Setting Aside a Domestic Contract: The Best Defense is a Fair Contract

Date: 04 Jul, 2014

Marriage contracts, separation agreements, and cohabitation agreements are the three main elements that make up domestic contracts in Ontario. This umbrella term covers large sections of family law therefore I have dealt with it multiple times in my previous blogs. Specifically, I have explained what these contracts are[i] and their enforceability[ii]. In this blog post I want to address fairness as an overarching theme that influences how the courts tend to look at these types of contracts. Fairness is often a key feature that the court looks at when considering whether to set aside a domestic contract.

Fairness is not the same as whether a deal was good or bad. Rather, when I speak about fairness in relation to a domestic contract it is more appropriate to think about it as shockingly unfair. The courts are not in a position to gauge whether any contract is good or bad. They only step in and use one of the many equitable doctrines that have developed over the years when a contract is so shockingly unfair that it offends our concepts of justice. In family law, the courts have been willing to set aside domestic contracts when they reach this level.

Two recent cases highlight the importance of fairness in domestic contracts. In Cuffe v Desjardins[iii], the wife was trying to set aside a marriage contract that formed the basis for a separation agreement between her and her husband. Both agreements were one sided in terms of property division and support obligations. The husband was clearly getting the better deal. However, the court was clear that unfairness alone is not enough to set aside a deal. Rather it was the husband’s actions in preying upon his wife’s weakness and unduly influencing her into accepting the bad deal that allowed the court to set aside the domestic contracts. The deal was unfair and the husband was taking advantage of his position to force his wife to accept an unfair deal. The fact that the wife received independent legal advice warning her about the very unfairness that she eventually accepted was not enough to overcome the husband’s deficit conduct. Consequently, the court could and did set aside the marriage contract and the separation agreement.

In the second case, Lougheed v Ponomareva[iv], the court once again dealt with the concept of fairness as it relates to setting aside a domestic contract. In that case, the wife alleged that the agreement she entered into during mediation was unfair and should not be enforced. She alleged that at the time the deal was negotiated she was on medication that inhibited her ability to process what was going on and what she was agreeing to. The court looked at the agreement and said that it is impossible to determine that the agreement was so unfair that the husband should have questioned the mental capacity of the wife. Deals generally are trade-offs between parties and sometimes the best deals leave neither party particularly happy with the result. An unfair deal is a signal that puts the other party on notice about the mental capacity of the other. Generally speaking, individuals with diminished capacity are unable to protect themselves from bad deals and the court will step in and protect them. The husband was able to establish that the deal was fair enough and should not be reopened. The wife was unhappy with the deal but it was not shockingly unfair such that her mental capacity is called into question.

These cases illustrate how the concept of fairness fills the court’s analysis of whether or not to set aside a domestic contract. It is not the sole factor and the courts are not in a position to determine whether a domestic contract is good or bad. If the facts show that the contract is shockingly unfair, the courts will look to contract law principles like undue influence, unconscionability or mental capacity and see if the contract should be set aside. Agreements between parties generally involve a give and take between competing interests. A settlement invariably contains some provisions that favor one party and others that favor the other party. The best defense to any attempt to set a domestic contract aside is to establish on the facts that the agreement, on the whole,  is fair to both parties.

All the family law lawyers at Dale Streiman Law LLP have extensive experience with domestic contracts. We understand the importance of these documents and we can help you with any concerns you have about them. I encourage you to read my other blogs on domestic contracts and visit our website at https://www.dalestreimanlaw.com/.


[i] Domestic Contracts: What do they do, when are they used and how effective are they? And The Continuum of Enforceability

[ii] Domestic Contract and the Continuum of Enforceability: Or What is Wrong With Using a Separation Agreement I Downloaded?

[iv] Lougheed v Ponomareva, 2013 ONSC 4347 available at http://www.canlii.org/en/on/onsc/doc/2013/2013onsc4347/2013onsc4347.html

MOBILITY RIGHTS: What if I want to Move with My Child(ren) to Another City or Province?

