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MY EX SPOUSE HAS FILED FOR BANKRUPTCY. HOW WILL I BE AFFECTED?

Bankruptcy for Divorced Spouses
Bankruptcy for Divorced Spouses

FACTS:

  • My ex spouse has filed for bankruptcy.
  • We signed a separation agreement one year ago.
  • We have dealt with child support, custody and access and transferring the RESPS.
  • We have not settled equalization and the division of the matrimonial home.

Below is a summary of the joint assets:
a. My spouse and I are on title as joint tenants to the matrimonial home. We had an appraisal done 6 months ago. It was valued at $1 million. We owe a mortgage in the amount of $450,000. There is also a CRA lien on title for $50,000 for income taxes owing by my spouse. I have been living in the house since we separated 12 months ago.

b. We have RESPs for each of our 2 children each in the amount of $15,000, net of government grants, totalling $30,000. Both children are in high school.

Question 1.

The Trustee has written to me claiming a 50% interest in the property, net of the CRA lien, as well as a 50% interest in the RESPs. What are my rights?

Answer: As a joint tenant you have a right to your share of the equity in the matrimonial home. You have no guaranteed right to stay in the home. You will have to work out an arrangement with the Trustee to purchase your husband’s interest in the home.

Question 2. Can I be forced to leave my home given that my children are living with me and attending school in the neighbourhood?

Answer: If you do not work out a settlement to buy your spouse’s interest in the property, the Trustee can go to Court for an order forcing the sale of the home. You could argue that leaving the home would cause you and your family undo hardship based on the following factors:

a. Your children are settled in the school and neighbourhood community. Their friends are all in the neighbourhood and they do extracurricular activities so the disruption imposed on them would outweigh the inconvenience to the Trustee if the Trustee must wait to sell the property.

b. You cannot afford to buy or rent an alternate residence in the neighbourhood/community.

This is a challenging argument on which to succeed, however it is available in certain circumstances, such as a child who has special needs that cannot easily be accommodated in a different school or you will have to move a great distance away from family and friends to find a new living situation. If you are confronted with a motion for sale, you should consult a lawyer to see if this defence is available. However, it is important to note that this is a temporary solution. Once your children have finished school, the Trustee will likely be free to move forward with the sale.

Question 3. How much do I have to pay the Trustee?

Answer: The negotiation starts with the following mathematical exercise:

  • Start with the appraised value
  • Subtract the mortgage
  • Deduct legal costs – $2500 + HST
  • Divide by two

The presumption with respect to joint ownership is that each of you and your spouse are each entitled to 50% of the remaining equity. This presumption, however, can be adjusted if you have contributed unequally to the property or there are encumbrances attributable to you or your spouse only.

Therefore, your husband’s equity will be reduced by $50,000 for the CRA lien because it is supported by a debt owing solely by your spouse. You can also claim compensation for the principal amount of the mortgage you paid over the 12 months. The Trustee would owe you one half of the principal pay down because you and the Trustee benefited equally from your payments towards the mortgage principal. If you have made improvements to the property that increased the value of the property, such as replacing the roof, major renovations such as a kitchen or bathroom renovation or finishing a previously unfinished basement, you will likely be entitled to a credit for this work as well.

Question 4. Do I get credit for other costs such as mortgage interest, insurance, taxes and utilities?

Answer: The short answer is no because you are enjoying the benefit of the property to the exclusion of the Trustee. The Trustee is legally entitled to an amount for occupation rent. In any negotiation, the Trustee’s claim for occupation rent generally offsets any claim you would have for these expenses which are generally referred to as “carrying costs”.

Question 5. How would I pay for my spouse’s equity in the house?

Answer: You have a few options to fund this purchase:
a. You can consult with your current mortgagee to see if you can increase your mortgage to buy out your spouse’s equity.
b. You can see a mortgage broker about discharging your existing mortgage and increasing the amount borrowed to buy out your spouse.
c. You can see a mortgage broker about obtaining a second mortgage to fund the buy out.

Question 6. What do I do if I do not qualify for a mortgage increase?

There are some options that may assist you:

a. As previously mentioned, you can raise a hardship argument that will buy you more time in the house and more time to raise the funds necessary to buy out the Trustee.
b. You may have claims in your spouse’s bankruptcy (either for support or equalization) that can be, in some circumstances, offset against the amount you would owe to the Trustee.

