Wills & Estates: Dual Wills

It is becoming increasingly common for lawyers to discuss or recommend to clients to have two wills prepared if the testator has a substantial investment in one or more private companies .

This plan involves having one will to govern the estate assets that require probate and a second will to govern those estate assets that do not require probate. The customary objective is to achieve a significant savings in Estate Administration Tax.

Usually the will that governs the assets requiring probate is called the “Primary Will” and is signed first, and the will that governs the assets that don't require probate is called the “Secondary Will” and is signed immediately afterwards.

Assets that can usually be dealt with without the necessity of a formal grant of probate by the court include things like shares in a privately held corporation, partnership interests, beneficial interests in a trust, unsecured debts, and household goods and personal effects except for those that are specifically dealt with under the primary will.

Sometimes even real property can be transferred without probate. This usually includes lands where the title is still registered under the Registry Act, or on the first dealing with lands being converted from the Registry Act system to the Land Titles system.

If you are dealing with a specific parcel of land in the Secondary Will, you should consider having a fall back provision in the Primary will in case the property ultimately cannot be dealt with without probate.

Dual wills however should not necessarily be used automatically in every case where the testator has shares in a private company. There are a number of important considerations and potential problems in using dual wills.

It is important that they be signed in the proper order and that the revocation clause set out in each will be different and properly worded. Otherwise, one of them might inadvertently revoke the other.

If different estate trustees are appointed there could be some overlap or dispute about their respective responsibilities. You might want to be more specific about the division of responsibilities than you would in a case where you only have one will. For example, which estate trustees are going to be responsible for preparing and filing income tax returns? In the event of a conflict or dispute which trustees would have the ultimate decision-making authority?

If there will be a beneficiary designation in the will(s), for life insurance, RRSP,RRIF, TFSA etc, it is generally better to put these in the Primary will because if they are in the Secondary will and prove ineffective that could taint the Secondary will and could result in having to pay Estate Administration Tax on the whole secondary estate.

If there are different beneficiaries, and especially if there are different residual beneficiaries, you should consider carefully which Estate is to pay which debts and taxes on which properties and assets. This might include income tax on RRSP’s, RRIF’s and capital gains tax on taxable property.

Again if there are different beneficiaries and the possibility that there will not be enough in the estate, or the residue of the estate to satisfy all debts, taxes and legacies, consider setting out specifically who is to bear these charges and which legacies will be reduced in what order or by how much.

Lastly, we recommend that you avoid using a codicil(s) to amend dual wills. There is a risk of an unintended revocation because a codicil effectively republishes the will it refers to as of the date of the codicil. With modern will drafting technology it is generally simple enough and more prudent to prepare complete new dual wills.

Anyone with a substantial investment in a private company or other assets that might not require probate should consider making dual wills and should obtain sound legal advice before doing so.

It is important to understand the advantages of dual wills, but also to be aware of the special pitfalls and problems they can create. They are not necessarily appropriate in every case just because the testator has a private company.

— Craig M. Bater for abblaw.ca

[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]

Equalization Claim by a Surviving Spouse

The Family Law Act (the Act) makes provision for an equalization claim by a surviving spouse. Section 6(2) of the Act allows a surviving married spouse (i.e. not a common law spouse) to elect between his or her succession rights under a will and his or her equalization claim under the Act.

For example, a husband dies and leaves an estate worth $2,100,000.00. In his will he leaves a bequest of $100,000.00 to his wife and the balance of his estate to his secretary. The surviving wife has a period of 6 months from the date of death to file her election if she wishes to make an equalization claim under the Act. In order to determine what is most beneficial for the surviving spouse she has to make a calculation of the value of her equalization claim. In order to make that calculation the surviving wife has to determine her Net Family Property (NFP) and the NFP of the husband. This requires knowing the values of all assets and debts of the parties at the date of marriage and at “valuation date”.

