Written on behalf of NULaw

Is School During COVID-19 an Educational Decision or a Health Decision?

The start of the new school year has brought along concerns and precautions that most families have not every experienced before. Some parents have made decisions not to enroll their children in in-person schools, preferring to either home school for the year, or find a school that is teaching remotely, such as private schools. In a recent issue before the Ontario Superior Court of Justice, two parents could not agree on whether their children should attend school in-person. A wrinkle in the matter was that the mother said the decision was hers to make alone.

Parents with different positions on the safe return to school

The parties began living together in 2007 and were married in 2011. They had two children before they separated in April 2016. Their children, aged 8 and 6, have started grades 3 and 1.

A high-conflict separation led to a 9-day trial in 2018 in which decision-making was assigned to both parties, except for some, including medical decisions, which were assigned to the mother.

The mother took the position that it is not safe for the children to return to school in person. Her new partner, who is also a teacher and with whom she has had a baby, has underlying medical conditions that leave him immunocompromised. She told the court that not only is she worried about the older children getting sick, but she is also concerned for her new partner and baby’s health. She proposed to have the children homeschool with her while she is on maternity leave. Finally, the mother argued that since she is charged with making medical decisions for the children, this should be her decision alone to make.

The father, who is also a teacher, said the mother has confused the children’s best interests with what she believes are the best interests of her partner and their baby. He said that while he doesn’t wish anybody harm, there is a benefit to having the girls return to a normal routine and some semblance of their lives before COVID-19. The father also argues that this a matter of education, not a medical decision, and that the parents are jointly responsible for it

The court sees the return to school as an educational decision

The court wrote that it was not persuaded by the mother’s position that it is a medical issue and not an educational one. The court explained that the government of Ontario has provided at-home learning options for parents who don’t want to send their children to school, but that this system breaks down when parents cannot agree.

The court made two important points in reaching its decision. The first was that the medical risks faced by the father should the children contract COVID-19 are serious and that a return to school increases those risks. The court found this risk to be unnecessary. Secondly, the court did not buy into the father’s attempt to draw distinction between the mother’s new partner’s health concerns and those of the children, stating that the best interests of the children are connected to the well-being of everybody they live with.

The court ordered the children to attend school virtually during the fall and urged them to come to a consensus on what to do for the second half of the school year.

Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.


Father Reminded That He Cannot Unilaterally Alter Support

It’s common for many relationships to require sacrifices from all involved. When children enter the picture, it’s not uncommon for one parent to step away from their career in order to spend more time with their children, especially if the cost of childcare exceeds what they would be earning in their job. In a recent decision from the Ontario Superior Court of Justice, the court looked at both child support and spousal support when one of the parents makes much more money than the other.

Unbalanced earnings between parents

The parents were married in 2010 and separated in 2017. They had three children while they were married, all of whom are still under the age of 18.

During the last few years of their marriage, the mother began to take a nursing program at a university. She studied from 2015 until she graduated in 2020. This means than the mother’s career started much later than the father’s, who works as a real estate agent.

In 2018 the parties entered into minutes of settlement for child and spousal support (“the agreement”). In that order, the father, who made about $200,000 per year in his job, was ordered to pay $4,000 per month in spousal support and $1,000 per month in child support. The father was also ordered to pay all Section 7 expenses up to $10,000 per year.

The mother was not working at the time the agreement was put into place, but she is about to start working in her field on a part-time basis.

Father changes support payments unilaterally

The mother told the court that the father was the sole income earner throughout their marriage. The mother had planned to graduate in 2019, but failed a course in the Spring of 2019, which delayed her graduation slightly. She has since graduated.

In July 2019 the mother claimed the father unilaterally changed the terms of the agreement and began to pay a total of $3,600 instead of the $5,000 outlined in the agreement. The mother also claimed the father refused to contribute to additional daycare which she needed in order to work while going to school. Finally, the mother said the father has failed to provide his 2019 income details as required.

The father responds

The father stated that the mother’s failing of one course required her to take one more course in a fifth year of education (over two semesters), and complained that she did not work while taking the single course. He told the court there are no valid reasons to explain her refusal to find part-tine work, especially since he said they were sharing access on a 50/50 basis. Finally, he also stated that his income was impacted by COVID-19.

