantially since separation. Am I entitled to more spousal support? If you find yourself in a situation where your ex-spouse has experienced a substantial increase in income since the time of your separation, you may be wondering whether you are entitled to a reassessment of spousal support. What is Spousal Support? Spousal support is financial assistance that one spouse may be required to pay to the other spouse after a separation or divorce, ensuring the recipient’s financial stability. Spousal support is usually paid on a monthly basis; however, it can also be paid as a lump sum. According to section 15.2 of the Divorce Act and further discussed in the Supreme Court of Canada case, Bracklow v. Bracklow, there are three reasons a spouse would be entitled to spousal support: Compensatory spousal support, which is meant to compensate the lower-income earning spouse for sacrifices and contributions made during the marriage; Non-compensatory spousal support, which is meant to allow the recipient spouse to enjoy a similar lifestyle as they did while married; and, Contractual. In determining whether to award spousal support, a judge must consider many factors, including: The parties’ financial situations; The length of time the spouses cohabited; The roles of each spouse during the marriage; The impact of the breakdown of the marriage on each party’s financial situation; The ongoing responsibilities for the care of children; and, Any previous arrangements made regarding spousal support. The Spousal Support Advisory Guidelines provide parties and the Court with some guidance in determining the quantum and duration of when calculating reasonable spousal support. It is important to remember, however, that the Court retains discretion and the Guidelines are advisory only – they are not law. Are you entitled to increased spousal support if your former partner’s income increases? If one party experiences a significant change in their income after a spousal support arrangement has been made, it may constitute grounds for seeking a variation in spousal support, and the receiving party may be eligible for a reassessment of spousal support amounts. Whether you are entitled to an increase in spousal support if your former partner’s income increases is largely discretionary and is dependent on the circumstances and basis of the entitlement to spousal support. A spousal support order would not change automatically, and it is the responsibility of the recipient spouse to apply to vary the order. According to section 17(4.1) of the Divorce Act, before the court varies a spousal support order, it must be satisfied 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. For example, since non-compensatory spousal support is intended to allow the lower-income earning spouse to enjoy a similar lifestyle as they did while married, an increase in income would usually not be relevant. A recipient’s entitlement to post-separation increases in income is more likely to be found in cases of compensatory support. Chapter 14.3 of the Spousal Support Advisory Guidelines discusses that “a rough notion” of causation is applied to post-separation income increases for the payor when determining if the income increase should impact spousal support entitlements. As such, it will depend on the length of the marriage, the roles adopted during the marriage, the time elapsed between the date of separation and the income increase, and the reason for the income increase. The likelihood of full or substantial sharing becomes more likely with child support cases, given the fact that there is a strong compensatory nature of the claim. If there is no child support in question, the Court will consider the following: long traditional marriages; medium-length and longer marriages; strong compensatory claims where there is primary responsibility for child-rearing; strong compensatory claims in longer marriages; prior agreements discussing future increases in income; support/cohabitation while in school; payor spouse continuing in the same job or area of work post-separation claims that were impacted by an inability to pay; and, income increases shortly post-separation. Varying the Spousal Support Order If the payor spouse does not consent to vary the spousal support order, it may be necessary to commence a Motion to Change. If applying for a variation, the applicant must meet the threshold to prove that there is a material change in the circumstances. The material change must be substantial and continuing, and if known at the time of the initial order, would likely have resulted in a different order. Determining what constitutes a material change is up to the court’s discretion. Conclusion Navigating the complexities of spousal support in the face of a significant increase in your ex-spouse’s income requires a careful understanding of the legal framework due to its highly discretionary nature. For more information regarding spousal support and/or family law-related topics, please contact Laura Dyke at Devry Smith Frank LLP at (416) 446-3327 or laura.dyke@devrylaw.ca This blog was co-authored by Articling Student, Toni Pascale. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By AlyssaBlog, Family LawJanuary 25, 2024
Is Base Monthly Child Support Ever Too High? Can High-Income Earners Get A Break From The Child Support Guidelines Tables? Base, or table, child support is based on the payer’s income. As the payer’s income goes up, the table amount keeps going up along with it – even for high income earners. That can result in the table amount of support being tens of thousands of dollars in child support a month. Will Family Court Judges order more child support than a parent could ever spend on the child? This blog looks at some factors the court may consider in setting child support for high-income earners. To start, Canadian courts have long held that child support is the right of the child; both parents have an obligation to financially support their child, based on their income, and this obligation cannot be waived by the payee parent and is not destroyed by the breakdown of the parents’ relationship. Moreover, child support should, as much as reasonably possible, provide children with the same standard of living that they were accustomed to when their parents were together.[1] However, there is a limit to how much support a child needs and there are some factors that courts are willing to consider adjusting the amount of child support. But there are also factors that judges will not consider and raising them will just get a parent on the judges’ bad side. The Starting Point: What the Child Support Guidelines Say About High Incomes The first step to calculating the child support owed by you or your child’s parent is to determine the proper “table amount.” These amounts are prescribed by regulation under the Federal Child Support Guidelines and the Ontario Child Support Guidelines. The amounts are the same under both tables; however, if you are applying for child support under section 15.1 of the Divorce Act, you should refer to the federal guidelines and if you are applying for child support under section 33 of the Family Law Act, you should refer to the provincial guidelines. You can only apply under the Divorce Act if you were married to your child’s parent; otherwise, you must apply under the Family Law Act. The regulations provide a set amount of child support depending on the payor parent’s income and the number of children that the payor parent is obligated to support. The highest income on the table is $150,000 but that does not mean the tables stop there. At the end of every table, there is a percentage of the payor’s income that should be paid as child support. That percentage goes up with the number of children. With that percentage, the amount of child support continues to grow indefinitely as the payor’s income goes up. Even if the payor’s income is in the billions of dollars, the formula gives a table amount. For an income over a billion dollars per year, the child support would be over a million dollars each year. Section 4 of both the federal and provincial guidelines explain the procedure for determining the child support obligation for a payor parent who earns more than $150,000: Incomes over $150,000 Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is, (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates, (ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and (iii) the amount, if any, determined under section 7. Section 3 of the federal and provincial guidelines provides that: Presumptive rule (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is, (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. As such, there are two options to determine the amount of child support owed by payor parents who earn over $150,000: The Table Amount For a payor parent who earns more