What Does The Court Decision On the Repeal Of The Sexual Education Curriculum Mean? On February 28, 2019, the Ontario Divisional Court released its decision on the constitutional challenge to the provinces repeal of the 2015 Sexual Education Curriculum brought by the English Public Teachers Union and the Canadian Civil Liberties Association and others. While the Court dismissed the challenge, the decision does not prohibit teachers from teaching the 2015 Sexual Education Curriculum. To the contrary, to some extent, it requires teachers to teach at least some aspects of the 2015 curriculum or lessons that are very similar to it Teachers at publicly funded schools will want to consult with their Board and their union about their rights and obligations. The decision does not apply to private school teachers as they do not have to follow the Ontario Curriculum at all. This page will provide a general overview and explanation of the Divisional Court’s decision about what sexual education curriculum is in place in public schools. The challenge to the Ontario Government’s repeal of the 2015 Sexual Education Curriculum, resulting in the return to the curriculum as it existed in 2010, can be summarized as follows: The repeal of the curriculum violated teacher’s freedom of expression because the government has threatened to punish teachers who taught the 2015 curriculum. A prohibition on teaching topics such as “consent” and alternative lifestyles threatened the lives and the security of the persons of students, particularly students who could be harmed by a lack of understanding of the meaning of consent amongst students and a lack of information about alternative lifestyles that could result in harm to student who either have a LGBTQ+ lifestyles or are from families that do. A prohibition on teaching alternative lifestyles and focusing on heterosexual relationships offends the equality rights guaranteed in the Canadian Charter of Rights and Freedoms. The repeal of the curriculum particularly threatens the security of the person and equality rights indigenous persons. As a result of the residential schools system and the “Sixties Scoop”, it is more important for indigenous children to learn about consent, bodily integrity and sexual assault at a young age to address the significantly higher rates of sexual violence faced by indigenous children. The repeal of the sexual education curriculum unreasonably discriminated on elementary students on the basis of age and deprived them of information that is important to their wellbeing due to their age without a sound basis for doing so. The Court did not find any violations the Canadian Charter of Rights and Freedoms, nor of the Ontario Human Rights Code. But it recognized the validity of the above concerns. However, it said that the Ontario Government was not preventing teachers from covering the “new” topics in their classrooms. Moreover, the Ontario Human Rights Code may actually require teachers to cover these topics to avoid discrimination against disadvantaged groups who could be harmed by a lack of information on these topics. Importantly, despite some initial “ill-considered pubic statements”, the Ministry of Education is not prohibiting teachers from teaching topics in the 2015 Sexual Education Curriculum. The 2010 Sexual Education Curriculum does not prohibit teachers from covering the additional topics in the 2015 curriculum. Further, there will be no repercussions for teachers who do teach the new topics. To the contrary, teachers may be required to teach topics found in the 2015 curriculum. Despite the repeal of the 2015 sexual education curriculum, the law may require teachers to teach elementary students about consent, body parts, LGTBQ+ lifestyles, the risks of technology, sexual violence and sexually transmitted infections. This is because: Nothing in the 2010 Curriculum prohibits teachers from covering these topics. The Ministry’s Policy and Procedure Memorandum (a directive from the Ministry of Education to publicly funded school boards) number 119 requires boards to have an equity and inclusive education policy that is comprehensive and covers the grounds of discrimination in the Ontario Human Rights Code. PPMs 128. 144, and 145 require school to ensure a “safe positive and inclusive school climate”. The 2010 Curriculum requires that sexual education be provided in an accepting and inclusive manner that reflects the diversity of the student population and ensures that all students feels safe, comfortable and accepted. The Ministry of Education’s position is that how teacher’s meet the above expectations is a matter of the teacher’s professional judgment and discretion. The 2010 Curriculum allows teachers to “amplify” instruction to include current examples. Section 169.1 of the Education Act and the section 1 of the Ontario Human Rights Code require teachers and school environments to be inclusive, tolerant and respect diversity. The Ontario Human Rights Code requires to protect gender identity and gender diversity. The Court did hold that a government, as part of its policy decisions, is permitted to modify the Provincial Curriculum and the Canadian Charter of Rights and Freedoms does not require a particular curriculum. Since the concerns raised by the challenges have otherwise been addressed by Ontario Law to ensure that students are protected from harm, there is no basis to set aside the Government’s decision to repeal the sexual education curriculum. The results of the analysis of