How to Prevent your Spouse from Disposing Family Property during Divorce

A separating spouse may have a genuine concern that his or her partner plans to hide or dispose of family property in order to prevent the other from sharing in its value upon dissolution of the marriage.  If this is the case, the non-property holding spouse can go to court and ask the court to prevent the property-holding spouse from removing or disposing of the property.  It must be shown that there is a risk that the property-holding spouse will hide or dispose of the property prior to trial and that the non-property holding spouse has a claim of entitlement to the property and is likely to receive an equalization payment equal to the value of the specific property at issue. (Lasch v. Lasch (1988)).

Pursuant to section 12 of the Family Law Act, the court can make either a temporary or final order restraining the depletion of a spouse’s property and for the possession, delivery, safekeeping and preservation of the property if it is necessary for the protection of the other spouse’s interest.  The purpose of such an order is to ensure that there are sufficient assets available to satisfy the equalization payment once the court determines that a spouse is entitled to such a payment.

For further information regarding property ownership and divorce, speak with a Divorce Lawyer who can assist you in understanding all of your rights and obligations before filing for divorce. Call Niren and Associates at 416 222 4555 or email us at info@divorcesupport.ca.

Email This Post Email This Post


By candice - Last updated: Wednesday, March 24, 2010
Filed in Divorce • Tags: ,


Cohabitation Agreements for Common Law Couples in Ontario

The definition of a common law relationship in Ontario is that you have either lived with your significant other for three years or you are in some kind of permanent relationship together and have a child. There is no legal paperwork needed to establish a common-law relationship like in a marriage. Some provinces, like Ontario, require 3 years of continuous cohabitation, meaning a short-term breakup can sometimes ruin this continuity. Other provinces have no such requirements.

Couples who live together, or cohabitate, but are not married, whether heterosexual or same sex couples, are not included in the section of Ontario’s Family Law Act that states property accumulated during the marriage must be divided. For one person to make a claim for the division of property or to remain in the matrimonial home, they must be legally married to the person. Common law spouses can also be compelled to testify against each other in court, unlike married couples.

Cohabitation is defined by several factors in the eyes of a judge. Some of these factors include whether or not you were financially interdependent, whether or not you acted as a couple in social settings, whether or not your relationship was intimate, and whether or not you shared some kind of shelter or home.

Common law partners are able to apply for spousal support in the case of the dissolution of the partnership just like a married person. While there is now no set time limit to apply in Ontario (it used to be two years) in other provinces there are limits.

A cohabitation agreement can help protect both parties in a common law situation. It can help prevent litigation and extra costs in the event of the breakdown of the relationship while protecting your assets and setting aside rules for future child support engagements.

Email This Post Email This Post


By michael - Last updated: Friday, December 18, 2009
Filed in Cohabitation Agreements, Common Law Marriage • Tags:


Are You the Biological Parent? How to Establish the Parentage of a Child

dna-testIt is becoming increasingly common for a parent to seek a declaration of parentage of a child after the breakdown of a relationship, particularly if the parents never lived together and there is no evidence to presume parentage.

Legislation

The legislative scheme in the Children’s Law Reform Act (“CLRA”) deals with child custody and access and the status of children who are born in or out of marriage.  The CLRA also deals with the establishment of parentage.

Pursuant to the CLRA, a party in a civil proceeding to determine the parentage of a child, or in any civil proceeding in an Ontario court where a question of parentage arises (Z v. Z (1978)), may seek permission from the court to obtain blood or DNA tests of an alleged parent and may submit the results of the tests in evidence.

Blood and DNA Testing

Traditional blood testing has given way to DNA testing which can provide a much greater probability of paternity or maternity of 99.95% or higher. DNA testing is also much less intrusive than blood testing and is becoming more frequently used as the method of testing, however the results are still open to challenge.

Presumption of Paternity

The CLRA provides for a “presumption of paternity” in a case where the facts fall within one of six circumstances as set out in s.8(1) of the CLRA, including:

Unless the contrary of the presumption is proven on a “balance of probabilities” that the person is not the father of the child, there is a presumption that the person is, and as such will be recognized in law to be, the father of the child. This presumption as set out in section 8(1) of the CLRA is also utilized when a court is required to make a determination of parentage for the purpose of establishing child support obligations in an application pursuant to the Family Law Act.

