Past Conduct of Parents in Determining Custody and Access

Can the Past Conduct of a Parent be Used to Determine Custody and Access?

I have had clients in the past come to me with this question wondering if they could use the behaviour of their former spouse as evidence that custody or access should be limited as a result of their actions. While this could be true, generally it will only matter where those actions have an effect on their ability to parent the child.

Let’s look a little closer at what this actually means.

First, we need to have a refresher on the “Best Interests of the Child” under s. 24(2) of the Children’s Law Reform Act (“CLRA”). From here, we can now look at how past conduct of a spouse may be factored into that list under s. 24(2).

24(3) of the CLRA shows us that past conduct can be considered but ONLY in relation to custody or access and ONLY THEN in accordance with s. 24(4) of the CLRA. The language in these sections identifies that the conduct will be considered only if the conduct is relevant to the person’s ability to act as a parent (s. 24(3)(b)), and also if there was violence or abuse against the spouse, parent of the child, member or persons’ household, or any child (s. 24(4)).

Keep in mind that anything done in self-defence or to protect another person does not fall under this category of violence or abuse mentioned above (see. S 24(5)).

The Divorce Act (“DA”) also makes mention of these issues under s. 16(9), where again they show that the past conduct is not relevant unless it affects the persons’ ability to act as a parent.

Let’s take adultery as an example.  Somerville v. Somerville is one such case where the extra-marital affair of the husband resulted in the end of the marriage.  What the court found was that the affair only spoke to the husband’s ability as a spouse, NOT his ability to act as a parent to his child.  Therefore it was not a relevant consideration when determining custody or access.


Relevant Parental Conduct

When determining custody or access, courts start with relevant parental conduct to determine who the custodial parent would be and who would be entitled to access.  These initial relevant considerations could include, but is not limited to:

  1. Who has been making the decisions for the child?
  2. How often does the child see each parent currently?
  3. Who prepares the food and clothing for the child?
  4. Who arranges after school activities etc?

Adjusting Terms of Access

After the initial assessment, courts will then see if the conduct of the parents should be considered to see how the terms of access might change such as: frequency, duration, supervision, overnight access, or even if access should be denied.

To support this analysis under s. 24 of the CLRA, Justice Dunn in T.(R.R.) v. T.(G.) considered the use of additional factors:

  1. the non-custodial parent’s acceptance of the custodial parent’s responsibility for the child’s discipline and conduct;
  2. the non-custodial parent’s punctuality, attendance and behaviour on access visits;
  3. the non-custodial parent’s attempts to keep informed of the child’s current events, health and achievements;
  4. the non-custodial parent’s attempts to help the child adjust to returning to the custodial parent; and
  5. the non-custodial parent’s sensitivity to time limitations on the visit.

Sample Case T.(R.R.) v. T.(G.)

In T.(R.R.) v. T.(G.),  the father was denied access because he:

  1. Repeatedly showed up for visits drunk;
  2. Left multiple threatening messages on the mother’s answering machine;
  3. Acted inappropriately during his access visits;
  4. The children didn’t want to visit with the father; and
  5. The children were in a better emotional state when they did not see the father.

Here we can clearly see that the conduct of the father was directly affecting his ability to parent the children.

As a final note, I would like to point out that no parent has an inherent right to access to the child simply because they are the biological parent, nor do they have any proprietary rights or even domain over their child.  See Montgomery v. Montgomery, where the court was clear in showing that no biological link should be permitted to surpass the best interests of the child.

 

Case Citations:

  1. Somerville v. Somerville, 2007 ONCA 210, [2007] O.J. No. 1079, 2007 CarswellOnt 1697, 36 R.F.L.(6th) 7
  2. (R.R.) v. T.(G.), [1994] O.J. No. 2453
  3. Montgomery v. Montgomery, [1992] O.J. No. 2299, 42 R.F.L.(3d) 349 (C.A.) (at 360 [R.F.L]

 

Legal Disclaimer that this is information only and not to be construed as legal advice.

Is Probate really necessary? Not if it is the “First Dealing” of the Property since Conversion

Several years ago the Province of Ontario changed from the Registry System to the Land Titles Conversion Qualified (LTCQ) system for the registration and searching of real estate title (ownership).  The Registry Systems was a paper system, whereas, the LTCQ system is an electronic system, which provides efficiency in searching and registering title and provides assurances that the title registered is valid title, due to the fact that there is no concern of duplicate entries, as was prevelant in the paper Registry System.

If a transfer or sale of a property is being completed and a deceased party is registered on title it is important to know whether or not probate is required to be completed, as the cost savings from not having to complete probate can be substantial.