Date: 04 Jul, 2014

In family Law, mobility refers to the decision of a parent within whom the child primarily resides, or the parent that has legal custody or even factual custody of the child, to move with the child. The move must be far enough that it will cause interference with the other parent’s rights to contact, access and active participation in the child’s upbringing. A parent can bring an application to the court seeking to prevent the other parent from moving the child. These cases tend to be very specific based on the unique facts of the parties involved. However, there are a number of general points concerning mobility that the Supreme Court of Canada outlined in Gordon v Goertz[i]. 

The court’s first step when looking at mobility issues is to look at the move and determine whether it constitutes a material change in circumstances of the child since the last court order or agreement was made. This is a threshold condition that must be met before the court will evaluate the merits of any application to vary an order. If the move does not meet this threshold, then the analysis will stop right there and the parent can freely move. In order to determine if the threshold is met, the judge must be satisfied that:

  1. There is a change in the condition, means, needs, or circumstances of the child and or the ability of the parents to meet the needs of the child
  2. The change materially affects the child
  3. The change was not foreseen or could not have been reasonably contemplated by the judge who made the initial order

Once the judge is satisfied that these conditions have been met, they can then proceed to evaluate the mobility issues under an application to vary a previous order. The analysis after the threshold is met is conducted afresh, with a focus upon the best interests of the child. Both parents will bare an evidentiary burden of demonstrating the best interests of the child. There is no presumption in favor of either parent’s position. However, the custodial parent’s view will be afforded ‘great respect’.

In evaluating the best interests of a child in the context of a move, the judge should consider a number of factors including:

  1. The existing custody arrangement and relationship between the child and the custodial parent
  2. The existing access arrangement and the relationship between the child and the access parent
  3. The desirability of maximizing contact between the child and BOTH parents
  4. The views of the child
  5. The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the need of the child
  6. Disruption to the child of a change in custody
  7. Disruption to the child consequent on removal from family, schools and the community he or she has come to know.

As the Supreme Court said in Gordon v Goertz, the ultimate question in every case is what is the best interests of the child in all the circumstances, old as well as new.

Moving with your children can cause serious legal complications after parents separate. If you have concerns about a move that either you’re planning on doing with your children or your spouse is planning, you should seek legal advice in order to alleviate your concerns. If need be, you can go to court and seek either the court’s permission, through a new court order, to allow the move. Or alternatively, the court can make an order enjoining your former spouse from changing the child’s residence. In either case, the lawyers at Dale Streiman Law LLP can help you. They have years of experience handling family law matters, especially issues surrounding custody, access and mobility.

Custody: Sole Custody vs. Joint Custody and the Rise of Parallel Parenting

Date: 04 Jul, 2014

Custody is basically the decision making power over a child. This decision making power can apply to anything from the books they are reading to the school they attend. Access, on the other hand, deals with the right to be with the child. A custodial parent will gain access to the child through their custody, but a non-custodial parent must have an access agreement. When a couple separates, and they have children, they will have to make decisions on both access and custody.

Traditionally, custody arrangements have been broken down into sole custody, joint custody and shared custody. As the name suggests, sole custody is when one parent has custody and joint custody is when both parents have custody.  Joint custody is generally only awarded when the parents still communicate well. There is also the option of having shared custody. This is where a child lives at least 40% of the time with each parent. Shared custody works well when both parents want joint legal and physical custody of a child. The parents must be able to communicate in order for shared custody to work.  In cases when there is a high level of conflict, the court has typically resolved custody through a sole custody order. The rationale is that where parents cannot work collaboratively for the child’s best interests, it is better to give sole discretion to one parent. Increasingly though, the court has turned to a another option, parallel parenting, to resolve custody disputes.

Parallel parenting is similar to joint custody and shared custody in that both parents have custodial powers. However, parallel parenting orders tend to carve out specific spheres for exercising the rights and responsibilities that each parent enjoys. This type of custody arrangement is becoming increasingly common in cases where traditional joint custody or shared custody would not work because of communication problems and sole custody is not appropriate.

