Cracking Down on the Issue of Parental Alienation In the UK, parents who are going through a separation or divorce could potentially be denied contact with their children if they try to turn them against their former spouse or partner. The practice of one parent turning the child(ren) against the other, especially during litigation, is nothing new and happens in almost every jurisdiction. Parental alienation can be commonly defined as “when one parent attempts to exclude the child(ren) from the other parents life.” The Children and Family Court Advisory and Support Service (CAFCASS) in the UK, which is similar to the Office of Children’s Lawyer in Ontario, has introduced a new process to give alienating parents the opportunity to correct their behaviour through concentrated therapy. Parents who do not respond will no longer be allowed to have their children live with them. Contact between the alienating parent and child may also be restricted or suspended for a number of months. In the most serious cases, the alienating parent may be permanently banned from contact with their child. CAFCASS notes that alienation occurs in a significant number of the 125,000 cases they hear in the UK each year. They estimate it is present in 11-15% of divorces and separations involving children, and that 1% of children experience it in North America. Sarah Parsons of CASCASS has said that this “new approach is ground-breaking,” and will assist parents and children, with the primary focus on allowing a child to avoid manipulation during the separation of a family. This new approach is unlike the process that occurs in the United States and Canada. In these countries, “parenting coordinators” are used to assist between parents and children who are deemed alienated. In Mexico and Brazil, alienation of a chid is considered a criminal act. The UK’s approach sets out guidelines for CAFCASS workers, known as “the high conflict pathway.” This itemizes the steps workers must take when suspected alienation is present. The pathway will also provide details and information on “when the child should be removed from the alienating parent and given to the “target parent””. These guidelines which will change how cases are dealt with in the Family Courts of England and Wales will also be considered by Judges, Experts, Doctors and Lawyers. In addition to the guidelines, there will be a 12-week programme that will focus on helping abusive parents to break their behaviour patterns by putting them into the child’s shoes. If the parent fails to progress through the programme, experts such as psychologists and mental health experts will be called in and contact to the child will be limited. To begin with, 50 high-conflict families will take part in a trial of this programme. If approved in the spring of 2018, it will then be standardised nationwide. The main goal of this initiative is to “preserve the relationship with both parents,” said Parsons. It is often the child that is the victim in these alienation cases. If successful, one hopes that an approach similar to that of CAFCASS can be trialed in Ontario before the end of 2018. For any family law matters, please contact our family law group. For all other inquiries, please contact our office directly at 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawNovember 30, 2017July 7, 2023
Proposed Change to Ontario’s Family Law Act affecting Adult Children with Disabilities Ontario has recently introduced an amendment to the provincial Family Law Act that aims to make all adult children with disabilities, regardless of the martial status of their parents, eligible for child support. Typically, a parent’s obligation to pay child support ends when the child reaches the age of majority and/or is no longer a full-time student. However, section 2(1) of the federal Divorce Act creates an obligation to continue paying support for a child of the marriage who is over the age of majority but unable by reason of illness, disability, or other cause to withdraw from parental charge or obtain the necessaries of life. It is important to note that the Divorce Act only applies to families of married parents. For those Ontario families of unmarried parents, they must turn to the provincial Family Law Act legislation. Currently, there are marked differences in the wording of the federal Divorce Act and provincial Family Law Act statutes, which has resulted in differential treatment between children of married and unmarried parents. The current Family Law Act does not include the clause creating an obligation for child support where an adult child, by reason of illness, disability, or other cause cannot withdraw from parental charge. Therefore, unmarried parents have been prevented from claiming child support for their adult children with disabilities, unlike their married counterparts. Across Canada, family law statutes have largely eliminated the differential treatment of children of married and unmarried parents. However, Ontario and Alberta have lagged behind with respect to children with disabilities. The newly proposed Ontario Bill 113 proposes to correct this by repealing s. 31 of the Family Law Act and substituting the following: Obligation of parent to support child: (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who is, (a) a minor; (b) enrolled in a full time program of education; or (c) unable, by reason of illness, disability or other cause, to obtain the necessaries of life. This change was prompted, in part, by a recent case Coates v Watson heard in March 2017. Ms. Coates, the mother, sought child support for her 22-year-old son with a rare genetic composition that prevented him from withdrawing