than $150,000, the table amount would be the set amount for $150,000 plus a percentage of any of the payor parent’s income over $150,000. For example, take a payor parent who has two children and earns $400,000. Under the federal and provincial guidelines, the base amount for two children for the first $150,000 of income, as of the writing of this article, is $2,077 per month. Additionally, the payor parent owes a prescribed percentage of any of their income over $150,000. Here, the prescribed 1.2% of the remaining $250,000 would be $3,000. As such, according to the table, the payor parent would owe $5,077 per month for their two children. An Amount the Court Considers Appropriate However, per section 4(b) of the federal and provincial guidelines, these amounts may not always be appropriate and can be varied by the courts if necessary. To do so, the payor parent must establish that the amount is in excess of the child’s reasonable needs that it is inappropriate or unsuitable. If so, the payor parent will be responsible for paying the table amount, depending on the number of children, for their first $150,000 of income, and an additional amount which the court finds appropriate. Here, courts will consider: the condition, means, needs and other circumstances of the children who are entitled to support; and the financial ability of each parent or spouse to contribute to the support of the children.[2] When Can Child Support Be Varied Under Section 4? In general, courts are highly reluctant to depart from the table amount of child support. Likewise, there is a strong presumption towards using the table amount for all incomes over $150,000. This presumption can only be rebutted by the payor spouse with clear and compelling evidence.[3] The closer that a payor parent’s income is to $150,000, the more likely it is that the table amount will be upheld.[4] In general, the table amount will not be varied under section 4 for the following reasons: 1. Lower Child Support Payments Made to Other Children of the Payor In Pakka v Nygard, the payor parent had an income of $2.2 million, owed $15,091 per month in child support per the table amount, and was only paying $3,000.[5] The payor had several children with different women; some lived in Canada and some in the United States. In an effort to treat all of his children fairly, he sought to pay only $3,000 in support for each child. Justice Kitelely rejected this argument; parents cannot unilaterally determine what is “fair and equal treatment” and the payor was acting contrary to the laws of Ontario.[6] 2. The Proposed Budget for the Child is Lower than the Table Amount and Includes a High Amount of Discretionary Spending The fact that the table amounts exceed the budget prepared by the payee parent is not determinative and courts have awarded table amounts which allow for a large amount of discretionary spending. In Pakka, as discussed above, the payee parent prepared a budget for the child of $6,545 per month, and was awarded the full table amount of $15,091, resulting in $8,000 a month in discretionary spending. Justice Kiteley found that the needs of the child, as expressed in the budget, was only one factor in the court’s analysis and the size of the table amount is not a sufficient reason to vary it.[7] Also relevant to this case was the $300,000 that the payor owed in child support arrears. In cases involving very wealthy payor parents, reasonable amounts of child support often include high amounts of discretionary spending.[8] Moreover, it is reasonable for the payee parent to incur similar discretionary expenses as the payor parent to ensure that the child enjoys a similar standard of living in both households.[9] 3. The Payor Has High Debts Courts are generally unsympathetic to payors who attempt to vary the table amount based on their debt. In Sordi v Sordi, the payor parent argued that it would be unconscionable for him to pay the table amount of child support for his full income because of his high debt load. If the children’s needs could not be met, then the payee should move to cheaper accommodations or sell the former matrimonial home. At the time of the trial, the payor had spent $1.5 million in legal and expert fees; both Justice Timms and the payee parent considered this debt to be self-imposed and unnecessary.[10] In Ridley v DeRose, the payor parent included a $6,000 loan repayment to his mother in his monthly expenses. Justice Tobin ruled that the payor had not established that the table amount was inappropriate; he could support himself, his wife and her children, accumulate assets, pay an “apparently arbitrary amount of the monthly debt payment”, and has discretionary spending.[11] 4. The Payor has a Higher Cost of Living In McGouran v Connelly, Justice Feldman rejected the payor parent’s argument that the higher costs of living in the United Kingdom compared to Canada made the table amounts in appropriate. He recognized the slippery slope of such a recognition: …if one were to begin to recognize and adjust for discrepancies in the cost of living just to calculate income, such discrepancies would not be limited to countries, but could extend to cities or even smaller areas, and would require extensive evidence in each case. The inquiry would become cumbersome, expensive and potentially unworkable.[12] 5. When the Payor Parent Has an Uncertain Income In Simon v Simon, the Court of Appeal considered whether the table amount should be ordered for a professional hockey player, who earned $1.4 million, but worked in a career characterized by uncertainty and risk. Justice MacPherson declined to vary the amount and held that child support payments should not be varied in anticipation of a decreased future income.[13] However, the table amount will not be retroactively awarded when the payor parent has a single year of extraordinarily high income which will likely not be repeated.[14] However, the table amount will likely be varied in the following circumstances: 1. When the Table Amount Constitutes a Wealth Transfer Between Parents Francis states that “…at a certain amount, support payments will meet even a wealthy child’s reasonable needs” and that table amounts can be “so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support.”[15] Courts have often found that the table amounts of child support constitutes a wealth transfer when the payee parent includes in their proposed budget funds for future expenses which do not meet the current needs of the child.[16] 2. In Accordance with the Family’s Established Lifestyle and Pattern of Expenditures The purpose of the provincial and federal Guidelines is to establish fair levels of support in a predictable and consistent manner and to ensure that the dissolution of the parents’ relationship affects the children as little as possible.[17] As such, the established lifestyle and pattern of expenditures of the family unit prior to the separation is a relevant consideration. In R v R, the payor parent earned $4.1 million, and the payee parent sought the table amount of $65,000 for the parties’ four children. The Court of Appeal only awarded $32,000 due to the family’s modest lifestyle during the parties’ relationship. Justice Laskin held that: If the children’s reasonable needs, including reasonable discretionary expenditures, are being met by the parties’ pre-separation lifestyle — even if that lifestyle is comparatively modest — and the paying parent’s income does not increase after separation, I do not think it is for the court to award child support that reflects a different, more lavish lifestyle. The Guidelines are meant to ensure fair levels of support, but to repeat Bastarache J.’s words in Francis v. Baker, also to ensure “that a divorce will affect the children as little as possible”.[18] 3. When the Payee Parent Seeks a Higher Standard of Living When the payor parent can prove that a child’s needs have been adequately met with a lower amount of child support, then the courts are more likely to stray from the higher table amount. However, Justice Cleghorn held that the payee parent cannot use the table child support amounts to make the child’s standard of living higher in their home than the standard of living in their payor parent’s home.[19] This does not mean that child support payments can never be used to increase the child’s standard of living; courts have allowed this when the payor parent’s income increases dramatically post-separation. In R, the payor parent earned $1.4 million during the relationship, and his income skyrocketed to $4.1 million post-relationship. Justice Laskin found that in these cases, the children are entitled to benefit from their parent’s increase in income: It is one thing for the family to live modestly and save money while together; it is quite another, and seemingly unfair, for the paying parent to hold his children to the family’s pre-separation lifestyle while saving the increase in his post-separation income, but now for his benefit alone.