large-scale studies of the efficacy and safety of Viagra (Sildenafil) in patients with erectile dysfunction (ED), simultaneously taking antihypertensive drugs (AHDs) have been published. According to the data received, the use of one or more AHDs (diuretics, b-adrenoceptor blockers, ACE inhibitors or calcium channel blockers) doesn’t affect the efficiency and safety of Viagra. Despite all the rhetoric from the Provincial Government about repealing the 2015 sexual education curriculum, Ontario Law and Ontario Ministry of Education Policy, actually require teachers to continue to cover the “new topics” in the 2015 curriculum. The curriculum just does not provide as much guidance on how to cover those topics, so teachers may actually have to refer to the 2015 curriculum, which teachers are permitted to do. The repeal of the 2015 sexual education curriculum was not unconstitutional because Ontario Law still requires teachers to cover the “repealed topics” with elementary school students. The Ministry of Education is just not explicitly telling them how to do so. For more information on legislation pertaining to education in Ontario, contact experienced family and education lawyer, John P. Schuman of Devry Smith Frank LLP directly at: john.schuman@devrylaw.ca, or alternatively, 416-446-5869. “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, Education LawMarch 6, 2019June 14, 2020
Can I be Criminalized or given a Custodial Sentence for Possessing or Using ‘Legal’ Cannabis? The answer to the above question is really dependent on how someone obtains their cannabis and what one then does with their legal cannabis. Bill C-45 has now become law and in a previous post we spoke about the use of recreational cannabis and its legalization on October 17, 2018, by the federal government. In response, the Ontario Government did enact legislation which put stipulations in place to keep possession of the drug away from children and youth, keep our roads safe and regulate the sale of cannabis. However, a significant amount of time has now passed and there may still be some confusion over what constitutes criminal or illegal activity where cannabis is concerned. For those who choose to possess and/or enjoy what is now their ‘lawful right’, they should be aware that there are still potential criminal and/or quasi-criminal consequences. As we indicated in our earlier post, operating a motor vehicle while impaired by drug or with a certain level of drug within your system is a criminal offence under the Criminal Code. As we also indicated, under the Ontario Cannabis Control Act, it is an offence to sell cannabis unless you are a licensed retailer. However, for cannabis retailers as well as the general public in Ontario, there are a number of other cannabis offences with quasi-criminal consequences under the Cannabis Control Act. These include the following: Section 7(1) of the Cannabis Control Act prohibits any person from knowingly selling or distributing cannabis to a person under 19 years of age. Section 8 of the Act prohibits any person from knowingly selling or distributing cannabis to a person who appears intoxicated. Section 9 (1) prohibits anyone form buying cannabis from anyone or anywhere other than an authorized cannabis retailer. In other words, it is still illegal to buy cannabis if you do not buy it from a retailer authorized and regulated by the Ontario government. Sections 10 (1) and (2) make it illegal for any person under 19 years of age to possess, consume, attempt to purchase, purchase, distribute, cultivate, propagate, harvest or offer to cultivate, propagate or harvest cannabis. Section 12 of the Act prohibits anyone from driving or having care and control of a vehicle or boat while any cannabis is contained in the vehicle or boat. However this section does not apply if the cannabis is packaged and unopened or is otherwise not readily available to any person in the vehicle or boat. In addition, under s. 12, if the police are reasonably suspicious that cannabis is in your vehicle they can stop and search the vehicle, the driver and its passengers, without a warrant. There are various potential consequences if an individual (or corporation) is convicted of an offence under the Cannabis Control Act. Section 23 outlines that an individual convicted of an offence under the Act is liable to a fine of not more than $100,000 or to imprisonment for a term of not more than one year or both. The fines and potential imprisonment penalties go up if an individual (or corporation) is convicted of the unauthorized sale of cannabis (contrary to section 6) or the sale of cannabis to someone under 19 years of age (section 7). So you see, the regulation within Ontario’s Cannabis Control Act certainly restricts and heavily regulates that which has been recently “legalized”. The view that cannabis drug use is now completely legal is inaccurate when one considers the numerous prohibitions contained within this Ontario legislation. Devry Smith Frank LLP has been and will continue to monitor the provinces efforts to enforce the Cannabis Control Act in Ontario. If you have questions about cannabis laws or need advice understanding how the recent legislation will impact you both professionally and personally, please contact criminal defence lawyer, David Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@devrylaw.ca “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, Criminal LawFebruary 22, 2019June 14, 2020