Question 7. My husband has transferred his share of the RESPs to me as set out in our separation agreement. Will the Trustee make any claim against them?

Answer: The Trustee will review the transfer and the separation agreement to ensure that the transfer was not improper and unfair to your husband’s creditors.
If the separation agreement was incorporated into a court order, the transfer will likely remain unchallenged.

If there is no court order, the Trustee will consider the following factors in order to decide whether to challenge the separation agreement:

a. How much time has passed between the making of the separation agreement and the bankruptcy assignment? The more time that has passed, the less likely it will be challenged. Separation agreements made on the eve of bankruptcy are particularly suspicious and susceptible to challenge.

b. What were the debts facing your spouse when he entered into the separation agreement and did your spouse know he was insolvent, or was he contemplating bankruptcy when he entered into the agreement?

c. What was the cause of the bankruptcy? Did the debt leading to the bankruptcy exist at the time of the separation agreement or did it occur subsequently?

d. Are you and your spouse abiding by all the terms of the agreement? I.e. Is support being paid on time and in the amount contemplated by the agreement and have the other terms been performed?

If the Trustee suspects the agreement and the resulting transfer of property was made to defeat your spouse’s creditors, the Trustee has a duty to the creditors to challenge the transfers. If this happens, you and/or your spouse will have to defend the separation agreement. If you cannot successfully defend the transfer, you will have to pay for your husband’s contributions, if you want to maintain the RESPs. If you cannot, the RESPS will be collapsed and you will have a property claim for the value of your contributions to them.

It is recommended for you to have the assistance of a lawyer, familiar with these issues, to assist you in your negotiations with the Trustee.

Are Alimony and Spousal Support the Same Thing?

Alimony and Spousal Support
Divorce is an extremely complicated legal process, even when it’s relatively simple. The entire process of ending your marriage can be confusing, full of terms you have never heard and may not understand.

While doing your initial research about whether you will have to pay or be able to receive financial support from your soon-to-be ex, you may have come across terms like spousal support, alimony, or maintenance. The fact that all these terms get thrown around in this context can be confusing, but we have some good news: they all refer to payments made by one ex-spouse to the other for the purposes of financial support.

How is Spousal Support Determined in Ontario?

In Ontario, the term used by courts is typically “spousal support,” but you may hear it referred to as alimony or maintenance by judges and lawyers. Ontario law views a marriage as an economic partnership and, in some cases, a court will order the higher-earning spouse to make payments to the other spouse for a period of time while he or she is able to achieve self-sufficiency.

The government provides judges with spousal support guidelines in order to ensure some level of predictability and consistency in spousal support determinations. That said, the guidelines are not legally binding, and judges have the ability to deviate from them if they feel it is justified. There are a number of factors that can play a role in how much support a judge will order, including:

  • The difference in income between the spouse
  • The length of the marriage
  • The age of the parties
  • The roles each party had during the marriage
  • Whether the couple has children

Who is Entitled to Spousal Support?

It’s important to first note that spousal support is not awarded in every divorce, and the party seeking support must prove to the court that he or she is entitled to it. Whether spousal support will be awarded in a particular case depends on a number of factors, including:

  • The age of the parties at the time of the divorce
  • The length of the relationship
  • Whether one spouse is able to support the other
  • Whether the spouse seeking support can become self-sufficient

Do you Need a Lawyer to Obtain or Fight Spousal Support?

Many people who are involved in a support dispute wonder whether they need a lawyer to protect their rights, especially in light of the fact that courts often defer to the support guidelines when making determinations. The fact is that judges have significant discretion regarding spousal support awards, and whether you are seeking support or trying to minimize it, it’s in your best interest to retain a lawyer familiar with practicing divorce law in Ontario courts.

Call Us Today to Speak with a Mississauga Divorce Lawyer

If you are getting divorced and have questions or concerns about spousal support, you should call Nanda & Associate Lawyers today. Our experienced family law and divorce lawyers are here to help you protect your rights. We speak 15 different languages: English, French, Hindi, Punjabi, Gujarati, Bangla, Chinese, Italian, Telugu, and Tamil. To schedule an appointment with one of our experienced family lawyers, including Jagmohan Singh Nanda, Glen Cook, Linda Starova, or Amal Nayyar, call our office or contact us online.