[20] Even in this case, as noted above, the Court of Appeal only ordered half of the table amount of child support. This also does not apply when the payor parent’s increase in income is only temporary; the court rejected a payee parent’s application for $650,000 a year in child support (or $55,000 a month) for the payor parent’s one-time annual income of $7.5 million, followed by $445,000 and $236,000 in subsequent years. Here, the court found that the payee parent would not be able to sustain the child’s higher standard of living on the payor parent’s dwindling income.[21] It may seem that some of these considerations are contradictory. When parent’s incomes are high, or complex, child support issues can be complicated. It is no longer a case of taking a figure off a tax return and plugging it into an online calculator or cross-referencing it on a child support table. There are additional considerations and opportunities that make it worthwhile to speak to an experienced family law lawyer. If you have more questions about your family law matter, please contact Certified Specialist in Family Law, John P. Schuman at Devry Smith Frank LLP at 416-446-5080 or john.schuman@devrylaw.ca. This blog was co-authored by law student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] For example, see DBS v SRG, 2006 SCC 37 at para 38. [2] See sections 4(b) of the Federal Child Support Guidelines, SOR/97-175 and the Child Support Guidelines, O Reg 391/97. [3] Francis v Baker, 1999 CanLII 659 (SCC) at paras 42-43 [Francis]. [4] Deslauriers v Pommainville, 2017 ONSC 3162 at para 77 [Deslauriers]. [5] Pakka v Nygard, 2002 CanLII 62431 (ON SC). [6] Ibid at para 51. [7] Ibid at para 66. [8] Tauber v Tauber, 2000 CanLII 5747 (ON CA) at para 40; Jung v Johnson, 2015 ONSC 6734 at para 30 [Jung]. [9] Deslauriers, supra note 4 at paras 59 and 81-82. [10] Sordi v Sordi, 2010 ONSC 2344 at paras 226-227. [11] Ridley v DeRose, 2017 ONCJ 877 (CanLII) at paras 162-163. [12] McGouran v Connelly, 2006 CanLII 7668 (ON CA) at para 29. [13] Simon v Simon, 1999 CanLII 3818 (ON CA) at para 27. [14] Tamo v Husband, 2023 ONCJ 233 (CanLII) where the payor parent earned $7.5 million in one year due to the exercise of stock options and sale of shares [Tamo]. [15] Francis, supra note 3 at para 41. [16] Tamo, supra note 14 at para 73; Jung, supra note 8 at para 30. [17] Francis, supra note 3 at para 39. [18] R v R, 2002 CanLII 41875 (ON CA) at para 51 [R]. [19] Tamo, supra note 14 at para 63. [20] R, supra note 18 at paras 57-58. [21] Tamo, supra note 14 at para 63. By AlyssaBlog, Family LawSeptember 25, 2023September 22, 2023
Common Law Relationship? You Do Not Have the Same Rights as Married Spouses in Ontario Defining a Spouse Under the Family Law Act Under the Family Law Act, RSO 1990, c F3 (FLA) a spouse is defined as two persons who are legally married unless otherwise noted. Common law partners are considered a spouse under certain sections of the FLA and are defined as two persons who are not married to each other and have cohabited for a period of not less than three years. However, this is not the case when awarding property rights. Under the FLA, common law partners are not entitled to the same property rights as married spouses. More specifically, common law partners are not entitled to the equalization of net family properties. Equalization of Net Family Properties Under the FLA, when a divorce is granted or spouses separate with no reasonable prospect of resuming cohabitation, the spouse whose net family property is less than the other’s is entitled to one-half of the difference between them. As discussed above, in Ontario, this right is only available for married spouses. Common law partners are not awarded these rights and must establish an interest in property when seeking to equalize property. This process can be quite complicated. The Push for Common Law Partners’ Entitlement Over the years, as common law is becoming more and more common, there has been a push for common law partners to be entitled to the same rights as married spouses in Ontario. As mentioned above, there is a process that common law partners can take in order to establish a property right. As a common law partner, you would need to make a claim for a constructive trust if you contributed to the value of an asset and believe your partner would be unjustly enriched if they were to retain the full value of this asset. This process can be complex and relies on the court process, therefore creating a lengthy delay in gaining your property entitlement. British Columbia has re-visited their old family rules and now award all of the same rights to common law partners as married spouses. So why not Ontario? Until our FLA re-visits the definition of spouse under the property regime, if you are in a common law relationship, it is important that you understand that you are not entitled to the same property rights as married spouses. For more information on this issue or other Family Law topics, please contact Kenna Bromley at Devry Smith Frank LLP at (249) 888-6641 or kenna.bromley@devrylaw.ca This blog was co-authored by law student Samantha Lawr. By AlyssaBlog, Family LawSeptember 18, 2023September 19, 2023
Views of the Child – Should I Get a Voice of the Child Report? We all know that children suffer the most in family law proceedings. However, giving weight to a child’s preferences in the proceedings can give them a sense of autonomy and control of the situation. As a result, the provincial Children’s Law Reform Act and the federal Divorce Act both emphasize that courts must consider the views and preferences of the child when it comes to determining their best interests, in accordance with the child’s age and maturity.[1] This is not an easy task; the Ontario Court of Appeal acknowledged that: It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.[2] The courts have approached this challenge in various ways. This article will discuss one such method: Voice of the Child Reports. What is a Voice of the Child Report? A Voice of the Child Report (VOC) is a short report written by an expert clinician or lawyer for the court which summarizes a child’s views, preferences, and statements on a particular issue in a determination of decision-making responsibility or parenting time. This report is often only completed for children over the age of seven, as it can be difficult for children under that age to meaningfully communicate their views. A VOC does not include: formal interviews of the parents; observation visits of the child and parents; gathering of information from third parties, such as teachers and family doctors; disclosure meetings; or recommendations Courts have generally been receptive of this new measure. VOCs are considered to be “an effective and efficient process for ensuring the right of the child to participate in proceedings that affect them and for fulfilling the court’s mandate to consider their views and preferences.”[3] Aside from testifying in court or speaking directly to a judge in private, which can be intimidating and traumatizing for a child, VOCs are one of the few methods which allow courts to receive direct information on the child’s preferences.[4] A clinician of the Office of the Children’s Lawyer (OCL) may also complete a more detailed Children’s Lawyer Report, or a s. 112 assessment.[5] In this report, the clinician is required to meet with the parents and child; observe the child with the parent; contact other adults in the child’s life, like teachers, doctors, day care workers, and therapists; and write a report with details of their investigation and recommendations. This report is more time-consuming and expensive than a VOC and takes approximately 90 to 120 days to complete, compared to 30 days for a VOC. How do I Obtain a VOC? To obtain a VOC from the OCL, you must complete the following steps: Request from the Court You must first obtain a court order requesting that the OCL intervene and provide a VOC. The court will define the issues to be addressed in the report via a Voice of the Child Endorsement Form. Complete Intake Form Upon receiving the order, the parties must complete a Voice of the Child Intake Form and send it to the OCL within one business day of the order. The intake form can be emailed to OCL.LegalDocuments@ontario.ca or faxed to 416-314-8050. If the parties complete the intake form immediately after the order is made before leaving the courthouse, then the court staff can send the court order and completed intake form to the OCL together. Acceptance of Case by OCL When the OCL receives the court order and intake form, they must decide whether to accept or refuse the case. The OCL will notify the parties and the referring judge