from her care. Although she began receiving support from the father, she brought a Charter Challenge to allow the court to finally decide on the merits of the issue whether section 31 of the Family Law Act contravenes the Charter, specifically Joshua’s right to equal protection and equal benefit of the law as guaranteed by section 15(1). The court released its decision in July 2017, ruling in Ms. Coates and Joshua’s favour and finding that they were subjected to differential treatment based on marital status. The proposed change would update Ontario’s Family Law Act to more closely align Ontario’s child support legislation with the Federal Divorce Act as well as with the child support laws in the majority of other Canadian provinces and territories. The bill has recently passed its first reading. For more information on child support for adult children with disabilities and on how Devry Smith Frank LLP’s Family lawyers can assist with your family law matter, please see our blog posts. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawNovember 21, 2017June 17, 2020
How is the Money from the Sale of a House Divided in a Divorce? Family lawyer John Schuman was recently asked this question: I bought my home in 1995 and it became the matrimonial home when i married my husband in 2009. I’m filing for divorce now and selling the house. Is the money from the sale of the house split 50/50 or will I receive a bit more being the original owner of the house? My husband is on the mortgage as well. Answer by John Schuman: When married couples separate in Ontario, the home (or homes – there can be more than one) that they live in on the day they separate gets special treatment in property “equalization” process. (Non-married or common-law couples may not divide property or may do it differently.) Those special rules may make it seem that matrimonial homes are divided “50/50”, but that is not actually how it works. The property division provisions of Ontario’s Family Law Act do not give married people any right of ownership over their spouses’ property or other assets. If title to the matrimonial home is in your name, it stays in your name, subject to some claims your spouse can make if he or she makes significant contributions to that property. Just being married does not mean spouses both own their home (or homes). Watch this video for more details on how Ontario Law divides the value of property, not the property itself, on separation. There are a number of special rights that attach to matrimonial homes (or homes). One is that neither spouse can kick the other out of matrimonial home, or secure debt against a matrimonial home, without the other spouse’s consent or a court order. The reason people think they share the equity in matrimonial homes 50/50 is that, absent a marriage contract, the entire equity in a matrimonial home is always included in the value of assets that married spouses share. With almost every other type of asset, spouses only share in the growth in the value during the marriage. However, section 5(2) of the Family Law Act does not allow a spouse to get any credit for bringing a property into the marriage if that property was a matrimonial home on the date of separation. So, without a marriage contract, spouses share whatever value is in their matrimonial homes. Spouses do not necessarily have to give their spouses “half the house” on separation. That spouse is entitled to stay in the house, and to have the equity included in property division, but, if a home is not jointly owned, there is not right to “half of it.” It is just included in the assets to be divided. So, if the spouse who does not own the matrimonial home has lots of savings or a pension to include in his or her assets to be divided, that may offset the value in the matrimonial home. If the spouse who owns the matrimonial home had a lot of assets (other than the matrimonial home) on the date of marriage, his or her increases in net worth may be less than the other spouse, which would mean the home would not be divided. The same may be also be try if the spouse who owns the matrimonial home has a lot of debt on separation may not have the increase in net worth that is necessary to owe the other spouse anything. But, in short term marriages, there is a real danger that a spouse can walk away being entitled to half the other spouse’s home. If the marriage was short, the couple may still live in the same house that one spouse brought into the marriage. In that case, the spouse with the house has to share half the value of the house because there were almost no changes in each spouse’s financial situation and so nothing to offset the value in the matrimonial home when the spouses “Net Family Properties” are “equalized.” Watch this video or listen to this podcast, for more on the dangers posed by the law of matrimonial homes. Note that that the special rights for matrimonial homes only apply between two spouses. Those rights regarding matrimonial homes do not apply to third parties, such as in-laws, landlords, business partners, or friends. A spouse has no right under Family Law to stay in a home owned by his or her in-laws or another landlord. You certainly do not become entitled to “half” of a matrimonial home that neither spouse owns. People who think they should have rights with respect to a property that is not owned by them or their spouse should speak to a lawyer to see if any other type of law might help. Before or after a marriage, spouses should never assume that the matrimonial home will just be divided 50/50 until they have each spoken to a lawyer to figure out how Ontario Family Law will work in their family’s situation. This is an area where making a mistake can cost hundreds of thousands of dollars. There may be things a lawyer can do to make things fairer – especially before a separation. But even after separation, there may be possibility of making the tricky legal arguments to adjust how property is divided either pursuant to section5(6) of the Family Law Act or the Principles of Equity. Obviously, there can be a lot of money involved in any marriage or relationship and that means there can be a lot at stake financially. Get the help of a lawyer immediately to avoid financial hardship. You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a top family law lawyer. By Fauzan SiddiquiBlog, Family LawAugust 30, 2017July 5, 2023
