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Thursday, February 16, 2017 @ 7:00 PM

Just get hitched? Better have a marriage licence

Back in August, 2016, it was widely reported that wedding officiant, Paul Cogan, was performing marriages in Ontario without the proper authority to do so. Many couples thought they were married, but it turns out they were not. (Cogan has been charged with solemnizing a marriage without authority.) ... [read more]

Monday, February 13, 2017 @ 2:10 PM

Mandated counselling | Steven Benmor

It has always been thought that counselling can only be beneficial if the person voluntarily selects a counsellor, books the appointments, wishes to benefit from counselling and, most importantly, attends willingly. But with the increased incidence of family breakdown which, at its heart, are relationship, behavioural and communication problems, judges are realizing that the solution to the problem is not necessarily legal in nature, but psychosocial. ... [read more]

Monday, February 13, 2017 @ 11:25 AM

MARITAL PROPERTY - Equalization or division - Exempt acquisitions and deductions - Pre-marriage and post-separation acquisitions - Tracing - Settlements - Appeals and judicial review

Appeal by the husband from a trial judgment interpreting a consent order and excluding certain family property. The parties moved in together in 2005, married in 2006 and separated in 2014. The parties maintained separate finances throughout their relationship, including bank accounts and investments. Each assumed responsibility for some family expenses. Each party agreed that their respective condominiums were excluded from equalization. In addition, each party claimed portions of other assets could be traceable to pre-relationship assets and thus constituted excluded property. Several property issues were resolved at a settlement conference and incorporated into a consent order. At trial, the parties disputed interpretation of the property division provisions in the consent order. The trial judge interpreted the consent order to require identification of family property to be determined by first considering whether any portion of the assets were excluded property. The excluded portion of any joint asset went to the party providing the asset, with the remaining value to be divided equally. Solely-owned assets were to be retained, subject to an equalization payment based on equal division. The trial judge characterized certain monetary transfers the wife received from her family as gifts and traced them into current assets excluded from division. The husband's claims of exclusion were rejected, save for a portion of the proceeds from the sale of the family home attributable to three pre-relationship assets. The husband appealed. ... [read more]

Friday, February 10, 2017 @ 9:29 AM

Valuating employee stock options for separating spouses

​​​​Under the Family Law Act, when spouses separate they are required to equalize assets. Where a spouse has received employee stock options (ESOs) as part of their compensation, these assets are subject to equalization and reported on the statement of net family property (NFP). This article discusses certain issues that arise in the valuation of ESOs. ... [read more]

Thursday, February 09, 2017 @ 7:00 PM

Family Law - Custody and access - Considerations - Best interests of child - Custody - Primary residence - Practice and procedure - Orders - Variation or amendment of orders - Changed circumstances

Appeal by the paternal grandparents from an order varying the child’s primary residence. The parents lived in a common law relationship for approximately 18 months. They had one child, age seven. Shortly after the child was born, he suffered head trauma and underwent surgery. Both parents denied responsibility for harming the child. The mother was charged with assault, but the charges were later withdrawn. After the parties separated, Child and Family Services (CFS) intervened. They placed the child in foster care and then in the care of his paternal grandparents. After a period of supervision, the father assumed primary residential parenting. The mother continually took steps to resume parenting. In January 2016, the father was charged with assaulting the child. The mother then applied to vary the parenting order so she could have primary residential parenting of the child. The paternal grandparents opposed her application and sought guardianship of the child in order to continue day-to-day parenting of the child along with the father. The trial judge found that there had been a change of circumstances as the child was older, the father had been convicted of assaulting the child and the mother was in a stable marriage. She found that while both the mother and the paternal grandparents were able to provide a stable, responsible, caring home for the child, it was in his best interest to reside with the mother. As a result, the judge ordered that the child’s primary residence was to be changed from the home of the father and grandparents to that of the mother. The grandparents appealed, arguing that the trial judge erred by using the fitness test rather than the best interests test and by failing to take material evidence into account. They further argued that the trial judge erred by recognizing the mother as a guardian without first reviewing whether she was a guardian after the parenting order which gave the father full decision-making rights. ... [read more]

Thursday, February 09, 2017 @ 11:12 AM

Refuting false allegations of abuse a specialized job | Brian Ludmer

It is an unfortunately common occurrence in contested matrimonial cases that one or both parties make serious accusations of physical, emotional and/or sexual abuse against the other. Even worse are cases where such allegations involve the children. ... [read more]

Tuesday, February 07, 2017 @ 10:06 AM

CUSTODY AND ACCESS - Considerations - Best interests of child - Custody - Primary residence - Practice and procedure - Orders - Variation or amendment of orders - Changed circumstances