When Can I Stop Paying Child Support? Many payer parents in Ontario mistakenly assume that child support automatically ends when their child turns 18. The law, however, says otherwise. The basic premise of child support is to ensure that children benefit from the support of their parents when they are unable to become self-sufficient. Viewed in this light, the question of age becomes less important than the child’s ability to support herself. In Ontario, we normally look to three statutes when dealing with child support: the Federal Child Support Guidelines, the Divorce Act, and the Family Law Act. The Guidelines largely provide a framework for determining the amount of child support to be paid once it is established that the child in question is entitled to support. When dealing with adult children, the Family Law Act explicitly states that they remain entitled to child support where they are enrolled in a full-time program of education. The Divorce Act entitles adult children to support where they are “unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”. Case law has long since accepted “other cause” to encompass children pursuing full-time education. The meaning of “full-time” education causes further confusion. Courts have found children to be enrolled in a full-time program, despite taking less than a full course load. Generally, this is the case where the child’s participation remains consistent with the program’s objectives. This vague interpretation can cause uncertainty – where there is uncertainty, courts generally err on the side of providing children with support. Further, a break in the continuity of the child’s education does not necessarily terminate support. It is common for children to enroll in a post-secondary program only to realize that their chosen program is not for them. They may then take a semester or a year off before changing programs. While child support would likely end for the period during which the child was no longer enrolled in school, the child can re-qualify for support once she enrolls in another program. The longer the child remains out of school, however, the greater the expectation will be for her to become self-sufficient. Courts have also held in some circumstances that child support should continue for a brief period of time following a child’s completion of post-secondary education, to support the child’s transition to the workforce. It is reasonable to expect a brief amount of time for the child to secure employment. In addition to the basic table amount of support, the payor may be required to contribute to the child’s education expenses, such as tuition, textbooks, meal plans, rent, etc., in accordance with section 7 of the Federal Child Support Guidelines. These are referred to “special or extraordinary expenses”. This exercise may be more complex, as it requires a proportional calculation of the expenses based on both parties’ incomes, and an accounting of the child’s obligation to contribute to her own education expenses. However, this is often painlessly navigable with a knowledgeable family lawyer. Lastly, some ex-spouses prepare separation agreements detailing a “terminating event” for child support. A standard agreement may have child support terminating once the child reaches the age of 21, or obtains a post-secondary degree. Notwithstanding the validity of this type of agreement, the courts retain the authority to decide not to be bound by these terms. Terminating child support is often more complicated than it seems at first blush. If you are considering terminating your child support payments, or your ex-spouse has stopped making payments to you, contact Mason Morningstar of Devry Smith Frank LLP for help determining your rights and obligations in this regard. mason.morningstar@devrylaw.ca or 416-446-3336 By Fauzan SiddiquiBlog, Family LawFebruary 8, 2019July 5, 2023
I Have Children From a Previous Relationship. I’ve Since Remarried and Have Children with My Current Wife. How is Child Support Calculated for My Eldest children? In recent years, it has become more commonplace to see “complex” families where one (or more parents) have children with several other parents or is a step-parent to children in other families. Therefore, how child support is calculated when one parent has children with several other parents is an increasingly common question. The solution is different for parents who are the biological (or adoptive) parent to all the children or the biological parent for the child (or children) and a step-parent to other children. Generally, child support is not payable when you are living with, and sharing the household expenses for the other parent and the children. This is a situation that would most likely be the case if you are still married and not separated. Biological and Adoptive Parents First, biological (and adoptive) parents always paytable support under the Child Support Guidelines. There are some possible adjustments where: The payer’s income is over $150,000.00 (pursuant to section 4 of the Child Support Guidelines) Where paying support causes undue hardship – see section 10but note that proving undue hardship in court is difficult There can also be adjustments for shared or split custody but for tax reasons it is better for both parents to pay full support in that situation. When the child support payer has all the children with one other parent, calculating child support is significantly easier. The parents can obtain a version of the Child Support Tables and locate the table that pertains to their