Details are needed in order to show changes in income

The court was critical of the father’s failure to provide his 2019 income details, also finding that his expenses listed in previous years were not properly documented and did not explain his business expenses in enough detail. Additionally, even if the father thought the mother should be working, it was not within his rights to make a decision on his own to reduce support payments.

That said, the mother’s anticipated income of $40,000 should be taken into account. The court imputed the father’s income at a similar amount as he claimed the previous year, and adjusted the support amounts to reflect these salaries.

It’s common for life to throw changes at us, but it is important to make sure that the law and court orders are followed when this happens. Rather than making unilateral decisions, consult with the team at NULaw. We have years of experience guiding business owners and entrepreneurs through changes in their personal lives. Our goal is to fully understand the nuances of your venture, protect your assets, and safeguard your financial future as your circumstances evolve. Contact us online or at 416-481-5604 to book a consultation.


Beneficiaries Disagree On How Estate Should Be Distributed

Having a properly drafted will is one of the most important first steps involved in creating an estate plan. In an ideal world, a will would leave the estate free of litigation. However, as we’ve seen from time to time in our blog, sometimes having a will does not mean a future free of litigation. In a recent decision from the Ontario Superior Court of Justice, the court was faced with two groups of parties with different wishes on how an estate would be distributed. The problem was that the will was silent on this matter.

A will with some loose ends

The deceased died on March 10, 2016. While she had some specific bequests for charitable organizations in her will (the “Charitable Beneficiaries”), the rest of the estate, valued at just over $600,000, was to be distributed equally amongst eight surviving family members (the “Individual Beneficiaries”).

The parties appeared before the court in 2017 when the Trustee brought an application for directions. The court stated that the Charitable Beneficiaries were to execute a release in a form to be drafted by their lawyer and approved by the lawyer for the Trustee. However, in the three years since then the Charitable Beneficiaries and the Trustee have failed to agree on the wording of the release, and as a result, no interim distribution has been made.

The Trustee applied to the court for a passing of accounts again on July 19, 2019. The Charitable Beneficiaries submitted a notice of objection a couple of months later. They stated in their notice that the accounts presented did not conform to the required standards or provide sufficient information. They also objected to the compensation that was to go to the Trustee.

Beneficiaries with competing interests

The Trustee took the position that the Charitable Beneficiaries unreasonably refused to accept a release in a form that was acceptable to the Trustee. He was seeking an order from the court to set the terms for a release so he could continue with an interim distribution.

As we mentioned earlier, the Charitable Beneficiaries argued the Trustee could not make an interim distribution until all of the objections raised had been adjudicated or settled. On the other hand, the Individual Beneficiaries were upset that four years had passed and no distribution of the estate had been made to them.

Determining the distribution of the estate

The court noted that the proposed interim distribution of the estate would leave sufficient funds to cover its existing and potential liabilities, even including the Trustee’s proposed compensation. As a result, the court found no principled basis on which the Charitable Beneficiaries could object to the interim distribution while waiting to resolve other issues. The court also provided the parties with a timeline for the working out of other issues, including the forms, giving the parties deadlines to comply with.

Contact NULaw in Toronto to obtain effective legal guidance with all of your estate planning needs, including wills and powers of attorney. An experienced estate lawyer can help you achieve your long-term goals and objectives, and plan ahead to protect yourself and your loved ones. Contact us online or at 416-481-5604 to book a consultation today.


Parents Disagree Over Whether Cottage Trip Is Safe

COVID-19 has canceled, or at the very least, put many people’s summer plans on hold. For parents who are divorced or separated, it may be that fears over the health of their children have led to disagreements over what pone parents should or should not be doing with their children. In a recent decision from the Ontario Superior Court of Justice, the court issued a ruling on whether or not a father could bring a child to a cottage in Ontario.

Father wants to bring child to cottage

The parents were married in 2007. They had a child in 2010, and separated five years later in 2015. The parents have been following a parenting order since November 2018. Both parents share joint decision making and parenting time, with the child living with each parent on alternate weeks.

Part of the alternate weeks arrangement is that each parent can have a vacation with the child for up to 10 consecutive days each week until he is 11 years old, where that time period will be extended to 14 days. The order stipulates that neither party can object to the other parent’s reasonable plans with the child, but that the other parent must ensure the safety and security of the child and not endanger his health.