Appeal by the paternal grandparents from an order varying the child’s primary residence. The parents lived in a common law relationship for approximately 18 months. They had one child, age seven. Shortly after the child was born, he suffered head trauma and underwent surgery. Both parents denied responsibility for harming the child. The mother was charged with assault, but the charges were later withdrawn. After the parties separated, Child and Family Services (CFS) intervened. They placed the child in foster care and then in the care of his paternal grandparents. After a period of supervision, the father assumed primary residential parenting. The mother continually took steps to resume parenting. In January 2016, the father was charged with assaulting the child. The mother then applied to vary the parenting order so she could have primary residential parenting of the child. The paternal grandparents opposed her application and sought guardianship of the child in order to continue day-to-day parenting of the child along with the father. The trial judge found that there had been a change of circumstances as the child was older, the father had been convicted of assaulting the child and the mother was in a stable marriage. She found that while both the mother and the paternal grandparents were able to provide a stable, responsible, caring home for the child, it was in his best interest to reside with the mother. As a result, the judge ordered that the child’s primary residence was to be changed from the home of the father and grandparents to that of the mother. The grandparents appealed, arguing that the trial judge erred by using the fitness test rather than the best interests test and by failing to take material evidence into account. They further argued that the trial judge erred by recognizing the mother as a guardian without first reviewing whether she was a guardian after the parenting order which gave the father full decision-making rights. ... [read more]

Monday, February 06, 2017 @ 4:18 PM

P.E.I. to launch new legal aid clinic for self-represented litigants

Starting tomorrow, people in P.E.I. looking for help in representing themselves in family law cases will now have access to a new legal clinic. ... [read more]

Friday, February 03, 2017 @ 3:12 PM

MAINTENANCE AND SUPPORT - Practice and procedure - Orders - Interim or interlocutory orders - Appeals and judicial review

Appeal by the husband from an interim order regarding parenting arrangements, child support, and spousal support. The parties moved in together in 2007, married in 2009 and separated in May 2015. Their children were two and seven years of age. The wife remained in the home following separation. She was unemployed from 2008 onward due to health reasons. In 2016, the parties agreed to an equal parenting arrangement. Following separation, the husband's earnings went to a joint bank account that the wife was able to use to pay all expenses associated with the family home. In April 2016, the husband closed the account on the basis that the wife's withdrawals left him unable to meet his own expenses. Thereafter, the husband made monthly deposits on account of child support and continued to make mortgage, property tax and insurance payments on the family home, in addition to the wife's car payments. The wife commenced divorce proceedings in May 2016. The court made an interim order for joint custody with shared parenting, ordered interim child support of $1,173 based on the husband's income of $85,783, with two months' retroactive support, and interim spousal support of $600, with four months' retroactive support. The husband was required to continue the home and car payments. Further issues of retroactive support were reserved for trial. The husband appealed. ... [read more]

Friday, February 03, 2017 @ 3:08 PM

MAINTENANCE AND SUPPORT - Child support - Calculation or attribution of income - Financial disclosure - Considerations - Retroactive awards

Appeal by the father from orders granting the mother retroactive child support for 2012 to 2014 and setting the parties’ guideline income for 2015. The parties, who had one child, divorced in 2011. Since July 2015, they had shared parenting. The father’s income was from a company that was in the business of renting construction and oil field equipment. He was the sole shareholder and director. The father disclosed his personal income tax returns, but did not disclose financial information about his corporation. His guideline income and proportionate share of s. 7 expenses was based on his line 150 income from his personal tax returns. In 2015, the mother consulted a lawyer who advised her that the father’s income for support purposes might be higher than reflected in his tax returns. As a result, she obtained the corporate financial statements and had an expert report prepared. The expert made adjustments to the father’s income for personal expenses paid by the corporation. One adjustment was a portion of the salary the corporation paid to the father’s new wife, which the expert concluded was a non-arms’ length expense. As a result of the report, the mother applied for retroactive child support. The father cross-applied for a recalculation of child support and retroactive credit for overpayment of child support. The chambers judge found that the father had failed to disclose financial information as required by the divorce judgment, and that the mother had not waived her entitlement to receive the information. He further concluded that the father’s line 150 income did not fairly reflect the funds available for child support and it was appropriate to add part of the pre-tax income of the corporation. He concluded that the expert’s estimates were reasonable and he selected the mid-range of income adjustment in each of 2012, 2013 and 2014 and added that income to the father’s line 150 income. He used that as a basis to award retroactive child support for 2012 to 2014 in the total amount of $42,500. For 2015, he added one-half of the father’s new wife’s salary to the father’s line 150 income and imputed his income at $165,000. The father appealed, arguing that the chambers judge erred in refusing to admit his supplementary affidavit and in determining his income for the purposes of the Guidelines. He submitted the chambers judge should have found that the mother waived her right to retroactive child support. ... [read more]