toronto family law

Keep Your Kids Out of Your Divorce, or We Will

The Toronto Star reported a few years ago that the Toronto Jewish Children’s Aid Society (JCAS) had become so alarmed by the growing number of kids being caught in the middle of their parents’ combative divorces that the JCAS had begun taking extreme measures. It had started removing some children from their quarrelling parents and putting them into foster care.*

One of the children taken into care was an 11-year-old boy who had tried to slash his wrists because the conflict between his parents had made his life unbearable.

This was not the first time that the JCAS had removed a child from his parents because of adult conflicts, the Toronto Star reported.

As a family law lawyer, I can attest that placing children into care in high-conflict cases isn’t a practice exclusively done by the JCAS. In fact, I’ve seen various children’s aid societies do it in years past. By placing the children in care, they hope to make the parents become aware of the harm they’re inflicting on their children through their marital warfare.

At the same time, the blunt tool of taking the children into care may not always work. It’s not hard to imagine that the removal of the children could even fan the flames of discord in bitter divorces.

Over and over again in family law, I’ve witnessed parents using their children as pawns in their divorce. The tactics range from asking the children to convey inappropriate messages to intentionally preventing the children from seeing the other parent. These incidents may have consequences that last a lifetime.

Something clearly needs to be done. Unfortunately, as the Honourable Justice Brownstone of the Ontario Court of Justice once said, “People are using the legal system to address problems that are not really legal.”# In other words, all involved need counselling, rather than motions and trials.

*Susan Pigg, “Kids hard hit in nasty divorces,” The Toronto Star (05 October 2009) online: The Toronto Star <http://www.thestar.com/life/health_wellness/2009/10/05/kids_hard_hit_in_nasty_divorces.html?app=noRedirect>

#Harvey Brownstone, Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court (ECW Press, 2009)

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Sorry, No More Support Payments. I Found My Dream Job Flipping Burgers – Intentional Under-Employment in Family Law

 

Money Issues - Toronto Family Law Lawyer

(Photo courtesy of stock.xchng. All rights reserved).

Toronto Family Law Lawyer Pei-Shing B. Wang

When it comes to child support and spousal support payments, people react differently. Many honourable payors cut back on other expenses in order to make ends meet, while some others simply quit their jobs and claim inability to pay.

In Ontario, the table child support payments under the Child Support Guidelines are calculated exclusively according to the payor’s income, whereas spousal support obligations depend largely on the gap between the income levels of the payor and the recipient.  In other words, the more you earn, the more you pay. Conversely, the less you earn, the less you are supposed to pay.

Therefore, it’s not unheard of that a payor would intentionally quit his or her job or switch to a lower-paying position voluntarily in a bid to reduce support payable. At times I’ve seen a payor’s six-figure salary reduced to social assistance payments, purportedly because of the “economic downturn.”

Thankfully, under the law, if the court is of the opinion that a payor is intentionally unemployed or underemployed, it can impute income and fix the support amount accordingly.*

In deciding whether income should be imputed, the court must ask whether the payor chooses to earn less than what he or she is capable of earning, or whether the reduction is involuntary and reasonable.

Of course, no litigant will state to the court that his or her income has been intentionally reduced in an effort to evade support obligations. The Ontario Court of Appeal ruled in Drygala v. Pauli that there is no need to find a specific intent to evade support obligations before income is imputed.^ As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. If the payor chooses to earn less than what he or she is capable of earning, income may be imputed. A finding of “bad faith” is not required.

When imputing income, the court must determine whether the reduction of income is voluntary or involuntary, and reasonable or unreasonable. The factors include the age, education, experience, skills and health of the payor parent. The court may also look at the support payor’s financial circumstances and the history of payment or non-payment. Available job opportunities may also be relevant.

*The same principle regarding imputation of income applies both to child support and spousal support. See, e.g., Rilli v. Rilli, 2006 CanLII 24451 (ONSC)

^ (2002), 61 O.R. (3d) 711 (C.A.)

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.

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Limitation Periods in Family Law – When Do I Run Out of Time to Sue?

Toronto Family Law Lawyer Pei-Shing B. Wang 

Toronto Family Lawyer

(Courtesy sxc.hu, All Rights Reserved)

Limitation period is a legal term referring to the maximum time after an event that legal proceedings may be commenced. If the matter in dispute is not brought before the courts within that time frame, it will be barred from the court.* In Ontario, the basic limitation period is two years.

