Written on behalf of NULaw
Being able to give something of value to a loved one after you pass away is something that many people hope to be in a position to do. Whether it’s jewelry or land, one of the most important reasons to have a will is to make sure that your estate is distributed as you want it to be. Without a will, your estate will be distributed according to the law, and that may see things unfold in a way that was not intended. A recent decision highlights the risks and uncertainty that can be found when someone does not have a will in place.
Farmer dies without a will
The deceased owned a farm which he and his son worked on. He had five children from his first marriage and one child, “BW” during his second marriage. When the deceased died without a will, BW claimed that before his death, his father had agreed to transfer the farm to him. The agreement was drafted by a lawyer but not signed. The estate did not believe the agreement was enforceable, and the parties ended up before the courts to settle the matter.
The estate said that the deceased lacked the capacity to enter the agreement and that BW had exerted undue influence over his father. Finally, the estate argued the agreement was unconscionable and unenforceable.
The matter was originally decided by way of summary judgment, with the Chambers judge finding that the deceased had not received independent legal advice, adding that there was a question of undue influence before him, but those should be determined at trial.
The relationship between father, son, and farm
BW has provided an affidavit to the court indicating that when he was a teenager, his father told him he would eventually get the farm and that the father wanted to ensure it would be operated by his family in the years following his death.
BW had been living away from the farm until from 2003 until 2012, at which time he returned home for a job, which allowed him to contribute to the operations of the farm. He began working the farm full time in 2015, after which time he told the court he and his father agreed on an agreement with terms including BW’s intention to purchase the land owned by his father, and that his father would assign the crown lease the farm is on to RW.
RW worked the farm until his father’s death and had purchased equipment to do so. Prior to his father’s death, the two visited a lawyer where an agreement to purchase the crown lease was made in consideration for $1, and that the land owned by the father would be sold to RW for no more than $300,000.
Was there a binding agreement?
The court narrowed in on the lack of independent legal advice provided to the deceased. In the final years of his life, he was in ill health and was completely reliant on BW. Furthermore, the agreement for BW to purchase the farm was never finalized, and that his father should have had a lawyer look at the agreement before signing it.
Contact NULaw in Toronto to obtain proactive legal advice and plan your intergenerational wealth retention strategy. We provide unparalleled personal guidance for all your estate planning needs. Understand your options, minimize your legal and financial risks, and protect your loved ones. Contact us online or at 416-481-5604 to book a consultation today with estate planning lawyer Lex Arbesman.
As people move through the various stages of their lives, they form relationships with others. Over time, people might have different understandings about their own relationships as well as relationships between other people. This is why proper estate planning is essential for people who want to ensure their estate is distributed as intended and also to make sure people know where they stand in regards to what they may receive from the estate. As we see in a recent decision from the Ontario Superior Court of Justice, even when there is a will in place, there can still be disagreements over what the deceased’s intentions were and what someone’s relationship with the deceased was.
Deceased involved in common law relationship
The deceased passed away on May 2, 2020, at 84-years of age. His death followed a period of declining health as well as growing mobility issues. At the time of his death, he resided in a building he owned. The building contained two other units in addition to the one he lived in. He lived with a woman referred to by the court as “Erica.” They had been involved romantically in the 1960s, at which time Erica said she gave birth to the deceased’s son. However, they did not continue their relationship after the birth of their son. They eventually got back together when Erica moved in with the deceased in 2013. She has continued to reside there since the deceased passed away.
Will mentions nothing of companion
The deceased’s will was dated May 12, 2009. It designates his children as co-estate trustees and leaves his estate to his children and grandchildren. The will makes no mention of Erica at all.
At the time of the trial, Erica was 91 years old. While he has a subsidized apartment in the city, she says it is not sufficient to meet her medical needs and said that she needs to stay in the apartment she shared with the deceased. She also maintains that she and the deceased were common-law spouses, and as such, she has a life interest in the apartment. The deceased’s daughter did not agree that they were spouses or that a life interest is in place. She was seeking to sell the building in order to settle the estate’s tax liabilities.
What should happen to the apartment?
