For those of you that follow debates in the States, you would be familiar with the famous quote of Ben Shapiro: “Facts do not care about your feelings.” Without taking a stance on his political and social views or confirming agreement to the same, this quote has found popularity for a reason. You have the likes of Kyle Cease, motivational speaker, use Shapiro’s words to indicate that the opposite is true as well: “Feelings do not care about your facts,” which is just another way of saying that people need to deal with their past, stop making excuses, and. JUST. DO. For example, he is a huge believer that, in order to achieve success, any excuses should be set aside. Think about Michael Jackson working at a regular job and having this great talent for music. That is his passion and he wants to do it, except he thinks:
“BUT I can’t, I am too poor and no one believes in me,”
“BUT I am so close to a promotion and I have to pay my debt.”
The solution is deal with your past, let go, and surround yourself with people that say yes, you can do it, not the complainers, non-achievers, and generally negative ones.
Anyway, without diverting too much, what I want to get through to my clients, potential clients, and the world in general is my own play on this quote: “Courts do not care about your feelings.” And just as we learn from influencers, general psychology, motivational speakers, you name it: when your issue is one about feelings, the court system is definitely not meant to address your feelings. The court generally deals with urgent issues such as danger to children, abuse, and rarely does it have the power to do what is fair without the evidence. Even where there is evidence, family law is so complex that there is rarely fairness. And certainly, the courts and family law procedure are not designed to resolve the feelings and psychological damage of a separation.
Now, as a family lawyer, I cannot address these issues with every client and I should not. If I focus too much on the feelings, then I take on the client’s feelings, which ultimately is what the client wants (wrongly so). I cannot tell you how many times I have done this early in my practice. And I cannot tell you how many times I deal with other lawyers who aggressively take on their clients’ feelings, resulting in ineffective arguments, higher conflict, and a waste of retainer. At times, I am left speechless by opposing lawyers’ arguments and instead of retaliating, I practice silence (rather than practicing the “law”) and allow them to believe that they are correct. I then watch their fall as the judges teach them a lesson. Yet, they do not learn and continue on the same path.
So what is my solution to it all? Quite frankly, due to the complexity of each case, I do not have one. All that I have is a suggestion that might make it better:
Having said the above, I should clarify that your lawyer should be focused on you, your strategy, follow negotiation techniques, and should definitely not be “soft”. I should further clarify that going to court can be the answer, which it has been in many of my cases.
As you can determine, I am very passionate about being real and I admit that the family law system does stir negative emotions in me. For a long time, I complained about the unfairness without doing anything about it. Now, I see a separation from a bird’s eye view, as something that can become almost the same as the goal of being a successful artist. This is why you can treat your separation as an opportunity to finally turn your mind to achievement and not excuses. When you allow your feelings of fear, hate, anger, and jealousy to take over, you forget that NO. ONE. CARES.
To conclude my thoughts, I welcome you to try this exercise with any feeling you are experiencing in your separation and see where this takes you:
Blank…..does not care about my feelings.
I wish you best of luck.
Below are just a few tax considerations for child and spousal support. During court proceedings, it is very easy to make agreements without realizing the impact on taxation. Lawyers should always advise their clients before proceeding to negotiate the quantum and method of paying child support and spousal support.
**The content on this website is not legal advice.
Under family law, the general definition of a common-law partner is that the parties have to cohabit for 3 years or have a child together and be in a relationship of some permanence. This definition is very important for the purpose of determining spousal support rights and obligations.
The Income Tax Act has a different definition for a common-law partner, which includes “a person who cohabits in a conjugal relationship with the taxpayer and
(a) has so cohabited throughout the twelve-month period that ends at that time, or
(b) would be the parent of a child of whom the taxpayer is a parent. ..
and… they are …deemed to be cohabitating in a conjugal relationship unless they were living separate and apart at the particular time for a period of at least 90 days… because of a breakdown of the conjugal relationship”.
The rules above apply to married couples as well. However, if a married couple separates but does not divorce, they still continue to be related and may avail themselves of the benefits of the ITA. If a common-law couple separates, their relationship continues to exist for tax purposes only for 90 days after they cease living together, following which they cease to be “related” for the purpose of the ITA.
**The content on this website is not legal advice.
A recent Court of Justice case shed some light on the factors to consider whether changing the surname of a child is in the best interest of the child. Often times, prior to separation, the child has the surname of one of the parents. Post separation, the other parent wants the child to share their surname as well.