It is important to know that probate does not have to be completed on a property where it is the first dealing of the property since it has been converted from the Registry System to LTCQ.

The First Dealings Exemption is available in instances where the deceased party on title acquired the property while it was registered under the Registry System and continued to be registered on title, uninterrupted, after it was converted to LTCQ. This First Dealings Exemption would continue to apply as long as the deceased did not transfer their ownship of the property, so the fact that they registerd and discharged mortgages after they acquired the property would have no effect.

The First Dealings Exemption would continue to apply in the instance that a joint tenant, who was registered on title previously with the recently deceased, passes away and a survivorship application was completed to transfer the title solely into the ownerhsip of the recently deceased. Lastly, transfers of title between spouses due to the breakdown of the marriage would not result in the First Dealings Exemption being lost. However, if there is no valid Will and Last Testament then such discrepancy will vitiate the usage of the First Dealings Exemption.

The Divorce Process

Should you determine that your relationship is over and that you wish to get divorced, you will need to follow the process outlined below in order to officially terminate your marriage.  If you are unsure about the nature of your relationship, take a look at our previous blog posts regarding Common law vs. Marriage and Separation and Divorce for a background regarding what is required in order to be eligible to get divorced.

Generally, the reason a divorce is granted is because two married persons have been separated for a year. However, you do not need to actually wait for a year of being separate before you can begin the divorce process. You will just have to wait until the year is up before a judge can grant you a Divorce Order. Be aware that if you reconcile the relationship for more than 90 days you will have to start the year separation period over again- (see separation and divorce article for more information). If you are getting divorced as a result of adultery or physical or mental abuse, then you do not need to wait for a year for the Divorce Order to be granted.  However, you will need to provide documentation or other evidence to support your claim for adultery, physical or mental abuse as a reason for breakdown of marriage.

Both spouses do not need to agree to the divorce, either spouse can apply for it. However, if one spouse brings the application for divorce, the other spouse has the ability to contest it, see s. 8(1) of the Divorce Act (“DA”) and Rules 8 and 10 of the Family Law Rules .

One final thing to be mindful of is that judges will not grant a divorce if they believe that no reasonable arrangements have been made to support the children of the marriage, see s. 11(1)(b) of the DA.

Can I get Divorced if I’m not a Canadian Citizen?

Yes. Canadian citizenship is not a requirement for divorce in Canada. However, it is required that you or your spouse have been living in a Canadian Province for at least 1 year preceding the divorce, see s. 3(1) of the DA.

Things to Consider when Getting Divorced

Before getting divorced, it’s important to think about the following family matters:

  1. Custody and Access for children;
  2. Child and Spousal support;
  3. Property Division including things such as:
    1. Who gets the matrimonial home?
    2. How to split pensions;
    3. What happens to bank accounts?
    4. Who pays off any existing debts?

These issues can be dealt with in a separation agreement instead of through court which can save a lot of time and money. Judges will take separation agreements seriously and are unlikely to overturn items in the agreement unless there are deficiencies with the agreement or information was not disclosed (see our previous post on separation agreements for more information). Judges also have the ability to make decisions on the above noted matters before a divorce is finalized through Endorsements and Orders. It is best to speak to a lawyer regarding your rights and obligations to ensure that you are properly protected during the divorce process.

3 Different ways to Approach a Divorce

Depending on your particular circumstances, you have three options available to you should you wish to proceed with a divorce:

  1. General Application;
    1. This approach is taken when the parties cannot agree on how family matters should be resolved;
  2. Simple Application;
    1. You make this application where the ONLY THING you are claiming is a divorce;
  3. Joint Application;
    1. You can take this approach when both you and your ex spouse consent to a divorce and bring the application together;
    2. You can also bring a joint application where you both agree on all family matters.

What will I need to begin the Divorce Process?

This will depend on what type of application you bring. Different applications require different forms depending on your particular circumstances and what issues are contested between you and your ex spouse.  It is highly advised that you speak with a lawyer to determine which forms you will need to ensure you are properly protected. See this link for a list of Family court documents that you can review – http://ontariocourtforms.on.ca/en/family-law-rules-forms/.

One document that you will have to have is you marriage certificate. If your marriage certificate is in another language you will have to get it translated. If your spouse is deceased you will need proof of death.

Documents you generally need for a Divorce include:

  1. Form 8 Application;
  2. Form 6B Affidavit of Service;
  3. Form 36A Affidavit of Divorce;
  4. Form 25A Divorce Order.

If there are outstanding family matters that need to be deal with, you might also need the following:

  1. Form 13 or 13.1 Financial Statements if support or property are contested;
  2. Support Deduction Order;
  3. Form 35.1 Child Custody and Access.

 Is there a time limit for me to apply for a Divorce?