The court focused on the will being silent in respect of Erica. However, in a video recording made a few days before his death, the deceased said he wanted to provide her with $50,000 from a life insurance he had in place, adding that he wanted “the place where I reside” to go to his grandchildren.
The court found that selling the building was the only way for the estate to meet it tax liabilities, adding that Erica’s apartment was sufficient to meet her health needs, stating it is specifically designed for seniors and has been subject to upgrades since Erica was last there.
As a result of this, the court ruled that Erica must vacate the apartment so the estate could sell the building.
Contact the estate law team at NULaw in Toronto to obtain pragmatic legal guidance with dependant’s relief claims. Whether you are a beneficiary seeking adequate provisions from a testator, or you are an executor or estate trustee seeking assistance with defending a relief claim, we can help. Contact us online or at 416-481-5604 to book a consultation today.
When a couple is going through divorce or separation, issues such as spousal support and child support can lead to bitter disputes. However, once an order regarding support is put in place, everybody involved can at the very least know what is expected of one another. When someone has an obligation to pay child support or spousal support, the amount paid is generally fixed unless the payor can demonstrate that there has been a significant change that warrants revisiting how much they should be paying. One such change can be retirement. While retirement doesn’t always impact child support payments, it can more often impact spousal support obligations since child support typically ends when the child becomes an independent adult, but spousal support can continue forever. A recent decision from the Ontario Superior Court of Justice looks at how retirement is considered when the retiring party has a spousal support obligation, and more importantly how important it is for parties to be prepared to share the factual details behind their positions.
Husband says he has retired
The parties were in a long-term relationship and had two children while together. At the time of the hearing the children were adults, so there were no issues concerning child support. However, the husband was looking to change his spousal support obligations that were determined in a separation agreement dated January 18, 2008.
The husband is now 66 while the wife is 65. The husband had a moderately high income and was paying a significant amount of spousal support (exactly how much he was paying, or how much income he made was not included in the decision).
The husband told the court that he had retired and as a result has very little income. He sought to terminate spousal support completely, stating that being made to continue to do so would create extreme hardship for him.
The wife opposed the husband’s request, stating that she still needs spousal support income to survive and that a stoppage of support payments would create extreme hardship for her.
The court noted that this is an extremely important issue and one that requires careful consideration since a finding would have a large impact on them.
Parties don’t have the facts ironed out
The court stated that the facts behind making a decision on a matter like this are important to have. In this case, the court also found there were credibility issues among the parties, and that their affidavits have not been tested. There had been no effort to prepare an agreed statement of facts, and it wasn’t until the hearing that it became apparent how unaligned the parties were.
The court stated it was important for the husband and wife to share the facts behind their request, stating
“in this case neither party has properly advanced their case. Each of their materials are deficient in failing to properly set out certain fundamental aspects of their legal arguments. They haven’t clearly set out where they agree and where they disagree. And they haven’t done some very simple things which would have avoided this court date being wasted.”
What facts should the parties be prepared to discuss?
The court listed a number of questions that parties should be able to answer when appearing before the court. It proves to be very helpful and applicable to a wide range of legal issues.
- How many legal arguments shoud I raise?
- Are some arguments stronger than others? Should I focus on my strengths, or advance every conceivable argument I can think of?
- Are some arguments easier and less expensive to present?
- Do weak arguments undermine or distract from strong arguments?
- Are there things I can do to reduce the scope of the litigation, and reduce the resulting legal expense?
- Should I consider making some concessions on less important issues or topics, if it will allow me to present my more important requests more quickly and less expensively?
- Are there things the lawyers can do to explore the facts and reach certain agreements, so they will have fewer things to argue about once they are in front of the judge?
- Does my evidence prove my case and/or disprove my opponent’s case?
In this case, the court declined to hear the matter, and advised the parties to work on their positions before appearing again.
Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.
A recent costs decision from the Ontario Superior Court of Justice was in relation to a case the court heard last year on the idea of intentional underemployment in child support situations. Intentional underemployment is when a person with child support or spousal support obligations intentionally loses their job or takes a job with a lower income in order to be able to pay less support. The facts behind the decision highlight the nuances that come with such situations.
