Category Archives: Family Law

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.

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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.

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Matrimonial Home

Under the Ontario Family Law Act, matrimonial home is defined as ‘every property in which a person has an interest and that is or, if  spouses have separated, was at the time of separation ordinarily occupied by the  person and his/her spouse as their family residence’. A home is a matrimonial home only if spouses are married.

The Family Law Act gives a special treatment to matrimonial home when spouses separate. Let us see how.

Right to Possession:  Both spouses have equal right to possession, regardless of ownership. This means they both have equal rights to live in the home. When spouses separate, the non-owner spouse is entitled to live the house. The owner spouse cannot ask the non-owner spouse to move out of the matrimonial home unless there is a separation agreement or a court order.

Prohibition against Sale: The owner spouse cannot dispose of or encumber an interest in a matrimonial home. Under the Ontario Family Law Act, this can be done only if:

  • The other spouse consents to the transaction;
  • The other spouse has released all rights under this Part by a separation agreement;
  • The court has ordered the authorization of the transaction;
  • The property is not designated by both spouses as a matrimonial home and a designation of another property has been made by both spouses which is registered in the relevant land registry office and not cancelled.

If either of the spouse disposes of or encumbers an interest in a matrimonial home in contravention of the above, the court may  set aside such the transaction on an application made the other spouse having an interest in the property.

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Financial Disclosures

Financial Disclosure is the most important part in any family law dispute. Family Law Act requires both parties to complete their financial disclosures stating their incomes, expenses, assets, debts and liabilities. The financial disclosures can be done by completing Financial Statement under the Ontario Family Law Act and Family Law Rules.

What is Financial Statement?

Financial statement is a court form where partied provide all financial information along with the associated documents. There are two court forms- Form 13 and Form 13.1. It is important to know which form is required.

Form 13 is required if a claim is made for support only, ie., child support, spousal support or both. Form 13.1 is required to be completed if there is a claim for support and property claim or for exclusive possession of the matrimonial home.

Financial statement is required to be affirmed or sworn.

Both parties are required to attach the following documents with their Financial Statement:

  1. Income tax returns, with all schedules and attachments, and Notices of Assessment for the three most recent years;
  2. Most recent pay stub;
  3. Record of Employment it the party has recently lost his/her job;
  4. If a party is self-employed, the party is required to provide three years of their business financial statement. The party is also required to provide the value of the business;
  5. If the party is on Employment insurance, Ontario Works, Ontario Disability Support Program or Workplace Safety and Insurance Board Benefits, Canada Pension Plan or a private pension plan, a statements showing the benefits paid and being paid;
  6. The Municipal Property Assessment Corporation assessment for all real estate owned by the party.

Documents required as of the date of separation and if available the date of marriage:

  1. A mortgage statement for any real property;
  2. Copies of all bank, RRSP, and investment account statements;
  3. Statements for Lines of Credit, Credit cards, car loans, personal loans, whether joint or sole.

The above list could be more depending on the complexity of the party’s financial situation.

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Closed and Open Mediation

There is a difference between closed and open mediation.

Closed Mediation maintains confidentiality of the parties. This means that the negotiations and offers made are not used as evidence in any legal proceedings between the parties. Mediators will not give any report to the court or to the lawyers of the parties. Most family mediations held in Ontario are closed mediations.

Open Mediation waives the confidentiality which means that whatever said during the mediation process can be disclosed in any legal proceedings between the parties. In an open mediation, the mediators prepare a report when the mediation comes to and. This report may be submitted to the court.

Pre-Mediation Screening

Pre-mediation screening takes place before the parties agree to proceed with the mediation process. It helps the mediator to determine the procedural needs of each party and whether mediation is appropriate for the parties or not. The mediator meets with each party separately at the intake meetings. Each party completes an intake form.

Screening is usually for domestic violence and abuse, mental health and any drug/alcohol addiction or any vulnerability fears the parties may have. This initial meeting gives an opportunity to the party to seek more information and to clarify any questions that will help the party to make a decision. This would establish if the mediation is appropriate or not.

Screening is an important step and is taken very seriously at our office.

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Benefits of Family Law Mediation

Here are some of the reasons why one should opt for family law mediation over litigation. Court process is stressful and expensive. Mediation is a dispute resolution process facilitated by the neutral and impartial third party.