What You Need to Know About Inheriting Property in Canada

Inheriting Property

Inheriting Property

Inheriting Property – Probate, Wills & Estate in Canada

When dealing with the death of a loved one, the last thing you want to worry about is the hassle of probate court. An experienced Canadian estate lawyer can help you develop a plan to ease the burden on your loved ones after you are gone. If plans have not been put in place, an estate lawyer can help protect your legal rights throughout the probate process. Call Nanda and Associates at (905) 405-0199 to schedule a consultation with one of our experienced Mississauga probate lawyers.

How to Inherit Property When There is a Will

If a person properly executes a will before he or she dies, this document will likely control what happens to their assets after they are gone. There are certain key exceptions. A marriage after writing a will can invalidate a will, and divorce can nullify provisions that relate to the former spouse. A will cannot override property that is subject to other rules of ownership. (For example, a joint bank account that was created under rules of survivorship will not be distributed according to the terms of a will. In this case, the bank account would be fully transferred to the surviving owner without having to go through probate.)

A will might also be invalidated if one of the named beneficiaries does not survive the person who made the will. The law requires a beneficiary to survive the testator (the person who made the will). If he or she does not, the gift will revert to the estate. If the beneficiary survives the testator but is not alive at the time the inheritance is distributed, his or her beneficiaries can still receive the inheritance. These rules can create complicated scenarios, such as an accident that ultimately kills both the testator and his or her beneficiaries. Expensive probate battles have been fought to prove exactly who survived whom.

How to Inherit Property Without a Will

If a person dies without a will, there are default rules of law that determine who inherits his or her property. The Succession Law Reform Act applies to deaths that occur here in Ontario. It sets rules of succession for surviving spouses, children, grandchildren, parents, aunts and uncles, cousins, and so on. The rules continue for many generations. They can apply to distant relatives if no closer relatives have survived, but this presents a far more complex legal situation. A lawyer is usually required to clear up issues of inheritance when only distant relatives remain.

Experienced Mississauga Lawyers for Probate, Estates, and Wills

It is not pleasant to think about the end of your life. Nonetheless, a little bit of planning now can save your loved ones a lot of time and money after you pass away. If you are in the complex situation of dealing with an estate of someone who died without a will, it is important to consult with a probate lawyer about your legal rights.

Call Nanda and Associates today at (905) 405-0199 or contact us online. Our experienced Mississauga probate lawyers have helped many Canadians successfully navigate the complicated probate process. We can assist you with wills, trusts, estates, and related issues. Our staff speaks fifteen different languages, including English, French, Hindi, Punjabi, Gujarati, Bangla, Chinese, Italian, Telugu, and Tamil. We have the legal experience and language support to help serve all your probate needs and estate planning needs.

Will You Get Alimony after Your Divorce?

Alimony after Your Divorce

Alimony after Your Divorce

Divorce often presents many complicated financial issues. It is important for those facing divorce to consult with a lawyer about their legal rights. Alimony – also known as spousal support or spousal maintenance – can be worth hundreds of thousands of dollars over a lifetime and have a significant impact on your post-divorce quality of life. Don’t leave your legal rights to chance. Call Nanda and Associates at 905-405-0199 to schedule a consultation with one of our Mississauga divorce lawyers. Our lawyers have experience both pursuing and defending alimony claims.

How is Alimony Determined?

The Divorce Act governs spousal support awards under Canadian law. First, the spouse asking the court for an alimony award must prove that he or she is eligible for spousal support. Once eligibility has been established, the court will then determine the amount and duration of the award.

How to Prove You Are Eligible for Alimony

A person seeking alimony must first prove that an award would meet one or more of the purposes of alimony that is set forth in the Divorce Act. These are:

  • To compensate a spouse who sacrifices his or her ability to earn income during the marriage;
  • To compensate a spouse for the ongoing care of children, over and above any child support obligation; or,
  • To help a spouse in financial need arising from the breakdown of the marriage.

If one or more of these purposes are met, the judge will then examine the particular case to determine whether a spousal support award is justified. The judge will consider several factors, such as:

  • The financial means, needs, and circumstances of both spouses;
  • The length of time the spouses have lived together;
  • The roles of each spouse during their marriage;
  • The effect of those roles and the breakdown of the marriage on both spouses’ current financial positions;
  • The ongoing responsibilities for the care of the children, if any; and
  • Any previous orders, agreements, or arrangements already made about spousal support.

If the circumstances justify an award of spousal support, the court must then determine the amount of the award.

