What Exactly IS up for Negotiation? The Family Law Edition

Blog Post
July 24, 2014
Read Time: 3 minutes

Recently, after advising a client on the amount of money that he owed his former spouse by way of an equalization payment, he responded with a question: Is this negotiable? In truth everything is negotiable in family law. Parties can agree to almost any arrangement between them, write it out in an agreement and sign on the dotted line. Whether you can force someone to comply with this kind of agreement if he or she later has a change of heart is another matter for another blog post. If we think about the negotiability of an issue as a kind of spectrum, this post sets out where the major issues of a separation would fall on such a spectrum.

Complexities When Family and Estates Law Intersect

Blog Post
June 25, 2014
Read Time: 3 minutes

A recent case, Caron v. Rowe, provides a good reminder of the issues that can arise in matters that intermingle both family and estates law. The case is a blunt reminder that your lawyer needs to truly understand your wishes when preparing your estate plan and domestic agreements, so that those wishes can be made explicit.

How Soon is Now? How and When Spousal Support Agreements or Court Orders can be Changed

Blog Post
June 11, 2014
Read Time: 3 minutes

It’s no secret that the issue of spousal support remains a constant source of complaint and controversy among family law litigants. Those made to pay it often believe they are overpaying, while those who are entitled to receive support frequently believe the payor is getting away with not paying enough. Because the quantum and duration (and arguably the entitlement) to spousal support is discretionary in nature, a spousal support award is never as predictable as an award of child support.

Can I Set Aside a Cohabitation or Separation Agreement Because it was not Witnessed?

Blog Post
May 30, 2014
Read Time: 2 minutes

The Family Law Act provides that domestic contracts (which includes cohabitation agreements and separation agreements) are unenforceable unless made in writing, signed by the parties and witnessed. Previously, I might have been tempted to compare this requirement with the requirements in the Succession Law Reform Act, which create strict rules around the witnessing of the execution of Wills. Based on these provisions, one would think that domestic contracts that are not signed by a witness who was actually there to see the party sign the agreement, would be unenforceable. Well, the Ontario Court of Appeal disagrees.

Reminder: Don’t Forget to Designate your Pension Beneficiary!

Blog Post
May 22, 2014
Read Time: 3 minutes

Have you had more than one ‘spouse’ in your lifetime? If the answer to that question is ‘yes’, then it is important that you remember to designate your pension beneficiary. The importance of doing so was highlighted in a decision from the Court of Appeal for Ontario in 2012, which interpreted the definition of ‘spouse’ under Ontario’s recently amended Pension Benefits Act.

Making Changes to Child Support

Blog Post
May 16, 2014
Read Time: < 1 minute

Last week Jane Thomson posted a blog about requirements for annual income disclosure for child support payors and recipients. What happens when you do get that income information and changes in income require a change in child support? In Ontario’s 2014 budget a new on-line service for parents to apply for changes in child support amounts without having to go to court was proposed. We’ll be keeping our eyes on this new proposal. Currently, changing child support orders is costly and time consuming.

Disclosure of Income and Child Support: It’s an Annual Thing

Blog Post
May 9, 2014
Read Time: 2 minutes

For those who either pay or receive child support, you may not know that you have a right or an obligation to obtain or provide sufficient evidence of the payor’s income for the purposes of determining and adjusting child support on an annual basis. It is not only recipients that have an interest in receiving annual income disclosure. If the payor’s income has decreased since the last adjustment, child support should accordingly be decreased accordingly. It remains in everyone’s best interest to cooperate with this process.

Police Enforcement of Custody and Access Orders

Blog Post
May 1, 2014
Read Time: 2 minutes

The recent case of Patterson v. Powell has given rise to a discussion of how parents can enforce custody and access orders in the event that the other party (or sometimes neither party) is cooperating with the parenting schedule. In my view, lawyers, judges and parents all have a duty to assess the emotional impact on the child when determining what the custody and access rights will be, and to craft these orders in a manner that is intended to minimize their potential harm.

Thinking of Using a Gift to Pay Off the Line of Credit on your Home?

Blog Post
April 24, 2014
Read Time: 2 minutes

Thinking of using a gift to pay for the line of credit on your home? You may want to think carefully about your decision, but there is reason to hope that you might get at least some of your gift back in the event of a separation. Here’s why. In 2012, the scope of equalization litigation was expanded with the Court of Appeal for Ontario’s decision in Ward v. Ward. If you are thinking about using a gift to make a payment on your matrimonial home, you would be wise to consult your family lawyer first to weigh the pros and cons of your decision.