To continue with our example lets assume that that at the date of marriage they had no property. At “valuation date” the husband had $2,100,000.00 and the wife had $1,000,000.00 in net assets. [Note: In the case of a separation “valuation date” is the date of separation. In the case of an equalization claim following a death “valuation date” is the day before death]. Based on the facts set out above the surviving wife’s equalization claim would be ($2.1M - $1.0M = $1.1M / 2 = $550,000.00). Based on those facts, it would be financially advantageous for the wife to make an election to make an equalization claim (worth $550,000.00) rather than take her bequest under the will.

If the wife made the necessary election within the 6 month time limit, her right to an equalization claim would have priority over bequests in the will and dependents relief claims (other than dependent relief claims by the deceased’s children).

Recent statutory amendments have clarified the credits which are to be made against a surviving spouse’s equalization entitlement. The credits listed are as follows:

a) Benefits payable to the spouse pursuant to a life insurance policy on the life of the deceased spouse;

b) Lump sum benefits payable to the spouse pursuant to pension or similar plan payable as a result of the death of the deceased spouse; and

c) The value of property or a portion of property to which the surviving spouse becomes entitled by right of survivorship on the death of the deceased spouse.

So, in the example above, if the wife was, together with her husband, the joint owner of a home which had equity of $1.1M she would receive a benefit of $550,000.00 by way of survivorship. This “credit” would eliminate her equalization claim. In this circumstance the wife would be advised to take the said survivorship interest and the bequest under the will.

It quickly becomes apparent how complicated these sorts of cases can become. In real cases this complexity is often magnified by the difficulty in getting the necessary financial disclosure to make the necessary calculations in a timely fashion. Anyone considering making an election pursuant to the section 6(2) of the Act should obtain good legal advice and should do so as soon as possible.

- Philip W. Augustine for abblaw.ca

[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]

To Be or Not To Be (Married)

Introduction

Today, more couples are choosing to live together in a relationship resembling marriage, without the formalities of marriage. There are many different reasons why a couple may choose not to get married; however, just as choosing to get married has legal implications, so does choosing not to get married. One of the most notable legal implications of not getting married relates to the division of property when the relationship breaks down. So, if you make the decision not to get married, do you really know what you are (not) buying into?

Division of Property for Unmarried Couples

Division of property is dealt with in Part I of the Family Law Act. When married couples separate, generally speaking they are entitled to divide their property equally between the two spouses, regardless of who legally owns the property.[1] Under the Family Law Act, “spouses” are entitled to divide their property on the breakdown of the marriage. “Spouse” is defined as either (1) two people who are married to each other, or, (2) two people who entered into a marriage that is either void or voidable, in good faith. It does not include “common law couples” – even couples who have lived together for more than least 3 years, or are living together and are the parents of a child. So, what does that mean exactly? It means that common law couples cannot look to the Family Law Act to make a claim to a share of property that they do not own. Let’s look at an example:

Jack and Jill have been living together for the past 15 years. They are not married. They live in a quaint house owed by Jill that they both spent time furnishing, decorating and renovating. They have two cars. Both vehicles are jointly owned. Jack and Jill each have their own chequing account. They also have a joint savings account in which they both deposit money to save for a vacation. Jill has a fairly substantial pension with the federal government. Jack only has a modest RRSP. Jack was never worried about his retirement because he knew Jill had a large pension that could support them both. They never had any children. Suddenly, Jill tells Jack she is no longer happy and wishes to end the relationship.

Dividing Jack and Jill’s Property

When common law couples break up, lawyers look to the title, or ownership of the property to determine how it will be shared. If the title is held jointly, the parties can share the value of the asset equally. If the title is held by only one person, only that person is legally entitled to the asset, with only limited exceptions.

What Jack and Jill Can Share

Jack and Jill will be able to share in the value of both vehicles, as well as the joint savings account. This is because these assets are held jointly. Both parties are automatically entitled to share in the value of those assets.