of their decision in writing. If accepted, an OCL clinician will be assigned to the case. If the OCL refuses the case, then you can still obtain a VOC by retaining your own expert or children’s lawyer and paying for the report yourself. Contact from Clinician After receiving the assignment, the clinician will contact the parties involved to introduce themselves, describe the VOC process, request a copy of all relevant court documents and endorsements, gather information about the referral, and arrange a time and place to interview the child. Interviews with Child The child will attend two interviews with the clinician on two separate days. At the end of each interview, the clinician will review the child’s statements with them to ensure that they accurately reflect their views. Notification of Final Report The clinician will inform the parties when the interviews have been completed. The VOC will be filed with the court and sent to the parties within 30 days of the clinician’s initial involvement with the case. After the report is completed, OCL’s involvement with the case will end. Who Can Write a VOC? If the OCL agreed to be involved in your case, then the VOC will be written by an OCL expert. The OCL expert can be a clinician or a children’s lawyer with expertise in the areas of child development and children in families with conflict. You can also hire a non-OCL clinician to write a VOC for you. Here, it is important that the writer is a neutral and non-biased third party. Courts have rejected the parties’ choices to write a VOC when they had a pre-existing relationship with the child, a professional relationship with one of the parties, or had already rendered opinions or recommendations in the proceedings.[6] Furthermore, a non-clinician should ideally be a children’s lawyer sitting on the personal rights panel for the OCL. In Stefanska v Chyzynski,[7] after the OCL declined involvement due to lack of resources, the mother retained a lawyer to write the report. This lawyer only practiced family law in a limited capacity, was not an expert in child psychology, and had never prepared a VOC before. Her expertise was limited to a three-hour consultation from a child and family therapist who had prepared VOCs before. Justice Horkins emphasized that it was preferable that the VOC was prepared by a trained professional. However, as the report is only a “vehicle to present the views of the children to the Court without any evaluation”, he reluctantly admitted the report.[8] Despite this ruling, if you want your VOC to carry more weight, it is best to do your research and retain a professional with experience in preparing VOCs. When Should I get a VOC for My Child? A VOC may be appropriate in the following circumstances: When your child is an appropriate age. VOCs are generally not available for children under the age of seven, although this cut-off is not strictly enforced and is highly dependent on the individual child’s maturity.[9] A VOC can be created so long as the child is capable of conveying their preferences in a meaningful way. VOCs also may not be as useful for older teenagers, as courts are often reluctant to make parenting time decisions for children close to the age of majority.[10] When you and your former partner disagree about your child’s preferences. VOCs allow parents to get a better understanding of their child’s views and preferences. This can help resolve issues surrounding parenting time and decision-making responsibility earlier in the litigation process, which saves time, costs, and stress for everyone involved. When your child wants to express their views. A VOC will be much more impactful if your child is interested in communicating their views and preferences to the writer. As noted above, this experience may give your child a sense of control and autonomy in the situation without feeling like they’re taking a parent’s side. While VOCs may be less useful in cases where there are issues of parental alienation[11] or allegations of abuse or neglect, for the vast majority of parenting and decision-making disputes, a VOC is an excellent way for your child to feel heard and acknowledged in the court process. If you have questions about obtaining a VOC or another other family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca. This blog was co-authored by law student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] For example, see Children’s Law Reform Act, RSO 1990, c C12, ss 24(3)(e) and 64(1) and Divorce Act, s 16(3)(e). [2] Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para 65. [3] Byers v Byers, 2023 ONSC 297 at para 21 [Byers]. [4] Ibid at para 22. [5] This assessment is provided for in the Courts of Justice Act, RSO 1990, c C43, s 112(1). [6] See Svirsky v Svirsky, 2013 ONSC 5564 at para 27 and Religa v Nesrallah, 2017 ONSC 1491 at paras 16-18. [7] Stefanska v Chyzynski, 2020 ONSC 3048. [8] Ibid at para 93. [9] See Byers, supra note 3 at para 25, where Justice Tellier ordered a VOC for a six-year old child. [10] In Medjuck v Medjuck, 2019 ONSC 3254 at paras 28-29, Justice Kristjanson refused to order a VOC for a seventeen-year old who chose to reside with his father and have no contact with his mother. [11] For instance, see ibid at paras 31-32 and Canepa v Canepa, 2018 ONSC 5154 at para 23. By AlyssaBlog, Family LawAugust 28, 2023August 24, 2023
DSF is Recognized in Best Lawyers 2024 Edition Devry Smith Frank LLP (DSF) is proud to announce that we have been recognized by Best Lawyers in Canada for the 2024 Edition with 7 of our lawyers ranked across various practice areas. The lawyers being recognized are listed below: David Lavkulik – Personal Injury Litigation Diana L. Solomon – Family Law George O. Frank – Personal Injury Litigation Jennifer K. Howard – Family Law Marc G. Spivak – Personal Injury Litigation Marty Rabinovitch – Labour and Employment Law – Recognized for the first time in 2024 edition of Best Lawyers Todd E. Slonim – Family Law We are grateful for this recognition and will continue to strive to provide the best service for our clients. Best Lawyers is the legal profession’s oldest peer-review publication and garners immense respect as the recognition signifies peer approval. Lists of outstanding lawyers arise from thorough evaluations where legal experts confidentially evaluate their colleagues. For over 40 years, this top peer-review publication acknowledges leading attorneys across more than 100 practice areas, chosen for outstanding feedback. “Lawyer of the Year” is awarded to one attorney in each practice area and metropolitan area, further amplifying its significance. Please visit their website for more details: www.bestlawyers.com By AlyssaBlog, Employment Law, Family Law, Labour Law, Personal Injury, UncategorizedAugust 25, 2023August 25, 2023
New Tort of Family Violence Rejected at Court of Appeal In a decision highly anticipated by family law litigants and practitioners across the Province, the Ontario Court of Appeal has rejected the newly created tort of family violence. This novel tort was created last year in the precedent setting decision of Ahluwalia v Ahluwalia,[1] decided by Brampton judge, Justice Renu Mandhane. Justice Mandhane ordered that a man pay his former wife $150,000 in damages for years of physical, financial, and verbal abuse. The decision was appealed shortly thereafter. In her reasons released in July 2023, Justice M. L. Benotto of the Court of Appeal began her judgment by acknowledging the problem of intimate partner violence in Canadian society: Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise.[1] What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.[2] Statistics support this conclusion: in 2021, there were 127,082 victims of family violence who reported the crime to the police. However, as many incidents of such violence go unreported, the true number is likely much higher. Nevertheless, Justice Benotto concluded that the creation of a novel tort was unnecessary, as existing torts and remedies are sufficient to address the harms caused by intimate partner violence. Facts The parties married in India in 1999 and their first child was born 18 months later. In September 2001, the husband, immigrated to Canada. The wife and child arrived in Canada soon after in March 2002. The parties had their second child in 2004 and bought a home in Brampton in 2005. In July 2016, the couple separated. The parties’ children largely refused to see their father following the separation. The trial judge accepted the wife’s evidence that her husband was extremely abusive during their marriage. She recounted instances of physical violence, verbal abuse, financial threats and controlling behaviour. The husband was criminally charged in September 2021 with assault and uttering death threats against his former partner. The wife brought an action for statutory relief under the Divorce Act for divorce, child support, spousal support, and equalization of property, as well as a claim in tort for $100,000 in damages for the husband’s abusive conduct during their marriage. The Trial Decision Justice Mandhane agreed with the wife’s position that the Divorce Act did not go far enough in addressing the issue of family violence. In fact, the Act specifically prohibits courts from considering spousal misconduct in spousal support orders.