current situation. For instance, if there are three children, with just two parents, it is a simple matter of looking at the table for three children. Things work differently where the support payer has children with several different parents. The Child Support Guidelines work on the premise that children should not be disadvantaged by their parents’ choices, and there are some expenses that can be shared between kids in the same family. That being said, where there is multiple support receiving parents, the support payer pays the full table amount for the number of children with each parent. Having children with several different parents can mean having to pay a substantial amount of child support. However, there can be an adjustment for undue hardship in extreme circumstances, but again, this can be difficult to demonstrate and prove. It is preferable for the parents to make financial sacrifices, not the children. Child support where there are multiple parents or more complicated parenting arrangements can be difficult to determine. There are a lot of factors that need to be taken into account, and there may be additional ways that the law can help you. The best way to protect yourself, your children and your financial security, is to find out how the law applies specifically to your situation and what steps you should take. Speaking to a highly experienced lawyer, John Schuman of Devry Smith Frank will help alleviate some of the stress and complications that are often associated with family law matters. Call today at 416-446-5080 or 416-446-5847. Alternatively, email john.schuman@devrylaw.ca “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 LawJanuary 31, 2019June 15, 2020
Identification Requirements for Real Estate Transactions An important part of preparing for a real estate transaction is making sure that you have sufficient identification documents to satisfy the requirements of your realtor, lawyer and mortgage lender. Each of these professionals will require that you provide documents to verify your identity. The usual requirement is two pieces of valid and unexpired identification documents, one of which must be photo identification. Examples of acceptable photo identification are an Ontario drivers licence, an Ontario Identification Card, or a Canadian Passport. The second piece of ID could be one of the foregoing, a Canadian Social Insurance Card or a credit card issued by a major Canadian financial institution. Your lawyer will document the details from the required I.D, and will also make note of your occupation and the name, address and telephone number of your employer The Non-Resident Speculation Tax imposes a 15% tax on the purchase or acquisition of an interest in residential real estate by non-residents of Canada in the Greater Golden Horseshoe Region (GGH). This includes the following geographic areas: City of Barrie County of Brant City of Brantford County of Dufferin Regional Municipality of Durham City of Guelph Haldimand County Regional Municipality of Halton City of Hamilton City of Kawartha Lakes Regional Municipality of Niagara County of Northumberland City of Orillia Regional Municipality of Peel City of Peterborough County of Peterborough County of Simcoe City of Toronto Regional Municipality of Waterloo County of Wellington, and Regional Municipality of York. In order to be exempt from this tax individuals must provide evidence that they are Canadian citizens or Permanent Residents of Canada. Your lawyer will require that you sign a sworn declaration to this effect, and you may also be required to provide proof of your status in the form of a Canadian passport, Canadian citizenship card or Permanent Resident Card. Prior to entering into a contract to buy or refinance real estate, you should consult with a lawyer and make sure that you have all the documentation required to satisfy the requirements of your realtor, lawyer and mortgage lender. At Devry Smith Frank LLP , we are well-equipped to handle your real estate transaction. We provide promptness, precision and understanding to all our clients, engaging with you from the beginning stages of your purchasing journey to the closing of your dream property. We pride ourselves on our ability to clarify vague or unclear legal terminology, and to communicate with our clients in clear and simple terms. For experienced assistance with both commercial and residential real estate, contact: Louis Gasbarre at 416-446-3318 or by email at louis.gasbarre@devrylaw.ca or Robert Adourian at 416-446-3303 or by email at robert.adourian@devrylaw.ca “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, Real EstateJanuary 18, 2019July 5, 2023
Spousal Support and Early Retirement – Is it a Material Change in Circumstances and/or Can Spousal Support End in the Event of Early Retirement? Spousal support, sometimes referred to as maintenance or alimony, are funds that are paid to one spouse to another upon separation or divorce. There are various reasons as to why one spouse may be required to pay support to the other, usually to assist financially for a specified amount of time or to compensate a spouse who is seen to have sacrificed their ability to earn during the marriage. However, what happens when there are material changes in the payor’s initial circumstances which led to the decision to pay spousal support to begin with, or when the possibility of an early retirement is imminent? One could reasonably make the assumption that their obligation to pay spousal support