However, family law is unique because of the interdependence of the spouses before the breakdown of their relationship. Hence, depending on the circumstances and the relief sought, the Family Law Act sets out different limitation periods.

Married couples in Ontario have six years from the date of separation to seek property rights, or two years from the date that the divorce was granted, whichever occurs first.^ If one of the spouses dies, the time is much shorter.

Interestingly, there is no limitation period for support claims in Ontario, regardless of whether the couple have been married or merely deemed spouses of each other (i.e., “common-law”).

For unmarried couples living together, it’s more difficult to ascertain what limitation periods, if any, are applicable to them because there is no legislative regime for property division at the breakdown of the relationship, especially when a claim of constructive trust is made.

The recent decision of McConnell v. Huxtable of the Ontario Superior Court may provide some guidance on this matter.# The facts are as follows. After a relationship of 13 years, the applicant sought relief from the court for division of the respondent’s assets, including his home. As there was no statutory provision for the claim, the applicant asked for compensation through, among other things, constructive trust.

The respondent denied that there had been cohabitation and claimed that the applicant was too late because the limitation period of two years for the applicant’s claim had already expired since its discovery in 2007. The respondent brought a summary judgement motion to have the case dismissed.

The judge, mindful that there had been no prior rulings on this issue since the Limitations Act, 2002, came into effect, undertook careful analysis to decide whether the Act would apply to the applicant’s claim of constructive trust, or whether an exemption relating to the recovery of land governed by another statute (of a longer limitation period, which had not yet expired) applied. If the Act applied, the applicant was out of time. If it did not, then the applicant could continue to pursue her claims in court.

The judge remarked that there are difficulties in applying the Limitations Act, 2002, in the family-law setting. For one, the legal ownership of properties is often not considered carefully until after the relationship has gone sour.

Not infrequently, couples discover only in the middle of litigation that the registered title of the matrimonial home belongs to just one of the spouses, though both parties have believed they each owned half. In such a scenario, it is nearly impossible to pinpoint when the limitation period has started to run as the law mandates that it begins when the “act or omission” is discovered or ought to be discovered by a reasonable person. Would that be when the parties separated? When the case started? When the error was discovered?

In short, the judge found that, short of an absurd interpretation, the claim of a constructive trust cannot be applied to property under the Limitations Act, 2002. The judge observed as follows:

[112] It seems to me a claimant would often be aware of making a contribution and might, but would not necessarily, know that that he or she has suffered a deprivation or enriched the other party.  While a couple live together and get along reasonably well, there would likely not be any thought of deprivation or loss.  Does that knowledge reasonably or actually arise when the couple are no longer getting along?  When one of them thinks of separating?  When one of them tries to raise the issue of the title to a particular piece of property?  Is every case dependent on what the mythical reasonable person would have known at a particular time?

Thus, the judge concluded that it’s impossible to apply the Limitations Act, 2002, to a constructive trust claim in family law. As such, the judge ruled that the limitation period for the claim of constructive trust in Ontario was covered under another statute and had not expired.

Given this case is the first one on the issue of limitation periods for constructive trust claims in family law since the Limitations Act, 2002, came into force, it may well be reviewed by the appellate courts. I am of the opinion that the judge’s reasons are comprehensive and reasonable. For the time being, the decision will stand until a higher court decides otherwise.

*Limitations Act, S.O. 2002, C. 24, s. 4

^Family Law Act. R.S.O. 1990, c. C.12, as am., ss. 7(3)

#2013 ONSC 948 (CanLII)

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.

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Hiding a Gold Mine? You’ll Probably Get the Shaft – Financial Disclosure in Matrimonial Proceedings

Toronto Family Law Lawyer Pei-Shing B. Wang

(Photo courtesy of stock.xchng. All rights reserved).

(Photo courtesy of stock.xchng. All rights reserved).

As a family law lawyer, one of the hardest parts of my job is to convince my clients to make full financial disclosure to their separated spouses. When either of the spouses refuses to cooperate to produce financial statements, it delays the process and wastes everyone’s time. It doesn’t matter if they’re married or not.