The case of Bushell v Griffiths[i] is very useful for showing when and how the court will order parallel parenting. In that case, the mother had sole custody initially but she used her position to deny the father the agreed upon access. The relationship between the parents was characterized by a high degree of distrust, disrespect, and conflict. Sole custody with the mother had not work, largely because of her own disruptive behavior. Equally, sole custody with the father was not an option because he had never been the sole care provider. He was also supportive of a shared or joint arrangement, provided his access was protected. Finally, the lack of effective communication between the parents meant that a traditional joint custody scenario would not work. In the judge’s opinion, the best interests of the child could only be served by a parallel parenting regime. In the end, the judge ordered that the parents share custody and imposed 22 specific orders regarding the day to day physical care of the child. The parallel parenting regime imposed very strict timelines for when the child had to be in each parent’s care. The idea is that specific orders from the court will prevent the mother from denying the father the access he is legally entitled to.

The use of parallel parenting by the court is on the rise in high conflict divorces. The court’s concern is always with the best interests of the child, with the recognition that, when it is appropriate, it is in the child’s best interest to have a relationship with both parents.

The very word “custody” has been abandoned in some jurisdictions as too emotionally loaded. The better focus is on residence, time division and responsibility.

Custody issues are often emotionally charged and difficult to resolve. The lawyers at Dale Streiman Law LLP have decades of experience dealing with sole custody, joint custody, shared custody and parallel parenting scenarios. They can help you resolve your custody issues efficiently with an eye to what’s in everyone’s best interest.


[i] Bushell v Griffiths, 2013 NSSC 68 available at http://www.canlii.org/en/ns/nssc/doc/2013/2013nssc68/2013nssc68.htm l

Domestic Contracts: What do they do, when are they used and how effective are they? And The Continuum of Enforceability

Date: 14 May, 2014

Domestic contracts are legally enforceable agreements concerning spousal relationships. The Family Law Act sets out rules for domestic contracts including subject matter and enforceability. There are three basic types of contracts that fall into the domestic contract category.

  1. Marriage contracts: An agreement between a married couple or a soon to be married couple (pre-nuptial agreement or pre-marital agreement). These contracts can deal with a variety of financial and property related issues but they cannot address child custody or access upon separation.
  2. Cohabitation agreements: An agreement between partners who intend to or are currently living together. This type of relationship is often referred to as a common-law relationship. These contracts can cover the same issues that marriage contracts can address.
  3. Separation agreement: This agreement is different from the first two because it is entered into when the marriage or cohabitation has already broken down. These agreements can address financial, property and support issues. They can also address custody and access for children, which the first two agreements cannot do.

For over ten years, the courts have been endorsing the merits of domestic contracts as a means for couples to make their own deal. Domestic contracts allow couples to control the settlement process rather than have a court impose a settlement upon them. The contract can address one or more issues and it is not uncommon for single issue contracts to be used. Generally speaking, the court will enforce the terms of a domestic contract unless there are grounds not to. These grounds are rare but there are specific public policy reasons that may apply. A properly drafted domestic agreement will avoid these pitfalls.

When considering a domestic contract, you should be aware of the continuum of enforceability. I deal with this topic in more detail in another blog post , but for the purposes of this post I will summarize it. The continuum of enforceability is a practical consideration in domestic contracts. It involves the increase in enforceability weighed against the increase in complexity and compliance of the contract in relation to legal requirements. A simplified example is the effectiveness of a perfectly drafted contract that considers the tiniest of details but is not signed versus a poorly drafted contract that is signed. The broad spectrum of enforceability must be weighed against the individual needs of the couple to determine what a properly drafted domestic contract is for that specific person. This concept requires a number of considerations. Legal advice from trained lawyers is required.

Importantly for marriage contracts, these agreements can perform dual functions. They are road maps for how the spouses intend to manage their married life and how they intend to separate, if they ever have to. The act allows couples to waive certain rights that they would normally be entitled to. This is especially important in terms of financial and property rights that spouses typically gain. A clearly worded marriage contract can allow one spouse to waive their rights to the other’s spouse’s property. There is, however, an exception as it relates to the matrimonial home. The Family Law Act says that any marriage contract provision that limits a spouse’s rights under part II of the act to the matrimonial home is unenforceable. The major right involved is the right to occupy the house.

Once a contract is created, a party can attack a domestic contract on four grounds.