The parents appeared before the court after the mother brought an urgent motion asking the court to prevent the father from taking the child to a cottage with his paternal grandparents, paternal aunt, and cousin during the COVID-19 crisis.

Parents disagree over whether planned trip is safe

The mother argued that the father failed to properly consider the health risks of his summer holiday plan. She labeled the cottage trip as a “selfish and unnecessary risk” according to the court. The mother pointed out that the seven family members planning to visit come from three different parts of the province and could not constitute a social circle within the established provincial guidelines. Secondly, there had been a recent outbreak in one of the areas being traveled from. Thirdly, if the group is not a social circle, self-isolation would be impossible at the cottage, and finally, she stated that her asthma puts her in a compromised position if she were to get COVID-19.

The father said that he would never do anything to harm the child, and that his plan to merge his social bubble with his parents and sister was within public health guidelines. The father added that the cottage has plenty of rooms, bathrooms for each of the groups, and that travel outside of the cottage would not be necessary.

Is the trip within the child’s best interests?

The court found that it was not within the child’s best interests to visit the cottage. The court disagreed with the father’s position that it is safe to create a larger bubble with his family. The court stated that each family could only have one social circle, and the court had no way of knowing who the grandparents and aunt/cousin were seeing in their own parts of the province. Additionally, the mother is part of the father’s social circle, and she had a reasonable objection to the circle being expanded.

The court noted that each parent has been keeping the health of their child in mind, and that the situation is rapidly changing. Nevertheless, at the time of the hearing, the court did not find the father’s plans to be suitable.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.


The Challenges Of International Access During COVID-19

Earlier this summer we blogged about international child abduction and how courts approach such issues when laws such as the Hague Convention do not apply. While international child abduction is a serious issue, there are many more issues that come up between separated or divorced parents living in different countries. In today’s blog we look at a case that discusses how parenting time in such a situation can be impacted by COVID-19.

Two parents, one child, two countries

The parents were married in July 2008 and had one child together in 2010. They lived in France at the time of their separation and were divorced there in 2012. Following the divorce, the child’s primary residence was with the mother, while the father was granted extended visitation and accommodation rights.

In 2016 the mother requested and was granted permission to move with the child to Toronto, where she has since re-married. She brought the child with her, and they live with the mother’s new partner and their two other children. The parenting order that came from this move granted the father parenting time during the child’s school breaks, including the last six weeks of summer vacation. The father’s parenting rights were to be exercised in France unless he wished to exercise them in Toronto.  

COVID-19 makes international travel difficult

Due to the COVID-19 pandemic, the mother told the courts she had concerns about the child travelling to France to spend time with the father. She brought an urgent motion for interim relief, requiring the father to exercise his parenting time in Toronto for as long as the Government of Canada’s advisory against non-essential international travel remains in effect. In the alternative, she asked that access by the father be suspended until such a date, at which time he would be able to make up for that lost access. In the meantime, the father initiated an allegation of non-compliance with the police services in France.

Can and should the parenting order be varied?

The court began its analysis by referring to the Children’s Law Reform Act, which states a court shall only exercise its jurisdiction to make an order for custody or of access to a child if the child is “habitually resident in Ontario at the commencement of the application of the order.”

In this case, the child has been living with the mother in Toronto for the last two years and was therefore habitually resident in Ontario. While the father stated he preferred to settle the matter via international arbitration, he didn’t formally oppose the jurisdiction of Ontario’s courts, so the matter went ahead.

The CLRA allows for courts to supersede extra-provincial orders in respect to custody or access of a child “where the court is satisfied that there has been a material change in circumstances that affects or is likely to affect the best interests of the child and… the child is habitually resident in Ontario at the commencement of the application for the order[.]” The court cited two recent decisions where courts agreed that it would be unwise for a child to travel internationally at this time.

The father argued that precautionary measures could be taken to ensure the child’s safety, but the court was not convinced, writing the child “would be taking a lengthy flight, unaccompanied, on a commercial airline. The (mother) was unable to obtain assurances of any additional measures in relation to unaccompanied minors on either Air France or Air Canada. The Applicant’s evidence is that on Air France, only children over 11 years of age are required to wear masks.”