Financial disclosure is vital in family law proceedings because (1) the law mandates it and (2) without it, the parties cannot make informed decisions on how to settle their affairs. In Ontario, if either party fails to make adequate financial disclosure, it may invalidate whatever agreements  flow from the financial statements.

In a long-term relationship, hiding assets is harder than most people think. When couples start living together, few, if any, aspects of the individuals’ lives can remain secret. The husband probably knows if the wife comes from a wealthy family, while the wife likely knows how much her husband earns and therefore how much they get to spend on household expenses. Even for unexpected windfalls, any change in spending habits of the recipient spouse will inevitably attract suspicion. Therefore, in reality, it’s extremely rare for someone in a long-term relationship to successfully conceal significant assets.

Of course, that doesn’t stop people from trying to hide them.

In the extreme case of Helmy v. Helmy, the husband won a lottery prize of $2.5 million shortly before his separation from his wife of 20 years.* (Some speculated that it was the reason for separation.) In an attempt to keep his lottery winnings from the reach of his then separated wife, the husband conjured an elaborate web of lies involving his family members, both in Egypt and in Canada.

After finding that the husband and his family members had given false evidence, the judge ruled that the husband (1) bought a house and other properties in his sister’s name for the sole purpose of concealing the facts about the lottery from the wife, (2) signed a false affidavit stating that his brother was the winner of the lottery, and (3) deliberated lied under oath to deceive his wife and the court for the purpose of hiding the lottery winnings from her.

The wife testified that she had her suspicions based on the new properties purchased by the family members in a short period of time and the frequent trips abroad. To minimize his risk of exposure, the husband told the wife that his brother had won the lottery and given him the funds as a gift. Based on this piece of information, the wife signed the minutes of settlement to finalize the divorce, receiving a portion of the proceeds from the sale of one of the properties. In other words, the wife received very little because of the false financial information that the husband had given her.

Alas (for the husband), as luck would have it, greed turned on greed. A sister of the husband, holding a significant portion of the lottery winnings, as found by the court, decided to cheat her brother (the husband) out of a GIC worth about $300,000. She cashed out the funds without telling him. By the time the husband found out what his sister had done later on the same day, the funds had been dispersed to several other family members.

The husband was determined to get his money back by suing his sister. After the divorce was settled, the husband started his lawsuit against his sister. In response, the sister fought back. The entire family was dragged into three different lawsuits.

After scrutinizing the evidence, the judge found that the husband and his family had all conspired to hide the fact of the lottery winnings from the wife as the wife would be entitled to a share of these lottery winnings upon separation, which occurred shortly after the lottery was won.

The court was appalled by the husband’s conduct of giving a significant amount of money away just weeks before the separation for the purpose of concealing the wife’s entitlement from her. For all her sufferings, the wife was awarded damages for civil conspiracy made against her. What is more, because the defendants had deliberately and maliciously conspired to deprive the wife of her rightful share of the husband’s net family property, the wife was entitled to punitive damages against all the defendants in the amount of $50,000.

Finally, there was the outstanding matter of equalizing net family properties. Although the husband no longer had the entire winnings of $2.5 million in his possession at the date of separation, the entire amount of the windfall was ordered to be included in his net family property value.

Hiding a gold mine? You’ll probably get the shaft.

*2000 CanLII 22452 (ONSC)

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.

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Collaborative Family Law Series: Successfully Concluding a Case

Wrapping up a collaborative family law case can bring mixed feelings. (Photo courtesy of SXC, all rights reserved.)

Toronto Family Law Lawyer Pei-Shing B. Wang:

In previous postings, I’ve talked about starting and managing collaborative family law cases. Today’s discussion is about wrapping things up.

In my experience, “the end” in a collaborative family law case is almost always bittersweet. On the one hand, the spouses are relieved that they have sorted out their legal issues and don’t need to worry anymore about being sued. On the other hand, they realize that they are no longer spouses to each other and must move on with their lives.

In collaborative family law, most agreements are not binding until they’ve been formally executed. Therefore, once the spouses have agreed on a settlement, it’s important for the lawyers to act quickly to bring the matter to its formal conclusion.

Usually the final settlement agreement is written as a separation agreement with a few tweaks. Basic background information, such as the dates of marriage and separation, will of course be stated. The final agreement will confirm that both spouses have chosen the collaborative process and that each spouse has been aided by his or her own lawyer. Other professionals who have helped the couple during the process will also be specified along with the tasks they have performed.

