Written on behalf of NULaw

The Difficulties Of Imputing Income For A Farmer

Obligations such as child support or spousal support can be significant. The amount that an individual may have to pay is based on the payor’s income, and in the case of child support, the amount of children the parties have. For most people, it can be easy to determine how much money they make. Someone with a typical job and salary simply makes what they make. However, for people who own a business, it can be more difficult. This is especially true if that business is something like a farm, which might have large spikes in income some years, and losses in other years. In a recent decision from the Ontario Superior Court of Justice, the court tried to impute the income of a farmer in order to determine how much child support he should pay.

A family farm trades hands

The parties separated in June 2012. At that time they agreed to an interim order requiring the father to pay $438 per month in child support. This amount was based on an imputed income of $30,000. However, it eventually became time to determine the father’s income. As a farmer, it was difficult to do.

The father’s father as well as his grandfather were farmers as well. He followed in their footsteps after high school. The father purchased a 100-acre farm from his uncle by borrowing $140,000 from his parents and through a Farm Credit Corporation loan. He also rents his father’s farm for an annual rent of $72,000. He also uses his father’s machinery, and while it was recorded as a purchase, he has not made any payments. Finally, he took out a loan to purchase his father’s dairy quota. That loan was for $800,000 but has been paid down to $599,000.

When the parties separated, the father’s net worth was $100,000. It was recorded at $1,641,652 at the time of the trial, while the mother’s net worth is $75,092.

Determining the father’s income

The father’s annual income varies greatly from year to year. It was $64,162 in 2016, $144,602 in 2017, $51,782 in 2018, he lost $26,098 in 2019, and made $182,258 in 2020.

The parties hired an accountant to look at the father’s income. He agreed with the amounts the father stated he made, but believed that the father had benefits which should be added to his income. This includes beef and dairy he consumes, but is generated from the farm. He also uses the truck he leases for the farm as a personal vehicle. Finally, he lives rent-free, which was valued at $,9600 per year.

The accountant also looked at the father’s ability to pay. He currently pays $728 per month on life insurance for himself as well as his father’s like (which would allow him to purchase the family farm). He also managed to pay his milk quota loan down by 25%. He leases a new truck every year rather than purchasing one to use for a longer period of time. Finally, he doesn’t use his entire milk quota, and can sell 10% of it for about $76,000. The court suggested the father should re-consider these expenses. Even the life insurance payments could be put in place later on in order to address his immediate support needs.

The court determined that the father’s income going forward should be imputed as the average income he had over the three years prior. The court added the benefits described by the accountant to this formula. Using this approach, the father’s 2021 income would be imputed as north of $70,000.

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.

Father Seeks Custody After Mother Moves With Children

Matters related to child custody and access can be difficult to resolve when parents go through a separation or divorce. Even if parents live in the same city there can be emotional strains around parenting time. However, as we see in a recent decision from the Ontario Superior Court of Justice, such issues can be more difficult to resolve when one of the parents wants to move a significant distance from the other parent.

Parents live in same city for years after separation

The parents were married on July 2, 2011. They separated on November 9, 2015. They had three children while they were married, born in 2010, 2011, and 2013. While they have lived separate and apart for the last five years, they have not yet divorced.

Following their separation they shared the parenting of the children on a week-on/week-off basis. They did this despite not having a separation agreement in place.

The parenting arrangement in place was easy enough to manage since both of the parents lived in the same town.

Mother looks to move

The mother is now in a new relationship and has a child with her new partner. The partner had told the father in January 2021 that the mother intended to move with him to another part of Ontario, about a 90-minute drive from where they currently live.

The mother, her partner, and the children moved later in the month. The father maintains that the mother did not seek his consent before the move. His position is that the move impacts his parenting time with the children and sought an order that the children be returned.

Father seeks interim custody

In between the filing of the motion and the hearing, the mother stated she plans to move back to the same town as the father. However, the father asked the court that he be named the primary caregiver for the children on an urgent basis. He told the court the mother has not been properly supporting the children with online schooling, and they have fallen behind in school. He also said that he was worried the mother was suffering from substance abuse and had been “cat-fishing” men online in order to solicit funds from them. Ultimately, he said he was concerned with how these actions affect the children,.