There are no time limits (what are called limitation periods) to apply for a divorce. Nor are there limitation periods to apply for child or spousal support. However, spousal support is based heavily on need; if you do not apply for spousal support for several years a judge may be inclined to see that you do not need support and may not grant it. Child support is the right of the child and courts will uphold this very strictly.  See our posts on spousal support and child support for more info.

Also, there is no limitation period on custody and access applications. You must be mindful of something called the status quo however. Judges do not want to disrupt a child’s stable home environment and are less likely to change it if their current situation has been in place for some time.

There are limitation periods for an equalization payment (see previous post for more information). These limits under s. 7(3) of the Family Law Act are as follows:

An application regarding an equalization payment cannot be brought after:

  1. 2 years after day of Divorce of annulment;
  2. 6 years after separation and there is not prospect they will resume cohabiting;
  3. 6 months after death of a spouse.

Do I need a Lawyer in order to get Divorced?

No. You can bring the application yourself, or jointly with your spouse without the aid of a lawyer. However, it is always best to seek the counsel of a lawyer specializing in family law to ensure all your rights are protected, ESPECIALLY when there are a lot of issues between you and your ex spouse that you do not agree on. Lawyers have the expertise with the law and court procedure to ensure that the divorce can move ahead as smoothly as possible.

Even if it is a simply divorce, having a lawyer support your through the process can greatly reduce stress and complications.

When does the Divorce actually take effect?

31 days after the date on which judgment granting the divorce is rendered, see s. 12(1) of the DA. Generally, this means you have to:

  1. Start the application by filing and issuing appropriate documents for divorce;
  2. Serve other party and wait to see if they respond (minimum of 30 days after serving your ex spouse);
  3. File the affidavit for Divorce and Divorce Order for the Judgment if no response from your ex spouse;
  4. Wait for Judge to provide the Judgment granting Divorce and to sign the Order;
  5. Wait 31 days after the date of the signed Order.

This process usually takes a few months but can be much longer depending on how litigious both parties are. If you are granted the Divorce, s. 13 of the DA states that it is effective across all of Canada.

Furthermore, s. 12(7) of the DA states that the court must provide you with a Divorce certificate if you request it that can be effective as of a specified date.

Can I change the Divorce Order?

Once that 31 day period after the Order is signed by the Judge passes the Divorce is final. However, this does not mean that you cannot revisit certain items such as custody, access, or support.  These items can always be changed should both parties consent to any changes or the court deems it just. This is because income can change, spouses may want to move or any other material change that may require a change to the arrangements in place at the time of divorce.

Contact our knowledgeable staff here at Rabideau Law to see how we can assist with any divorce or family law issues you may have.

Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation.

Canada's legalization of Cannabis Use: How will it affect family law?

Canada’s Legalization of Cannabis Use: How Will it Affect Family Law?

Canada’s new Cannabis laws came into force October 17th, 2018, and it is important that persons who choose to consume the drug be aware of what the new laws allow (for a summary of some of the new laws see http://www.justice.gc.ca/eng/cj-jp/cannabis/).

Failure to properly understand the laws and what is permitted regarding possession, distribution, and consumption could cause complications not only for criminal reasons, but potentially family law reasons as well.  These complications could affect some family law issues such as:

  1. Custody and Access
  2. Residency
  3. Mobility

What does The Cannabis Act allow?

Individuals can now legally do the following:

  • possess up to 30 grams of legal cannabis, dried or equivalent in non-dried form in public
  • share up to 30 grams of legal cannabis with other adults
  • buy dried or fresh cannabis and cannabis oil from a provincially-licensed retailer
    • in provinces and territories without a regulated retail framework, individuals are able to purchase cannabis online from federally-licensed producers
  • grow, from licensed seed or seedlings, up to 4 cannabis plants per residence for personal use
  • make cannabis products, such as food and drinks, at home as long as organic solvents are not used to create concentrated products

It is important to note that cannabis must be supplied from a legal source as described above.  Any illicitly acquired cannabis is not protected by the act and may result in penalties.  Furthermore, although edible products can be produced at home, they are not legal for sale for approximately one more year.

Youth and Cannabis

One of the purposes of The Cannabis Act (the “Act”) is to protect the youth from accessing cannabis.  As the Act provides, “No person may sell or provide cannabis to any person under the age of 18”.  This means that individuals cannot give or sell cannabis to youth, or use a youth to commit a cannabis-related offence.