The Change of Name Act allows the custodial parent to apply to the Registrar General to change the child’s name. However, the other parent can object but the onus is on the person objecting the change to prove on a balance of probabilities that the name is not in the best interest of the children. In Schaafsma v Eaton, a 2019 case that actually proceeded to trial on the issue of name change, we see the following factors outlined by the judge as summarizing the jurisprudence in determining whether prohibition of a name change is in the child’s best interests:
a) Whether the proposed name change will exclude the name of the non-custodial parent.
b) The length of time a custodial parent has had sole custody of the child.
c) Whether there is a continuing close relationship between the child and the non-custodial parent.
d) Whether there would be any serious effect on the non-custodial parent.
e) Whether either parent has displayed any malice or improper motivation.
f) The age of the child and the weight to be given to the child’s wishes, in light of that age.
g) The length of time the child has had its name.
h) The surnames of any siblings.
The Court further noted that “The test is one of best interests from the child’s perspective, as opposed to what may or may not be in the parent’s interests.”
Further, parents should understand that they should not apply to the family court to order a change in the child’s name. They should first apply to the Registrar, following which they could proceed in family court to dispense with the other party’s consent to change the name. At that point, the above factors would be considered.
*The content on this website is not legal advice, you should always obtain advice from a lawyer with the particulars of your case.
Did you know that the term “custody” actually originates from property law, effectively using this term when referring to children in family law? As a practitioner who understands the fight about “custody,” I am very much looking forward to the long-awaited amendments to the Divorce Act, with the first substantial change to the parenting provisions since the Act came into effect in 1986. A few of the changes include:
Custody and access– these terms will be replaced with “parenting orders” and “contact orders.”
The best interest of the child (BIOC) continues to be the foundational principle and it would create a duty for parents to exercise their responsibilities in accordance with the BIOC, including equal shared parenting when appropriate. Unfortunately, equal shared parenting is not yet a presumption.
Resolution outside of court– continue to include language that encourages agreements outside of court by way of alternative dispute resolution.
This is a true step forward which might actually lead to more settlements, since parties will no longer be fighting about who gets “custody.” I look forward to seeing how the new legislature will impact decisions regarding parenting and if we are finally moving one step closer to more decisions of equal shared parenting, even if not yet a starting point in the legislature.
**The above is not legal advice. Please contact a lawyer if you seek legal advice.
Property acquired by gift or inheritance, other than a matrimonial home, received during marriage from a third party are generally excluded from the division of property during separation or divorce. However, there are a few special circumstances one must be aware of when attempting to exclude the value of such items.
Money should not be mixed with other funds to be able to adequately trace back the inheritance or gift. For example, if the gift is cash, you should use a separate account to hold the cash, or purchase stock, or place money in a long-term investment.
If the money is kept in a joint account or used to purchase property under both spouses’ names, you will only be able to exclude your half of the amount, as there is a presumption that the money is jointly owned as per section 14 of the Family Law Act.
It is not necessary to keep the gift/inheritance in the same form it was received in.
Aside from a matrimonial home, you can use the money to purchase any property and still have the item excluded so long as it can be traced back. However, tracing the original inheritance/gift is not always clear when items are purchased in combination with other funds.
For instance, if you receive $60,000 and you use it to purchase something worth $80,000 (pay ¾ of the item with the gift money), and the value of the item increases to $90,000 at the date of separation, then you may exclude ¾ of the current value of $90,000.
As a rule, the value of the gift/inheritance to be excluded will be calculated as the amount at the date of separation, whether the value has increased or decreased since the gift/inheritance has been obtained.
Furthermore, income from a gift/inheritance will not be excluded unless the donor/testator has specifically indicated in writing that income generated from the gift is to be included as part of the gift. Otherwise, rental income from rental property, money made through interest, and stock dividends must be included in the date of separation assets.
For gifts acquired prior to marriage that have gained value during the marriage, the acquired value must be included in your net family property. Similar to other pre-marital assets, the pre-marriage value of a gift/inheritance will then be deducted from your net family property.
*The content on this website is not legal advice, you should always obtain advice from a lawyer with the particulars of your case.
In separations, custody of the children is one of the most difficult aspects to agree on. In Ontario, courts determine custody based on the best interest of the child. Custody and access may be awarded to non-parents as well.
Custody and Access
Custody can be defined as the legal and practical relationship between the parents and children. The legal definition of ‘custody’ describes the legal right of a parent or parents to make decisions for their children. The term custody is often misconstrued and used interchangeably with the term access. The basic distinction is that custody means decision-making and access means time spent with the child.
Types of Child Custody in Ontario
Both parents have custody of the children. This type of custody is for parents who can cooperate on parenting matters to make decisions in the best interest of their children. Courts are more likely to make joint custody orders in cases with no conflict, good communication, and ability to co-parent.