[3] She maintained that “[t]he no fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support.”[4] The Creation of the Tort of Family Violence As a result, Justice Mandhane recognized a new tort of family violence. To establish liability under this new tort, the plaintiff must prove the existence of conduct by a family member, within the context of a family relationship, that: is intentionally violent or threatening; or constitutes a pattern of coercive and controlling behaviour; or causes the plaintiff to fear for their own safety or the safety of another.[5] Justice Mandhane emphasized that damages would be based on patterns of violence, not individual incidents, and that mere unhappy or dysfunctional relationships are insufficient. Damages Having accepted the wife’s evidence of her husband’s abusive conduct during their marriage, Justice Mandhane turned to damages. She awarded $150,000 to the wife in total, with $50,000 each for compensatory, aggravated, and punitive damages. Issues on Appeal The husband appealed Justice Mandhane’s decision. There were three main issues on appeal: Did the trial judge err in creating a new tort of family violence? Should the court recognize the narrower tort of coercive control? Did the trial judge err in assessing damages? The appellant objected to the recognition of the novel tort. He argued that it was poorly constructed, too easy to prove, would open the floodgates for claims, and would constitute a substantial change to the law that is best left to the legislature. In contrast, the respondent maintained that the creation of the novel tort was necessary to address the harm caused by family violence. In the alternative, if the new tort is too broad, she proposed a narrower tort of coercive control. (1) Did the Trial Judge Err in Creating the Tort of Family Violence? Justice Benotto concluded that Justice Mandhane did err in creating the tort of family violence. The common law changes slowly and incrementally, not quick and dramatically, and significant change is best left to the legislature to implement.[6] Moreover, novel torts will not be recognized in any of the following circumstances: where there are adequate alternative remedies; where the tort does not reflect and address a wrong visited on one person by another; or where the change to the legal system from the new tort would be indeterminate or substantial.[7] The first scenario posed the most problems for the tort of family violence. In the trial decision, Justice Mandhane argued that while some existing torts overlapped with the tort of family violence, they did not fully capture the cumulative harm of family violence: …existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize… In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.[8] Justice Benotto disagreed. The appellant’s abusive conduct satisfied the requirements for the torts of battery, assault, and intentional infliction of emotional distress. Moreover, in determining the quantum of costs for such tortious conduct, courts have taken into account patterns of abusive behaviour. As such, there was no need to create a tort of family violence. (2) Should the Courts Recognize a Tort of Coercive Control? If the court would not recognize the tort of family violence, the respondent suggested a narrower tort of coercive control. Coercive control would include “emotional and psychological harm, financial abuse, social isolation, intentional damage to property, deprivation of necessities of life, or micro-regulation of daily activities.”[9] The respondent proposed that the tort of coercive control would not require proof of harm, but would be established if a person: (a) in an intimate relationship, (b) inflicted a pattern of coercive and controlling behaviour, and (c) which, cumulatively, was calculated to induce compliance, create fear and helplessness, or cause harm to the victim.[10] Justice Benotto rejected this submission. The tort of coercive control is highly similar to the existing tort of intentional infliction of emotion distress. Moreover, elimination of the requirement that the plaintiff show harm would constitute a substantial change to the law that would require legislative intervention. As such, the Court of Appeal declined to recognize a tort of coercive control. (3) Did the Trial Judge Err in Assessing Damages? While this case had major implications for the practice of family law in Ontario, it was much less impactful for the parties involved in terms of the damages. Justice Benotto upheld trial judge’s award of compensatory and aggravated damages in the amount of $100,000, due to the high degree of deference given to trial judges in awarding costs. However, she allowed the appeal in regards to the additional $50,000 for punitive damages. Justice Benotto pointed to the principles for awarding punitive damages established in Whiten v Pilot Insurance. In this case, the Supreme Court held that punitive damages were highly exceptional remedies and should only be awarded where compensatory damages are insufficient.[11] Here, the compensatory and aggravated damages, in the amount originally sought by the applicant, were sufficient to demonstrate the court’s disapproval of the appellant’s conduct. Conclusions While this decision eliminated one avenue of recourse for survivors of family violence in Ontario, it should not be viewed as a loss. The Court recognized the harm of family violence, the need for judicial condemnation of the offenders, and the need for compensation for the survivors. In dismissing the need for novel torts, the Court also affirmed the efficacy of existing torts like battery, assault, and intentional infliction of emotional distress in addressing family violence and highlighted to survivors the legal options available to them. If you have questions about your family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca. This blog was co-authored by law student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] 2022 ONSC 1303 [Ahluwalia, ONSC]. [2] 2023 ONCA 476 at para 1 [Ahluwalia, ONCA]. [3] Divorce Act, RSC 1985, c 3, s 15.2(5). [4] Ahluwalia, ONSC, supra note 1 at para 46. [5] Ibid at para 52. [6] Merrifield v Canada (Attorney General), 2019 ONCA 205 at paras 20-21. [7] Neysun Resources Ltd v Araya, 2020 SCC 5 at para 237. [8] Ahluwalia, ONSC, supra note 1 at para 54. [9] Ahluwalia, ONCA, supra note 2 at para 103. [10] Ibid at para 104. [11] Whiten v Pilot Insurance, 2002 SCC 18 at para 94. By Fauzan SiddiquiBlog, Family LawAugust 21, 2023August 9, 2023
Post-Separation, Who Gets the Frozen Embryos? According to the Canadian Fertility and Andrology Society, approximately one in six Canadians experience infertility. As a result, more and more Canadians have turned to various forms of assisted reproduction, such as in vitro fertilization (IVF). This is an increasingly important means of building a family especially for same-sex couples. With advancements in reproductive technology, the availability of government funding, and the increased visibility of fertility treatments, in popular culture, assisted reproduction has become more than an option for the wealthy; it is now a realistic avenue for the average couple. Over 7,000 children are born through IVF in Canada every year. As of 2014, one to two percent of live births in Ontario are from infertility treatments. However, as the accessibility of assisted reproduction increases, so do disputes over what happens to the leftover reproductive material following the end of a relationship. Is reproductive material treated as property or something more? Reproductive Material as Property Traditionally, Canadian courts considered reproductive material to be property. In JCM v ANA, a British Columbia court was asked to determine the ownership of “sperm straws” following the divorce of a lesbian couple.[1] During their relationship, each partner gave birth to a child using the sperm from the same anonymous donor. After separating, one of the women wanted to use the remaining sperm to impregnate her new partner, while the other wanted the sperm destroyed. The court found that the parties were the joint owners of the sperm and that they should be divided along with the rest of their matrimonial property. After the straws were divided, each couple could choose to use them or destroy them.[2] Likewise, Lam v University of British Columbia decided that sperm was property for the purposes of provincial legislation governing the storage of goods.