is subject to termination, as in any circumstance, it is likely that each party would have already been in receipt of their share of the assets accumulated during the relationship. Unfortunately, this notion is often incorrect. – Clarifying whether the conditions for variation exist relies solely on a ‘material’ change. According to the Divorce Art, if the payor expresses an interest to amend a court order for spousal support, the court must be satisfied that a ‘change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order’. The former spouse who is requesting to obtain the variation is responsible for being able to demonstrate that the changes in circumstances are material. In other words, the onus is on the spouse who is pursuing the change, to present evidence proving the change should be granted. In the recent case, Hanniman v Hanniman, 2017 ONSC 7536 (CanLII) an Ontario judge set precedence for what constituted a material change in circumstances, whereby the termination of spousal support was sought and thought to be justified on the basis that one party entered early retirement. Ultimately, the motion to terminate spousal support was dismissed, suggesting that opting to retire early and being in receipt of less income, did not necessarily provide grounds for termination. The motive for early retirement is a factor that was not disregarded, instead, it was looked upon as a voluntary approach that did not align with a mandatory retirement policy.- For this reason, material change could not be concluded. Moreover, it must also be taken into account that ‘the changed circumstances, had they existed at the time of the making of the spousal support order… would have resulted in a different order.’ A stipulation in which did not appear in this circumstance. Nonetheless, it is always advisable for each party to consider devising a separation agreement. A domestic contract which essentially deals with any significant changes to your situation and can include specifics such as the duration in which the spousal support will be paid. Contacting an experienced lawyer for help with issues pertaining to family law matters, will provide you with the information, support and ease needed to navigate through the complexities one may face during a divorce or separation. At Devry Smith Frank LLP, our mission is to help you understand your entitlements, providing each client with the advantage of having a reliable source of legal advice. Contact Andreina Minicozzi, of Devry Smith Frank LLP, for experienced family law assistance, at andreina.minicozzi@devrylaw.ca or 289-638-3179 “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 LawJanuary 8, 2019June 15, 2020
I’m Getting a Divorce, What Are My Rights to the Family Business? When divorce is contemplated by either one or both spouses, often it is time to start thinking about the division of assets. This could include the matrimonial home, financial accounts, earnings accumulated during the marriage and as one might expect, retirement accounts also. That said and unsurprisingly so, countless married couples who in addition, become business partners, do not anticipate separation and as a result, make no formal arrangements concerning their business should the unexpected happen. Unfortunately, the lack of forward-thinking from the onset can become incredibly problematic, and in some cases subjecting the business to stagnation, as the breakdown in communication and lack of mutual agreement occurs between the two parties. So, what happens when you finally make the decision to divorce? – People often assume that divorce typically means all assets are divided equally, 50/50. Obviously, there are exceptions to this notion – for instance, if a property is in joint names and owned by each party as joint tenants, then indisputably each is entitled to half of the property in question. However, a jointly owned business is somewhat more complex, as generally, the resolution is rarely as straightforward as the previous example. There are a number of scenarios to which can be presented to married business partners: – Complete dissolution of the business and splitting the proceeds – Continue to jointly manage the business – An elected spouse keeps the sole proprietorship of the business and purchases the remaining shares. As you can imagine, this can be a tough decision to not only decide upon but one that both parties should endeavour to ultimately agree on together. Less challenging if the separation is amicable, which is why at Devry Smith Frank LLP, we understand the need for a comforting experience and the importance of promoting a smooth transition. Furthermore, the complexities don’t often halt there. – Outside the obligations to yourself, there are obligations to your employees, clients, suppliers, creditors and anyone else who may be considered a business shareholder. It is essential to seek guidance from experienced family and corporate legal professionals, who have extensive skills in helping to decipher both the family and business aspect, thus attaining a fair settlement for both parties. Your family lawyer will also be of assistance in improving your knowledge on your responsibilities and entitlements throughout the process. If you are thinking about dissolving a marriage and a business partnership simultaneously and you are concerned about what will happen to your family business, talk to one of our family lawyers today in our Toronto office location. For more information on how we can assist, please contact our office online or directly on (416) 449-1400 and schedule a consultation today. “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 LawDecember 20, 2018June 15, 2020