What Jack and Jill Can’t Share

Jack and Jill would each keep their own bank accounts. Unfortunately for Jack, the title to the house is in Jill’s name alone. While Jack and Jill have been living in the house together for the last 15 years, and both put time and money into renovating and decorating the house, Jack has no automatic entitlement to half the value of the house. Jack is also not entitled to exclusive possession of the home. If Jack and Jill were married, the treatment of the house would be very different.

Jack would be entitled to keep his RRSP. Jill would keep her pension; quite unfortunately for Jack, as he was hoping to share in Jill’s pension to fund his retirement. Now that Jack and Jill are no longer together, Jack is likely going to have to come up with an alternative retirement plan.

The Exception

While the law for dividing property on the break down of the relationship for common law couples follows the title of the asset, it may be possible to make a claim for an equitable share in an asset that is in the other person’s name. The best means of doing this is to claim a Constructive Trust[2]  based on equitable principles. Be forewarned that such a process is expensive and protracted. And the threshold for establishing a claim is high.

Conclusion

When asking the question: to get married or not, it is important to understand the legal implications of your decision. The best way to do this is to consult with a lawyer to better understand how the law will apply to you. A lawyer can advise you as to what you can do to protect yourself, and your assets, prior to entering into either a marriage, or a common law relationship with your partner. A lawyer can draft a domestic contract that can set out what will happen if the relationship breaks down and can address the equal sharing of assets, whether you marry or do not marry. This will help to save you from ending up as Jack did: a victim of the fact that common law spouses are not included in the division of property provisions of the Ontario Family Law Act.

- Mary Jane Binks Q.C. and Lauren M. Angle for abblaw.ca

[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]

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[1] There are exceptions when it comes to dividing property between married couples, such as gifts or inheritances received by one spouse during the marriage, among other things. For more information on what can and cannot be equalized on separation, consult with a lawyer.

[2] A constructive trust is an equitable remedy that the court will impose if they believe the person retaining the asset will be unjustly enriched, to the detriment of the other, by being able to keep the entire asset.

Changes to Canada Not-For-Profits Corporations Act Require Compliance By All

In an effort to modernize its statutes and processes, the Government of Canada has brought about wholesale changes to the Canada Not-For-Profit Corporations Act (“the new NFP Act”). All federal not-for-profit corporations must complete the process to transition to the new rules no later than October 17th, 2014. Any not for profit corporation which fails to make the transition will be automatically dissolved.

The actual transition process itself is straight-forward.[1] A not-for-profit corporation must seek a Certificate of Continuance pursuant to the new NFP Act. This process is similar to the original incorporation process but instead of seeking to be re-incorporated, not for profit corporations (“NFPs”) must instead seek to continue operating under to the new act and obtain a Certificate of Continuance from the federal Government. There is no fee to apply for a Certificate of Continuance.

The new NFP Act requires the creation of new articles. Some of the provisions from an NFP’s previous letters patent, such as the name of the NFP, classes of members of the NFP, and the maximum/minimum number of directors of an NFP may be carried over. Other provisions which previously had to be included, such as provisions dealing with the removal of directors, annual meetings of members, and the appointment of an auditor for the NFP, now are expressly required to be removed from an NFPs articles of continuance.

The NFP’s articles of continuance must be approved by no fewer than two-thirds of the NFP’s voting members. Apart from the 2/3 vote, the meeting will be governed by the existing NFPs by-laws and letters patent because the new rules won’t come into effect until the NFP has been issued a Certificate of Continuance.

Once the Certificate of Continuance is issued an NFP is also required to bring its by-laws into adherence with the new NFP Act. The by-laws don’t have to be amended at the same time as the articles. The new NFP Act only requires the new by-laws be filed within 12 months of the issuance of the Certificate of Continuance. There is no fee for filing amended by-laws either.

The new NFP Act has been designed to cover many of the provisions currently contained in most NFPs by-laws. The Act is purposely designed in this way to provide NFPs with default rules and by-laws for their operation which apply in all circumstances, unless an NFP expressly chooses to change the by-laws.