Father gets a promotion that pays less
The issue came before the court after the father applied to have his child support obligations be lowered from the $415 per month he had been paying. In fact, his position was that the mother should be made to pay him $89 per month in child support. He said that his request stemmed from a decrease in income he experienced after moving from a job that paid $138,658 in 2018 to one that paid $98.670 in 2019.
The husband’s position was that while his total income was lower, that was because his base salary had increased, but his ability to make overtime earnings in his new position, which is managerial, has been taken away. He told the court that he applied for the position before the parties had an order in place related to child support and that while the new job pays less at the moment, he took it with career growth in mind and expects to continue to grow in his job and eventually make more money.
The mother told the court that she did not believe the father had demonstrated a material change in circumstances that warrant a change to the order. She said his decision to accept a job that pays less was not a reasonable one to make and that he has an obligation to provide for his children to the maximum of his ability.
Did the father’s actions amount to intentional underemployment?
The court accepted that the father applied for his position before the child support order was put in place. The court also agreed that his new position qualifies as a promotion, though it had nothing other than the father’s word that it would lead to further career growth. However, the court found that on a balance of probabilities, it seems fair to conclude that his base salary could be expected to increase as he advances his career, noting he had already received a raise of $5,000 per year since he took the new job.
The court also found that the decrease in the father’s income was significant and that it constituted a change in circumstances. The court ruled that rather than the father paying the mother $419 per month, the mother would have to pay the father $89 per month since they share parenting time and she makes more than he does.
Contact NULaw early in your separation to understand your rights and obtain the best possible child support arrangement for your children. Our family law lawyers have been advising clients on child support and other family law matters since 1953. We remain committed to upholding the principles established by our distinguished predecessors: combining big firm results with a small firm relationship, and an overall commitment to always put our clients’ best interests first. Contact us online or at 416-481-5604 to book a consultation.
The matrimonial home is often the most valuable asset a married couple may own. When a relationship ends in separation or divorce, determining what happens to the home can be a decision loaded with emotional and financial considerations, and it might complicate the parties’ attempts to divide their property.
Husband agreed to purchase home
The applicant of the motion was the wife, and she asked the court to allow a motion to be heard before having a case conference in order to allow her to seek the partition and sale of the matrimonial home. She also sought interim spousal support.
The parties were married in the summer of 2012 and separated in late 2019. During the time since their separation, the husband has remained in the matrimonial home. The wife had moved in with her parents on a temporary basis and had stayed there. The wife told the court that when the parties separated the husband agreed to purchase the home, though he has since failed to take the necessary steps to do so.
The mother’s urgency in the matter stems from her parents telling her she is “not welcome to stay at their home indefinitely.” She also told that court that her monthly payments of $595 per month as a recipient of the Canada Pension Plan Disability Program is not enough for her to live on, and she needs the proceeds from the sale of the home to afford a new place to live. She told the court her annual income is only $7.184 per year, while the husband’s is $52,000.
In the meantime, the father said the matter does not need to be treated with urgency. He stated that he has been maintaining the home since their separation and that he has recently served his responding material and his Financial Statements/Notices of Assessment.
Is there an urgent need to sell the home?
The court stated that the province’s Family Law Rules only allow for motions to be heard before a conference if there is a situation of urgency or hardship. Situations that qualify usually include abduction, threats of harm, or dire financial circumstances.
The importance of case conferences was also highlighted, with the court noting that every effort must be made to reschedule case conferences to allow them to proceed.
In the matter at hand, the court noted that while the parties have been separated since October 2019, it was unclear why the mother waited until April 2021 to commence her motion. The only urgency described was her parents’ statement that she could not live there forever. However, this was not found to have risen to the level or urgency or undue hardship required to skip the case conference.
The court denied the motion, instead requiring the motion to proceed normally. However, the court cautioned that the sale of the home may be an inevitability that the parties will have to acknowledge if the husband cannot ultimately purchase the home.
If you are contemplating a separation, or have already begun the process, contact NULaw in Toronto as soon as possible. Obtain experienced legal guidance and ensure that you receive a fair division of your property and assets. Contact us online or at 416-481-5604 to book a consultation with family lawyer Lex Arbesman.