Establishing parentage of a child upon the breakdown of a relationship is important when determining custodial rights and child support.

Contact a Family Lawyer who can assist you in understanding the judicial process and your rights and obligations before filing an application with the court. Call Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca

Email This Post Email This Post


By candice - Last updated: Wednesday, December 9, 2009
Filed in Child Custody in Ontario, Questions and Answers • Tags: , , , ,


Know your Separation Date before you start Divorce

Separation date determines net family property calculation

When a marriage ends, the date that the parties separated must be established for the purpose of determining the division of property and assets accumulated during the marriage.  Under the Family Law Act, the date of separation is referred to as the “valuation date”, with the most commonly used date being the date that “the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

What if you disagree on the date of Separation (Valuation Date)?

If spouses are in disagreement as to the date of separation, the court necessarily has to make a determination by analyzing the specific facts of the situation and cannot arbitrarily choose a date of separation.

Calculating the Net Family Property and Equalization Payment

Once the date of separation is determined, the net family property of each spouse is calculated.  “Net family property” is the value of all the property that a spouse owns on the date of separation (“valuation date”), which is subject to certain exemptions and deductions for debts, liabilities, and pre-marital property.

Upon the breakdown of the marriage, each spouse is entitled to half of all property acquired during the marriage regardless of ownership.  Entitlement is based on the legal assumption that each spouse equally contributes to a marriage, whether in the form of caring for the children, managing the household, or by earning an income to cover the family’s expenses.

Pursuant to the Family Law Act, a court will deviate from the equalization of net family property when it is under the opinion that an equal division would be “unconscionable” based on a number of factors including: the duration of the marriage, whether any of the property was a gift or inheritance received by one spouse, or whether a spouse intentionally or recklessly depleted his or her net family property.

When the difference between the net family properties of each spouse is calculated, the spouse with the higher net family property pays to the spouse with the lower net family property one half of the difference. This payment is referred to as the “equalization payment”.

Determination of the date of separation upon the breakdown of a marriage is critical to the net family property calculation.  Contact a Family Lawyer who can assist you in understanding all of your rights and obligations before filing for divorce.

Call Niren and Associates at 416 222 4555 or email us at info@divorcesupport.ca.

Email This Post Email This Post


By candice - Last updated: Tuesday, November 24, 2009
Filed in Divorce, Divorce Lawyer, Family Property Division, Separation Agreements • Tags: ,


Divorce in Ontario: The Matrimonial Home Special Status in Divorce

“Matrimonial Home”  or commonly known as the “Family Home” is defined as any family property in which a person has an interest and that is or was ordinarily occupied by the person and his/her spouse as their “family residence”.

There are many definitions of Matrimonial Home

There can be more than one matrimonial home, going by the above definition, and depending on the living arrangements of each couple.
It must be noted that the protection of the entitlement to the matrimonial home under Part II of the Family Law Act in Ontario is only given to married spouses and not common law spouses.

A party only needs to show an “interest” in the property, not necessarily ownership of it. For instance, if a couple lives in a leased property, the leased premises would be a matrimonial home. However, a mere permission or license to occupy a property does not create sufficient interest in that property.

If a corporation holds title to the matrimonial home, the ownership of a share or shares of that corporation, or of an interest in a share or shares in that corporation entitling the owner to occupy a housing unit owned by the corporation, is deemed to be a sufficient interest in the property for pursposes of division of the value of the matrimonial home equally between the spouses.

Property can be real or personal. For instance, a trailer or a house-boat can be a matrimonial home depending on the prevailing facts.

If the parties own two properties, one of which was originally occupied by them as their family residence but at separation, is rented out to tenants, and the other a home which at the time of separation, is used as their family residence, only the latter is considered a matrimonial home for purposes of property division.

When considering a divorce in Ontario, it is important to contact an experienced Family law and divorce lawyer who can advise you about your rights concerning the matrimonial home and other issues of property division. Contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca

Email This Post Email This Post


By julius - Last updated: Thursday, October 15, 2009
Filed in Divorce, Family Property Division, Toronto Family Lawyers • Tags: ,