There are only two by-law provisions which an NFP is now required to include in its by-laws:

     - the conditions required to be a member of the NFP, conditions

        required to transfer among classes or groups of members,

        and conditions on which membership, whether in a class, or

        generally, ends; and,

     - the manner in which notice of a meeting can be given to

       members entitled to vote at that meeting.

Should the NFP so choose, all other matters can be governed by the default rules contained in the new NFP Act.

If an NFP wishes to adopt different by-laws from the default prescribed in the new NFP Act, it still must operate within certain restrictions. For example, the new NFP Act requires that 5% of the members of an NFP eligible to vote can require that a meeting of the NFP be held. An NFP can choose to lower this requirement to a percentage lower than 5%, but it cannot raise this to any percentage higher than 5%. Equally, the default voting rules requite a 50% majority for an ordinary resolution and 66% majority for a special resolution of the NFP. An NFP can make these requirements stricter (requiring a higher percentage of the votes) but cannot make the requirements less stringent.

The decision to adopt different by-laws than the defaults should be governed by the needs of each individual NFP. No one set of by-laws can meet the needs of all NFPs.

While October 17, 2014 may seem in the distant future, it is advisable that NFPs commence the transition process now. Legal advice and assistance should be obtained early to ensure the new articles of continuance and by-laws are put in place in time, comply with the requirements of the new Act and are consistent with the needs and goals of the NFP itself.

Once legal advice has been obtained, and the proposed new articles and bylaws prepared, an NFP should convene one or more meetings of its voting members ensuring there is sufficient time for the passage of the new articles of continuance and by-laws. This will allow all necessary documentation to be filed well within the government timelines so as to ensure an NFP isn’t dissolved for failure to comply.

- Jonathan M. Richardson for abblaw.ca

Augustine Bater Binks LLP is able to assist not-for-profit corporations undertaking the necessary changes to adhere to the provisions of the new NFP Act. Call (613) 569-9500 to speak to one of our lawyers about the work required to assist an NFP in the transition process.

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[1] There is a different set of requirements for charitable organizations, moving beyond the requirements of the new NFP Act.  This article does not address the needs of charitable organizations to conform with the new NFP Act so they don’t lose their charitable organization status.  It is recommended that charities contact the Charities Directorate of the Canada Revenue Agency for more information.

Understanding Separation & Divorce

The term “divorce” has a very distinct legal meaning, yet many people fail to understand the difference between separation and divorce. Often the meanings of the two concepts are blurred together.

To illustrate, a conversation around a water cooler somewhere in Ontario might go as follows:

     MAURICE:   Did you hear the news? Moe from marketing and
                         Sylvie from accounting are separating!

     MARTHA:    That’s funny, I heard they got a divorce.

     MAURICE:   What’s the difference, all I know is that
                          she’s getting the house and he’s getting  
                          a lawnmower.

     MARTHA:    I don’t know the difference either…
                         at least it was one of those new cordless
                         mowers…

To alleviate the confusion between the terms ‘separation’ and ‘divorce,’ it is helpful to begin with section 8 of the Divorce Act, which allows either or both spouses to apply to the Court for a divorce when there has been a “breakdown of the marriage.”

Parties must apply to the court if they want to be divorced. So, if Moe and Sylvie are separating but are not applying to court, then it would be appropriate to say they are “separated” but not “divorced.”

To obtain a divorce, the parties must first be “spouses” within the meaning of the Divorce Act. This definition excludes people merely living together and “common law” spouses and means that the two persons must be legally married to one another. The issue of whether two people are legally married is an entirely separate, and sometimes complex, issue that will be canvassed in a future blog.

The Divorce Act also states that to be granted a divorce order, there must be a “breakdown of the marriage.”

According to the Divorce Act, a “breakdown of the marriage” can only be established where:

1. the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding;

or

2. the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

It is not possible to be divorced unless the parties fit into one of the above three categories.

While separation is necessary to establish first ground of marital breakdown, it is not relevant to the less commonly used grounds of adultery or cruelty.