  1. Validity: Allege that the domestic contract was not made correctly
  2. Enforcement: a specific provision violates the Family Law Act or some other statute
  3. Overriding Domestic Contract: The court has residual power to override agreements for certain reasons, generally public policy grounds.
  4. Interpretation of agreements: The interpretation of the agreement can be attacked if there is ambiguity or unclear terms.

Generally speaking though, domestic contracts will be respected by the court. Where they are challenged, the court can choose to remove one or more provisions from the contract or declare the entire agreement invalid. Contract law principles will form the basis for how the court evaluates a domestic contract. A critical factor in a domestic contract being upheld by the court is the simple concept of fairness. It does not need to be a reflection of a humanitarian award, but the contract cannot be shockingly unfair.

If you are interested in a domestic contract you should be aware that they are not simple or cheap to prepare. The starting cost for an agreement is $3,000. This expense provides an effective means for couples to set out their legal obligations. The lawyers at Dale Streiman Law LLP have been drafting domestic agreements for over 30 years. They will ensure that the contract meets all the legal requirements to be a valid and enforceable expression of your legal objectives while at the same time keeping costs down.

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[1] Link to “Domestic Contracts and the Continuum of Enforceability”

Traveling with Children

Date: 14 May, 2014

Post-separation, parents often find it difficult to travel alone with their children. These difficulties often lead to expensive last minute court applications and significant stress as parents scramble to make all the last minute arrangements. In extreme cases, there is the threat of parental abduction to either another part of Canada or internationally. This blog post will address some of the simple solutions available to parents to allay their fears and make traveling with children after a separation much easier.

Getting a Passport

The simplest way to facilitate efficient travel is by obtaining a passport for the child. Children over the age of 16 can apply for their own passport. Children under 16 years old can obtain a passport through the application of a parent, the custodial parent or the legal guardian of the child. There is an Order in Council, titled Canadian Passport Order ,that covers most of this information. It is available online for easy reference. The passport application also has a number of useful tips and checklists on it. Parents who have separated will need to submit all the documents relating to custody, access and mobility of the child with the completed application. These documents are extremely important in determining whether or not a passport will be issued.

Passport Canada pays special attention to access, custody and mobility of the child because of the legal significance that attaches to these terms. A parent with sole custody may not need the non-custodial parent’s signature to get a passport, provided they comply with all the requirements. Equally, non-applying parents in a joint-custody scenario need to consent to the passport being issued before Passport Canada will give the child a passport.

If you or your ex-suppose intend to travel with your child internationally after separation, you should advise your lawyer of this at the time of separation. That way they can incorporate specific language into the separation agreement or court order clarifying how and when a passport can be obtained. This will make the process much simpler when it comes time to get or renew a passport for the child.

Restricting Travel
In situations where conflict is high between the parents, they may want to restrict the ability of the other parent to travel with the children and obtain a passport. Once again, proactive steps at the time of separation are important to simplify the process later on. If there is a court order that requires both parent’s consent for the issuing of a passport, Passport Canada will not issue a passport unless there is a revocation or variation of that court order. Where warranted, mobility restrictions can be incorporated into the court order or separation agreement. This can restrict international and domestic travel with the child. In situations of extreme conflict, you can even obtain a court order completely prohibiting the child from having a passport.

Another option that won’t necessarily restrict travel but is a useful tool offered by Passport Canada is the passport system lookout. It does not prevent the issuance of a passport but it will generate an alert if an application is submitted under the child’s name. A parent can send a letter to Passport Canada and request that the child’s name be added to the list. However, where the parent is non-custodial, has no specified access and there is no court order or mobility restrictions on the child, Passport Canada may not add the child’s name to the list.

Finally, if there are real concerns about abduction parents can consider the use of Our Missing Children. This is a program run by Canadian law enforcement and other government agencies that helps find and return abducted children. It involves Canada Border Service Agency, therefore they can verify immigration information and manage national lookout reports on missing or abducted children. Similar to the passport system look, this program can issue an alert once a passport has been issued to the child. This tool is another method that does not prevent a passport from being issued to the child but rather serves as a warning system. It is mainly tasked with locating and returning children after they have been abducted (either by a parent or someone else).