Am I on the Hook to Pay Child Support Retroactively? One of DSF’s Toronto Family Lawyers was recently asked the following question: Can child support payments be retroactive? My former spouse never claimed child support and on top of that refused to take support payments from me for years. Recently, my former spouse has gotten into some financial trouble and filed an application for me to start paying child support. Will I have to pay child support retroactively from the date of our separation or will it start from the date of the application? Their Answer: The short answer is it depends. Family Courts can order retroactive child support in certain circumstances. In 2006, the Supreme Court of Canada ruled on the issue of retroactive child support in D.B.S. v S.R.G. The Court looked at when retroactive child support can be ordered and in what circumstances. The Court provided a list of factors to take into account when child support can or should be ordered. Child support orders are made in accordance with the Child Support Guidelines. There is a table amount that is set out for various income levels and the amount of support is based on the income of the payor spouse and the number of children. The Guideline was introduced as a way to make child support as simple, objective and predictable as possible. In deciding whether or not retroactive child support should be ordered, the Court looked at four factors: Is there a reasonable excuse for the delay in making the application; What is the conduct of the payor parent? Whether or not the conduct was blameworthy; What are the circumstances of the child; and Will there be hardship caused on the payor parent by the retroactive payment? In deciding the quantum of the award, there are four possible dates that the retroactive child support can be awarded from. Retroactive payments can be awarded from the date: The application is made; Of formal notice to the payor parent; Of effective notice to the payor parent; or When the amount should have been increased. The Court imposed a three-year limit as a rough guideline for how far back child support can be ordered. To answer the question above, it is likely that a Court would order retroactive child support to the date of ‘effective notice’. Effective notice, as the general rule, is the date that there is an indication by the recipient parent that child support should be paid. It is not the date that legal action is taken, such as filing the application, but is the date that the topic has been brought up with the payor parent. Because there has been no blameworthy conduct on the part of the payor parent, there would be no reason to move away from the date of effective notice. In this circumstance, the parent would have to pay retroactive support payments from the date the former spouse brought up that he or she now needed the support payments. The requirement to pay child support is a free-standing obligation that can fluctuate over time with the income and circumstances of the spouses. You can read more on the topic here, on John Schuman’s blog. John Schuman is a Certified Specialist in family law and is the partner managing the Family Law Group at Devry Smith Frank LLP. If you have any questions about child support or family law generally, please visit our website and contact one of our Toronto family lawyers today. By Fauzan SiddiquiBlog, Family LawAugust 29, 2017June 18, 2020
Dispute over Custody of the Dog(s) By: Katelyn Bell, Summer Law Student Back in January, we discussed the issue of dogs having rights similar to that of children in a custody battle. Mention was made to a then recent decision from the Saskatchewan Court of Queen’s Bench, which held that dogs are to be considered as “property” and should not be treated as though they are children. The judge’s words came in response to a divorcing couples petition to the court for interim possession of the family dogs. Without question, custody battles over the family pets are quite common. Though it is not often that these types of disputes will make it to the courts. However, in Nova Scotia this issue has once again come before an adjudicator. Similar to Justice Danyliuk in Saskatchewan, Eric Slone – an adjudicator with Nova Scotia’s small claims court – was tasked with ruling on who gets custody of the family dog. Slone presided over a case of a former Halifax-area couple who had been sharing one of their dogs, Lily, since they separated back in 2012. However, the one of the partners sought to obtain sole ownership of Lily in early 2017. Because the previous ruling on the issue of “dog custody” stems from Saskatchewan, the decision is only persuasive in Nova Scotia, rather than authoritative. Decisions from the same level of court or other provinces or jurisdictions may assist decision-makers in reaching a decision, though these decisions are not binding upon adjudicators in other jurisdictions. However, the law in this area is clear. At law a dog is property, as