Travel and Cannabis

Cannabis is still illegal in most of the United States.  Crossing the border without properly understanding these laws could create significant issues.  Also, each province is responsible for developing their own regulations regarding Cannabis such as:

  • increasing the minimum age in their province or territory (but not lowering it)
  • lowering the personal possession limit in their jurisdiction
  • creating additional rules for growing cannabis at home, such as lowering the number of plants per residence
  • restricting where adults can consume cannabis, such as in public or in vehicles

Pardons for Simple Pot Convictions

Now that individuals are allowed to possess up to 30 grams of legal Cannabis, Ottawa is moving to pardon those with a pot possession conviction of 30 grams or less (https://globalnews.ca/news/4558996/cannabis-pardons-simple-possession/).  However, those seeking the pardon will have to apply for one.

How might this affect Family Law?

Some questions that may be tested in the future regarding these new laws could include:

  1. Should a parent be allowed to exercise access visits at their home if they fall within the allowed possession or consumption laws? Would this be contrary to the purpose of the Cannabis Act to protect the youth?
  2. What happens if a parent owns illicit cannabis that was shared improperly between adults and contrary to the new laws? Would a judge factor this into any parenting arrangements?
  3. If a person had their parenting arrangements affected by a pot possession conviction, how could that change if their possession conviction is then pardoned?
  4. What if a parent tries to take the child across the border to the US or another province, but is found with legal marijuana in their possession? Would this be factored in negatively by a judge at any family law court proceedings?

Case law will be developed over time regarding Cannabis consumption and possession and how it can affect Family law issues.  We will be keeping an eye on how these and other issues will be interpreted by courts to ensure that we can provide you with up to date information on the issue.

 

Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation.

Rabideau Law Food Drive 2018

We are proud to announce that we will be holding a Food Drive from November 1st-27th in support of The Food Bank of Waterloo Region, and in the spirit of GivingTuesday.

What is GivingTuesday?

As stated on the GivingTuesday website:
It is a global movement for giving and volunteering, taking place each year after Black Friday. It’s a time when charities, companies and individuals join together and rally for favourite causes. In the same way that retailers take part in Black Friday, the giving community comes together for GivingTuesday.

GivingTuesday harnesses the potential of social media and the generosity of people around the world to bring about real change in their communities; it provides a platform for them to encourage the donation of time, resources and talents to address local challenges. It also brings together the collective power of a unique blend of partners – nonprofits, civic organizations, businesses and corporations, as well as families and individuals – to encourage and amplify small acts of kindness. Across Canada and around the world, GivingTuesday unites communities by sharing our capacity to care for and empower one another.”

To work our Food Drive in with GivingTuesday, we will be going to visit The Food Bank on November 27th to deliver the donations we have collected over the month.

Why should you donate?

• The Food Bank serves a Community Food Assistance Network of more than 80 agencies and community food programs. 2,000 meals are served daily by this Network.
• 49% of households seeking assistance are families with children.
• Just $1 will provide 3 meals.
• 215 food hampers are distributed every day.
• Community nutrition workers teach healthy eating and food budgeting skills at 16 different locations.
• 1 in 20 households in Kitchener-Waterloo are hungry.

How can you help?
• Make a donation
$20 will feed a family for 4 days
Tax refunds are available for donations
• Donate food
Most needed items include:

o Canned stews and chili
o Canned meat and fish
o Beans in sauce
o Pasta sauce
o Canned pasta
o Canned soup
o Canned fruit
o Dried beans
o Hot cereals
o Rice
o Peanut Butter

Donations will be accepted at our office, 501-305 King St W, Kitchener.

When making your donations, be sure to let us know whether your donation is in support of Geoff Rabideau or Roger MacIntosh’s teams!

If you have any other questions, feel free to contact Kayla at kkompter@rabideaulaw.ca

Consumer Proposal versus Division 1 Proposal

What Are The Differences Between a Consumer Proposal and a Division 1 Proposal?

Many people are surprised to discover that Insolvency Trustees are able to offer two different types of proposals through the Bankruptcy Insolvency Act. The first of these is the commonly-known Consumer Proposal, and the second is called a Division 1 Proposal.

 

What are the differences?

…and why would someone select one type of proposal over another?

 

Details of a Consumer Proposal

A Consumer Proposal is available toindividual debtors whose total debts do not exceed $250,000 (excluding the mortgage on their principal residence). When someone files a Consumer Proposal, their Insolvency Trustee will analyze the value of their assets, the size of their debt load, and the amount of net household income coming to arrive at an amount the Trustee feels the Creditors will accept. This is normally a percentage of what you owe them, payable over a specific period of time (normally five years). All payments are made as a single monthly payment to the Insolvency Trustee, and he/she distributes those funds (as a dividend payment) to the various creditors.

Compared with the Division I proposal (see below), a Consumer Proposal is a simplified process. A Consumer Proposal is available to individuals only. There is no interest mounting during the term of the Consumer Proposal and no additional costs levied for Trustee involvement.