[3] KLW v Genesis Fertility Centre also found that the reproductive material of the applicant’s deceased husband was property under provincial legislation governing personal property passed through intestacy.[4] Under this approach, if you could obtain the reproductive material used by you and your partner after your relationship ended, you were free to do whatever you want with it. This simplistic approach raised several policy concerns given evidence that people are confused about their options in regards to reproductive material, often change their minds over time, and rarely consider what should happen to reproductive material after separation, or their partner’s death or loss of capacity. Transition to a Consent-Based Regime The traditional contract-based approach changed dramatically with the landmark decision SH v DH and the rise of the consent-based regime.[5] The case arose out of the following dispute: a couple purchased donated eggs and sperm from a company in Georgia, which they used to create two viable embryos. An Ontario fertility clinic implanted one of the embryos into the respondent and she gave birth to the parties’ son. After the parties separated, the respondent wanted to use the remaining embryo to have another child, while the applicant wanted to have it donated. The trial judge held that the dispute should be governed by the law of contracts.[6] The contract with the Ontario clinic stated that the patient (the respondent, in this case) could decide what happened to the embryo in the event of the couple’s separation. As such, the respondent was free to use the embryo however she wanted. The decision was overturned on appeal. The Ontario Court of Appeal relied on the consent-based regime set out under the Assisted Human Reproduction Act (AHRA) and the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (Regulations). This regime included terms which the parties could not contract out of; as such, it prevailed over the Ontario clinic’s contractual terms. Under the legislative regime, subsection 8(3) of the AHRA precludes the use of an embryo for any purpose unless the donor has given written consent. Part 3 of the Regulations provides further clarification on the necessity of “consent”, including: A “donor” refers to: individual(s) for whose reproductive use an in vitro embryo is created; or a married or common-law couple for whom the in vitro embryo is created, regardless of the source of the reproductive material used in its creation. If the donor is a couple, then the embryo can only be used for purposes that both parties consented to. Written consent is required from the donor before the embryo is used. Donors can consent for the embryos to be used for one or more of the following purposes: the donor’s own reproductive use; a third party’s reproductive use; improving assisted reproduction procedures; and providing instruction in assisted reproduction procedures, or a specific research project. If a donor wishes to withdraw their consent, it must be in writing and the person intending to use the embryos must be notified of the withdrawal of consent. If the donor is a couple, then the consent can be withdrawn by either spouse or common-law partner at any time. In this case, the respondent was not allowed to use the embryo to have another child without the express consent of her former partner, the applicant, even though the applicant’s reproductive material was not used. It is critical to note that subsection 10(3) of the Regulations provides that, if only one of the individuals in the couple used the genetic material of only one of them when the embryo was created, that individual is considered to be the donor if the couple breaks up before the embryo is used. This would have led to a very different conclusion in SH v DH. Implications Subject to subsection 10(3) of the Regulations and following SH v DH, if a couple creates embryos throughout the course of their relationship, whether or not their own reproductive material is used, those embryos cannot be used by either party after the relationship ends without the other’s consent. Other courts have followed this decision for other kinds of reproductive material besides embryos. In LT v DT Estate, the British Columbia Court of Appeal denied an applicant’s request to harvest her late husband’s sperm.[7] Relying on subsection 8(2) of the AHRA, the court held that you cannot remove reproductive material from a donor’s body posthumously without their written consent, which the donor did not provide. These cases and provisions have effectively ended the property-based approach to reproductive material in Canada. The courts in Canada have confirmed that it is a consent-based regime in regards to reproductive material – regardless of ownership, if your former partner does not consent, then the reproductive material cannot be used, subject to the exception in subsection 10(3) of the Regulations. Interestingly, one area of fertility law which is gaining increased traction is the donation of embryos. In receiving embryos which are being gifted and drafting the agreements which secure that gift, couples should be cognizant of the need to obtain consent from both donors before the transfer is made. What Couples Should Understand Before Creating Embryos As in many cases of separation and divorce, couples, in love and anxious to have children, do not think through all of the implications of access to their embryos following the dissolution of the partnership. There is a natural tendency to want to create children who have a biological link to existing children. Not being able to use embryos you have created can lead to heart break or further animosity between partners now estranged. Prior to creating any embryos, all persons engaged in the process of reproductive technology should make themselves aware that a consent-based system means that you generally cannot use embryos without the consent of the other. Where the embryos have been created with the genetic material of only one of the couple the other person should be aware that the “donor” in that situation will have access to the embryos, potentially freezing out the non-donor while creating siblings for their child(ren). This is important for fertility clinics as well. Clinics must explain these implications to their clients and provide them with documentation to sign which sets out that consent may be withdrawn at any time and that, where this happens, the other partner is left with no recourse. Similarly clinics can provide an option for consent where the surviving partner after a spouse dies. Finally, after separation all persons should immediately as possible follow up with the clinic to provide instructions regarding their consent. Clinics must be vigilant in ensuring that one party does not go around the other to obtain the remaining embryos. This author is aware of one situation where the mother falsified the father’s consent on clinic forms following their separation and became pregnant with a child the father did not want in order to provide a sibling for their child. The ex-partner in that situation is of course now liable for child support and faces a difficult ethical situation in deciding on whether he wants to have a relationship with the new child. We would be pleased to answer any questions you may have about fertility law matters, please visit our website or contact Marc Kemerer from Devry Smith Frank LLP at 416-446-3329 or marc.kemerer@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] 2012 BCSC 584. [2] Ibid at paras 75 and 96. [3] 2015 BCCA 2. [4] 2016 BCSC 1621 at paras 97-100. [5] 2019 ONCA 454. [6] 2018 ONSC 4506. [7] 2020 BCCA 328. By Fauzan SiddiquiBlog, Family LawJuly 25, 2023August 24, 2023