If there are children involved, a separate parenting plan may be attached as an exhibit to the agreement. The parenting plan may be drafted by the child specialist or the divorce coach who has worked with the parents extensively as part of the collaborative process. Invariably, there will be clauses stating that the parents will remain flexible to accommodate special circumstances, such as illness and school events, and put the best interests of the children above their own.

Finally, there is almost always a special paragraph where the spouses acknowledge that they have been advised of the relevant laws and understand that their decisions as outlined in the settlement may differ from those adjudicated by the court system.

This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.

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Death During Separation: What Happens to the Matrimonial Home?

When a marriage breaks down, the law in Ontario is that the spouses are entitled to equalize (share) their properties accumulated during the marriage under the Family Law Act. Whoever has less net family property is entitled to an equalization payment that amounts to half the difference between the spouses’ respective net family property (net worth).^

Because the titles of the properties do not change hands, the rights and obligations of the titleholders to the matrimonial properties are generally not affected during the equalization process. For example, if spouse A holds a cottage with his family, the family members need not worry about their titles being affected without notice.

However, things are quite different if a spouse dies during separation. That’s because there are two types of co-ownership recognized in Ontario: joint tenancy and tenancy in common.

In a joint tenancy the co-owners hold the property as a whole together, such that each holds an equal interest in the property. In contrast, in a tenancy in common one co-owner may be entitled to a proportionate interest in the property that differs from those of other co-owners.

The critical distinction between the two types of ownership above is the right of survivorship. Through the right of suvivorship, the interest of a co-owner in a joint tenancy will pass equally to all other co-owners upon his or her death. If only one survivor remains, the entire interest in the property passes to the survivor.

Quite the opposite occurs upon the death of a co-owner in a tenancy in common. In this case the deceased’s interest in the property passes to his or her estate directly.

Joint tenancies may be severed+ in one of three ways:

Rule 1. unilateral action on one’s own share, such as selling or encumbering it;

Rule 2. a mutual agreement between the co-owners to sever the joint tenancy;

Rule 3. any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.#

In the recent case Hansen Estate v. Hansen,◊ decided by the Ontario Court of Appeal, the court ruled that during separation the spouses can sever their joint tenancy in the matrimonial home without expressed intention and by their course of dealing under Rule 3 above.

In its determination the court must consider the totality of evidence to decide whether the spouses’ conduct demonstrated that they were mutually treating their co-ownership as tenancy in common and not as joint tenancy. The conduct need not fit into categories established by prior cases. In other words, each case is idiosyncratic and must be decided on its own facts.

^Family Law Act, R.S.O. 1990 c.F.3

+Williams v. Hensman (1861), 70 E.R. 862, 1 J.&H. 546 (Eng. Ch.) at 867

# see e.g. Burgess v. Rawnsley, [1975] 3 All E.R. 142, [1975] Ch. 429 (Eng. C.A.)

◊ 2012 ONCA 112, (2012) 109 O.R. (3d) 241

This blog is provided for educational purposes and for your reference. It is not legal advice and should not be regarded as such. The law may have changed since the publication of this article.

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2012 Brings Legislative Changes in Family Law in Ontario

As we welcome 2012, a few legislative changes in family law in Ontario have come into force. Most notably, the new Child Support Guidelines became effective on December 31, 2011, and the pension provisions added under the Family Law Act came into force on January 1, 2012.*

The changes in the Child Support Guidelines reflect taxation changes in recent years. Individual amounts payable may have gone up, down, or remained the same.

If you were ordered to pay child support under the previous table amount, you do not have to change the amount unless the court further orders you to do so or you agree to do so. By the same token, if you are a recipient and would like to have the amount changed, you must either apply to the court to change the order or convince the payor to pay a different amount.

If the Family Responsibility Office (FRO) is involved, you must advise the FRO of any voluntary or court-ordered changes to child support payable.

Keep in mind that spousal support is linked to child support payable. Therefore, changes in child support payable may have an impact on spousal support payable.

The new pension provisions under the Family Law Act were aimed to provide clarity and expediency in dealing with pensions for family law purposes. The Pension Benefits Act was also amended to reflect the changes.+ The preliminary value of the pension, for family law purposes, is determined by the administrator according to the regulations at the valuation date.