The Amount of a Spousal Support Award

The amount of a spousal support award is highly subjective. Unlike the Federal Child Support Guidelines, which judges are required to follow, the Spousal Support Advisory Guidelines are discretionary. Judges can choose to follow this advice or not as appropriate in each particular case. These guidelines “suggest appropriate ranges of support in a variety of situations for spouses entitled to support.” This reveals an important truth about spousal support: it is determined by the specific circumstances of each case. It is impossible to guarantee what a judge will award in a particular alimony case because there are simply no legal requirements. Judges have the discretion to award what is fair in each particular case. Around the world, other countries have alimony laws that follow this same principle.

Because spousal support awards are so subjective, lawyers have more room to argue alimony cases. A lawyer can freely argue that his or her client is entitled to more alimony based on the specific circumstances of the marriage. A lawyer also has wide latitude to defend a client from a high alimony claim made by the other spouse, because this too is determined by the specific circumstances of the parties’ marriage. This is why it is so important to consult with a divorce lawyer about your legal rights in an alimony case. This is especially true if your spouse has their own lawyer. Cases in which one spouse is represented by counsel and the other is not often result in settlements or judgments that are unfairly balanced in the represented party’s favour.

Experienced Family Law Lawyers for Mississauga Divorce Cases

You have important legal rights that are at stake in a divorce case. The sooner you consult with an experienced Mississauga divorce lawyer, the better protected your legal rights will be. Call Nanda and Associates today. Our staff speaks fifteen different languages, including English, French, Hindi, Punjabi, Gujarati, Bangla, Chinese, Italian, Telugu, and Tamil. We have the legal experience and language support needed to aggressively defend your legal rights. To schedule a consultation with a lawyer, call our office today at 905-405-0199 or contact us online.

Ontario Court awards disputed frozen embryo to ex-wife

Ontario Court awards disputed frozen embryo to ex-wife

In a precedent-setting case, an ex-wife has been allowed to be implanted with a frozen embryo which was purchased by the now-divorced couple.

An Ontario Court ruled in S.H. Vs D.H. that the ownership of the embryo was decided from the clauses in the contract which the ex-couple signed. In the pursuit of fertility, the ex-couple got the embryo which was created from donated eggs and sperm and resulted in a son.

Superior Court Justice Robert Del Frate said that no law decides on the disposition of the embryo when none of the parties has a biological connection to it. Buyer’s remorse is not applicable in such a circumstance.

Case Facts

The couple mentioned above identified as D.H. and S.H., who got married in 2019.

They purchased donated sperm and eggs from an American facility for US$11,500. Four embryos resulted from the process from which two viable ones were sent to a Mississauga fertility clinic. One was successfully implanted in D.H, and the other remained frozen in storage.

The son was born in December 2012, nearly the same time the couple split up. It resulted in a dispute over the embryo in an acrimonious divorce.

D.H requested the courts to award her the stored embryo stating that the contract contained a clause which stated that the patient’s wishes would be respected in the event of a divorce. She further stated that she is the ‘patient’ in the contract and her wishes should be respected as the stored embryo was the only source connecting her son to his biological family. She also agreed never to seek child support from her ex in the future.

S.H., the ex-husband claimed ownership stating he paid for the embryos and wanted them donated as they were his property, as per the contract signed with the Canadian clinic and Georgia Facility. He further argued that as per submitted documents, his ex is barely employed and would not be able to support their son and the future child born of the embryo.

The Judge stated that the embryos were joint property as per the terms of the contract and belonged to both the parties. He further considered the intentions of the parties when deciding on the ownership. Del Frate ruled out the financial status and income flow of D.H. and the best interests of the son by stating that she had the right to make personal decisions without making any reference to her financial status. The legal implications of having a sibling were also ruled out as a determinant by the judge.

The judge ruled that the contract and the parties’ intentions were major determinants for the court to make any decision. He ruled that the frozen embryo would be awarded to the ex-wife and awarded S.H. US$1438 for his half share. The value of each embryo was decided to be worth US$2875 based on the purchase price.

Even though Canadian law prohibits buying and selling of embryos, the legal conflict in the case was not raised. It also led to speculation as to what would happen in a circumstance where parties are genetically connected to the embryos. Would they still be treated as the property of parties? Well, this is something which we need to wait and watch.