Family Law Mediations is a voluntary process. The parties meet face to face (with or without their respective lawyers) with the mediator. The parties have control over the mediation process. It is the party’s decision to participate and to continue the mediation process. If they are not happy with this process, they can terminate it at any time.

Mediation is an informal process and removes the adversarial atmosphere found in the court process and litigation. There is no win and lose situation in mediation. Problem solving is the key where parties have the priority to negotiate the terms of their separation.

Mediation is confidential and private. It gives the parties a platform to communicate and have an open discussion to arrive at a mutual settlement. The mediator facilitates this communication between the parties and helps them make decisions for themselves. The mediator does not make decisions, the parties make decision.

Mediation process focuses on settlement of all the issues between the parties and in the interest that is common to both parties. In this process the parties and the children are the priority.

It is cost effective. Parties share the cost of the mediator. Of course party pays for their own lawyers, if they have one, but since the purpose is to settle the matter, the costs are usually kept low. This is not so when the matter is in court or out of court negotiations.

If you require family law mediation, Call me @ 905-290-7205 for more information.

Equalization of Property in Family Law

When there is a breakdown of marriage, you and your spouse separate and /or divorce, the value of all the property accumulated during the marriage is to shared equally between you and your spouse, through a process called “equalization”. This is according to the Family Law Act unless you and your spouse have agreed otherwise and stipulated in a domestic contract.

What is Equalization and what are the steps to complete this process? There are two steps of equalization.

Step 1: Calculate Net Family Property:

The net family property for you and your spouse is calculated as of the valuation date. This date is usually date of separation with no possibility of reconciliation. Net Family Property is calculated by putting together a list of all the assets on the date of separation and its value on that date. From the total of this amount, the following are deducted:

  • Debts at separation
  • Gifts you received
  • Property you inherited
  • Value of property you brought into the marriage

Step 2:  Share the Family Property Equally:

Once step 1 is complete, you must disclose your net family property to the other. The value of the net family property must then be equalized. The spouse, whose net family property is higher, must give the other spouse half of difference between the two amounts. This is called equalization payments.

These steps are applied if you and your spouse are married. The rules of division of property do not apply to common-law couples and their property rights are different.

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Joint Custody and Shared Custody

Joint Custody and Shared Custody are both custody arrangement with shared parenting and considered synonyms.

In a joint custody, both parents have custody and are entitled to make decisions about their child’s upbringing and well being. Usually, the child lives with one parent majority of the time and that parents makes day to day decisions for the child. The other parent will have access, right to visit the child and shares major decisions about the child.

In a shared custody arrangement, both parents make decisions about the child and the child lives equal amount of time with each parent. The child lives at least 40% of the time with each parent. This kind of arrangement affects the amount of the child support.  It is important that both parents live in a reasonable distance from each other making it convenient for the child to move between parents. Family Lawyer Mississauga can help you for Joint Custody and Shared Custody solutions.

The author of this article, Balvinder Kumar is a renowned Family Lawyer in Mississauga serving families across Mississauga, Milton and Brampton.

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Opinion Letter on Foreign Divorce Decree

Recognition of Foreign Divorce Decrees

Many times I am asked to provide opinion upon the foreign divorce in Ontario, so that the person requesting it can re- marry here.

The federal Divorce Act of 1985 governs the recognition of foreign divorces and provides for the recognition of foreign divorces in the jurisdiction where the divorce was granted.

Foreign divorces are valid in Canada if:

1.       Either spouse was ordinarily resident in the foreign jurisdiction for one year immediately preceding the application for the divorce.

2.       The divorce is issued from a court in a country where neither spouse was ordinarily resident, but where the decree is recognized by the law of that country where one or both were ordinarily resident at the time of the divorce.

3.       If the parties were not ordinarily resident in the country where the divorce was granted, then either party can show that they had a “real and substantial connection” with the foreign jurisdiction at the time of the divorce. Factors that might indicate whether there was a real and substantial connection would be whether an individual was born in that country, had family there, and regularly travelled there to spend time with friends and family, owns real property and  conducts business and in the jurisdiction.

All these factors are relevant and establish that the court in that other country had the proper jurisdiction to hear the divorce when neither of the parties was ordinarily residing there for a year preceding the divorce action and has granted divorce in that country, it is valid in Canada.

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