 

Details of a Division 1 Proposal

The second Proposal available to be filed is called a Division I Proposal. Like a Consumer Proposal, this is a formal procedure overseen by the Trustee and the Bankruptcy and Insolvency Act. This type of Proposal is available to businesses and individuals — there is no limit with respect to how much money is owed (other than the amount owing must be over $250,000). As with a Consumer Proposal, in a Division I proposal, you work with one of our Insolvency Trustees to put together an offer to pay your creditors a percentage of what you owe them over a specific period of time. And just like the Consumer Proposal, all payments are made through the Insolvency Trustee, and the Trustee uses those funds to pay each of your creditors

 

Comparison of a Consumer Proposal vs a Division 1 Proposal

Let’s take a look at a breakdown of the similarities and differences between a Consumer Proposal and a Division 1 Proposal, so you can determine which type of Proposal would be best for your situation:

Consumer Proposal Division 1 Proposal
Must be less than $250,000 in debt. Must be more than $250,000 in debt.
Available only to individuals. Available to individuals, receivers, a liquidator of an insolvent person’s property, a bankrupt, or a Trustee of the estate of a deceased bankrupt.
Once electronically filed with the Federal Government, protection is in place immediately. Creditors notified within 5 business days. Once electronically filed with the Federal Government, protection is in place immediately. Creditors notified within 5 business days.
Not Applicable. The Trustee must file a statement indicating the projected cash flow of the insolvent.
Once filed, unsecured creditors have 45 days to vote for or against the proposal or put forward a counter-offer. If approved by the majority of creditors, the Proposal gains deemed court approval 15 days later. A mandatory Meeting of Creditors is set up by the Trustee at the time the Proposal is filed. This Meeting of Creditors shall be held within 21 days of the filing of the Proposal. At the meeting of creditors, the Trustee will present the Creditors with a report on the statement of the insolvent person’s business and financial affairs. The Creditors then vote in favor or rejection of the Proposal.
The Trustee will present the creditors with an estimate of what they would realize in a bankruptcy, compared to the amount they would receive in the proposal. The Trustee will present the creditors with an estimate of what they would realize in a bankruptcy compared with the amount they would receive in the proposal.
The settlement offer must be “sweeter” than the creditors would receive in a Bankruptcy. The settlement offer must be “sweeter” than the creditors would receive in a Bankruptcy.
If the Proposal is rejected, the debtor may opt to file a Bankruptcy, or attempt to settle with the creditors directly in an informal manner. If the Proposal is rejected at the Meeting of Creditors, the debtor is automatically bankrupt.
2 mandatory counseling sessions must be attended during the Consumer Proposal (the first within 60 days, the second within 210 days). Counseling sessions are not required in a Division 1 Proposal.
No monthly income statements required. No income statements required once filed.
Tax refunds go to the debtor. Tax refunds go to the debtor.
Finishing the Proposal can take 1-5 years. Paying down the proposal earlier is recommended and welcomed. A Division 1 Proposal is normally a five-year process, but the length can differ. Paying down the proposal earlier is recommended and welcomed.
If three payments are missed, the Consumer Proposal is considered “annulled”. Protection is immediately lifted and the creditors have the legal right to pursue the amounts owing to them. In a Division 1 Proposal, if in default the protection is lifted and creditors have the legal right to pursue amounts owing to them.
Paying down the Proposal earlier is the ideal solution – no penalties, no interest, and once completed the credit rating can begin to improve. Paying down the Proposal earlier is the ideal solution – no penalties, no interest, and once completed the credit rating can begin to improve.

 

Proposal vs Bankruptcy

If we compare either type of Proposal to a Bankruptcy, the major advantage of the Proposals is that you retain all of your assets. Like a Bankruptcy, in either Proposal all actions launched against you by unsecured creditors (such as wage garnishments or frozen bank accounts) will be stayed (stopped). And once your creditors have agreed to your settlement offer, the dollar value of the settlement cannot change – even if you increase your monthly income, win the Provincial lottery or inherit a large sum of money from a distant relative.

 

Information provided by Farber Licensed Insolvency Trustees. Original post

 

Separation and the Matrimonial Home

Separation and the Matrimonial Home

On separation, parties often have to make hard decisions regarding how they will split assets, who will pay support, and how they will move on from the relationship.  At this time, one of the most contentious and difficult items to deal with is the Matrimonial Home.  Who gets to keep it? Will the kids remain there? Do we have to sell it? How much equity do we each get?