If you don’t know the imputed value of your pension, you may apply to your administrator for a Statement of Value. (Application fees may apply.)

Of course, there are several restrictions and provisions as to how the pension may be transferred and paid out. For details, please consult your family law lawyer.

*R.S.O. 1990 C.F3, s.10.1

+R.S.O. 1990 C.P8, s. 67.1-67.6

This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.

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Positive Feedback on the Mandatory Information Program (MIP) in Family Law

Earlier this year the Attorney General of Ontario announced the implementation of a mandatory information program for litigants in family law. Many family law lawyers (myself included) were skeptical about the effectiveness of the program. Many litigants, upon learning that attendance of the information program would be mandatory, thought it would be a waste of time.

However, several months later, pieces of positive feedback from individuals (both represented and unrepresented) who attended the program are circulating among family law lawyers.

The program apparently isn’t as dry as most of us thought it would be. Rather, the presenters of the program are well-trained and helpful to the audience. In making their presentation, they use plain language and not legalese. They help the litigants to understand that litigation is only one of the many solutions available to address their family law problems. The presentation, I’ve heard, is actually very informative and (surprisingly) substantial.

For the most part, individuals who have attended the program have found the non-partisan nature of the MIP particularly helpful. Rather than a piece of potentially biased advice from their lawyer, they get to see the bigger picture, such as how the proceeding may affect their children and others around them.

If you’re scheduled to attend one, bring a pencil and a piece of paper with you. You may actually want to write something down.

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A Brief Note on Family Arbitration Agreements in Ontario

Today I’d like to discuss the pertinent points of family arbitration agreement in Ontario.

Family arbitration is an alternative dispute resolution process involving a private third-party arbitrator to decide on the disputes between the parties under their consent. There may be more than one arbitrator in a proceeding.

The Ontario Family Law Act* expressly defines family arbitrations, agreements and awards. The decision and any award rendered by the arbitrator under a family arbitration agreement are binding and enforceable under the laws in Ontario, subject to certain limitations.

First and foremost, the agreement must be in writing and meet the formal requirements of the Arbitration Act# and its regulations. Failure to observe these conditions will render the agreement and any subsequent decision and award unenforceable.

Second, a family arbitration agreement is unenforceable unless the agreement is entered into after the dispute in question has arisen. In other words, parties are unable to agree to family arbitration in advance of the dispute in question.

Further, the family arbitration must be conducted exclusively in accordance with the laws of Ontario or of another Canadian jurisdiction. If it is not, then the process is not recognized as family arbitration and the decision is not a family arbitration award and has not legal effect.

The parties are not allowed to vary or exclude the restrictions imposed by law.

Any award made under the family arbitration may be enforced or set aside in the same way as a domestic contract. For example, if the parties did not receive independent legal advice, the award will become unenforceable and be set aside.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

*R.S.O. 1990, c. F.3.

#S.O. 1997, c. 17

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Be Wary of SEO “Guarantees”

Recently I have received several calls from search engine optimization (“SEO”) companies. They all claimed that for a small fee, they could guarantee that my website would show up on the first search-result page, or even within the top 5 positions.

Don’t be fooled. There are no SEO guarantees.

Google and other search engines utilize a complex set of rules and factors to determine the ranking of the sites shown on the result page. The factors and rules, while they can be approximated by industry experts, are jealously guarded as trade secrets.

Under these rules, different input keywords will lead to different results. For example, using the keywords “Toronto Family Law” and “Family Law Lawyer Toronto” will generate considerably different results. While it’s true that sites with high traffic volumes may appear under both inquiries, the rankings will likely differ.

The IP address of your computer may also be a factor. Local results are usually shown more prominently than foreign ones.

Most search engine companies like Google and Yahoo! know that the SEO industry is perpetually deducing its rules and factors. Therefore, the engines constantly change their factors and rules, perhaps by assigning different weight to different factors by introducing new ones and retiring old ones.

Hence, anyone who can “guarantee” that your site will rank within the first search-results page is unlikely to be able to keep their promises for long.

What are you going to do when they can no longer keep their promises? If the companies are located outside Ontario and have few or no assets here, you are likely left without any meaningful recourse.

Be wary of anyone who offers you SEO “guarantees.”

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