The mother denied the father’s allegations of drug use and said the father returns the children in a dirty unkempt state, exposes them to his casual relationships, and uses drugs while taking care of the children.

Court maintains status quo

The court held that since this is an interim motion, there is not a great deal of evidence before it. In these situations, it is a well-established principle that the status quo be maintained in the absence of compelling reasons indicative of the necessity of change. The court found that while the father voiced legitimate concerns, he did not have much evidence to back those claims up. Changing the family’s parenting arrangement would be disruptive to the children, and a full hearing with proper evidence is necessary in order to determine the validity of the parties’ claims.

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.

Use of Family Cottage Leads to Dispute

As cottage season grows closer, people fortunate enough to have a family cottage are likely planning their vacations and imagining themselves by the water on a hot day. In the best situations, family cottages can be shared by extended members of a family and passed down through generations. However, in some situations, cottages that are left to family members may become subject to litigation as future generations disagree over the use or maintenance of the cottage. In a recent decision from the Ontario Superior Court of Justice, two siblings who shared a cottage found themselves before the court after the brother revoked his sister’s family’s access.

Aunt puts nephew in charge of the cottage

The cottage at the centre of the dispute was originally owned by the parties’ aunt. She never married and has no children of her own. She is presently incapable of managing her own affairs and lives in a long-term care facility.

As a result of the aunt’s health, the nephew currently holds title to the cottage, though only in trust for the aunt. He is also the sole beneficiary of her estate.

The nephew stated that it was the aunt’s hope that the cottage would be enjoyed by extended family for generations and years to come. He says the aunt also expressed that she wanted the niece to have some ownership of the property.

As a result of these conversations, in 2007 the nephew transferred the property into his name and his sister’s name as tenants in common.

Cottage falls into disrepair before renovations

By 2007 the cottage had fallen into disrepair. The aunt did not have the funds to maintain it, and the siblings agreed that something had to be done about the state of the property. The cottage was extensively renovated from 2009 to 2014, with the nephew contributing about $15,000 and the niece contributing at least $75,000 (though she claims it was closer to $135,000). The renovations included an additional, smaller cottage on the property, closer to the water than the main cottage. The brother’s family had been using the smaller cottage, while the sister used the larger one.

Transfer of cottage title is revoked

The Public Guardian and Trustee started to become concerned about the nephew’s management of the aunt’s affairs in 2015. Proceedings followed, which included the nephew being told that his transfer of title to his sister and himself as tenants in common was invalid. As a result, he resumed sole ownership of the property in trust for the aunt.

In 2020 the nephew decided he no longer wanted to share the cottage with his sister and her family. He said it was because of alleged misuse of the property. He changed the locks, installed security camera, and told his sister she could no longer visit the cottage.

Niece seeks interim access to the cottage

The niece was understandably upset about her brother’s actions, and asked the court to grant her a certificate of pending litigation. She planned to argue that her contributions to the cottage created a resulting trust. She also sought an interim injunction providing her with access to the cottage while the matter waits to make its way to court.

In deciding to award interim access, the court noted that the remedy being sought by the niece was joint ownership of the cottage, and that he claims advanced have merit.

Contact the experienced estate litigation lawyer at NULaw in Toronto to learn how we can protect your interests and achieve the best possible resolution of your estate dispute. Contact us online or at 416-481-5604 to book a consultation today.

Can A Suicide Note Constitute A Holographic Will?

Having a valid will is perhaps the first step in creating an estate plan that will ensure your assets are distributed as you wish in the event of your death. They also allow people to take steps to provide for their loved ones. Typically, a will should be drafted along with an individual’s lawyer, and be witnessed upon signing. However, there are situations where someone might write a will on a piece of paper and sign it without a witness. This is known as a holographic will. However, the situation around a holographic will can play a role in determining whether it will be seen as valid in the eyes of the court. In a recent decision from the Ontario Superior Court of Justice, the court was tasked with determining if a suicide note could stand as a holographic will.