There are two types of joint custody:
Joint Legal Custody: Where both parents are permitted to have input on major decisions affecting the children, such as education and health. The residence of the children and visitation schedules may differ.
Joint Physical Custody / Shared Custody: Where both parents spend at least 40% of the time with the children.
2. Sole Custody
When only one parent has custody of the children. The children’s primary residence is with the parent who has sole custody, and the other parent may or may not have access to the children.
3. Split Custody
When one parent has custody of some of the children and the other parent has custody of the other children. However, separating younger children from their siblings is typically not advised; nevertheless, pre-teens and teenagers are often able to choose to live with different parents.
Child Custody Agreements
Joint custody
The fundamental principle of a joint custody agreement is that both parents have custody and that they work together in cooperation toward the best interest for their children. Today, joint custody is very frequently used.
Joint custody does not necessarily mean that the children reside 50/50 with both parents. The specific circumstances of the children’s residence can vary greatly within the agreement. For instance, many agreements provide a child with a primary residence and a secondary residence with the other parent on weekends, holidays, etc.
An optimal joint custody agreement must be developed according to the specific needs and routines of an individual child and parent, with emphasis on the child’s needs. All joint custody arrangements require a commitment by the parents to work in cooperation, notwithstanding being separated, and make joint decisions to the benefit of the children. These elements require consideration during joint custody negotiations, which are then formalized into joint custody agreements.
Sole Custody
Sole custody refers to cases where only one parent has both physical and legal custody of a child. This means one parent makes all of the important decisions in a child’s life i.e. healthcare and education.
Typically, the other non-custodial parent has access to the child. This parent has the right to some physical time with the child, and the right to inquire and receive information from the other parent in terms of the health, education, and well-being of the child.
If a parent with sole custody dies, the other parent does not automatically receive custody. A parent with sole custody or a parent entitled to custody can appoint by way of testamentary disposition (will) a legal guardian for the children. This appointment is only binding for 90 days (in accordance with the Children’s Law Reform Act) but the court retains the final authority to appoint the guardian.
Split Custody
Split custody is when one parent has sole custody of one or more children and the other parent has custody of the other children. This is not a common alternative, as it will very rarely be in the best interest of the child to be separated from their siblings.
Nevertheless, when children are older (i.e. pre-teens and teens), their views and preferences have significantly more influence on how the custody agreement is tailored. On the other hand, the views of primary grade children will typically have much less effect on the outcome of an agreement.
*The content on this website is not legal advice, you should always obtain advice from a lawyer with the particulars of your case.
Division of property upon separation: The Rule for Legally Married Couples
The rule for the division of property upon separation is dependent upon the status of the separating couple. For legally married couples, the law that governs the division of property upon separation is the Family Law Act. Each spouse is entitled to share equally in any increase in value of the other spouses’ property that has occurred during marriage. This typically means that one spouse must pay the other spouse what is commonly known as an “equalization payment.”
To determine the division of property upon separation, spouses first need to determine what qualifies as property. Property includes all assets such as: home, car, personal items, household items, bank accounts, life insurance policies, RRSPs and any businesses owned (even if incorporated).
Importance of Financial Disclosure Upon Separation
To calculate the equalization payment, each spouse must properly disclose their relevant financial records. This means that each spouse must disclose the value of all assets and liabilities at both the date of separation and the date of marriage, with proof of these values. As such, to determine the spouse responsible for making the equalization payment and the correct amount, it is vital that each spouse properly disclose complete and accurate financial information to resolve the matter. Full and accurate financial disclosure is necessary and will help avoid unnecessary complications that arise from inaccurate disclosure or non-disclosure.
Calculation of the Equalization Payment
In order to determine the amount of the equalization payment, each spouse must calculate their net family property (“NFP”) at the time of separation.
To calculate the NFP, each spouse must add up the value of their property (minus any debts) as of the date of separation and then subtract the value of his or her property (minus any debts) as of the date of marriage, subject to any other exclusion. Once the NFP value is calculated for each spouse, the spouse that has the higher NFP must pay the other spouse 50% of the difference between the two NFP values. For instance, if spouse A has a NFP value of $100,000 and spouse B has a NFP value of $50,000, then spouse A must make an equalization payment of $25,000 to spouse B (50% X ($100,000 – $50,000)).
Special Rule for Matrimonial Homes: Calculation of NFP
A matrimonial home is the home where the married couple was ordinarily residing at the time of separation. There can be multiple matrimonial homes; for instance, a cottage could be considered a matrimonial home if the parties ordinarily reside there. When calculating a spouse’s NFP, the entire value of the matrimonial home is always included in the calculation of the NFP, not just the increase in value of the matrimonial home throughout the marriage.