it is a domesticated animal that is owned. “At law a dog enjoys no familial rights,” explained Justice Danyliuk. “In a more perfect world there would be special laws recognizing pets as living, feeling creatures with rights to be looked after by those who best meet their needs or interests, and there would be specialized accessible courts to determine the ‘best interest of the dog,’ as there are for children in the family courts,” Slone said in his written ruling released in early August. The Halifax adjudicator continued, “In this less perfect world, there is the Small Claims Court operating on principles of property law, treating pets as “chattels” not very different – legally speaking – from the family car.” “Determining ownership of family pets is not easy for the court, nor necessarily fair to the disputants. Often, as is the case here, neither of the people in this dog’s life was really concerned about legal ownership until things went wrong. When families break apart, the family dog will usually be awarded to the person with the best case for legal ownership,” Slone wrote. Unfortunately, what these decisions mean is that despite the representation in “Legally Blonde,” it is actually not in fact that easy to obtain “full canine property ownership” – Elle Woods. Here’s hoping that Canadian law surrounding pet ownership does in fact change in the near future. and that the end result is the “perfect world” described by Slone. If you have any questions about your property or custodial rights or require further information or assistance in regards to any family law matters, please contact one of our family lawyers. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawAugust 24, 2017June 19, 2020
Legally Bound to be Faithful During the Marriage? By: Katelyn Bell, Summer Law Student Celebrities Justin Timberlake and wife Jessica Biel made headlines a couple years back when word spread that they had an “infidelity clause” contained within their marriage contract. The clause allegedly stipulates that if Timberlake is unfaithful to Biel, he owes her $500,000.00. This type of clause is known as a “lifestyle clause,” which are more common than you would think. The clauses address non-financial aspects of a marriage, and the range of things in which they can outline is quite vast. While some clauses may stipulate how many times the in-laws are allowed to visit per year, others may set out body-weight requirements (woah), and then of course, there’s the ones that speak to extra-marital affairs. Ultimatums about infidelity are among the most popular lifestyle clauses in domestic agreements. And though infidelity clauses are quite common for celebrities – consider also Catherine Zeta Jones and Michael Douglas, or Brad Pitt and Angelina Jolie – it isn’t only celebrities who choose to include these types of clauses in their relationship agreements. The general public is making use of lifestyle clauses as well, especially those relating to infidelity. Reason being: (1) These types of clauses are a way to ensure financial stability, and (2) Having a clause of this type may be an effort on the part of one spouse to prevent (or at least try to prevent) their partner from cheating. But do they work? With regards to point (1) above, in order for the clause to afford the wronged spouse any money, the clause must be enforceable in the courts. If the domestic contract is contrary to public policy, despite its validity at the time, the court will not enforce such an agreement. In Canada, “fault-based divorce” has been eliminated from the legislation. Though the Divorce Act originally provided two grounds for divorce – cruelty/adultery and no-fault – today there is only one ground, which is marriage breakdown (s. 8 of DA). Marriage breakdown is a no-fault ground to divorce. Because Canada’s divorce legislation is “no-fault,” including a clause in a contract which explicitly puts a spouse at fault (i.e.: “If you cheat on me you owe me $60,000.00”) is most likely unenforceable. Our system is not meant to punish individuals for misbehaviour, and as such, adultery is not a determining factor in asset distribution. Though an infidelity clause has yet to be challenged in a Canadian court, the D’Andrade v Schrage (2011) decision provides some insight as to how Canadian courts are likely to respond to an infidelity clause in a pre-nuptial agreement. In this decision, the court rejected the argument that an affair during the negotiations of a marriage agreement (being negotiated after the parties were already married) would void the agreement. The court stated: “In recognition of the fact that marriages are complicated institutions, whose failure can rarely be attributed to one party or the other, the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement…” “…it is important to consider the purpose of the contract in question. It is not to enforce personal obligations such as the duty to remain faithful or the commitment to remain in the relationship. While people may feel that these obligations are part of the marriage “contract”, these are not the obligations that domestic contracts are meant to deal with.” In the United States, in a case which challenged an infidelity clause, the court found that the clause in the domestic agreement was not enforceable because it was contrary to the public policy underlying California’s no-fault divorce laws. Based on the above, it’s highly improbable that an infidelity clause would be enforced by a Canadian court. So with regards to the question of “But do they work?”, the answer to point (1) is most likely no, but what about point (2)? Will the inclusion of such a clause in a domestic agreement work