“Separation" under the Divorce Act doesn’t just mean physical separation. The Act states that “spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other…”.

Therefore, in addition to living apart for one year, the Divorce Act adds the additional element that at least one of the parties must have had the intention to live separate and apart from the other.*

Of interest, subsection 8(3)(ii) of the Divorce Act allows spouses to resume living together with the intention of trying to resolve their marital differences without interrupting the 1 year period, so long as it doesn’t last longer than 90 days. This subsection is consistent with other sections of the Divorce Act designed to encourage the spouses to reconcile. For example, the Divorce Act places duties on legal advisors and the courts to advise and assist spouses in reconciliation where appropriate.

The distinction between separation and divorce can also be relevant to the division of family property. In fact, determining the date of separation is often crucial for dividing marital property under the Family Law Act.

“Separation” is given the following meaning by the Family Law Act:

     The date the spouses separate and there is no reasonable prospect

     that they will resume cohabitation.

This definition implies that equalization of family property can occur whether or not the spouses are divorced. Going back to the water cooler conversation, just because Moe and Sylvie seem to have sorted out their property issues doesn’t necessarily mean that they are divorced or that they will ever get divorced in the future. Perhaps the two had settled all of the issues stemming from their separation in a separation agreement and were content not to apply for a divorce.

It is helpful to remember that while the concept of separation is often relevant to obtaining a divorce and to the determination of the valuation date for the purposes of equalization, it is legally distinct from divorce.

Who knows when this distinction might come in handy around the water cooler!

*[While there is an entire body of case law examining what constitutes living separate and apart for the purpose of establishing marital breakdown, a review of such law is outside the ambit of this blog posting. For an extensive review of the factors courts in Ontario use to determine whether parties are living separate and apart, the decision of Greaves v. Greaves [2004] CanLII 25489 (ON SC) provides a helpful starting point.]

- Michael D. Heikkinen for abblaw.ca

[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]

Child Support for Adult Children

Family law clients often ask “my son/daughter just turned 18, that means I can stop paying child support right?” The family lawyer’s first response is “no, not necessarily” and then the follow-up question is invariably posed: “is your child still in school?”

Typically, if the child has reached 18, but remains in school, then child support will still be payable. However, it would be an error to limit the question to whether the child is still in school. While determining child support for adult children may often seem straightforward on the surface, actually navigating the relevant legislation, the Child Support Guidelines, and the applicable principles in the case law can be confusing.

The following are some of the key questions and considerations you should ask yourself when trying to determine whether child support can be terminated for an adult child, and how to go about actually getting that done.

What is the relevant legislation that applies to my situation?

In the case of spouses who were married, child support is governed by the Divorce Act and the Federal Child Support Guidelines. Where the spouses were common law, the Family Law Act and the Provincial Guidelines will apply. The different requirements of each Act can often lead to confusing results. Under the Family Law Act, a parent has an obligation to support a child who is enrolled in a full-time program of education. Under the Divorce Act, however, a parent must support a “child of the marriage,” which is defined further as a child who is “unable, by reason of illness, disability or other cause, to withdraw from [the parent’s] charge or to obtain the necessaries of life.”

“Child of the Marriage”

Often referred to as the “Farden Factors,” the following considerations may apply when determining whether a child remains a “child of the marriage”:

1. Whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;

2. Whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

3. The career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

4. The ability of the child to contribute to his own support through part-time employment;

5. The age of the child;

6. The child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

7. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and

8. At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

Further, while child support under the Family Law Act may immediately terminate when the child completes school, under the Divorce Act, the courts have often permitted a grace period even after the child has completed post-secondary education.

Do you have a separation agreement or court order?

The terms of your child support obligations may also be governed by either a separation agreement or a court order. Often this document will specify the circumstances in which child support will terminate, so after you consult the relevant legislation, be sure to check there next. Have you satisfied all the conditions for termination in the agreement or order? Be cautious of separation agreements that terminate child support, however. People are free to contract for just about anything they please, but child support obligations are one exception to this rule. Even though your separation agreement specifies a terminating event for child support, a court may not uphold that part of the agreement if the court determines that the child would be left in need and unsupported.