I Have Been Assaulted, Can I Claim Compensation for Personal Injury Arising From This Assault? In Canada, reasonable expectation of personal safety is enforced criminally and civilly and in a previous post we already described the implications associated with dishonest sexual assault accusations, defamation of character and the damages in which one might be able to claim should they become such a victim. Perhaps slightly more complicated is understanding the differences between a criminal and civil case and how, particularly where a criminal prosecution is concerned, a personal injury claim can be affected. That said, it is important to also acknowledge that legal action taken as a result of an assault can be heard in both criminal court and a civil court. An assault by definition occurs when the defendant has demonstrated some sort of intended threat that in turn has instilled an element of apprehension or fear in the would-be claimant. This explanation typically pertains to cases that would be considered to be of a criminal nature. Although the lines are often blurred, there are significant distinctions between assault and battery and it is not uncommon for an assault to be mistaken for the latter. One clear differentiation is that with an assault there is no requirement for any physical contact to have occurred and the claimant does not need to have suffered any physical injuries. Thus, a claimant who can prove that the defendant intended to commit the act that could be seen to reasonably cause apprehension on part of the claimant, may be successful in obtaining compensation in a civil assault injury case. A personal injury lawsuit may be the most effective way for the victim to not only get reimbursement for possible medical bills and out of pocket expenses that may include reimbursement for housekeeping assistance and personal care, but also compensation for any pain and suffering experienced by the victim. This can be recovered from the person or persons who are legally liable for the incident that occurred. This can extend beyond those accused of committing the assault and can include employers, institutions such as schools and camps, governmental organizations, and in addition, parents. The Ontario Limitations Act s.4 limits the time in which a claimant can bring a claim to two years from the day the claim is discovered. Typically, the civil case proceeds after any criminal proceedings are held but one has to be certain not to possibly lose the opportunity of bringing a civil claim by waiting too long to initiate the claim. Civil proceedings are usually complex and require an experienced personal injury lawyer who can evaluate and advise you throughout the process. At Devry Smith Frank LLP we can navigate you or your loved ones through the seemingly overwhelming laws pertaining to personal injury. Although every case is different, we continuously strive to achieve the best possible results. For more information on how we can assist, please e-mail me directly at Marc Spivak or call me at (416) 446-5855 and schedule a free consultation today. “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, Personal InjuryDecember 13, 2018June 15, 2020
Common Law Couples: Exclusive Possession of The Home More than ever, unmarried (or “common law”) couples are living in conjugal relationships that are indistinguishable from marriage. Many of these couples will be surprised to learn that, in Ontario, they do not enjoy the same rights and obligations as their married counterparts upon separation. In a previous post, I wrote about the difference between married and unmarried couples as it relates to the division of sale proceeds from a jointly owned home. Another issue confronting common law couples is the lack of statutory protections regarding the “matrimonial home” afforded to married spouses. Generally, property owners are entitled to do what they wish with their property, and correspondingly prevent others from interfering with this right. However, special rules with respect to the matrimonial home provide exceptions to this general rule. Matrimonial Home – Exclusive Possession Ontario’s Family Law Act defines a matrimonial home as every property in which a person has an interest that was ordinarily occupied by the spouses at the time of separation. In practice, this generally refers to what many people consider the family home. Regardless of ownership, both married spouses are entitled to possession of the home, preventing one spouse from evicting the other, or changing the locks, by virtue of being the sole owner. The sole owner is further prevented from unilaterally selling or encumbering the home without the other spouse’s consent, or a court order to this effect. Pursuant to section 24(1) of the Act, the non-title holding spouse can even apply to a court to force the title-holding spouse out of the home for a period of time, such that he or she has the exclusive right to occupy the home. This is referred to as “exclusive possession” of the matrimonial home. Common Law Couples – Matrimonial Home? Ontario law does not recognize matrimonial homes for common law couples. As such, the sole owner is free to do as she wishes with her property, and may evict the other spouse or sell the home as she pleases. A non-title spouse who refuses to leave may be liable for