Many people might not be aware, but when an estate goes to probate, the details of the court’s work to authenticate the deceased’s will becomes part of the public record. Similar to other proceedings before the courts, only in certain circumstances can details be withheld from the public. The Supreme Court of Canada has recently released a judgment about one such situation in which the beneficiaries and trustees of billionaires Barry and Honey Sherman sought to keep details of the probate sealed from public access.
Murder of slain couple is still unsolved
Barry and Honey Sherman, a prominent couple known later in their lives for their philanthropic work, were found dead in their Toronto home in 2017. Since then the identities and motives of those involved in their murder remain unknown. In the years following the murders, media and public speculation has not quieted. As a result, the estate’s trustees sought sealing orders of the probate files. The sealing orders were granted initially, but a journalist reporting on the case challenged the order. However, the application judge concluded that the harmful effects of the sealing order were substantially outweighed by the “salutary effects on privacy and physical safety interests.” However, the Court of Appeal ruled that the sealing order should be lifted, concluding that there was no real risk to anyone’s physical safety should the order be lifted.
Did the estate trustees establish a serious risk?
The court stated that while open courts can be a source of inconvenience and embarrassment, these types of discomforts are not generally enough to overturn the strong presumption of openness. Only in cases where there is a significant risk to privacy and physical safety can the presumption of openness be set aside.
The court went on to say that court openness is protected by Canada’s constitution and is essential “to the proper functioning of Canadian democracy.”
However, as mentioned earlier, there can be instances when court proceedings are closed. The court laid out the test that the party seeking a sealing order must pass. The test requires the establishment of three factors:
- Court openness poses a serious risk to an important public interest;
- The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
- As a matter of proportionality, the benefits of the order outweigh its negative effects.
The court applied the test to the case at hand and determined that the risk to dignity was not serious, and that the information contained in the probate file does not reveal anything particularly private or highly sensitive. Finally, there was no indication of a risk of physical harm to anyone. This last step, the court said, would have been necessary even if there had been a demonstrated risk to privacy.
The court concluded that the probate files should be made public and that the sealing order would be lifted.
Experienced trusts and estates lawyer, Lex Arbesman, provides unparalleled personal guidance with your estate planning needs. Understand your options, minimize your legal and financial risks, and protect yourself and your loved ones. Contact us online or at 416-481-5604 to book a consultation today.
While most planning related to weddings is of the fun variety, it’s not uncommon for couples to consider marriage agreements (also known as pre-nuptial agreements, or “prenups”) in situations where they want to agree on what might happen to property or with spousal support in the event the marriage breaks down. In a recent decision from the Ontario Superior Court of Justice, the court had to decide if the proceeds from the sale of a property that was excluded from the equalization of net family properties can be excluded or if it creates a new property that was not covered by the marriage agreement.
Husband and wife sign cohabitation agreement
The parties involved began living together in 2008 and were married in 2010. They started to discuss a marriage contract in the year leading up to their marriage. The husband had originally proposed a long and detailed contract, but the wife worked with her lawyer to draft a simpler version. The husband and his lawyer negotiated certain provisions and the parties came to agreement.
The section of the marriage contract relevant to today’s topic was in relation to the division of property. The agreement provided a list of property owned by the husband and a list of property held by the wife, stating that the property listed would not be factored into the equalization of net family property, which means that it will remain the property of whoever owned it prior to the marriage. The agreement also provided for a mutual waiver of spuosal support, and that the wife would be given the matrimonial home in the event of divorce.
One of the properties listed as the husband’s was a corporation. The corporation was the sole shareholder of a concrete company. The company was valued at $4,900,000 at the time of the marriage, and the husband sold it for more than that amount in 2011.
When the parties separated, the wife claimed that the money earned form the sale of the company should be not be “traced” or tied to the original agreement, instead arguing that the sale created a new property which was not included in the husband’s list of property to be excluded.
The husband’s position is that the money from the proceeds of the sale of the company was not new property, and that it should be considered an extension of the company and should therefore be traced, or attached, to the list of exclusions.