Is the child able to contribute to their own support?

The Child Support Guidelines (under both the Divorce Act and Family Law Act) specify that in cases of child support for adult children, the “conditions, means, needs, and other circumstances of the child” may be considered in appropriate circumstances and a child’s budget may be required from the parent, or the child herself, who seeks to continue receiving support. Hence, the ability of the child to support themselves will specifically be considered, but even if support is not terminated, the child’s ability to contribute to their own support may nevertheless justify a reduction in support.

What to do if you think you qualify for a termination or reduction of child support?

The above considerations are not exhaustive and are only some of the more pertinent points. However, if you think you may be entitled to terminate or reduce your child support obligation, then your next steps are again determined by either your court order or separation agreement. Your relationship with your former spouse will also help determine what route to take. If you have a separation agreement and if there is good open dialogue between you and your former spouse, then a written request to the former spouse and simple agreement to terminate support may suffice. Where there is a court order, or the relationship between the former spouses is strained, a motion to change the order may be required and may be, unfortunately, the only means to communicate with your former spouse.

Last but not least, for spouses who have their child support obligations being enforced by the Family Responsibility Office (or “FRO” as it is commonly known), make sure that any agreement or order terminating support goes to FRO’s attention, because FRO will keep enforcing support until they have the proper instructions to cease. FRO can often be slow to process child support orders and agreements, so make sure you begin the process to terminate child support well in advance of the expected termination date. You don’t want to make the mistake, as many do, of thinking that when the child turns 18 or finishes school, support automatically stops.

-  Daniel P. McKeown for abblaw.ca

[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]

Support for Common Law Spouses under the Succession Law Reform Act

When a person dies, his or her common law spouse is usually entitled to make a claim for support against the estate of the deceased partner, much like the situation between living spouses after a separation.

Where the true nature of the relationship is in dispute, whether or not a person qualifies as a common law spouse can be a difficult issue. The issue is even more difficult when one of the parties to the relationship has died and therefore is not available to describe how the parties felt about each other.

Like many aspects of common law relationships the guidelines that the courts have developed in these kinds of cases might surprise many people.

Entitlement

In order to qualify for support from the estate, the claimant must establish that he/she is a dependent and that the person who died, with or without a will, has not made adequate provision for the proper support of the claimant.

If the claimant can establish this the Court has broad powers to order that the estate pay such support as the Court considers adequate out of the estate of the deceased for the proper support of the claimant. The court can make this support order attach to a wide variety of assets, including many that would not normally be considered part of the estate.

A “Dependant” includes the spouse of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

A “Spouse” includes people legally married, divorced, or who are not married to each other but have cohabited continuously for a period of not less than three years, or in a relationship of some permanence, if they are the natural or adoptive parents of a child.

“Cohabit” means to live together in a conjugal relationship, whether within or outside marriage.

The courts have struggled with the meaning of “cohabit in a conjugal relationship“ in this estate context. Whether or not a couple has cohabited is said to be both a subjective and objective test. What were the intentions of the parties as gleaned from the facts and how were they regarded by others?

To help Courts decide difficult cases judges of Ontario have developed a series of questions that should be considered. These questions are organized into seven descriptive components. These are as follows:

        a. Shelter:

            i. Did the parties live under the same roof?

            ii. What were the sleeping arrangements?

            iii. Did anyone else occupy or share the available
                 accommodation?

        b. Sexual and Personal Behaviour:

             i. Did the parties have sexual relations? If not, why not?

             ii. Did they maintain an attitude of fidelity to each other?

             iii. What were their feelings towards each other?

             iv. Did they communicate on a personal level?

             v. Did they eat their meals together?

             vi. What, if anything, did they do to assist each other
                  with problems or during illness?