My Partner Took the House, the Kids, and Half of My Money – Can I At Least Keep the Dog? To many of us, pets are more than just animals; they provide companionship, unconditional love and affection, and become part of the family. In 2022, 60% of Canadian households owned at least one dog or cat. This number grew following the COVID-19 pandemic; one-third of pet owners have brought a pet into their home since the beginning of the pandemic. As the number of pet owners increases, so does the number of ‘pet custody’ disputes. These disputes have extended beyond the realm of dogs to include cats, reptiles, horses, and even pigs. People have even reported staying in a relationship solely to maintain access to a shared pet. These disputes leave many asking: who gets custody of your pets when your pets outlast your relationship? As many of us consider our pets to be as important as our children, we might assume that the answer lies in our pet’s best interests. The rightful owner should be the one with the bigger yard, who has the most time to spend with your pet, and who your pet is most attached to. Unfortunately, this is generally not the case in Ontario – however, recent decisions and legislative amendments hint that this could be changing. The Traditional Approach to Pet Custody The traditional approach to pet custody is that there is no pet “custody”. Animals have historically been considered chattel, or personal property, in the eyes of the law. The relevant legal test to determine ownership was who owned the animal and the adjudicator did not examine what was, or was not, in the animal’s best interests.[1] We’ve addressed this issue in two of our previous blogs on the topic of pet custody from 2017 and 2019. Courts have explicitly discounted the possibility of joint custody orders for pets as a waste of judicial resources and a source of additional stress, heartache, and wasted time and money for parties.[2] While this approach is straightforward and relatively easy for the courts to apply, it inevitably leaves one party vindicated, one heartbroken, and the best interests of the animal wholly unconsidered. But again, change may be coming. A ‘Contemporary’ Approach? Coates v Dickson, a recent Ontario Superior Court decision, adopted a ‘contemporary’ approach to dog ownership which examines the relationship between the dog and the parties claiming ownership. It states that the court must consider the following factors, including: whether the animal was owned by one of the parties prior to the relationship; an express or implied agreement in relation to ownership, either before or after the animal was acquired; the nature of the relationship between the parties when the animal was acquired; who purchased and/or raised the animal; who exercised care and control over the animal; who cared for the animal the majority of the time; who paid for the animal’s basic needs; whether the animal was a gift to one of the parties; what happened to the animal after the relationship between the parties ended; and any other indications of ownership or evidence of agreements relating to ownership.[3] This ‘contemporary approach’ incorporates elements of the traditional property-based approach, including evidence of ownership and who initially paid for the animal. However, in holding that “[o]wnership of a dog is an investment that goes beyond the mere purchase price,”[4] the court included non-property based factors, including who raised the animal, exercised care and control over them, and who was their primary caregiver. In this case, the court held that the two dogs in question were jointly owned by the former spouses and gave one to each spouse.[5] While this is far from a shared parenting time agreement, unless we’re operating under the law from The Parent Trap, it is a step towards a legal conception of pets as more than chattel. Legislative Changes in British Columbia In March 2023, amendments were proposed to British Columbia’s Family Law Act in an attempt to clarify the law on pets following the breakdown of relationships. If accepted, these changes would require the courts to consider each person’s ability and willingness to care for the animal, the relationship any children of the relationship have with the animal, and any risk of family violence or cruelty posed to the animal. Proponents of these amendments point to changing values in society surrounding pet ownership towards considering pets as family members and not property. There are currently no similar provisions in Ontario’s Family Law Act; however, if these amendments come into force in British Columbia, similar changes to family legislation throughout Canada could follow. In the Meantime, What Can I Do to Maintain Custody of My Pet? Under the current legislative regime, what can you do to ensure that you maintain custody of your pet if your relationship ends? Here are several things that can help: Keep detailed records of: who paid for your pet or their adoption fees; any unofficial agreement as to the ownership of your pet in case of a break-up; who pays for your pet on a daily basis, including food, veterinarian visits, grooming, and other basic needs; who is the primary caregiver of your pet; whether you brought your pet into the relationship or acquired them during the relationship with your partner; and whether your pet was a gift from one partner to the other. Make sure that you are listed on official paperwork as an owner of your pet, such as veterinarian records, adoption applications, and pet insurance policies. If you have or plan to get a cohabitation agreement or marriage contract, you can include a provision about who gets to keep your pet if the relationship ends. Refer to our previous blog on the legal avenues you can take to pursue custody of your pet, including commencing court proceedings or participating in arbitration. If uncertain, you can always consult with a family lawyer to discuss your options. If you have more questions about your family law matter, please visit our website or contact Katelyn Bell from Devry Smith Frank LLP at 416-446-5837 or katelyn.bell@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Baker v Harmina, 2018 NLCA 15 at para 12. [2] Ibid at paras 23-26. [3] Coates v Dickson, 2021 ONSC 992 at para 8. This approach has been adopted in subsequent Ontario decisions. For an example, see Duboff v Simpson, 2021 ONSC 4970 at paras 18-19. [4] Ibid at para 17. [5] Ibid at paras 19-20. By Fauzan SiddiquiBlog, Family LawMay 30, 2023August 24, 2023
I Want My Partner to Sign a Marriage Contract – How Can I Make Sure This Will Stand Up in Court? Marriage evokes thoughts of fairy tale romance, soulmates, and lifelong commitment and devotion to your partner. So, it can be awkward when you have to ask the love of your life to sign an agreement anticipating the end of your relationship. A marriage contract is a legal document signed by both spouses which defines how your family property will be divided and what support will be provided to you, your spouse, and your children following divorce or the death of a spouse. Although marriage contracts are criticized as being unromantic and uncomfortable, they are far from impractical. Even when the court system was paralyzed by COVID-19 in 2020, there were over 42,000 divorces granted in Canada. As with our previous discussion about the benefits of cohabitation agreements for common-law partners, there are many benefits to having a marriage contract. Marriage contracts provide for increased certainty, flexibility, and customization within the current legislative regime; for the protection of your assets; and helps to prevent lengthy, bitter, and expensive court battles. However, there are several limitations and restrictions when it comes to enforcing these contracts. This leaves many people wondering at the end of their relationship: is my marriage contract actually enforceable? Here are five things to consider: When Do I Have to Sign a Marriage Contract? Although the name implies that you must be married, you do not have to wait until marriage to sign a marriage contract. Marriage contracts are available to married couples and couples who intend to marry; however, for the latter, the contract does not come into effect until the date of marriage. Likewise, you are free to sign a marriage contract even years after marriage. If you are in a common law relationship and already have a cohabitation agreement, then that agreement will be deemed to be a marriage contract if you marry your common law partner. What are the Requirements for a Marriage Contract? There are strict procedural guidelines that must be followed for a marriage contract to be enforceable. The document must be in writing, signed by the couple, and witnessed. This means that oral marriage contracts are not valid in Ontario. What Can Be Included in my Marriage Contract? Marriage contracts can include terms related to the ownership in or division of property, support obligations, the education and moral training of the your children, and any other matter related to the settlement of the yours and your partner’s affairs. However, as a previous blog of ours discussed, several matters cannot be included in a marriage contract, including: decision-making responsibility and parenting time for children; and provisions which limit your rights regarding possession of the matrimonial home. Can my Marriage Contract Be Set Aside by the Courts? In Canada, courts tend to favour the validity of marriage contracts and strive to “respect private arrangements that spouses make for the division of their property on the breakdown of their relationship.”