We should warn readers that the following blog contains mentions of suicide.

Suicide note addresses estate

The situation brought before the court was tragic. The deceased took his own life in July 2019. He left behind a a step-son (“MM”), who was the applicant in the matter. At the time of his death, the deceased was married to “JJ”.

The deceased signed a will in 2016, making provisions for both children, his wife, and his longtime friend, “DR.” The will gifted the deceased’s interest in his electrical companies to DR, while JJ was to receive a $600,000 life insurance policy owned by his company.

The suicide note left by the deceased instructed that anything in his will that provided anything to JJ was to be considered “void.” It made no mention of DR. Both JJ and DR sought to have the court not admit the note into probate, and instead see the directions of the 2016 will followed.

Deceased’s drug and alcohol use reviewed

A number of witnesses testified about the deceased’s use of drugs and alcohol. Friend and family told the court that he was a heavy drinker and user of hash. There was a Facetime call on the day before his death, where the deceased and JJ were talking to a friend. JJ told the court that something was said during the call that made the deceased leave in anger, slamming a door behind him. He was found dead early the next morning.

Can the suicide note be considered a holographic will?

The court described the note as a “profanity laced diatribe aimed at (the deceased’s) spouse.” The evidence before the court suggested that the deceased was intoxicated the evening before he took his life, but a doctor could not state that he was intoxicated at the moment he did so.

Ontario’s Succession Law Reform Act states that,

“A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.”

The court noted that questions of capacity cannot be an issue if a holographic will is to be admitted. Additionally, the court stated that a suicide note is a special circumstance that requires close scrutiny, adding that the burden of proving testamentary capacity falls on the applicant, MM.

In this case, the court considered evidence from a number of people that indicated the deceased was intoxicated prior to going to bed the day before his death, and that he was depressed. In addition, the note was described as “sloppy” and “illegible.”

As a result, the court denied the applicant’s request to have the suicide note admitted as a holographic will.

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.

Business Assets Are Mismanaged Following Separation

For families who own a business together, getting a separation or divorce can lead to more difficulty in getting through property division. Business owners, including those who own professional corporations, such as lawyers and dentists, must take steps to protect their assets. In a recent decision from the Ontario Superior Court of Justice, we look at a situation where, at best, the husband failed to protect the business assets he shared with his wife when he claims he hid $160,000 from their business in the trunk of the wife’s car.

Transfer of business income

The husband and wife involved in the matter were separated on November 23, 2019. They own to gyms together. The husband was the sole shareholder of one gym, while they owned the other together. They used the income from these companies to support their family.

Right around the time of their separation, the husband told the wife he was going to move $272,921.61 from a joint account in order to protect against creditors. Of that, he states he deposited $70,000 into the account of the gym they owned together. Another $10,000 was placed into new accounts for two businesses he had started, and that the remaining $160,000 was hidden in the trunk of a car, which the wife had possession of at the time of the trial.

Of course, the wrinkle at the heart of the matter arises in the wife’s statement that she did not see any cash in the trunk of their car.

Court orders husband to transfer money into joint account

Back in March 2020 the court issued an order requiring the husband to deposit $160,000 into the parties’ joint bank account. In that decision, the court wrote the husband’s “explanation is hard to accept, and, if true, was completely irresponsible.  He withdrew the parties’ life savings from a secure location, the bank, without the consent of the (wife).”

The court also made mention of a sworn affidavit by a woman who said she was in a relationship with the husband from April 2020-July 2020, and that when he was getting ready to leave the country he asked her to look after a large bag of money for safekeeping.

The wife wanted the court to find the husband in contempt for ignoring this order as well as others. The court answered that while the husband failed to abide by the instructions to deposit the $160,000 in a joint account, that alone isn’t enough to find him in contempt. However, the court used the opportunity before it to remind the husband that court orders are not suggestions, and that if he continues to ignore them, he could lose his ability to participate in litigation with the wife.