trespassing. In limited circumstances, however, some remedies akin to exclusive possession orders are available to common law couples. In Morrison v Barbosa CarswellOnt 12197 (Ont. S.C.J.), the parties cohabited in a property solely owned by the ex-boyfriend for six years. Following separation, the ex-girlfriend remained in the home for almost two years while the ex-boyfriend moved out of the province. During this time, the ex-girlfriend continued to make both financial and personal contributions to the property, and directly to the ex-boyfriend. The ex-boyfriend brought a motion to evict the ex-girlfriend from the home so he could list it for sale, while the ex-girlfriend brought a motion to remain in the home. Although the parties were unmarried, the judge found there was case law to support the ex-girlfriend’s request for exclusive possession of the home. Namely, the ex-girlfriend claimed that she held a proprietary interest in the home by virtue of a “constructive trust” or a “joint family venture”. Further, the ex-girlfriend suffered from several medical issues that would be exacerbated by her eviction from the home. The motions judge ultimately decided that these issues required a full trial, and awarded the ex-girlfriend exclusive possession of the home pending the final resolution of the case. While there may be a general shift towards expanding rights for common law couples, special caution should be had with the foregoing. The facts of the case are highly specific, and there is no appellate authority confirming the status of this area of the law. Unmarried couples would be wise to address these issues in a cohabitation agreement – seeking legal advice is always recommended to curtail future disputes. Contact Devry Smith Frank LLP to speak with an experienced family lawyer online or 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 LawDecember 11, 2018July 5, 2023
The Original Will Has Been Misplaced or Destroyed – What Options Do I Have? We have recently looked at the validity of a Will when the uncertainty of the testator’s wishes are apparent. Especially in the instance whereby the testator has more than one Will. – However, the definition of the modern-day family has somewhat evolved over the years, allowing for the recognition of diversity and the complex intricacies of families in Ontario today. That said, from a legal perspective, one may not have considered what family structure might mean and the implications in which their family could encounter should they fail to have an appropriate plan in place for the future. It is for this reason, estate planning, although often deemed to be a daunting process, is fundamental in eliminating confusion and ensuring your last wishes are observed. In any case, it is this document that will determine how your estate will be divided upon your death. – Someone, namely the selected beneficiaries, will be in receipt of any assets you leave behind and of course, if applicable, the care of minors can be determined in this instance also. While there is no legal obligation to prepare a will, a meticulously drafted Will, will guarantee that your estate and the beneficiaries are protected. But, what transpires when the original signed Will, is misplaced or destroyed? After all, there should only be one copy of the original Will and if for some unforeseen reason the Will becomes inaccessible, there may be some belief that there were intentions by the testator, to revoke it. Generally, an extensive effort to pinpoint its location will have occurred before the assumption of this conclusion. Fortunately, when the original signed Will cannot be located but a photocopy is available, the Ontario Rules of Civil Procedure provides some clarification and states the following: 75.02 The validity and contents of a will that has been lost or destroyed may be proved on an application, (a) by affidavit evidence without appearance, where all persons who have a financial interest in the estate consent to the proof; or (b) in the manner provided by the court in an order giving directions made under rule 75.06. O. Reg. 484/94, s. 12. Permitting the beneficiaries to bring forth an application before the court, to prove a lost or destroyed Will. The application must include a photocopy of the Will, with a declaration stating the trustee of the estate has no reason to believe that the testator destroyed the will or performed any other act to revoke the Will. However, it can only be accepted if all persons, who are believed to possess a financial interest in the testator’s estate, consent to the proof. – If so, validity and the contents of the Will is considered to be proven, thus a court appearance is unnecessary. On contrary, it may be that one or more beneficiaries object to the Will being proven, to which in these circumstances a slightly difficult process and a court hearing is anticipated, whereby the opposing beneficiaries are entitled to provide relevant documentary evidence to demonstrate their position. The Judge will then determine the outcome. Wills and Estates can be somewhat complex, for further advice on ensuring your final wishes are acknowledged or to begin planning for your estate, estate lawyers at Devry Smith Frank LLP will assess your needs and help you determine what is appropriate for you and your family. For more information on how we can assist, please contact our office online or directly on (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, Wills and EstatesDecember 4, 2018June 16, 2020