How We Can Help

At Nanda & Associate Lawyers, our knowledgeable Family Law lawyers take the time to understand your specific circumstances and provide tailored and customized solutions. Many legal complexities exist in navigating cohabitation agreements, and an experienced Family Law lawyer can help you to navigate better.

Our Mississauga Family Law Lawyers are available for a no-obligation free consultation. Come and experience our quality legal counsel and personalized care we provide to each of our clients. We ensure prompt communication and a caring approach to get the best outcomes for you and your family.

Social Media Activity Becomes Bone of Contention in Family Law Case

Social Media Activity Becomes Bone of Contention in Family Law CaseSocial media is an effective online platform enabling people to share information and remain connected in spite of large physical distances. Increasingly they are playing a pivotal role when relationships are dissolving and affecting families. In fact, in family law cases, information on social media platforms like Facebook, Twitter and Instagram are being cited as crucial evidence.

Electronic communications on such platforms have implications which extend to the legal arena as well. Communication on messages, tweets, online chats, e-mails are all allowed to be used as evidence and can affect a person’s legal interests.

Case Facts

In a recent case of Cooper v. Primeau, social media played a vital role and attracted the attention of judges to how critical it was to pay attention to detail while resolving family law disputes. In this case, the father was the respondent who was posting insulting and abusive comments about his ex-spouse on many social media platforms such as Facebook.

The applicant was the mother who was seeking retroactive child support due to change in material circumstances of the father. She had also claimed that the father was unresponsive and not available on the phone or in person. Finally, the issues of custody of their two young children and child support payments were addressed by the court rulings.

Once the above factual issues were resolved by the court, two pressing issues were still on the table which were:

  • If the parents would be sharing their phone numbers with each other
  • If the parents were allowed to post pictures of their children online on social media platforms and make comments regarding them and each other

The father agreed to provide his phone number but limited the use of communication only to any emergencies with respect to their children. The court approved the request and accordingly made an order.

Regarding the social media contention, the decision was not easy. The mother had made many accusations against the use of social media platforms by the father. She mentioned that he was making derogatory remarks against her which were visible to the world through online communications and had taken many steps such as:

  • Blocking her on major social media platform such as Facebook;
  • Making social media a platform to make abusive comments about her and broadcasting their family dispute to the world;
  • Mentioning their family issues of child custody and access on social media and unfairly sharing it with the world;
  • Was unethically using crowdfunding on social media platforms to raise money for help in his legal expenses while painting the mother in a negative light

The father stated in his defense that he was using social media as a tool to allow his family to get to know his children.

Legal Implications

The court ruled that he was allowed to publish pictures and comments about his children online. Anything related to the child custody dispute or derogatory comments about the mother should not be made by the father at any time on any online platform as it was not in the best interests of the children.

How We Can Help

At Nanda & Associate Lawyers, our knowledgeable Family Law lawyers take the time to understand your specific circumstances and provide tailored and customized solutions. Many legal complexities exist in navigating cohabitation agreements and an experienced Family Law lawyer can help you to navigate better.

Our Mississauga Family Law Lawyers are available for a no-obligation free consultation. Come and experience our quality legal counsel and personalized care we provide to each of our clients. We ensure prompt communication and a caring approach to get the best outcomes for you and your family.

What Do Common Law Partners Receive When They Separate?

What Do Common Law Partners Receive When They Separate?If you are cohabiting with your common-law partner, you may have wondered what would happen if you both separate in the future.

Well, you are not alone. Many couples in a relationship or about to enter a new common-law relationship have this apprehension when they want to safeguard their assets from the impact of any future separation.

What Happens in a Common Law Separation?

So, if you are paying down most of the mortgage on your house, you may wonder whether your common law spouse has a share in the house. The answer to that depends on a variety of factors.

If the house was purchased jointly, that is both yourself and your common law spouse were placed on the title, then the house would be divided equally irrespective of how much each partner shared in making the mortgage payments. The common law spouse’s behaviour or lack of sharing in the mortgage payments will have no bearing whatsoever on his/her ownership of half the property. The value a spouse has in the property also does not freeze as of date of separation, but continues until date of eventual sale of the property even if they left the property post-separation and did not contribute towards any of its expenses since. In this case however, the spouse that carried the mortgage expenses and/or occupied the property can ask for their payments to be taken into account upon eventual sale. Either spouse can at any time request the court to have the house sold. Neither spouse has the right to exclude the other from the property absence a restraining order or a court order for exclusive possession.