As a remedy, the court provided the husband with 30 days in which to deposit the money.

At NULaw our family law team has 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.

Move To Florida Causes Questions About Spousal Support

COVID-19 has impacted the way many people work, and that’s for people who were fortunate enough to keep their jobs during the economic downturn that resulted from the pandemic. If someone loses their job it may result in changes to the amount of spousal or child support they are required to pay. However, not every change in employment will result in changes. If someone is able to make the same amount of money they used to, but fail to do so, the courts could order them to keep paying the amount of support they would have with the higher income amount. In a recent decision from the Ontario Superior Court of Justice, a mother is told that she must adapt to virtual work in order to maintain her income.

Work changes due to the pandemic

The parents involved separated in January 2015 after being married for 21 years. The father is an orthopedic surgeon and had been the primary income earner during the marriage, earning over $600,000 annually. The mother is a speech pathologist, but only worked part time, with an income of about $50,000. Child support payable by the father was set at $4,452, while spousal support was set at $11,162 per month.

Mother’s move and employment may impact support      

The mother and the father were both asking for adjustments to the amount of spousal support payable by the father. The father stated that the mother had moved to Florida, a state in which spousal support is not taxable, and as a result, he should be relieved of paying as high an amount of support has he was paying at the time of the trial.

However, the mother has stated that her health has deteriorated, and she is no longer able to work in-person, and as a result, the $50,000 in annual income that had been imputed towards her should be reduced or eliminated.

Is the mother unable to work?

The court accepted the mother’s evidence that there are concerns about her ability to work and perform tasks of daily living at full capacity,. However, the court did not see any evidence that suggests she is unable to work at a reduced capacity.

Upon her move to Florida in 2018, the mother accepted a job providing speech language pathology, earning $55-90 per hour. She eventually left that position and opened her own clinic while also looking for work while she presumable builds up a client base. However, she stated that health concerns as well as her inability to speak Spanish, which is a popular language in Florida, has made it difficult or impossible to find work. She also claimed she was not qualified to perform her services remotely using computers.

While the court did agree with the mother’s statements about her health, it did not believe that she is unable to work remotely. The court said,

While the court did agree with the mother’s statements about her health, it did not believe that she is unable to work remotely. The court said, “The applicant is an intelligent woman and an experienced speech-language pathologist. There is no reason she cannot learn to deliver teletherapy. Moreover, she continues to have an obligation to do what she can to become self-supporting. She still has many years of working life ahead of her and, at least during this pandemic, she can learn to deliver speech-language therapy remotely.”

As a result, the court did not change the mother’s income, leaving it at $50,000 per year. However, the court also refused to adjust the amount of support payable to the mother, despite the lack of taxation in Florida.

Contact NULaw as soon as possible to speak with a family lawyer 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.

Long-Awaited Changes To Divorce Act Come Into Force

For the first time in about 20 years, Canada’s Divorce Act has received significant amendments that aim to shape not only the way people talk about common family law issues such as custody and access, but also the ways in which courts will consider the best interests of the child in all matters related to children in family law. At North Toronto Lawyers, we wanted to take a moment this week to review these changes with our readers.

Four key objectives listed for changes

The federal government has said that the updates to the legislation have four key objectives. They are to:

  • promote the best interests of the child
  • address family violence
  • help to reduce child poverty
  • make Canada’s family justice system more accessible and efficient

It’s notable that two of these goals speak specifically to children, though of course all of the factors can impact children in one way or another.

Best interests of the child explained

The best interests of the child have long-since been the only factor for courts to consider in most matters related to children, however the updates to the Act provide more clarity in what criteria is used to determine the best interests of the child. Rather than relying strictly on common law, it is now established by statute that along with the main considerations of the child’s physical, emotional and psychological safety and wellbeing, other factors include:

  • the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life
  • the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
  • the child’s views and preferences

It’s always worth noting that every child and situation is different, and these factors should be applied to each child individually.