             vii. Did they buy gifts for each other on special occasions?

        c. Services:

             i. What was the conduct and habit of the parties in relation to:

                 1. preparation of meals;

                 2. washing and mending clothes;

                 3. shopping

                 4. Household maintenance; and

                 5. any other domestic services?

        d. Social:

            i. Did they participate together or separately in neighbourhood
               and community activities?

           ii. What was the relationship and conduct of each of them toward
               members of their respective families and how did such
               families behave towards the parties?

        e. Societal:

            i. What was the attitude and conduct of the community toward
               each of them and as a couple?

         f. Support (economic):

            i. What were the financial arrangements between the parties
               regarding the provision of or contribution towards the
               necessaries of life (food, clothing, shelter, recreation,

               etc.)?

           ii. What were the arrangements concerning the acquisition and
               ownership of property?

          iii. Was there any special financial arrangement between them
               which both agreed would be determinant of their overall
               relationship?

         g. Children:

            i. What was the attitude and conduct of the parties concerning
               children?

Judges and Courts have recognized that “The extent to which the different elements of the  relationship will be taken into account must vary with the circumstances of each case.” For example:

        Cohabitation does not necessarily depend upon whether there is
        sexual intercourse.

        Cohabitation does not require that the parties were even living
        under the same roof. They might have maintained separate
        residences throughout their relationship.

        How the parties describe their relationships in income tax returns
        and other government documents is not determinative.

        The three year period of cohabitation does not have to continue
        up to the time of death.  In a perhaps extreme example a man
        was found to be entitled to support from the estate of another
        man with whom he had lived in a same-sex relationship for
        some years, even though the claimant had met, become
        intimate with and married a woman before the death of the
        other man, and was charged and later acquitted with the murder
        of the other man. [Romero v Estate of Naglic et al, 2009
        CarswellOnt. 3193]

Interim support

The Court also has the power to make an order for interim support before the trial. The test for interim support is for the claimant to establish some degree of entitlement to, and the need for, interim support. On an interim motion a court can weigh and assess the evidence, to the extent permitted by the nature of the evidence and any pre-hearing testing of it. If, after such assessment, the motions court concludes that the record contains credible evidence from which one could rationally conclude that the applicant could establish his claim for support, then an order for interim support may issue.

Amount of Support

If the claimant can establish an entitlement to support from the estate the Court will then decide how much and for how long support should be paid. The statute sets out a long list of factors to be considered. Some of these factors are:

        the dependant’s current assets and means;

        the assets and means that the dependant is likely to have in the
        future;

        the dependant’s capacity to contribute to his or her own support;

        the dependant’s age and physical and mental health;

        the dependant’s accustomed standard of living;

        the proximity and duration of the dependant’s relationship with the
       deceased;

        whether the dependant has a legal obligation to provide support
        for another person;

        any agreement between the deceased and the dependant;

        if the dependant is a spouse,

            a course of conduct by the spouse during the deceased’s
            lifetime that is so unconscionable as to constitute an
            obvious and gross repudiation of the relationship,

            the length of time the spouses cohabited,

            the effect on the spouse’s earning capacity of the
            responsibilities assumed during cohabitation,

            whether the spouse has undertaken the care of a child

            any housekeeping, child care or other domestic service
            performed by the spouse for the family,

       any other legal right of the dependant to support, other than out
       of public money.

The reference to the claimant’s “accustomed standard of living” means the standard of living established by the deceased while the parties cohabited.

Paying the Support – the Estate

The court can order such a support order to be paid out of a wide variety of assets, including many that would not normally be considered part of the estate. These assets might include:

        (a) certain gifts that the deceased made to other people before
        death;

        (b) money deposited in an account in the name of the deceased in
        trust for another person;

        (c) joint bank accounts;

        (d) jointly owned homes, cottages or other real property;

        (e) monies held in a trust fund;

        (f) insurance policies, group insurance; and other monies normally
        governed by a designation of beneficiary

Timing

Perhaps the last but very important consideration is a matter of timing, because the statute states that …”No application for a [support order] may be made after six months from the grant of letters probate of the will or of letters of administration.”