If the house was purchased by one prior to the common-law spouse moving in, or was purchased together but only placed in one spouse’s name, then absent a trust claim by the non-owner common law spouse, he/she will have no claim to that property. The right of equalization is not present with common law spouses in Ontario regardless of the length or the relationship or cohabitation. Neither is a right to occupy the home if the owner demands it to be vacated. No matrimonial home designation can be made on the title of the property. A trust claim is difficult to make, and requires a court application. Owning spouse is free to do as he/she pleases with the property absent a court order or court ordered Lien against the property. To successfully establish a trust claim there has to be a clear record of payments made by the non-owning spouse towards the property’s down payment, mortgage payments and/or repair work to increase the value of the property along with the fact that as a result the owning spouse has been unjustly enriched.

In short, in the event of a separation, common law partners are entitled to 100% of their properties and assets. Sharing of the assets is done only for jointly owned properties. The common law spouses do not have automatic property rights over the spouse’s property like married couples. They possess rights over the spouse’s properties only if the property title has been legally transferred to them by giving, inheritance or other voluntary transfers.

Is there any exception to the common law rules for the sharing of property?

The concept of unjust enrichment is an exception to the common-law property division rules. Also known as constructive trust, this is the remedy for all situations where unjust enrichment has been done.
Under this claim, a common law spouse can claim for return of the benefit arising from their contribution to the other spouse’s property. This contribution can be by doing a renovation, working on the land or paying down the mortgage.

The defendant should have had a benefit to the plaintiff’s disadvantage without the existence of any reason to benefit legally. The labour done for the property or using the property must not have been compensated by way of rent or any other similar payment.

This claim and remedy are applicable to common law spouses and other persons not in common law relationships. So, unjust enrichment can arise in cases where a person helped his/her neighbours by building their house.

Are there other approaches to deal with common law asset divisions?

There are other approaches as well for spouses dealing with separation in their common law relationships. A Joint Family Venture is a concept where property rights present in the common law relationship are sought to be made equivalent to the rights present in a marriage.

As identified by the Court, the Joint Family Venture has very similar traits if compared to net family property equalization. Though this is a good approach, it can be challenging to implement as the separation date is not as clear as in case of a marriage.

What Are the Things to Note in a Common Law Split?

If common law couples turn to litigation, their property will most likely be equally divided if they jointly own real estate and other assets. Staking claim to one’s own property will not result in a legal dispute when the relationship ends.

How are the assets divided if a married couple separates?

If a married couple splits, their property rights are governed differently. In death and separation cases, a spouse can request the court for net family property equalization. In such cases, the spouses each get half of the growth in the value of their assets from the date of the marriage to the valuation. The date of valuation can be either the date of the spouse’s death or date of separation. The opportunity to equalize can be opted for by a spouse if the spouse is being treated less favorably by the deceased spouse’s estate.

How We Can Help

At Nanda & Associate Lawyers, our excellent Family Law lawyers take the time to understand your specific circumstances and provide tailored and customized solutions. Many legal complexities exist in navigating cohabitation agreements and an experienced Family Law lawyer can help you to navigate better.

Our Mississauga Family Law Lawyers are available for a no-obligation free consultation. Come and experience our quality legal counsel and personalized care we provide to each of our clients. We ensure prompt communication and a caring approach to get the best outcomes for you and your family.

Establishing Time Limits on Spousal Support Waivers

spousal-support

Establishing Time Limits on Spousal Support Waivers Establishing time limits on spousal support waivers can act as a positive force to reduce the possibility of Cohabitation Agreements challenges.

Case Facts

Recently, the Ontario Court of Appeal upheld a cohabitation agreement which barred both the parties from making spousal support claims. The cohabitation agreement was signed in 1997 when the parties were living together.

At the time of litigation, the couples were married with two children. In Court, the contract was sought to be nullified by the wife on the premise that it did not seek to meet the Divorce Act objectives.

Decision and its Legal Implications

Ontario’s highest court sided with the trial judge in declaring that the cohabitation agreement complied with the Divorce Act. It should be noted that the agreement did not have any time limits on spousal support waivers.

Established Family Law Lawyers agreed with the decision stating that the right to support should be a waiver for a specific time period and the fact that relationships can change in the future should be acknowledged in agreements.

Marriage and cohabitation agreements are more often used by persons with multiple marriages. In the case, the husband wanted to avoid his first messy separation and entered into the cohabitation agreement. The wife did not take independent legal advice before entering into the agreement.