to keep your spouse faithful? Reportedly, when Tiger Woods was rumored to be seeking back with ex-wife Elin Nordegren, Nordegren wanted an infidelity clause contained within their pre-nup with a $350 million financial penalty for Woods if he were to ever cheat again. Of course, whether or not the clause will work as a deterrent depends on each individual. While some spouses argue that these types of clauses are the antidote to adultery, many others may disagree. Ultimately, every relationship is different and spouses will have to decide which, if any, lifestyle clauses make sense for their relationship. If a couple chooses to insert an infidelity clause in their domestic agreement, as long as the contract has a severability clause, the rest of the contract will remain enforceable (so long as it remains legally valid), even if the adultery clause is not. If you are in need of a Family lawyer, please contact the family lawyers of Devry Smith Frank LLP for assistance, or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJune 30, 2017June 22, 2020
Am I Liable For My Ex-wife’s RRSP Losses? Toronto Family Lawyer John Schuman was recently asked the following question: Is there any case law that would show I am not liable for any of the following losses? When applying for a divorce, you must fill out a financial statement. Before we were married my wife had RRSP’s that were called labour-sponsored funds. They subsequently lost 90% of their value after we were married. I contend that I should not be liable for any of these losses. Answer: On the breakdown of a marriage (but not a common-law relationship), spouses “equalize” their assets and liabilities and share, with some exceptions, the growth in their net worth during the marriage. This video explains “Equalization of Net Family Property” in greater detail. Many separating spouses can feel that the equalization process can be unfair – particularly where one spouse has spent money on stupid things, gambled it away, is getting a windfall due to the division of the matrimonial home, or it has been a very short marriage. In these and other situations, dividing up all property “50/50” can seem unfair. Section 5(6) of Ontario’s Family Law Act does allow a Court (or Family Arbitrator) to deviate from the usual equalization of Net Family Property and divide the family’s wealth another way. It accommodates all of the scenarios above and a few others. However, the test that the Family Court (or an arbitrator) has to use is not whether the normal “equalization” would be unfair. Section 5(6) says that to deviate from the normal equalization, the Court must be “of the opinion that equalizing the net family properties would be unconscionable.” “Unconscionable” is much more than just unfair. The case law says that it means that the usual result must be “shocking to the conscience of the court.” That is much more than just unfair. One spouse spending a lot of money on an affair is not enough. A spouse spending too much is not enough. Justice Jennings put it this way: The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable. Specifically, on the issue of investment losses, the Courts have held that improvident (stupid) investing is not enough to justify an unequal division of net family properties. The investment must have been made recklessly or in bad faith. That means the spouse must have known or should have known, that the investment would become worthless. Risky investing is not enough. The spouse must have acted deliberately to lose money or knowing that he or she was likely to lose money. That can definitely seem unfair – especially when one spouse is a conservative investor and one spouse is a high-risk investor, or where one spouse’s savings have done really well and the other spouse’s investments have done poorly. But, fairness is not the test. Different opinions on finances can cause stress in, or event the end of, a lot of marriages. Where spouses have significant differences of opinion about money, they should consider getting a marriage contract. Spouses can get a marriage contract at any point during the marriage. They can keep a marriage together if one spouse wants to do something risky and the other one wants financial protection. This video explains how to protect yourself and save your marriage with a marriage contract. But, if you are separated now, it is likely too late for a marriage contract, and you have made one of the common family law mistakes. You should speak to an excellent Family Law Lawyer as the only way to correct this may be through spousal support, as section 15.2(6)(a) of the Divorce Act allows a judge to address the economic consequences of the marriage and its breakdown through spousal support. That can be through either awarding spousal support or reducing an amount of spousal support to reflect how the marriage affected the spouses financially. You can get a lot more information about Ontario Family Law issues, including support and property division, and most other common family law issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac, or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer. John Schuman is a Certified Specialist in Family Law. He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full-service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca Listen to the Ontario Family Law Podcast! By Fauzan SiddiquiBlog, Family LawJune 30, 2017June 24, 2020