The court agreed that the pandemic constitutes a material change in circumstances and that a variation of the parenting order is warranted. The court noted that while it was not ideal for the father to have to exercise his parenting time in Canada, doing so would be in the best interests of the child.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.


Court Reminds Parties Against Rhetorical Excess

Family law litigation can be an expensive and stressful, which is one of the reasons NuLaw offers alternative dispute and mediation services. It’s not uncommon for the personal differences between two parties to lead to excessive litigation tactics. In a recent decision from the Ontario Superior Court of Justice, a judge chastises both the parties and lawyers for such behaviour.

Who should live in the matrimonial home?

The motion itself was pretty straight forward. The father had come to the court seeking exclusive possession of the parties’ home. The parties’ three children had been in his de facto care since February 2020, but the father lived in a one-bedroom apartment and did not have the room to properly care for the children.

A domestic dispute led had led to the father being criminally charged following allegations of physical assault. His bail conditions prevented him from being within 500 meters of the mother.

Determining whether the father could move back into the home

The court turned to the Family Law Act, which allows for the courts to grant exclusive possession of the matrimonial home to one party. It listed the considerations it must make in order to do so:

  1. the best interests of the children affected;
  2. any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
  3. the financial position of both spouses;
  4. any written agreement between the parties;
  5. the availability of other suitable and affordable accommodation; and
  6. any violence committed by a spouse against the other spouse or the children.

As in many family law cases involving children, the primary consideration taken by the court is the child’s best interests.

The court looked at the living conditions being experienced by the father and children, noting that there was only a single bedroom available to the four people living there. Meanwhile, the mother had other options available to her.

Ultimately the court determined the father could have exclusive possession of the home, but ordered him to provide the mother with $5,000 for the months of May and June and $1,250 on the first of each month starting in July.

“Rhetorical Excess”

The court did not conclude its decision with the issue brought by the motion, though. It took time to discuss what it called “rhetorical excess” in family litigation. Both parties alleged the other of committing acts of physical violence during the trial. The court stated, “Litigants feel that they can leave no pejorative stone of personal attack untilled when it comes to their once loved one. Many lawyers, feeling dutybound to fearlessly advocate for their clients, end up abetting them in raising their discord to Chernobyl levels of conflict.”

The court reinforced the notion that if the cost of litigation becomes too high, then all the arties lose, stating that lawyers should be rational advocates and not “flame-throwing” propagandists.

NULaw regularly helps clients resolve their family law issues through alternative dispute resolution. We can help you reach an amicable resolution with your former spouse fairly, cooperatively, and with less cost than through traditional litigation. Contact us online or at 416-481-5604 to book a consultation and discuss your options.


Husband’s Challenge Of Marriage Agreement Goes To Appeal

Marriage contracts, often referred to in day-to-day conversation as “prenups” are agreements between to people entering a marriage that outlines certain details about their finances and property in the event the relationship breaks down. They’re an effective way to protect assets should this occur, and while it might not be easy to bring up, a prenup can potentially save a couple from conflict down the road.  However, avoiding conflict is sometimes easier said than done. A recent decision from the Ontario Court of Appeal looks at a situation where a husband tried to have a prenup set aside, but a lower court ruled the two-year limitation period had expired.

The marriage contract and the original trial

The parties entered into a marriage contract one week before they were married in 2005. While the contract stated that each of the parties had “retained their own lawyer and has received independent legal advice,” the husband later said this was not true. The agreement stated the parties intended to keep their assets separate and that they would waive any future rights to spousal support.

When the couple separated in 2012, the husband began to experience mental health issues, and did not commence a proceeding until August 2017. At this time he brought an application for spousal support, equalization of net family property, and financial disclosure. The wife leaned on the marriage contract and said such claims were not warranted.

The motion judge, referring to the Limitations Act, determined a two-year limitation period applied to the contract. The husband had argued that a section of the Act providing there is no limitation period for “a proceeding for a declaration if no consequential relief is sought” should apply. However, the motion judge found that the husband’s claims for spousal support constituted consequential relief.

The appeal

The husband appealed the motion judge’s decision, stating they erred in setting aside the marriage contract on the basis that consequential relief was being sought.