The matrimonial home is such a significant asset of the marriage that there is a whole section of the Family Law Act (FLA) devoted just to it (see part 2 of the Family Law Act) 

Keep in mind that these provisions only apply to Married spouses (see CL vs. Married spouse post).  Common law couples only have property rights as far as their title interest goes.  If you are common law, and you are not on title to the property, you will have to consider other equitable remedies such as a constructive trust or resulting trust claim through litigation if you want a part of the home.

First, it’s a good idea to understand what the matrimonial home is.  S.18(1) of the FLA defines a matrimonial home as:

Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.

What’s interesting here is that more than one home can qualify as a matrimonial home.  This means that if you own a cottage that the family uses regularly at the time of separation, this could be considered a matrimonial home as well.

So what if you moved into a home different from the one you lived in when you got married? Remember that this rule applies to properties that at the time of separation were ordinarily occupied by the person and their spouse.  Any other property you owned during the marriage that you no longer live in ordinarily is treated differently.

What if you have property outside of Ontario? Do we apply the same “matrimonial rules”? Unfortunately no.  This rule only applies to homes in Ontario as s. 28(1) of the FLA indicates.

 

What rights do I have to the Matrimonial Home?

Under the FLA s. 19(1) – both spouses have an equal right to possession of the matrimonial home, regardless of who is on title to the home (the owner).  This is a right not against the home itself, but against the other spouse.  This doesn’t mean that you have a right to take title to the home, but that you can enforce a right to live in the home through courts via an order for exclusive possession.

This remedy is provided under s. 24(1) of the FLA This is an extreme measure.  This is an order from the court saying one spouse has to leave their own home; a place where people build their lives and find security, which is a significant reason why the matrimonial home has its own section under the FLA.

  1. 24(3) of the FLA provides criteria the courts will consider when granting an order for exclusive possession:
  2. the best interest of the children affected;
  3. Any existing orders under Part 1 (family property) and any existing support orders;
  4. The financial position of both spouses;
  5. Any written agreement between the parties;
  6. The availability of other suitable and affordable accommodation; and
  7. Any violence committed by a spouse against the other spouse or the children.

You also have a say in how the matrimonial home is to be disposed of or encumbered under s. 21(1) of the FLA.  Even if you are not on title, your ex spouse cannot sell the home, transfer it, or refinance it without your consent.

You are also entitled to the value of the home and how that is distributed.  See our post on equalization to understand how the home and other assets are distributed on separation.

Working with an Estate Planning Lawyer

You’ve finally decided that you are ready to put together an estate plan (preparation of wills, trusts, and power of attorneys etc.) but are not sure about what the process will involve.

Here’s a quick list of some items that you should be prepared for:

Get specific about your assets

  • There’s no estate plan without discussing financials. All assets need to be considered and reviewed along with designations which may need to be changed, updated, or revised. These include not only your home, investments, shares, or bank accounts but also things like life insurance policies, registered plans etc. Not giving these items attention could lead to problems.

Get clear on what you want

  • Who should inherit your assets after you pass away?
  • Who should be looking after your affairs (funeral, debts, taxes, administration and distribution).
  • Who is the best suited to look after your minor or dependent children?
  • Should you consider an insurance trust agreement in order to provide further protection?
  • Are certain life-interest trusts or spousal trusts (possibly in a second-marriage scenario) required to further protect what you’ve earned and to ensure that not only is your spouse is protected during his or her lifetime but the capital of the trust is reserved for other persons?

Get the right opinion

  • You likely have some thoughts on your plan and who it should benefit but aren’t sure about the right way of bringing them to life. The best way to sort out is to speak to a professional (lawyer, financial advisor, and accountant) with a focus in this area. An opinion from a qualified professional is invaluable in making the decisions that suit your needs and protect your assets.

Get writing

  • Generally, the first step is for you to fill out a questionnaire to provide personal information in order for us to be able to assess your needs and tailor the plan accordingly.

The above is only a general idea of what is involved. Feel free to call us to get the process underway.

Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation and estate planning needs.

Net Family Property and Equalization: An Introduction

Equalization is a payment from one spouse to the other at the end of a marriage.  This equalization payment ONLY applies to married spouses, not to common law spouses.  S. 5(1) of the Family Law Act (“FLA“) provides for Equalization when:

  1. A divorce is granted;
  2. Marriage is declared a nullity;
  3. When (married) spouses are separated and there is no reasonable prospect they will resume cohabitation.

One thing I often hear clients ask is whether they have to split 50% of everything.  While somewhat true, it is not entirely accurate.  The real definition of division according to s. 5(1) of the FLA is as follows: “the spouse whose net family property is the lesser of the two net family properties is entitled to a one-half difference between them”.

In simpler terms, separated spouses are entitled to 50% of the value of the marriage.  So how is that value determined?