A move towards less adversarial language

One of the more common requests related to updating family law in Canada has been related to the language used to discuss issues. Until now, language such as “custody” has led to the belief that there are winners and losers in family law litigation, with the child not being at the centre of the language used. Instead of terms such as “custody” and “access”, orders from courts should now use phrases such as “parenting order” and “decision-making-responsibilities.”

Family violence earns a larger position in consideration of family law matters

Family violence has long been something that has been handled by the criminal courts. But of course, family violence is also a factor in many matters that appear before family courts. With the changes to the Act, courts will now have to take family violence into account when making orders related to parenting, contact, or support orders.

Family violence is described as conduct that includes more than simply violent conduct. It includes any conduct that is:

  • violent
  • threatening
  • a pattern of coercive and controlling behaviour
  • causes a family member to fear for their safety
  • directly or indirectly exposes a child to such conduct

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 Asks For Access to Children Following Allegation of Sexual Assault Against Another Child

When a parent is charged with a crime that is sexual in nature and involves youth, there is bound to be an impact on the parent’s ability to maintain a relationship with their children, even if the victim of the crime was not a child of a parent. In a recent decision from the Ontario Superior Court of Justice, the court was asked to determine whether a father could have access with his two sons after being charged with sexually assaulting the daughter of his former partner (the mother of the sons). We want to offer a warning that the facts of this case involve crimes that are sexual in nature and may be difficult for some to read.  

Sleepover leads to sexual assault

The mother and father involved have two children together, boys aged 7 and 3. The mother has a 15-year-old-daughter (“M”) from a previous relationship, while the father has a 13-year-old daughter (“N”), who is also from a previous relationship.

The parties had an on-again-off-again relationship from 2013 to 2019, at which time they separated for food. N remained in the care of the father while M and the parties’ sons remained in the care of the mother.

In May 2020 M stayed overnight at the father’s house in order to visit with N. During that visit, the father was alleged to have provided alcohol to both children and to have sexually assaulted M. M called 911 on that evening and the father was charged with sexual assault, sexual interference and invitation to sexual touching.

While the charges against the father have not yet been proven in court, a test done on M did confirm that she had been sexually assaulted. While on bail awaiting trial, the father was ordered not to have any contact with females under 16-years-of-age.

Father asks for contact with sons

The father asked that he be able to have supervised visits with the two children he shares with the mother. The court noted that such contact orders must be based on the best interests of the children as established in the Children’s Law Reform Act. According to Act, the following factors should be taken into account when domestic violence or abuse is an occurs. These factors are:

 (a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

The court stated there is little doubt the allegations made by M would qualify as family violence. Regardless of what happens in a criminal trial, the local Child, Youth and Family services organization has determined that sexual abuse of some kind occurred and regardless of what may happen in a trial, they believe it occurred in the father’s home and while M was in his care.

The court noted that the case at hand involves children who live with the victim of abuse. While some decisions may support a parent being able to have access with children who were not the victim of such an assault, the facts of this case need to be given proper consideration. As a result, the court found that it would not be in the best interests of any of the children to have contact with the father.

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.

Parent Seeks To Stop Child Support Payments While Children Wait To Continue Education

When a parent is obligated to pay child support following a divorce or separation, they might expect that once their child (or children) reach the age of 18, that their requirement to provide support might cease to exist. However, that’s not always the case. In some situations, a child can still be dependent on their parents as an adult. One such situation this may occur is if the child is pursuing post-secondary education. However, not everybody pursues college or university study, and some people take a year or more off between high school and further study. In a recent decision from the Ontario Superior Court of Justice, the court ruled on whether a mother had to keep paying child support when the children she had with the father waited to decide if and when they would pursue post-secondary educations.

Mother ordered to pay child support upon separation

The parents were married in the summer of 2000 and separated about 17 years later. They had two children while together who were minors at the time of separation. The parties lived together in the matrimonial home for close to a year, at which time the mother was granted exclusive possession of the home. The children have been living with the father since the mother took possession of the home.