The court looked at the Limitations Act along with the Family Law Act, which it stated must both be taken into account when looking at limitation periods as they pertain to marriage contract.

The court noted that the Family Law Act provides broad grounds for a court to set aside a marriage contract. Reasons to set a marriage contract aside can include provisions resulting in unconscionable circumstances, one party failing to properly disclose assets and property, or one party not understanding the nature or consequences of the contract.

Additionally, the Family Law Act contains no limitation periods (except concerning equalization payments, which has a six-year limit), which means the Limitations Act must be relied on. While the limitation period of two years is clear, the court found that it must be looked at separately from the husband’s request for spousal support and other relief. The husband’s attempt to set the marriage contract aside does not in and of itself include consequential relief. While it may be obvious that he intends to seek it if successful, it’s a matter of there being two independent steps as opposed to a single one.

At NULaw in Toronto, we 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.


Estate and Son of Deceased Argue About Whether Land Was Given

For many young couples, having parents who are able to help with the purchase of a first home can be an extremely helpful way to start their journey together as a family. However, it’s important to remember that there are details in such arrangements that are important to address. In a recent decision issued by the Ontario Superior Court of Justice, one father’s failure to leave a will in place left his intentions about land given to his son up in the air.

The land

The husband and wife were married on January 8, 1983. They separated on March 1, 2011. By this point, the only issue still not resolved was whether they had any interest in a property they had lived on for decades but was not legally theirs.

In 1987 the father purchased 15 acres of land in Ontario. He purchased it with the intention of eventually subdividing it and building homes for resale. Prior to attempting to do so, he allowed his son to take a portion of the land and build a home on it. While the father purchased the land, the son and his wife financed the construction on the home in 1989.

Later that year, the father discovered that his application to sever the lot had been denied, meaning they could not subdivide the land and built additional homes for it. At the same time, the husband and wife had run out of money to finish construction. The father mortgaged his own home to lend them $80,000 to finish construction.

Both father and son were devastated by the news that they would not be able to build additional homes on the land. However, the son said that his father said not to worry, as all the land would eventually be his.

The father dies without a will

The father died without a will in 2004, which meant that his intention to provide his son with the land was not formalized. The husband and wife claimed they have a beneficial interest in the property through an unjust enrichment claim. However the estate claims that an agreement between the husband and his father has no been made out on the facts or the law, and that any claim for a propriety interest in the property is too late to make.

Is there unjust enrichment?

The court first determined that it was not too late to bring a claim for unjust enrichment. The court looked at the work the husband and wife did to the home, including replacing the roof, installing an HVAC system, and paying the property tax on the house and the land. The court wrote,  

“It is reasonable for the Husband and Wife to expect to receive some benefit for their ongoing improvement and upkeep of the Property. It is true that they were able to live on the Property at a lower cost than if they had purchased the Property themselves. However, the Husband and Wife were both clear that they would have never expended the time and money that they did on the Property had they believed they would not receive an interest in it.”

While the court was not able to determine if there had ever been a promise to give the husband the land, there was no doubt that the estate benefited from the work they did to it. The land and home were ordered to be sold, with 75% of the money going to the husband and wife to divide, and the remaining 25% to go to the estate.

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.


How A Parent’s Move Can Impact Access Schedules

For parents who are divorced or separated, the start of the school year can bring with it conflict in a relationship that is otherwise free of it. Of course, parents are not the only ones who experience feelings of stress during these moments. Switching schools or changing parenting schedules can be tough on children, too. A recent decision from the Ontario Superior Court of Justice shows how the courts approach requests to have children change schools as well as how such decisions may impact pre-existing parenting schedules.

Switching schools

The trial followed a previous order granted on June 18, allowing the mother to move two of the couple’s youngest children (they have three) from one school district to another. The move from Barrhaven to Orleans, Ontario, is just under 40km. The father had opposed this, but when the order was issued the judge indicated that he was prepared to make a modest increase to the father’s parenting time, particularly with the youngest of the children (“L”). This statement was made due to the challenges created by the mother’s relocation to Orleans. The parties were unable to reach an agreement on what that parenting schedule would be, so the matter ended up back before the same judge.