Can the proceeds of the sale of excluded property be included in a list of excluded property?
The court looked at the context surrounding the marriage agreement. And stated that the mutual and objective intentions of the parties was that their pre-marriage property and the property which could be traced from it was still solely owned by the individual spouse, and that such property would be excluded from any equalization claim in the event the marriage broke down. As a result, the court ordered that the proceeds from the sale of the husband’s property is excluded from equalization.
At NULaw in Toronto, our family lawyers can review a pre-existing marriage agreement or draft a new agreement. We will also fight to enforce marriage contracts if necessary and help you secure what you are entitled to. We are dedicated to protecting you and your assets, and helping you plan for your new life. Contact us online or at 416-481-5604 to book a consultation.
When parents get divorced or separated, it’s not uncommon for one parent to have a child support obligation, which means they have to pay the other parent a pre-determined portion of their income on a monthly basis in order to assist with the cost of raising their children. If child support is not paid, the obligation to make payments does not disappear. Instead, the parent is noted as being in arrears, and the amount of missed support will continue to build. In a recent decision from the Supreme Court of Canada, the nation’s highest court looked at a situation where a parent was $170,000 in arrears and asked for a reduction.
Father fails to pay child support
The mother and father were married in 1983 and divorced in 1996. The mother was granted sole custody of their two daughters, and the father was owed to pay $115 per week in child support. Two years later the father asked for a reduction in support but offered no explanation or supporting documents to explain why he needed a reduction.
The father paid no voluntary child support from 1998-2016, and the court said that only limited sums were collected through enforcement mechanisms. The father was also absent from the children’s lives in every other way, and his whereabouts were unknown.
In 2016 the father applied to have a retroactive reduction in child support, and asked for $170,000 of what he was owed to be forgiven.
At trial, the court granted the father a reduction, setting the arrears owing at $41,642. This was done to bring the support obligations down to what he would have paid under the Federal Child Support Guidelines with his reported drop in income over those years. This decision was overturned on appeal before it made its way to the Supreme Court.
Supreme Court of Canada Dismisses Appeal
The court began its analysis stating that courts have a wide discretionary power when it comes to varying child support orders. Courts should take three considerations into account in order to arrive at a fair position. They are:
- The child’s interest in receiving the appropriate amount of support
- The interest of the parties and the child in certainty and predictability
- The need for flexibility to ensure a just result in light of fluctuations in the payor’s income.
The court then went on to explain the importance for the parents, particularly the parent who should be paying support, to take part in full financial disclosure. This is needed in order to allow the parties to stand on equal footing.
While a significant change in income can be cause for a variation in support, the party requesting it must provide documentation to support their position. This is something the father failed to do.
Even if the father had provided documentation, the court said that retroactivity is presumed to extend no further than three years before the date of formal notice. While this is a general rule, courts can depart from it. But in this case, the court stated the father’s failure to fulfill his obligations amounted to bad faith efforts to evade the enforcement of a court order and denied his request, meaning he has to pay every penny he owed.
Contact the family lawyers at NULaw early in your separation to understand your rights and obtain the best possible child support arrangement for your children. Our firm and its forerunners have been advising clients on child support and other family law matters since 1953. We remain committed to upholding the principles established by our distinguished predecessors: combining big firm results with a small firm relationship, and an overall commitment to always put our clients’ best interests first. Contact us online or at 416-481-5604 to book a consultation.
By the very nature of the process, people who are going through a separation or divorce tend to have many things they disagree on. But it’s important to remember that even if the parties don’t get along, communication and cooperation during the separation process is essential for there to be any finality in the process. A recent decision from the Ontario Superior Court of Justice shows that a failure to cooperate can lead to the process being dragged out for longer than necessary.
Father refuses to discuss matters related to separation
The parties are a married couple who have three children, only one of whom is considered a child of the marriage for support purposes. The mother is 52-years-old, while the father is 61. They were married in 1990 and separated in June 2017.
Since the date of their separation, the parties have lived separate and apart in the matrimonial home which is jointly owned by them. One of the reasons for this is that the father has refused to cooperate in the separation process, and has not agreed for the home to be sold. He has also not provided any financial disclosure to the mother.