It is recommended that a skilled and experienced Family Law Lawyer be consulted before you enter into any contract or agreement. A lawyer can support you in understanding all your options and the legal implications of any decision or agreement.

How We Can Help

At Nanda & Associate Lawyers, our excellent divorce lawyers take the time to understand your specific circumstances and provide tailored and customized solutions. Many legal complexities exist in navigating joint divorces, and an experienced divorce lawyer can help you to navigate better.

Our Mississauga Family Law Lawyers are available for a no-obligation free consultation. Come and experience our quality legal counsel and personalized care we provide to each of our clients. We ensure prompt communication and a caring approach to get the best outcomes for you and your family.

The Eligibility for Child Support for Adults with Disabilities

The Eligibility for Child Support for Adults with DisabilitiesAn Ontario Court of Justice case, Coates v Watson, has broadened the child support eligibility for adult children with disabilities of unmarried parents.

Previously, under Ontario’s Family Law Act governing unmarried parents, adult children were eligible for child support only if they are in full-time school. However, under the Divorce Act, an adult child who is unable to live independently due to disability, illness or other reason, is eligible for support.

In this case, the Judge adopted the Divorce Act wording, and matched the federal and the provincial legislation and brought them on an equal level. This ruling enables adult children with disabilities of unmarried parents to claim support who are not able to leave their parent’s care due to illness or any other reason.

Case Facts

In this case, Ms. Coates, an unmarried mother of an adult son with disabilities, successfully challenged her estranged partner in court and was awarded monthly child support of $518.14 for her disabled adult son, throughout his life.

Ms. Coates’ son, Joshua, has a rare genetic composition that prevents him from working and withdrawing from his mother’s care. He has many health problems that necessitate financial support and supervision throughout his life. Joshua has been a recipient of support payments from the Ontario Disability Support Program, Development Services Ontario and Brampton Caledon Community Living programs.

Joshua’s father, Mr. Watson, acknowledged a support obligation for his son until he turned 18. He argued that he was not legally bound to support his son beyond this age because social assistance is available for him. Ms. Coates claimed that the funding received from the various public support programs fail to adequately cover Joshua’s medical and recreational expenses that cost up to $1400 a month. She claimed support from his father, Mr. Watson to bear about $800 or approximately half of the actual expenses.

The Decision and Legal Implications

The Judge concluded that section 31 of the Family Law Act violates Joshua’s section 15(1) Charter rights that guarantee that every individual is equal before the law and has the right to equal protection of the law without discrimination. The Judge concluded that the law discriminates between adult, disabled children of once-married parents and adult, disabled children of never married parents. Section 31 of the Family Law Act is not saved by section 1 of the Charter.

This decision gives hope to single parents caring for children with disabilities and opens the door for unmarried parents caring for adult children with disabilities to claim child support for them.

Custody and Access Jurisdiction – When Does the Court Decide?

Custody and Access Jurisdiction – When Does the Court Decide?

The court’s jurisdiction to determine custody and access issues for children not habitually resident in Ontario: McLeod v Peppe, 2018 ONSC 2364

In a recent case, McLeod v Peppe, the court assessed when an Ontario court has jurisdiction to decide a child custody and access case where the child is not habitually resident in the province.

Background and Issue:

The Applicant, Bradley Thomas McLeod (the “Applicant Father”) and the Respondent, Louise Ann Peppe (the “Respondent Mother”) have one child of the marriage, namely Linden Laverne Peppe McLeod, born February 26, 2015 (“Linden”). The parties married in the State of Utah on August 16, 2010. They separated on or about December 24, 2017.

The Applicant Father commenced an application dated January 17, 2018 in Ontario seeking various relief, including, custody and primary residence, child support, and access for the Respondent Mother, pursuant to the Family Law Act or the Children’s Law Reform Act (“CLRA”). Notably, the Divorce Act did not apply because neither party had been ordinarily resident in Ontario for at least one year, as required by section 3(1).

Upon filing his Application, the Applicant Father filed an urgent motion seeking, among other relief, primary residence of Linden. The Respondent Mother challenged the jurisdiction of the Ontario court to determine this motion pursuant to section 22(1) of the CLRA.

The issue to be decided is: Has the Applicant Father satisfied the six conditions prescribed in section 22(1)(b) of the CLRA as necessary for the Ontario court to have jurisdiction to hear and determine this matter?