Am I Liable For My Ex-wife’s RRSP Losses? Toronto Family Lawyer John Schuman was recently asked the following question: Is there any case law that would show I am not liable for any of the following losses? When applying for a divorce, you must fill out a financial statement. Before we were married my wife had RRSP’s that were called labour sponsored funds. They subsequently lost 90% of their value after we were married. I contend that I should not be liable for any of these losses. Answer: On the breakdown of a marriage (but not a common law relationship), spouses “equalize” their assets and liabilities and share, with some exceptions, the growth in their net worth during the marriage. This video explains “Equalization of Net Family Property” in greater detail. Many separating spouses can feel that the equalization process can be unfair – particularly where one spouse has spent money on stupid things, gambled it away, is getting a windfall due to the division of the matrimonial home, or it has been a very short marriage. In these and other situations, dividing up all property “50/50” can seem unfair. Section 5(6) of Ontario’s Family Law Act does allow a Court (or Family Arbitrator) to deviate from the usual equalization of Net Family Property and divide the family’s wealth another way. It accommodates all of the scenarios above and a few others. However, the test that the Family Court (or arbitrator) has to use is not whether the normal “equalization” would be unfair. Section 5(6) says that to deviate from the normal equalization, the Court must be “of the opinion that equalizing the net family properties would be unconscionable.” “Unconscionable” is much more than just unfair. The case law says that it means that the usual result must be “shocking to the conscious of the court.” That is much more than just unfair. One spouse spending a lot of money on an affair is not enough. A spouse spending too much is not enough. Justice Jennings put it this way: The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable. Specifically on the issue of investment losses, the Courts have held that improvident (stupid) investing is not enough to justify an unequal division of net family properties. The investment must have been made recklessly or in bad faith. That means the spouse must have known, or should have known, that the investment would become worthless. Risky investing is not enough. The spouse must have acted deliberately to lose money or known that he or she was likely to lose money. That can definitely seem unfair – especially when one spouse is a conservative investor and one spouse is a high risk investor, or where one spouse’s savings have done really well and the other spouse’s investments have done poorly. But, fairness is not the test. Different opinions on finances can cause stress in, or event the end of, a lot of marriages. Where spouses have significant differences of opinion about money, they should consider getting a marriage contract. Spouses can get a marriage contract at any point during the marriage. They can keep a marriage together if one spouse wants to do something risky and the other one wants financial protection. This video explains how to protect yourself and save your marriage with a marriage contract. But, if you are separated now, it is likely too late for a marriage contract, and you have made one of the common family law mistakes. You should speak to an excellent Family Law Lawyer as the only way to correct this may be through spousal support, as section 15.2(6)(a) of the Divorce Act allows a judge to address the economic consequences of the marriage and its breakdown through spousal support. That can be through either awarding spousal support or reducing an amount of spousal support to reflect how the marriage affected the spouses financially. You can get a lot more information about Ontario Family Law issues, including support and property division, and most other common family law issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac, or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer. John Schuman is a Certified Specialist in Family Law. He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca Listen to the Ontario Family Law Podcast! “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJune 30, 2017June 22, 2020
Breaking up Before the Wedding: Who gets the Ring? By: Katelyn Bell, Summer Law Student Many television shows and movies portray it, and many couples live it. When a couple separates, who really should keep the engagement ring? While some may argue that it is the recipient’s to keep (after all – it was a gift!), others take the position that the ring belongs to the giver (“If I bought it, it’s mine!”). Based on my own personal survey – conducted amongst family, friends and colleagues – it appears that there is no general consensus on this issue. Whatever your own personal answer may be, would it change depending upon who ended the relationship? A Nova Scotia court has taken a position on this issue, and their opinion? If you broke off the engagement, the ring is not yours to keep. The “who gets the ring” issue went before the small claims court for one ex-couple in Nova Scotia. Several issues the ex’s were in disagreement over were also dealt with by adjudicator Gregg Knudsen. For Knudsen, it was of vital importance to determine who broke the engagement. Interestingly, Knuden was unconcerned with who ended the relationship. “It is the conditional aspect of the gift, the marriage or the intent to marry, which is the critical issue. The determination of the entitlement to the engagement ring is based upon who broke off the engagement and who didn’t.” This decision sparks some interesting questions. Under section 33 of the Ontario Marriage Act, the question of who caused the break-up is irrelevant in determining the right of the donor to recover the gift: Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift. When