Special Rule for Gifts and Inheritance: Calculation of NFP
Typically, a gift or inheritance is excluded from the calculation of NFP. However, if the gift or inheritance is used to buy, help pay, or make improvements to a matrimonial home, it will be included in the calculation of the NFP. Caution should be taken to ensure that the gift or inheritance can be traced at the date of separation. For example, if a spouse receives a gift of $50,000 and uses this as cash on groceries, the spouse shall not benefit from the $50,000 exclusion.
Special Rule for Canada Pension Plan credits: Calculation of NFP
All Canada Pension Plan credits are excluded from the calculation of NFP because they are treated separately in determining the division of property upon separation. See below for more details.
Debts
For both married couples and common-law couples, each party is typically responsible for paying their own debts, unless there is an agreement between the parties that states otherwise.
Private Pensions
Private pensions fall under the heading of property and are subject to division upon separation. There have been some important changes to legislation, effective January 1, 2012, which now makes it easier for married spouses to value and divide private pension plans following separation. If a married couple has separated on or after January 1, 2012 or prior to this date but have not yet resolved their property issues by that time, then the new rules apply.
Canada Pension Plan Credits
Most people assume that their Canada Pension Plan (CPP) is not divisible upon separation; this is incorrect. If a married or common-law couple has lived together for at least one year (note that common-law is usually three years but for CPP credits, it is 12 months) the CPP pension credits each party has earned while they were together can be added up and then divided evenly between each party upon separation. This division of CPP credits has been referred to as a credit split or a “Division of Unadjusted Pensionable Earnings” (DUPE).
Time Limits for DUPE Application: Legally Married Spouses
Upon separation of legally married spouses, there is no time limit to apply for a DUPE. However, if the spouse died following separation without obtaining a divorce, the time limit is 3 years after the spouse’s death.
Time Limits for DUPE Application: Common-Law Partners
Upon separation of common-law partners, the parties must apply for a DUPE within 4 years after separation unless there is an agreement in writing between the parties to ignore this time limit. In addition, common-law spouses must wait at least one year following separation to apply, unless the common-law partner has died in that first year following separation.
AeroPlan Miles and Loyalty Points Program
The accumulation of AeroPlan miles or loyalty points can add up to some value and their inclusion or exclusion from matrimonial property is dependent upon whether the points were accumulated as part of personal, family-related spending or as part of business spending or work-related activities. If the points are accumulated due to personal, family-spending then these points will form part of the matrimonial property that is subject to division upon separation. However, if the points were accumulated solely due to business or work-related activities, then the points will be exempt from matrimonial property and not subject to division upon separation.
The Division of Property: Common-Law Couples
The rules that govern the division of property for legally married couples, as found in the Family Law Act, do not apply to common-law spouses. Thus, there is no automatic right to divide property between common-law spouses upon separation, as is the case for legally married couples. However, in cases of unjust enrichment, a common-law spouse can make a claim to the home owned by the other spouse. The law is complicated and common-law spouses should seek legal advice with respect to this.
The Family Responsibility Office (FRO) is responsible for enforcing both child support and spousal support orders. All court orders for child support and spousal support are automatically filed with FRO. If there exists an agreement between the parties regarding support, the parties may file a copy of the agreement with FRO for enforcement by the office.
Once a child or spousal support order is filed with FRO, the party responsible for making the payments must send all payments to FRO. The FRO acts as an intermediary between the payor and the payee. As such, when the FRO receives money from the payor, it will send it directly to the payee.
If the payor is late or misses a required support payment, the FRO has the authority to take certain measures to collect the money. For instance, if the payor is employed, the FRO has the authority to order the payor’s employer to deduct the support payments owing from the payor’s wages. If, however, the payor is unemployed or self-employed, the FRO can attempt to take the support money owing from the payor’s bank account (known as garnishing an account). In addition, the FRO has the authority to place a lien on the payor’s personal property such as a car or home and if the payor attempts to sell the property, the FRO is permitted to collect the outstanding support money owing. In extreme circumstances, such as when the payor is consistently late or where there is a substantial amount of support money owing, the FRO can attempt to compel the payor to pay by suspending their driver’s license and any recreational licenses, such as a fishing or hunting license. The FRO can also cancel the payor’s passport or redirect funds owed to the payor by the government (such as a tax refund or employment insurance benefits) to the payee to satisfy the outstanding support payments.