Consents
Finally, outside of questions surrounding issuing or restricting passports for children, travel consents are a common method of facilitating one parent’s travel with their children. Consents are not official and there is no set requirement. A good example can be found at https://www.dalestreimanlaw.com/travel-consent-form.  This form consent has an official look to it that helps lend credibility to the document. An additional benefit is to fill out the standard form and then have a lawyer notarize it for you. This should help facilitate travel by lending the document more weight. It also may be beneficial to place a clause in any separation agreement or court order that requires either parent to provide a consent when requested. Parents should be wary, though, of consent request to countries that have not signed on to the Hague Convention. In a previous blog posting I addressed the Hague Convention at length. For clarity though, the convention is an international treaty that provides parents with a legal recourse to have their children returned to them. Non-signatory countries will not abide by the Hague Convention’s rules.

Traveling with children is a common problem that separated parents face. There are a number of elements at play. If you are looking to travel with your children but are not sure what to do about your uncooperative spouse, contact the lawyers at Dale Streiman Law LLP.

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For more information on the Order in Council see http://canlii.ca/t/lhhk
pptc155.pdf
Child Abduction in a Family Context

A Parent’s Actions Cause the BCSC to Cancel Child Support Obligations

Date: 07 Mar, 2014

Child support is the right of the child. The obligation to pay child support is an obligation the parent paying support owes their child. This is based on the idea that parents have a responsibility to pay for their children. A parent with custody of the child is typically already paying for the day to day needs of the child. A parent without custody can expect to pay child support in line with their income and the number of children they have. Generally speaking, the situation of the other parent is immaterial in determining whether a child support obligation exists and how much is owed.

In Hughes v Hughes[1], the BC Supreme Court canceled a father’s child support requirements because of the actions that the child’s mother took. This circumstance is very unusual because it seems to fly in the face of the idea that child support is the right of the child. In Hughes, the father was appealing a decision on his application to have his accumulated arrears of child support canceled. At the time of the appeal, the father owed over $32,000 in accumulated arrears of child support. He stopped paying after the mother took the child to Italy, denying him the reasonable access he was entitled to. Throughout 2009 the mother failed to return the child to Vancouver. She was found in contempt of court twice, ordered to pay $1500 in fines and costs, ordered imprisoned for 10 days and a warrant for her arrest for breaching the custody order was issued. However, she never returned, paid the fines or spent time in jail.

In 2010 the father stopped paying child support and the amount owing began accumulating. The mother remained in Italy and repeatedly refused to return the child to Canada. The BC court awarded the father sole custody of the child even though the mother was still in Italian. For this reason, the BC court still required the father to pay support. Child support is, after all, an obligation to pay for your children. The idea was that the child support would prevent the child’s mother from saying she couldn’t afford to return the child to Canada. This never happened and the father refused to pay. The mother continued to show contempt to the BC courts. Therefore, the BC Supreme Court took the unusual step of canceling the child support obligations because of the actions that the mother had taken.

This case highlights an unusual set of facts that led the court to cancel child support payments because of the actions of the parent. This contradicts the idea of child support being an independent responsibility that the parent owes to their child. This case is noteworthy because it is so unique. The lesson that the BC Supreme Court is trying to send is that repeatedly showing contempt for court orders and not complying with decisions can lead to a loss of child support.

Child support matters are often complex and emotionally charged. This reality is only increased when one parent decides to violate a court order on custody and access rights. The lawyers at Dale Streiman Law LLP have over three decades of experience dealing with these issues. They are experts in all facets family law. They can help you with your child support issues in an effective and efficient manner.

For information on child support in Canada, please visit the Ministry of The Attorney General’s Child Support Page at http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/support/default.asp or the Dale Streiman Law LLP section on child support at child-support-and-changing-the-amount-of-supportm

Compensatory Spousal Support

Date: 07 Mar, 2014

Spousal support serves three purposes:

[list type=”decimal”]

  • To compensate the spouse with the lower income for sacrificing some power to earn income during the marriage
  • To compensate the spouse with the lower income for ongoing care of children
  • To help a spouse who is in financial need if the other spouse has the ability to pay[1]

[/list]

Spousal support recognizes that spouses often make sacrifices that help the family. These sacrifices can disadvantage the spouse if the marriage breaks down. Spousal support recognizes these sacrifices and tries to correct them and avoid injustice. Spousal support is typically assessed using the Spousal Support Advisory Guidelines[2] (SSAG).[3] This is not legislation but rather it is a set of guidelines that the Department of Justice released to help address issues related support amounts and duration. They are designed to be used with divorces under the federal Divorce Act[4].