[1] However, even if a marriage contract is in proper form and contains no prima facie invalid terms as discussed in the previous section, courts may exercise their discretion to set it aside. Courts can set aside any provisions which they consider to not be in the best interests of any of your children or which are unreasonable in regards to the Child Support Guidelines or otherwise in relation to the support of a child. Section 56(4) of the Family Law Act also lays out specific circumstances in which courts can set aside a marriage contract or a provision within it: if a party to the contract failed to make full and accurate financial disclosure in regard to significant assets, or debts and other liabilities; if a party to the contract did not understand the nature or consequences of the contract; and if there are any other grounds present to justify setting aside a contract under general contract law, including unconscionability, duress, undue influence, fraud, or misrepresentation. However, this section is not a “get-out-jail-free” card for people trying to invalidate their marriage contract. This section does not apply if you signed the agreement while knowing your partner’s financial disclosure was inadequate. Courts will generally also refuse to set aside contracts if you simply failed to seek legal advice and if you failed to use due diligence in seeking disclosure. The Ontario Court of Appeal set out a two-stage test to determine whether part or all of a marriage contract can be set aside in Le Van v Le Van. The applicant must meet the following conditions: Have any of the circumstances set out in section 56(4) of the Family Law Act (as set out above) been engaged? Is it appropriate for the court to exercise discretion to set aside some or all of the agreement?[2] If this test is met, then the court can intervene to declare some, or all, of your marriage contract unenforceable. As these applications come down to the discretion of the courts, it can be difficult to predict how challenges will play out. To make your marriage contract as strong as possible, it is best to avoid engaging the above circumstances altogether. For your part, you and your partner should be honest when disclosing your financial situation and seek independent legal advice before signing. What Happens if my Marriage Contract is Unenforceable? If you and your partner divorce or if one of you dies and you do not have a valid and enforceable marriage contract, then the default rules under the Family Law Act apply. If you are uncertain about whether your marriage contract is enforceable or want to ensure that your marriage contract is enforceable, it is always good practice to consult with a family lawyer. If you have more questions about your family law matter, please visit our website or contact John P. Schuman from Devry Smith Frank LLP at 416-446-5080 or john.schuman@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Hartshorne v Hartshorne, 2004 SCC 22 at para 9. [2] Le Van v Le Van, 2008 ONCA 338 (CanLII) at para 51. By Fauzan SiddiquiBlog, Family LawMay 26, 2023June 10, 2023
Big Family Court Costs Award Recently, the Ontario Court of Appeal ordered a spouse to pay his spouse over a million dollars, but not in relation to property division nor child support, nor spousal support. The husband had to pay those amounts in addition to over a million dollars that the Court ordered him to pay to his ex-wife to cover her legal fees. Yes, courts can order one spouse to pay all the costs for the divorce and surrounding litigation. Doing the right things after separation, and in Family Court can create big savings for a separated spouse, while denying a “big win” for his or her ex. There can be a lot of anger and other emotions in separation and divorce. Some separated spouses head to a lawyer’s office, or to Family Court, in the hope that they can force their ex to live in a box under a bridge. Some even expect that if they spend exorbitantly on legal fees for an aggressive lawyer, they can force their spouses and children into homelessness. However, if a judge believes that is a spouse’s goal, the efforts can have the opposite of the intended result. The recent Ontario Court of Appeal decision in Lakhtakia v. Mehra is not the first time that the Court has ordered one spouse to pay the other spouse’s legal and accountant fees totalling several hundred thousand dollars, even when doing so would cause financial hardship. Ontario Judges, especially Family Court Judges, will make a spouse whom a judge believes has acted unreasonably to pay all of their ex’s expenses in relation to the divorce, child custody or support proceedings. Rule 24(4) of the Family Law Rules authorizes such Orders. The rationale for this rule is, in part, to discourage separated spouses from acting vindictively towards each other, or to reward a spouse from acting appropriately when his or her spouse is not. It is also because these types of behaviours result in more court appearances, both conferences and motions, which not only increase the party’s legal fees and delay the matter, but clog up the court system. Judges feel that parties who do so should provide compensation for wasting everyone’s time. Spouses who want to make things difficult for their exes often believe that their strategies are innovative and undetectable by the Court. However, judges, all of whom are former lawyers, sit in court everyday, often hearing multiple matters every day, and possibly thousands of matters every year. They have seen many, many attempts to create unnecessary difficulties, and the negative consequences for all involved. In Lakhtakia v. Mehra and Knight v. Knight, the Court of Appeal set out many of the more common tactics that Family Court Litigants try use to gain advantage over their exes, but they frequently backfire: refusing or trying to hide necessary financial disclosure misleading the court, especially in relation to financial matters where objective evidence may disprove the representations. refusing to negotiate or making unreasonable offers to settle either bringing needless motions, or forcing the other party to bring motions to get compliance with existing obligations under the Family Law Rules withholding the children or otherwise using the children to get leverage in negotiations refusing to pay appropriate child support immediately, even on admitted income – judges see this as an attempt to improperly get leverage by causing financial distress otherwise running up the opposing party’s fees and expenses unnecessarily refusing to follow court orders trying to intimidate the other party through threats of embarrassment, financial difficulties or physical force Judges who see a separated spouse or parent using these types of tactics will not hesitate to order them to pay all the legal fees and expenses that the other party incurred to rectify the situation. In the March 2021 changes to the Family Law Legislation, the Federal and Ontario Governments created specific laws to stop separated parties, and especially parents, from engaging in activities that are only designed to harm a former spouse or co-parent. Under section 7.2 of the Divorce Act and section 33.1(2) of the Children’s Law Reform Act, parents have a specific legal duty to protect their children from any conflict related to the separation. Those new laws also require separated spouses and parents to try to resolve matters through negotiation or alternative dispute resolution and avoid Family Court wherever possible. Judges really do expect people to treat each other civilly and try to resolve matters on a reasonable basis after they separate. Serious consequences, including hefty orders for the payment of costs to the other party, are the result when someone choses to be vindictive, or even unreasonable. Separated spouses and parents who want to get the best of their former partner in Family Court need to find an excellent Family Law Lawyer, and listen to that lawyer’s advice. The road to success does not involve underhanded, coercive, or dishonest tactics. Judges are likely to pick up on those and punish he guilty party. The best strategy to see an ex beaten down, if not destroyed, in Family Court, is to be seen as the reasonable, cooperative, caring party while allowing the other party to seem mean or vindictive. This does not mean rolling over and giving away everything – judges don’t think that is reasonable either. But it does mean getting some advice from a lawyer about how to appear reasonable while working towards the best possible outcome. That can be a difficult tightrope walk, especially in the winds of emotion that come after separation. The best lawyers will tell you what the realistic outcomes are, and how best to achieve them, which may involve avoiding Family Court all together, rather than going on an aggressive attack that is doomed not only to failure but to result in serious repercussions, maybe even an easily avoidable costs award of thousands, or millions of dollars, to help a former partner. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By Fauzan SiddiquiBlog, Family LawFebruary 24, 2023July 7, 2023