Mother seeks sale of house
The mother has asked for the father to be noted in default as well as for the court to order the sale of their home. The court found that the father’s lack of participation warranted that they allow her request to be made.
Regarding the sale of the home, the court looked at the parties’ circumstances. The house is their only asset of significant value, though they refinanced it in 2019 to help their daughter come up with a down payment for her own home.
The court found that the mother should be able to sell the home, and granted her the exclusive right to pursue and execute its sale. However, she also wanted to have exclusive possession of the home, which would mean that the father would have to move out. The only issue was that once again, the father had not provided any financial disclosure to the mother or the court, and as such, they had no idea whether or not he would be able to afford his own apartment. Of course, this means that other matters that have to be resolved following the sale of the home must also be put on hold because the court needed additional information in order to determine what needs to happen to the funds one the home is sold.
Because of this, the court held that while the mother could proceed with the sale of the home, the funds from the sale would have to be put into a trust pending the outcome of the divorce. Additionally, issues such as child support could not be determined. This doesn’t mean that the mother or father will not have to pay support, though. It simply means that once support is determined, the party who is responsible for paying support may owe retroactive support.
Separating from your spouse can be stressful and emotionally draining. Having an experienced family lawyer on your side can help you navigate this uncertain time in your life, help you understand your legal rights, and ultimately protect your assets and interests. Proactively plan for your new future: contact NULaw online or at 416-481-5604 to book a consultation.
Destination weddings are not uncommon, especially in the winter months when couples may want to bring their friends and families on a warm-weather getaway. On the other side of the coin, couples who are married or live in Canada may sometimes find themselves separating or divorcing in another country. If a couple divorces in one country but still reside in Canada, the Divorce Act doesn’t apply. But what about when issues around spousal support come up? This was a question faced by the Ontario Superior Court of Justice in a recent decision.
The family’s history
The parties were married in Syria in 1982. The mother trained as a dentist but did not work following the marriage. The father worked as a civil engineer. They had four children together and lived in Dubai for a time before the mother and children moved to Canada in 2005. The father stayed in Dubai, but provided monthly support to the wife and children, with the amount ranging from $2,000 per month to $5,000.
Two of their children eventually returned to Dubai after university, and the mother routinely visited the father there. The father visited Canada only twice, with one visit occurring in 2010 when he and the mother purchased a home.
In April 2017 the mother received a letter stating that a divorce was put in place according to Islamic law, and that the divorce was “forever.” The wife was not a participant in the divorce and was not aware it was being pursued by her husband. She has not received any spousal support since the divorce, and came to the courts seeking a lump sum of spousal support, which she suggested could come from the sale of the matrimonial home.
Does the court have jurisdiction to make an order on spousal support?
The court stated that the Divorce Act does not apply to couples who divorce in a country outside of Canada, and that the Act recognizes foreign divorce decrees. However, in 2019, the Ontario Court of Appeal refused to recognize a foreign divorce because the wife was not given proper notice (this time in Russia). In that case, “the court held that even if the foreign divorce is valid, a judgment may not be recognized or given effect on the grounds of fraud, lack of natural justice, or public policy.”
In another case out of Canada’s federal court, a similar divorce to the case at hand, known as a “talaq divorce” lacked any of the “necessary element of publicity or the invocation of the assistance or involvement of any organ of the state in any capacity,” and rather served as more of a notice than anything else.
The court found that with the evidence before it, there was no evidence that a proper divorce proceeding had occurred.
On the issue of spousal support
Having found that the divorce was not valid, the court then turned its attention to the matter of spousal support. The court reviewed the parties’ history, noting that the mother is now 62-years-old and dedicated 35 years of her life to raising their children. She became financially disadvantaged after getting married, sacrificing her career. The court found her to be unempolyed, and unemployable.
The court looked at the husband’s history of paying $2,000-5,000 per month to the mother and found that he has the means to continue to do so. While the mother asked for the proceeds of the house to stand in place of support, there won’t be enough available to pay $5,000 per month, though it would see her through the next ten years. The court held that these funds be released to the mother.
Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. Our family law team is dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.