Aside from the traditional spousal support model that SSAG provides, there is another type of spousal support called compensatory support. Compensatory support is utilized to compensate a spouse upon the breakdown the marriage for contributions made during the marriage. Compensatory support has its roots in the Supreme Court of Canada decision in Moge v Moge[5]. The court said that compensatory support seeks to rectify the economic disadvantages of the marriage. In Moge, the court recognized that a wife who sacrifices her career aspirations for the family will have a decreased earning potential if the marriage breaks down. When she goes back to work, she will be at a disadvantage. Justice Dub said that a woman who stays at home can see her earning potential decrease by 1.5% for each year that she is out of the work force. This sacrifice can warrant additional support from a spouse who reaps economic advantages from it.

A case that illustrates when the court will utilize a compensatory model for spousal support is the recent Ontario Superior Court of Justice decision in Laurain v Clarke[6]. Justice Mossip outlined a series of factors that entitled Ms. Laurain to compensatory spousal support

[1] Department of Justice, About Spousal Support http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html
[2] Department of Justice, Spousal Support Advisory Guidelines http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html
[3] Christine Montgomery, DIVORCEmate software Inc,http://www.divorcemate.com/library/SSAG_Paper_0906.pdf
[4] Divorce Act, http://laws-lois.justice.gc.ca/eng/acts/D-3.4/index.html
[5] Moge v Moge, http://canlii.org/en/ca/scc/doc/1992/1992canlii25/1992canlii25.html
[6] Laurain v Clarke, http://canlii.org/en/on/onsc/doc/2013/2013onsc726/2013onsc726.html
[list type=”decimal”]

    • When the parties first met, she was employed, made a decent living, was self supporting and had accumulated significant assets.
    • She moved cities and left her job at the request of her husband so he could pursue a new job.
    • She stopped working at the birth of their first child, upon returning to work she changed positions.
    • After the second child, and upon her husband’s request, she stayed home to raise the children.
    • The husband’s career advanced because of his hard work and the fact that he could devote 100% of his time to his career with the knowledge that his wife was devoting 100% of her time to the family and home.
    • She was out of the work force for roughly 10 years at the date of separation, she has a lack of formal training or post-secondary education, and her chosen profession has changed dramatically since she left it.

[/list]

Ms. Laurain was entitled to compensatory support because she made significant sacrifice for the family welfare that put her at an economic disadvantage when the marriage broke down. In the same vein, her husband received a significant advantage from his wife making those sacrifices.

The compensatory model is generally used to give a lump sum payment in return for the sacrifices that one of the spouses made. It is particularly applicable to a support agreement when property division is insufficient to compensate the one spouse for those sacrifices. Finally, compensatory spousal support can be used by the courts in conjunction with the traditional support methods. In Ms. Laurain’s case, she also received support in the middle to high range of the Spousal Support Advisory Guidelines (SAGG).

The issues surrounding spousal support are complex and require careful consideration. Compensatory spousal support is a tool that can help compensate a spouse who has been disadvantaged by the breakdown of a marriage. The lawyers at Dale Streiman Law LLP have decades of experience dealing with spousal support. They would be happy to consult with you on any of your family law needs.

By : Fred Streiman & Stephen Duffy
Fred-Streiman

Survivors Pension Benefits should not be Ignored Unfair vs Unconscionable

Date: 07 Mar, 2014

The Ontario Court of Appeal in its December 2012 judgment in Symmons v. Symmons reviewed a Trial decision that involved many complicated and interacting factors. In that case, the parties first lived together for almost 6 years, married in 1999 and separated 10 years later. However, the husband was 13 years older than his now estranged bride and he had retired. Because of the age gap, the pension the husband had earned at work had vested fully, including the survivor’s benefits to be enjoyed by his now former spouse. Those survivor benefits were deemed to be worth over $300,000.