If the payor resides outside of Ontario but within Canada or the United States, the FRO still has the authority to collect support payments since all the provinces and the states have agreed to permit the FROs to collect support orders across the jurisdictions. The province of Ontario also has similar agreements with other countries, including Bermuda, Ghana, Hong Kong, the Czech Republic and the United Kingdom. If the payor does not live in a country where there is an agreement in place with Ontario, the FRO is unable to help the payee enforce the support order. The only option for the payee is to rely on the laws of the jurisdiction in which the payor lives to enforce the support order.
Payors are well advised to contact a lawyer if they are unable to make payments on time and, even moreso, in situations where the FRO is already taking steps of enforcement.
Planning a marriage can be difficult, and more difficult still is a conversation about drafting a marriage contract, commonly referred to as a prenuptial agreement. It is because of this difficulty that some couples never bother drafting one at all. It is neither the right nor the wrong choice; however, conversations about such agreements can have a negative effect on some relationships. Despite not proceeding with a marriage agreement, there are a number of important factors to consider before and during the marriage that will help you to protect some of your assets. These factors include (1) deductions at the date of marriage and gifts and inheritances during marriage as exclusions, and (2) the effects of having a residence defined as a “matrimonial home.” By using these factors strategically, you may be able to protect some of your assets and lower your net family property, resulting in financial benefits at the date of separation.
(1) Deductions and exclusions
The distinction between deductions and exclusions is stark. A deduction will only be made for the value of property belonging to one spouse at the date of marriage. Any subsequent increase in the value of said property during the marriage will be calculated as part of the net family property for the purpose of equalization. In other words, any increase in value during the marriage will be shared by both spouses. For example, if one owns a cottage at the date of marriage worth $150,000, and during that marriage the cottage appreciates to $200,000, the value of the deduction will be $150,000 and the remaining $50,000 will be calculated as part of the net family property.
By contrast, if said cottage is gifted during the course of the marriage, then the full value of $200,000 will be excluded from the net family property calculation altogether. According to s 4(1) of the Family Law Act, deductions at the date of marriage are any property owned at the date of marriage less any liabilities. For example, in deducting the value of that cottage worth $150,000, if one were to have debt valued at $100,000 then the deduction amount would actually be $50,000.
Further, in determining the value of said property to be deducted, the onus or burden of proof rests on the party claiming a deduction. Therefore, it is important to keep any and all documents that are relevant to the value of property at the date of marriage as estimates are hard to make and are not always accepted by the court.
Exclusions made by way of gift or inheritance, on the other hand, must always be given to one spouse alone during the course of marriage. Here too the onus is on the party claiming exclusion to show that the property was indeed a gift intended for only one spouse. As explained above, the entirety of the value of the property will be excluded at the valuation date, assuming certain conditions are met. First, the gift or inheritance must have been intended to have been given to only one of the spouses alone. If the person gifting the property intends that both the spouses benefit from the property, then it will not be excluded from the net family property. Second, the value of the gift or inheritance must be traceable. In other words, it cannot be intermingled with the marital property. For example, if one were gifted the above mentioned cottage with a value of $150,000 during the marriage, and the spouse then sold the cottage for $200,000 and put the money into his or her savings account, then this value would be traceable and the full value of the $200,000 would be excluded from the net family property calculation. On the other hand, if the cottage were sold and the proceeds placed into the spouses’ joint account, the gift might no longer be traceable and the exclusion would be lost. However, if the value of the property is placed in the spouses’ joint account for only a short period of time, such as a few days, and then subsequently used to purchase other property under the spouse’s name alone, then this would be considered traceable and could still be excluded.
(2) Matrimonial home considerations
Finally, it is important to review these concepts in the context of the matrimonial home. The matrimonial home holds a special status as it is the residence in which the family’s life revolves. It must be ordinarily occupied as the family residence and must have been occupied in such a capacity at the date of separation. It is possible for a married couple to have more than one matrimonial home (such as a cottage).
One cannot deduct the value of a house at the date of marriage if that house was subsequently used as the matrimonial home, unless the spouses were no longer occupying that residence as the matrimonial home at the date of separation. Similarly, if one were gifted a house, and that house subsequently became the matrimonial home, it could no longer be excluded from the net family property calculation.
What should you do prior to getting married? And what to do post marriage?
Therefore, there are several things that should be kept in mind before marriage. First, consider which residence should be occupied as the family home in light of the above information. Second, retain relevant documentation in relation to the value of all property owned at the date of marriage. Finally, keep any gifts or inheritances acquired during the marriage separate and/or traceable in relation to family property as otherwise they will no longer be excluded from the net family property calculation.