In May 2018 the mother was ordered to pay $2,241 per month in child support for the children, who were still under 18-years old at the time. She was also ordered to pay spousal support of $2,100 per month to the father. The court stated that it was a temporary order which would ultimately be settled at a trial.

Children not currently enrolled in school

Both of the children are currently over 18-years-old. The eldest, “M”, graduated from high school in June 2018. He attended college in the fall of 2019 after taking a year off, but only stayed for one semester. He has since worked on a part-time basis.

The parties’ younger child, “A” graduated from high school a year after his brother did not enroll in studies after high school and is currently not working.

However, A applied to a attend a post-secondary education 12 days after the mother served her notice of motion. M applied one week later. Both have since been admitted to their respective programs.

Mother claims material change in circumstances

To further complicate matters, the mother lost her job during COVID-19 and has not worked since. She fell behind in child support payments, but stated that she should not have been making them in the first place, since the children were no longer in school. She wanted the court to end its child support order and reinstate an order if the children return to school.

The father said the children remain his dependents notwithstanding their age and school status. He said he will not be able to provide for the children if the mother were to stop making child support payments.

The court stated that the temporary order was put in place on the premise that both children were enrolled in school. Their age and current educational situation qualifies as a material change in circumstances said the court.

The court noted, however, that it is common for children to take a “gap year” before pursuing post-secondary education. However, their decision not to enroll in school for the 2020/2021 year was their choice, but not one the mother should have to pay for. As a result, the court ordered that the mother’s child support obligations were over, but invited the father to apply again if the children end up back in school.

Contact 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.

Family Discovers They Don’t Own A Part Of Their Land, But They Can’t Find Out Who Does

Most of the time when we run into issues involving questions around whether an estate is the owner of property, or someone else is the owner of property, it is usually in the context of both sides of the table making claim to the property. However, a recent decision from the Ontario Superior Court of Justice shows that sometimes the representatives of an estate run into a potential conflict, but there is nobody to represent the other side.

A strip of land does not belong to applicants

The applicants are a family who along with the deceased father/husband, bought a large parcel of land in 1978. When the husband/father passed away his interest fell to the mother of the family. When the land was purchased they had thought that it was bounded by two streets – Scott Street on the west, and Mowat Street on the East.

It wasn’t until 2019 that the family discovered their understanding of the boundary was wrong. It turned out that a half-acre strip of the land separating their property from the Scott Street boundary had been sold in 1948 to another family. The land had been sold to an individual named Gordon Wyatt, and the issue before the court was to determine who the land belonged to. The applicants had always treated this land as their own, though it remained undeveloped. They sought an order vesting title in their names as tenants in common since they maintained open, exclusive, continuous and peaceful possession of the subject property since 1978. It was their position that their adverse possession of the subject property entitled them to an order granting them legal title to it.

While the Wyatt family had certainly owned the half-acre of land at some point, the applicants had been unable to serve the family or locate any beneficiaries of the estate. Gordon Wyatt and his wife are deceased, as is the executor of their estate. Gordon Wyatt died in 1972, and his wife died one year later. In addition, neither Gordon nor his wife made any reference to children in their wills.

The applicants made significant efforts to find members of Wyatt family, including looking for other property that had been owned by Gordon Wyatt at the time of his death to see who it was passed on to and searching the obituaries of the family for any mention of surviving members of the family. They also published a notice in a local newspaper advertising their intention to file for title to the property.

Applicants establish possession

The court noted that for the applicants to establish a possessory title to the property, they must have demonstrated actual possession of the property, and it must have been of an open, notorious, peaceful, adverse, exclusive, actual, and contentious nature. In this case, the court found that while their use of the property was limited in nature (it was undeveloped), they had met those requirements. There was no evidence that anybody else had made any use of the property since the applicants bought the land around it. As a result, the court found the “possession of the applicants of the subject property has been open, notorious, constant, continuous, peaceful and exclusive of the rights of the true owners for over 40 years, including over 20 years before the property was registered in the Land Titles system.”

Contact NULaw in Toronto to obtain proactive legal advice and plan your intergenerational wealth retention strategy. Our estate law team provides 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.