 

Marriage and Valuation Date

First we need to understand what Net Family Property (“NFP”) is and how to calculate it.  S. 4(1) of the Family Law Act defines NFP as all property that a spouse owns on the valuation date (i.e. separation date) after deducting:

  1. Debts and other liabilities; and
  2. Value of property OTHER THAN A MATRIMONIAL HOME owned on date of marriage.

Therefore we have two dates that are important in determining equalization:

  1. The valuation date; and
  2. The date of marriage.

The date of marriage is simply the date you got married and does not include any cohabitation before marriage.  Spousal support may factor in cohabitation periods before marriage however.  See our post on spousal support for more info by clicking here.

The Valuation date is essentially the date the marriage ended, or the date the parties separated.  It is defined under s. 4(1) of the FLA as:

  1. The date you separate;
  2. Date the divorce is granted;
  3. Date marriage is a nullity;
  4. Date one of the spouses commences an application based on improvident depletion that is subsequently granted; or
  5. Date before the date on which one of the spouses dies leaving the other spouse surviving.

Once we have those two dates, we can begin figuring out how much your Net Family Property (“NFP”) is.

 

Calculating Net Family Property for Equalization

When determining the Net Family Property (“NFP”) of persons who are ending their marriage, we need to look at two important dates: the marriage date and the valuation date.

Let’s pick two dates to help figure out the NFP:

  1. Jane and John married on October 1, 2010;
  2. Separated on February 1, 2018.

That’s almost 8 years of marriage.  You’ll see here that February 1, 2018 is the date of separation, which fits under the definition of Valuation date in s. 4(1) of the FLA.

Now, we take the value of all assets that both parties own on the valuation date, subtract their debts owned at valuation, and finally subtract the value of any property owned on the marriage date.

JOHN

John’s Assets on Valuation Date Car – $25,000

Personal Bank Account – $3,000

$4,000 in Joint account with Jane (50%) – $2,000

Investment Account ending in 1010 – $170,000

 Total = $200,000

John’s Debts on Valuation Date Loan from Friend – $50,000

Total = $50,000

Property Owned at Marriage Investment Account ending in 1010 – $100,000

Total = $100,000

Calculate Final Total

Assets

– Debts

– Property at marriage

 

$200,000

-$50,000

-$100,000

John’s NFP $50,000 

JANE

Jane’s Assets on Valuation Date Car – $20,000

Personal Bank Account – $2,000

$4,000 in Joint account with John (50%) – $2,000

RRSP – $6,000

Matrimonial Home – $320,000

Total = $350,000

Jane’s Debts on Valuation Date Line of Credit – $50,000

Mortgage – $100,000

Total = $150,000

Property Owned at Marriage Matrimonial Home – $220,000

Total = $220,000

Calculate final total:

Assets

– Debts

– Property at marriage

 

$350,000

-$150,000

can’t subtract Mat Home

Jane’s NFP $200,000 

So, something interesting happened here.  Jane’s name is the only one on title to the home and it was valued at $220,000 when they got married.  She should be able to deduct that home from the valuation date value right?

Wrong.

Remember, you subtract property owned at the date of marriage from your valuation date EXCEPT for the matrimonial home.  So Jane has to include the entire value of the home regardless of how much it was worth at marriage.

We’re almost there.  The language of the equalization rule is: “the spouse whose net family property is the lesser of the two net family properties is entitled to a one-half difference between them.”

 

EQUALIZATION

Jane’s NFP

– John’s NFP

$200,000

-$50,000

$150,000
Difference divided by 2 $150,000/2
Equalization Payment or, the one half difference $75,000

In this instance John, who is the lesser of the two net family properties, is entitled to the one half difference between them, $75,000.

Therefore Jane makes an equalization payment of $75,000 to John.  With that, John would have $125,000 and Jane would have $125,000.  They are equalized.

 

Additional Exclusions

You also have the ability to exclude other property on the valuation date other than just debts under S. 4(2) of the Family Law Act.

These include things such as:

  • Property acquired by gift or inheritance after marriage date
  • Income from property that was gifted or inherited if donor EXPRESSLY stated it is to be excluded from NFP
  • Damages from a settlement resulting from personal injuries, nervous shock, mental distress, or loss of guidance care and companionship
  • Proceeds or right to proceeds of life insurance policy payable on death of insured
  • Property OTHER THAN MATRIMONIAL HOME into which property above can be traced
  • Property both spouses agree not to include as a result of a domestic contract (see our post on separation agreements for more info)
  • Unadjusted pensionable earnings under Canada Pension Plan

If you’re thinking of separating and want help to ensure you are properly protected, contact Rabideau Law to see how we may assist.