Statutory Considerations:

Section 22(1)(a) of the CLRA provides that an Ontario court has jurisdiction where a child is habitually resident in Ontario at the commencement of the application. The parties agreed that Linden did not meet this test because he had not lived in the province with both parents.

Since Linden did not meet the habitual residence test, the provisions of section 22(1)(b) must be assessed to determine if the Ontario court has jurisdiction. A court has jurisdiction to make an order for custody or access where, although the child is not habitually resident in Ontario, the court is satisfied:

  • That the child is physically present in Ontario at the commencement of the application for the order,
  • That substantial evidence concerning the best interests of the child is available in Ontario,
  • That no application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
  • That no extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
  • That the child has a real and substantial connection with Ontario, and
  • That, on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.

The Facts:

The parties were married in Utah on August 16, 2010. They moved to California in 2012 and lived there for five years. While residing in California, the Respondent Mother gave birth to Linden.

In 2017, the Applicant Father received an offer of employment in Windsor, Ontario. He accepted the offer. Following his acceptance, the Respondent Mother and her mother travelled to Windsor and made an offer to purchase a family residence there. The offer was accepted and scheduled to close on January 31, 2018.

The parties and Linden left their California residence in the first week of December 2017 and flew to Detroit, Michigan. Their plan was to travel to London, Ontario to visit the Applicant Father’s parents before heading to Windsor. Upon arrival in Detroit, the Respondent Mother realized that she did not have her passport and was unable to cross into Canada. She reported that while in Detroit, the Applicant Father became abusive.

The Respondent Mother travelled with Linden to Connecticut where her parents reside. On or about December 24, 2017, she informed the Applicant Father that she intended to separate. On December 31, 2017, the parties executed a document that gave the Applicant Father permission to take Linden to visit his family in London, Ontario and him in Windsor. The document stated that the Respondent Mother intended to pick up Linden in mid-January 2018.

Upon returning to Canada with Linden, the Applicant Father commenced his application. Prior to the motion, the Applicant Father had already commenced employment in Windsor, taken possession and sole ownership of the Windsor property, moved into the house with Linden, and enrolled him into daycare. The Respondent Mother remained in Windsor while the litigation continued and maintained regular access with Linden.

The Court’s Finding:

The Applicant Father has satisfied each of the six conditions prescribed in section 22(1)(b) of the CLRA. The court concluded that it has jurisdiction to hear and decide the motion.

Application of the section 22(1)(b) of the CLRA test and analysis:

The Respondent Mother conceded that subparagraphs (i), (iii) and (iv) had been met. However, she asserted that the remaining conditions had not, and as such, the Ontario court did not have jurisdiction.

The court held that all six conditions had been met. Regarding the conditions in dispute, the court held as follows:

Has the applicant established that substantial evidence concerning the best interests of the child is available in Ontario?

Given Linden’s young age, the court held that substantially all the evidence concerning his best interests correlated to his interactions with his parents. This evidence was in Ontario. The court disagreed with the Respondent Mother’s assertion that more substantial evidence exists in California, noting that an assessment of whether substantial evidence exists in Ontario does not involve a comparison of the evidence that may exist in other jurisdictions.

Does the child have a real and substantial connection with Ontario?

Linden has a real and substantial connection with Ontario. The Applicant Father lives and works in Ontario. Moreover, the Respondent Mother had a “settled intention” to reside in Ontario, based on her decision to relocate to Ontario, her severing of her and Linden’s residential ties to California, by her travelling to Windsor and making an offer on a family home, and by travelling to Detroit with the intention to reside in Ontario.

The court held that the Respondent Mother’s decision to separate did not unilaterally revoke her consent to their shared intention that Linden would reside in Ontario.

On the balance of convenience, is it appropriate for jurisdiction to be exercised in Ontario?

e court held that Ontario is the appropriate jurisdiction. The court rejected the Respondent Mother’s submissions that the Applicant Father’s initiation of proceedings in Ontario amounted to forum shopping. Specifically, it held that section 22(1)(b) of the CLRA is intended to prevent forum shopping by establishing six conditions that must all be met as a precondition to conferring jurisdiction related to a child not habitually resident in Ontario.

The court held that the unique facts in this case justified an adjudication of the jurisdictional issue and that each party shall bear their respective costs.

You can read the full case at: http://canlii.ca/t/hrlxb