SO if you think you might make such a claim, don’t wait too long !!

  - Craig M. Bater for abblaw.ca

[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]

Grandparent Rights in Custody Cases

When we talk about access, which includes the right to see a child, we tend to think only in terms of the rights of the child’s parents. However, as the number of families affected by divorce increases, extended family members, including grandparents, begin to worry about their relationship with their grandchildren and whether or not they will play a meaningful role in their grandchildren’s lives. This becomes a very real concern for grandparents if their own child is not the custodial parent.

In the Province of Ontario, there are two pieces of legislation that govern the issue of access – the Divorce Act (which applies only to children of a marriage) and the Children’s Law Reform Act. There is no language in either Act that specifically refers to grandparents. However, the Divorce Act states that a court may make an order for custody or access on the application of either of the spouses, or by any other person. A grandparent would fall into this category, but they must first seek the court’s permission to bring an application for custody of or access to their grandchild. The Children’s Law Reform Act allows a parent of a child or “any other person” to apply for an order respecting custody of or access to a child (permission from the court to bring an application is not a prerequisite under the Children’s Law Reform Act.)

In Ontario, there is no presumptive right to access for grandparents or other people outside of the children’s own parents. The courts have taken the position that a child’s relationship with their grandparents is expected to be fostered and maintained through the grandparent’s own child.

Since 2001, the Ontario Court of Appeal has stated it is up to the children’s parents to decide if and when certain people should have access to their children. So long as there is no evidence the parents are behaving in a manner which demonstrates an inability to act in accordance with the best interests of their children, their wishes will be respected.

While the Ontario Court of Appeal acknowledges their approach may seem insensitive to the needs of grandparents, it is not the grandparents’ needs (or even the grandparents’ wishes) that must be viewed and examined. These cases are about the needs and interests of the children and the merits of a grandparents’ application for access to their grandchildren will hinge on the children’s best interests. There are a number of factors to consider when determining what those best interests are, including:

• the wishes of the custodial parent, especially if there is no obvious benefit to the child from ongoing contact with the grandparent;

• whether or not there is an established, ongoing and positive relationship between the grandparent and grandchild;

• whether the grandparent has or will act in such a way as to undermine the child’s parent(s) or the child’s relationship with their parent(s);

• the severity of any conflict between a grandparent and the child’s parent;

• whether the grandparent has something special to offer the child, particularly from a family or cultural point of view; and

• whether the child will experience a sense of loss and/or abandonment if the grandparent is prevented from being part of the child’s life.

In 2012 the Ontario government introduced a new Bill that aims to promote the relationship between children and their grandparents, primarily in situations where the children’s parents are separated or divorced. Bill 67, titled “An Act to amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents” received its first reading on April 17, 2012. If passed, the Bill will amend those provisions in the existing Children’s Law Reform Act which govern custody and access by prohibiting parents (or anyone else entitled to custody) from creating or maintaining unreasonable barriers to the formation and continuation of a personal relationship between the child and the child’s grandparents. In fact, Bill 67 would add the child-grandparent relationship to the list of considerations the court must consider when deciding what is in the child’s best interests. Further, in applications for custody, the court would be required to consider whether the parent applying for custody is willing to facilitate contact with the child’s grandparents. Bill 67, if passed, would not automatically give grandparents the right to access to their grandchildren. They would still have to apply to the courts.

Until we have change to Ontario legislation, grandparents are still considered legal strangers when it comes to access. To have their case for access heard in court, grandparents must file an Application and an Affidavit in support of their claim for access. In addition, they must provide a police clearance certificate and a Children’s Aid Society clearance. The outcome of these cases are very dependent on the specific facts of each case, however, any person applying for custody or access to a child can be certain that, in all cases, the children’s needs will be the paramount consideration.

- Amanda M. Hall for abblaw.ca 

[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]