Monthly Archives: April 2019

Pension Split in Separation and Divorce

When spouses separate, pension is one of the item under the equalization of assets. Pension earned during a marriage is a joint asset which is subject to division when spouses separate and divorce. According to the law in Ontario, each spouse is entitled to a share of the other spouse’s pension. Some rules have  to be followed on how the division of pension is calculated.

The laws  relating to division of pension fall under the Family Law Act and Ontario Pension Benefits Act. Pension must be valued. Prior to Janaury 2012, there was no standard forms used to have the pension valued. An independent actuarian could be retained to determine the value of the pension. After January 2012, a standard form is used to value pension.  Members of Ontario regulated pension plan must complete relevant  Financial Services Commission of Ontario (FSCO) forms. The spouse requesting the valuation of a pension must complete the Form 1-Application for Family Law Value. This pension value once determined is used for the equalization and inserted on the Net Family Property.

Call us @ 905-290-7205 for more information.

Record Suspension

Record Suspension( formally known as Pardon) allows persons convicted of a criminal offence and have subsequently completed their sentence and rehabilitated  themselves. Such persons may apply to the Parole Board of Canada to have their criminal record  suspended. What this means is that once record suspension process is complete, the criminal records are kept separate and apart from the other criminal records in the Canadian Police Information Centre (CPIC) database. A search of  the CPIC database will not show the criminal record.

A person has to be eligible to apply for record suspension. A person is eligible to apply for record suspension, if the person:

  1. Has been convicted of an offence under a Canadian Act of Parliament;
  2. Has been convicted of an offence in another country and transferred to Canada;
  3. Has completed all the sentences related to the criminal offence which includes the following:
    1. All sentences of imprisonment,
    1. All fines, surcharges, costs, restitution and compensation orders
    1. Any probation orders.

Under the Criminal Records Act, all offences are not eligible for record suspension. Schedule 1 offences relating to sexual offences under the Criminal  Records Act and offences of more than three  prosecuted by indictment each with a prison sentence of 2 years or more. A person may apply for record suspension if  the person has been convicted of an offence referred to in Schedule 1, if the Board is satisfied of the following that:

  1. The person was not in a position of trust or authority towards the victim of t he offence and the victim was in a relationship of dependency with him or her;
  2. The person did not use, threaten to use or attempt to use violence , intimidation or coercion in relation to the victim;
  3. The person was less than 5 years older than the victim;

The person has the onus of satisfying the Board that the above three are met.

There are certain restrictions on the Application of Record Suspension. All criminal offences are not eligible for record suspension. Under the Criminal Records Acts, a person is ineligible to apply until 5 years in summary offences and 10 years in indictable offences after the expiration of any sentence including a sentence of imprisonement, a period of probation and the payment of any fine, imposed for  an offence.

Classification of Offences-Offences are classified as Summary Offences and Indicable Offence.

What is Summary Offences?- The less serious offences conviction is liable to a fine of not more than $2,000.00 or  imprisonment of six month or both.

What is Indictable Offences?- The serious offences punishable by imprisonment f or two, five, ten and fourteen years or life are indictable offences.

The Parol Board of Canada is  the official federal agency responsible for ordering, denying and revoking record suspension under the Criminal Records Act. The Application Guide provided by the Parole Board of Canada includes the Application forms and the list of all the necessary steps and additional information required with the Application.

The person applying for record suspension also requires the following documents:

  • Photo Identifications
  • Proof of Citizenship, if born outside of Canada
  • Fingerprints
  • Court Information Form for all the offences
  • Local police records checks for all locations where one has lived for more than 5 years
  • Measurable Benefits/Sustained Rehabilitation Form
  • Schedule 1 Exception Form, if application

Procurement of some  of these documents are subject to additional fees. It takes few months to gather all these information and another 18 months approximately to complete the application process.

We can guide and assist you in this process. We have  the experience. Call us for more information.

Exclusive Possession of Matrimonial Home

According to section 24(1) of the Family Law Act, the court may grant exclusive possession of the matrimonial home or part of it to one spouse. The court may also make a decision on the terms of the possession. The criteria to determine whether to make an order of exclusive possession is mentioned under section 24(3) of the Family Law Act.

What does exclusive possession mean?

Married couples, who have an interest in a home which they ordinarily occupy as a family residence, have an equal right of possession of  their matrimonial home. Either party can apply to the court for exclusive possession order. Before such order is granted, the court will consider the following criteria:

  1. Best interest of the children involved
  2. Any violence committed against the other spouse or  children
  3. Financial situation of both spouses
  4. Any written agreement between the spouses
  5. Availability of any other suitable and affordable accomodation
  6. Any  existing court order regarding the family property or support order

The court order will typically state that one spouse is allowed to stay in or returned to in  the home while the other party will not go to the property. If children are involved, the court order will also say that the children will stay on the property.

Call me @ 905-290-7205 for more information.

Excluded Property under Family Law Act

Certain Properties under the Family Law Act are excluded from the calculation of Net Family Property (NFP). The NFP is calculated as of the Valuation date, which is usually the separation date and  includes the details of assets, debts and liabilities for equalization. Certain properties are not shared between spouses. Such properties are shown as excluded properties on the NFP does not become part of the net family property. NFP is the total of all the assets less the liabilities and less the excluded properties.

Excluded properties are as follows:

  1. Gifts or inheritances received from third persons during the marriage
  2. Income of such gifts and inheritances,
  3. Insurance proceeds
  4. Court settlements
  5. Properties agreed by spouses by signing a domestic contracts
  6. Properties other than matrimonial home, if traced as a property mentioned above

NFP is the total of all the assets less the liabilites and less the excluded properties. The spouse whose NFP is more will give the other spouse one-half of the difference between them.

Call us @905-290-7205 for more information.