COMMONLAW SPOUSES PROPERTY RIGHT LIMITATION PROBLEMS

Date: 06 Mar, 2014

We have discussed elsewhere the extremely complicated issue of the rights that commonlaw partners have against the other’s property in the event of a separation. Those rights are very different than those granted under the Family Law Act to married spouses. These commonlaw property rights are generally rights of equity or judge made law.

One particular heading for such a claim is that of constructive trust in which the court imposes a trust right against the others property justified on the grounds of unjust enrichment or other equitable remedies (in English, it is unfair that the other benefited from your actions).

However, this has run into limitation problems.Generally speaking in Ontario, all claims are governed by the Limitations Act which holds that any lawsuit must be started within two years of the date on which the right should reasonably have been discovered by the Plaintiff.

If such a limitation period was imposed upon commonlaw spouses, one could envision a scenario in which the commonlaw spouse who feels that he or she has a claim, must bring such a claim even before the relationship ends.

Justice Perkins in 2013, made a decision that may yet be appealed. In the case of McConnell v. Huxtable, Justice Perkins decided to use the specific limitation period under the Real Property Limitations Act which provides a ten year limitation period for claims to recover land.

This is all clearly extremely complicated and complications that the drafters of the Family Law Act hoped would never arise, but they have nonetheless courtesy of various court decisions, and most importantly, the Supreme Court of Canada in Scott v. Branow.

The lawyers at Dale Streiman Law L.L.P. have on many occasions had to grapple on behalf of their clients with thorny and competing equitable claims between separating commonlaw spouses. One should appreciate that the gender of the parties is irrelevant and indeed Dale Streiman Law L.L.P. has extensive experience in acting for same sex commonlaw parties who are separating.

Any commonlaw spouse who finds themself separating would do well to speak to an experienced family law lawyer to assist them with this thorny issue.

IS SMALL CLAIMS COURT AN OPTION IN FAMILY LAW CASES?

Date: 06 Mar, 2014

The general answer is no. The jurisdiction for dealing with Family Law matters with respect to custody, access and property rights under the Family Law Act, are solely the jurisdiction of the either the Superior Court or the Ontario Court of Justice, Family Court Division.

However, common-law couples, when they separate, can use Small Claims Court to settle outstanding property issues between them, so long as the amount in dispute is less than $25,000.00.

The Ontario Court of Appeal in Grover v. Hodgins first upheld that point and which has recently been reinforced in 2012 by the decision of Justice Wilcox of the Ontario Superior Court in Matteau v. Johnson. In that the case, there were claims between the parties with respect to living expense debts, money owing under an oral agreement and potentially exotic trust claims such as constructive trust.

In these circumstances, the court held that Small Claims Court did have jurisdiction. An issued had been raised as to whether or not a separation agreement or cohabitation agreement had been properly entered into. The court felt that there was no valid agreement, that it did not meet the formalities of the Family Law Act, and that the matter was completely within the four corners of Small Claims Court.

Small Claims Court is not a venue that generally justifies the expense of a lawyer. However, Dale Streiman Law LLP offers a licenced paralegal, with many years of Small Claims Court experience.

By: Fred Streiman
Fred-Streiman

PROVINCIAL GOVERNMENT SHORT SIGHTED IN ITS STAFFING SHORTAGES AND FAILURE TO PAY AS YOU GO

Date: 06 Mar, 2014

As any individual who has had the misfortune of attempting to file any document with the courts in Brampton or the surrounding areas, you will have learned the moto, bring a book.

The registrar or clerks office of the Region of Peel courthouse are chronically understaffed and overworked. A speed bump system of lengthy lines, which features limited number of filings, have all been incorporated in an attempt to throttle the inflow of documents in an attempt to gain a closer relationship between the available staff and the documents that are to be filed.

This blog is in no way meant to be a criticism of the court staff, but rather of the short sighted failure of the government, who are of course our representatives in their management of our tax dollars.

There are substantial court fees to be garnered by the filing of the documents. As an example a motion for a divorce Order requires a fee of $280.00.

There should be careful consideration of the concept of determining what is the true cost of the filing, managing and retrieval of such documents and setting a fee that covers those costs. As such, this would be a revenue neutral process. The provincial government rakes in annually many millions of dollars in filing fees. While the government attributes these to their general fund, the government in this author’s humble view needs to look upon all of its functions where possible on a much more business like approach. There are already provisions for those individuals that cannot afford the appropriate fees to have them reduced or eliminated in particular circumstances. That is an admirable place for our tax dollars to be spent. However, it should be part of any litigants legal fees to pay an appropriate amount of money for the something as mundane as the filing of documents.

As a society, we underwrite the enormous costs of the judiciary and its many supporting arms. This is as it should be as the administration and rule of law is what separates Canada from oppressive autocratic and often dangerous governments. Layoffs make no sense as a cost cutting measure. The government is cutting off its nose to spite the economy’s face. A well run judicial system, which includes something as simple as the filing of a court document in less than an hour should be a feature of a modern society. The countless hours wasted while waiting in line, is a drag upon the economy, one which all of us pay for and benefits no one except perhaps the publishers of newspapers, books and crossword puzzles to occupy the waiter’s time.

By: Fred Streiman
Fred-Streiman

DEPENDENT RELIEF CLAIMS WHAT IF YOUR COMMONLAW SPOUSE LEAVES YOU NOTHING IN HIS/HER WILL

Date: 06 Mar, 2014

Under the Succession Law Reform Act, a deceased is forced to make adequate provision for their dependents upon their death. Section 58 of the Succession Law Reform Act states:

Where a deceased.has not made adequate provision for the proper support of his dependents,the court.may order such (support) as it considers adequate

Dependents means the spouse, the parent, a child or a sibling of the deceased whom the deceased was providing support or was under a legal obligation to provide support immediate before his or her death.

A spouse includes the same definition as can be found in the Family Law Act, namely a common law partner with whom the deceased had lived continuously for no less than three years or in a relationship of some permanence and had a child together.

It is important to note that any such application must be made within six months from the date that the deceased’s Will is probated.The court has the ability to look at many different factors in determining what is appropriate but in the end, common sense is suppose to prevail. The court has wide latitude in making almost any kind of an Order. It can order a lump sum, periodic payments, payments to third parties or even mortgages against property.

One also should note that you cannot contract out of this right. It does not matter what a separation agreement states, this right cannot be extinguished or bartered away.It is important to note that what forms part of the deceased’s estate is quite wide and wider than what one would have thought have. Assets that the deceased held as joint tenants forms part of the assets. Life insurance proceeds is another common example. The court can freeze any money that it believes forms part of that estate from being administered or distributed.

Recently, the Superior Court of Justice in Ontario also injected a component of a moral obligation over and above that of simple dependency. Justice Di Tomaso in the Stevens v. Fisher case, held that a common law spouse who arranged no coverage and left nothing in their old Will to their common law spouse of eleven years, had clearly not made adequate provision for their dependent. Not only that, for eleven years, the common law spouse had been a devoted caregiver and wife. There was an old insurance policy for $84,000.00 which the deceased had named as a beneficiary his previous common law spouse.

The court was not impressed and ordered virtually all of the insurance policy left by the deceased be paid to Ms. Stevens, the devoted common law spouse of eleven years.It may very well be that the deceased simply forgot to do a new Will and to change the beneficiary of his insurance policy.These claims are complex and require the assistance of a lawyer experienced in estate litigation. The lawyers at Dale Streiman Law LLP would be pleased to assist in any claims following under this interesting legal umbrella.

By: Fred Streiman
Fred-Streiman