one looks to the case law in Ontario, a slightly unclear picture emerges. There is case law to support the proposition that engagement rings are conditional gifts that must be returned if the marriage does not take place. In those cases, the courts have looked at who broke off the engagement (similar to the practice taken by Knudsen). See for example McArthur v. Zaduk (2001), where because the donor broke off the engagement, the recipient kept the ring. Though other cases have held that the engagement ring is an unconditional gift that does not have to be returned, regardless of the fault of either party. See Rakus v. Piccolo, (1989). Yet another opinion on the issue comes from Newell v Allen (2012), where the judge ordered that the engagement ring be returned from the intended wife to the intended husband, regardless of who had broken the engagement. In either case, if you ever find yourself in this position as a donor, it’s important that you request the ring back when the engagement is broken. If not, you may be prevented from demanding it back later. Delay in demanding the return of the ring may also suggest that its character has changed from an engagement ring, conditional on marriage, to an unconditional gift: H. (A.) c. M. (M.) (1997). Of course, a break-up is always an uncontemplated occurrence for couples – especially those who are engaged and intend on spending the rest of their lives together. However, having a cohabitation or pre-marital agreement in place can help you to avoid such conflicts down the road, if they were ever to occur. If you need help drafting such an agreement, or if you are having trouble recovering damages or are being sued as a result of a broken engagement, contact Devry Smith Frank LLP’s family law group today or call us directly at 416-449-1400 for more information. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJune 19, 2017July 5, 2023
Breaking up Before the Wedding: Who gets the Ring? Many television shows and movies portray it, and many couples live it. When a couple separates, who really should keep the engagement ring? While some may argue that it is the recipient’s to keep (after all – it was a gift!), others take the position that the ring belongs to the giver (“If I bought it, it’s mine!”). Based on my own personal survey – conducted amongst family, friends and colleagues – it appears that there is no general consensus on this issue. Whatever your own personal answer may be, would it change depending upon who ended the relationship? A Nova Scotia court has taken a position on this issue and their opinion? If you broke off the engagement, the ring is not yours to keep. The “who gets the ring” issue went before the small claims court for one ex-couple in Nova Scotia. Several issues the ex’s were in disagreement over were also dealt with by adjudicator Gregg Knudsen. For Knudsen, it was of vital importance to determine who broke the engagement. Interestingly, Knuden was unconcerned with who ended the relationship. “It is the conditional aspect of the gift, the marriage or the intent to marry, which is the critical issue. The determination of the entitlement to the engagement ring is based upon who broke off the engagement and who didn’t.” This decision sparks some interesting questions. Under section 33 of the Ontario Marriage Act, the question of who caused the break-up is irrelevant in determining the right of the donor to recover the gift: Where one person makes a gift to another in contemplation of or conditional upon their marriage to each other and the marriage fails to take place or is abandoned, the question of whether or not the failure or abandonment was caused by or was the fault of the donor shall not be considered in determining the right of the donor to recover the gift. When one looks to the case law in Ontario, a slightly unclear picture emerges. There is case law to support the proposition that engagement rings are conditional gifts that must be returned if the marriage does not take place. In those cases, the courts have looked at who broke off the engagement (similar to the practice taken by Knudsen). See for example McArthur v. Zaduk (2001), where because the donor broke off the engagement, the recipient kept the ring. Though other cases have held that the engagement ring is an unconditional gift that does not have to be returned, regardless of the fault of either party. See Rakus v. Piccolo, (1989). Yet another opinion on the issue comes from Newell v Allen (2012), where the judge ordered that the engagement ring be returned from the intended wife to the intended husband, regardless of who had broken the engagement. In either case, if you ever find yourself in this position as a donor, it’s important that you request the ring back when the engagement is broken. If not, you may be prevented from demanding it back later. Delay in demanding the return of the ring may also suggest that its character has changed from an engagement ring, conditional on marriage, to an unconditional gift: H. (A.) c. M. (M.) (1997). Of course, a break-up is always an uncontemplated occurrence for couples – especially those who are engaged and intend on spending the rest of their lives together. However, having a cohabitation or pre-marital agreement in place can help you to avoid such conflicts down the road, if they were ever to occur. If you need help drafting such an agreement, or if you are having trouble recovering damages or are being sued as a result of a broken engagement, contact Devry Smith Frank LLP’s family law group today or call us directly at 416-449-1400 for more information. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJune 19, 2017June 24, 2020