Child Custody and Access Introduction

One of the most significant concerns for parents, if not THE most significant concern, on separation is what will happen with the children.  Where will the child live? Who is going to make decisions for the child regarding their education, religion, or medical care? How much time will each partner spend with the children?

These questions are related to custody and access and this post will focus on those issues alone.  Child support issues are covered in our previous post here.

There are two different statutes dealing with custody and access in Ontario: the Divorce Act for married spouses, and the Children’s Law Reform Act (“CLRA”) for non-married and married spouses (see our post on married vs. Common law spouses for details on the difference between both types of relationships).

But what is the difference between custody and access? Are they not the same thing?

The person who is responsible for the child on a daily basis and makes daily decisions for the child is said to have custody of the child.  This can include decisions on things like: education, religion, and health care.  It does NOT automatically mean which parent the child will live with, although generally the person with sole custody is the parent with whom the child resides.

Access on the other hand is the ability to visit and ask for information regarding the child’s health, education, religion and general welfare.

When making a decision regarding custody and access, the courts will consider the “Best interests of the Child”, see s. 24(2) of the CLRA.  These include:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

With these two terms defined and a background on the best interests of the child, we can approach what types of custody and access there are.

 

Custody

S.20(1)  of the CLRA provides that both parents have equal entitlement to custody of the children. However this entitlement is limited by s.20(4) of the CLRA.  What this means is that if the child resides with one spouse and you decide to move out, you could effectively be giving away custody rights to your child.  However you do not lose access rights.

Parenting decisions post separation can be approached in multiple ways.  These can include the following:

Joint Custody
With this, both parents must agree on major decisions regarding the child.  This arrangement requires that both parents co-operate well together to ensure the children are raised well and it works best when both parents have the same values and ideals on how to raise the children.  The parents may even choose to divide the decision making responsibilities.  For example, one parent may take the responsibility regarding education decisions while the other makes decisions regarding health care.

Sole Custody
One parent makes all the important decisions regarding the child.  They may have to communicate with the other parent about the decisions, but ultimately the parent with sole custody does not need the consent of the other parent.  Usually, if there is sole custody the other parent has access.

Split Custody
Each parent has sole custody of one or more children.  This is a rare solution for custody as courts generally do not like to separate siblings.  This type of custody is usually provided where the children are older and can express their opinions about which parent they want to live with.  With that, if the court determines that this opinion of the child should be given considerable weight, they may then grant split custody.

Shared Custody
This term is usually confused with joint custody.  This type of custody is actually an access arrangement and does not indicate which parent has legal decision making power, although custody arrangements can be included here (which helps contribute to the confusion).  You can have shared custody whether or not you have joint custody.  With shared custody, both parents have the child for at least 40% of the time.  Essentially, the child’s time is split evenly between the parents.  This type of arrangement can also impact how much child support is to be paid (see child support post for more details).

Access

Under the s. 20(5) of the CLRA parents are entitled to visit and be visited by the child.  This also includes the right to make inquiries and be given information about the child’s health, education, and welfare.

Types of access include the following.

Reasonable Access – sometimes called liberal or generous
If parents are able to co-operate, then access can be left open and flexible.  This type of access is heavily customizable as both parents simply communicate and negotiate access on an on-going basis as they see fit.

Fixed or specified Access
This will include a detailed access schedule with dates and times for access to be exercised.  This can cover things such as: holidays, long weekends, birthdays and so on.  You can also identify where access will take place and who will pick up and drop off the children.

Supervised Access
This may be required if one of the parents demonstrates the following behaviour:

  1. Substance Abuse;
  2. Domestic Violence;
  3. Parental Alienation.

The person supervising the access can be a relative, friend, social worker, worker at a supervised access centre, or even a Children’s Aid worker.  This kind of access is generally only done on a temporary basis.  If it’s determined that the visits are benefiting the child and the parents respect the terms of the access orders, the access can progress to unsupervised access and can also gradually increase over time.

No Access
This is an extreme result where a parent might not be able to access the child at all.  An order for no access can result where there is serious neglect of the child, abuse, or if the child’s safety cannot be protected even if supervised.

Other custody and access issues

A parent cannot refuse access to the other parent unless there is a court order to that effect.  If a parent does refuse access to another without proper justification, that parent may be found in contempt of court.  If that behaviour continues, the parent refusing access could suffer serious ramifications.

Child support and access are two different things.  A parent cannot be denied access if support is not paid, and support would likely still need to be paid even if there is no access.  It is also possible for a non-parent to be given custody or access, but this must be determined in accordance with the Best Interests of the Child.

Parents have the ability to outline their desires in a Parenting Plan which can be included in a separation agreement.  See our post on separation agreements to learn more.