The father’s position

The father was looking for a summer schedule that saw him have care of L from 4:00pm Tuesday-4:00pm Wednesday, from 4:00pm Thursday to 4:00pm Friday, and every other weekend from 4:00pm Friday until 9:00am Monday. During the school year he proposed a similar schedule, though with times slightly changed due to school.

The father’s position was that the parenting schedule reflects the one that L had been used to, maximizing time between L and the father. The father stated L enjoys spending time with him and thrives when that time is increased. The father also said the proposal ensures driving is split between both parties, but with an increase of driving for the mother.

The father stated that the mother’s proposed schedule (explained below) was not acceptable because it does not follow the status quo, it reduces his overnight visits, and it involves more driving than is necessary.

The mother’s proposal

The mother’s proposal saw L spending every other weekend with the father. Following weekends with his mother, he would stay with the father from Tuesday at 5:30pm until Thursday at 8:30pm. On weekends where he stayed with his father, the father would have L from Wednesday at 5:30pm to Thursday at 8:30pm. Each parent would also get a straight week of time in the summer.

The court’s analysis

The court noted that the Office of the Children’s Lawyer (“OCL”) stated that it had not been able to speak about the proposals with L, but mentioned in the past he expressed a desire to spend equal time with each parent. The OCL suggested that travel time be limited and that L not be subjected to the tension between the parents.

The court noted that the best interests of L must be front and centre in its decision. The court noted that the existing parenting schedule had been working well for L, and that a modest increase in time for the father should still resemble the existing arrangement. The court also found that exchanges should occur in a neutral location, but that the mother bears some added responsibilities of driving due to her decision to move.

Ultimately, the court determined that the father’s proposal, with some changes, was the best for L.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.


Financial Urgency During COVID-19

We have blogged in the past about the approach courts have been taking during COVID-19 to determine if a family law matter is urgent enough to be hold while the courts were largely closed. Most of our blogs on this topic dealt with the safety or health of children. That said, financial issues can also be cause for the courts to hear a matter, as was the case with a recent decision from the Ontario Superior Court of Justice.

Some background info

The parties were married in the summer of 2009. They had two children while married. The wife was the primary caregiver throughout the marriage, but now works as a financial administrator, earning about $67,000 per year. The children remained primarily in her care (without a formal order) following their separation.

The husband is now self-employed, but worked in a senior position at a bank until 2017, earning between $700,000 and $900,000 per year in that role. He took long-term disability leave in 2017, leading to his attempts to start his own business.

The couple own two properties, including a house worth about $2,000,000 and a cottage worth about $800,000. The wife stated that she has about $204,000 in RRSPs and TFSAs, but that amount had decreased by about $30,000 in the weeks leading up to the hearing.

The line of credit

The wife stated that she went to her bank on February 20, 2020, where she was informed that the parties’ line of credit had been drained by the husband to the tune of $775,000, which had been registered against the home. When she asked the husband about it, he admitted that he had taken it out and put it in a “safe place.” The “safe place” ended up being a personal bank account owned by the husband.

The husband later said he took the money out of the line of credit because he was suspicious the wife was having an affair. The wife began to worry about the husband’s mental health and moved with the children to the home of her parents on March 4, 2020. She stated she was worried that the husband was following her and had installed spyware on her phone.

Is the matter urgent?

After reviewing case law, including decisions that were issued during the COVID-19 pandemic, the court stated that the following factors are necessary in order to meet the urgency test during the pandemic:

  1. The concern must be immediate; that is one that cannot await resolution at a later date;
  2. The concern must be serious in the sense that it significantly affects the health or  safety or economic well-being of parties and/or their children;
  3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
  4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

The court determined that the financial situation the family was in constituted urgency, highlighting the alleged erratic personal and financial behvaiour by the husband as well as his unliteral conduct. The court also found there was a significant risk that the money would not be returned without an order, and that it would leave the wife without access to their home, which is their most valuable asset.

The court ordered that the husband had 24 hours to return the money to their line of credit (plus interest). The court also suggested that the husband retain legal counsel in order to continue working through the parties’ issues.

Separations can be uncertain and emotional. Your best plan through this transition is to have an experienced family lawyer on your side to provide guidance and assistance, and to protect your legal rights. Contact NULaw online or at 416-481-5604 to book a consultation with our experienced divorce lawyer.