The wife was very unhappy that this was being tagged as an asset that she would have to now share with her retired husband and attempted to convince the court that is was unfair and indeed it met the test of unjust enrichment or alternatively an unconscionable division under Section 5 (6) of the Family Law Act.

In the end, the Ontario Court of Appeal said no, holding that it was not unconscionable (which one might describe as being unfair on steroids), because the wife’s net worth had increased substantially during the marriage and taking into account the survivors benefit amongst other factors. The Court did equalize the survivors benefits.

I have in this article used the words unfair and unconscionable rather loosely, which is incorrect. For married parties, the property division scheme is set out in the Family Law Act. It is a very precise formula which must be followed.

A spouse may argue that to blindly follow the formula would produce an unconscionable result and therefore the court should use its discretion and order a different result.

The drafters of the Family Law Act very specifically chose the word unconscionable rather than unfair. Unconscionable means a result that would shock the conscience of the court and its threshold is exceptionally high. This area of law has been litigated many times since the enactment of the Family Law Act. To determine whether or not a fact situation has a reasonable chance of meeting that test requires a lengthy and detailed examination with a qualified family law lawyer.

By: Fred Streiman
Fred-Streiman

Family Law Unjust Enrichment Joint Venture Property Rights for Common Law vs Married Spouses

Date: 06 Mar, 2014

Elsewhere I have discussed the different property rights that exist between common-law and formally married spouses. They are not the same and continue to remain very different.

Married parties are subject to the property scheme imposed by the Family Law Act. Grossly simplified, each of the spouses walk away from the marriage with an equal net worth.[1]

Common-law parties are limited to common-law rights also known as judge made law. These can arise from the way that title is held. An example are houses registered in both names and as such belong to both parties. Or alternatively, the application of judge made equitable rules which one can paraphrase as being fairness rules. One of those rules is unjust enrichment. Unjust enrichment and its close cousin, joint venture, were explored and expanded upon by the Supreme Court of Canada in its 2011 decision in Kerr v. Baranow.

For married couples, the property regime under the Family Law Act does not entirely exclude the application of the fairness rules or unjust enrichment. However, the Ontario Court of Appeal [2] has held that although the law is clear that equitable principles such as unjust enrichment have not been supplanted by the enactment of the Family Law Act in the vast majority of cases an unjust enrichment that arises as a result of the marriage would be fully addressed through the operation of the equalization provisions.

In other words, the court will rarely use these extra ordinary powers.

Survivors Pension Benefits should not be Ignored

Date: 06 Mar, 2014

Unfair vs Unconscionable

The Ontario Court of Appeal in its December 2012 judgment in Symmons v. Symmons reviewed a Trial decision that involved many complicated and interacting factors. In that case, the parties first lived together for almost 6 years, married in 1999 and separated 10 years later. However, the husband was 13 years older than his now estranged bride and he had retired. Because of the age gap, the pension the husband had earned at work had vested fully, including the survivor’s benefits to be enjoyed by his now former spouse. Those survivor benefits were deemed to be worth over $300,000.

The wife was very unhappy that this was being tagged as an asset that she would have to now share with her retired husband and attempted to convince the court that is was unfair and indeed it met the test of unjust enrichment or alternatively an unconscionable division under Section 5 (6) of the Family Law Act.In the end, the Ontario Court of Appeal said no, holding that it was not unconscionable (which one might describe as being unfair on steroids), because the wife’s net worth had increased substantially during the marriage and taking into account the survivors benefit amongst other factors. The Court did equalize the survivors benefits.

I have in this article used the words unfair and unconscionable rather loosely, which is incorrect. For married parties, the property division scheme is set out in the Family Law Act. It is a very precise formula which must be followed.A spouse may argue that to blindly follow the formula would produce an unconscionable result and therefore the court should use its discretion and order a different result.

The drafters of the Family Law Act very specifically chose the word unconscionable rather than unfair. Unconscionable means a result that would shock the conscience of the court and its threshold is exceptionally high. This area of law has been litigated many times since the enactment of the Family Law Act. To determine whether or not a fact situation has a reasonable chance of meeting that test requires a lengthy and detailed examination with a qualified family law lawyer.