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 Tenants and Tenants in Common

When you purchase a real property with spouse or another person, you have to register your title as joint tenant or tenants in common. There is a difference between the two forms of ownership. What are they?

Joint Tenants: The characteristics of joint tenants are:

Each joint tenant has the right of ownership in the whole property
The essential benefit of joint tenancy is the right of survivorship which means that if one joint tenant passes away, his or her interest in the property diminishes and the surviving joint tenant becomes the sole owner of the real property. Spouses usually take title as joint tenants.
All joint tenants own identical and equal portion in the real property and acquire title from the same document at the same time.
Joint tenancy is often utilized for estate planning purposes.

Tenants in Common: The characteristics of tenants in common are:

Each owner holds a percentage of interest in the real property.
Each owner possesses a separate and divisible interest in the property and is the owner of his or her share in the real property separately.
The tenant’s share can be transferred to anyone, a friend or a relative in the Will or sold to anyone. If there is no Will, the interest in the real property becomes owned by the estate of the deceased tenant and the share is transferred to the beneficiaries of the estate.
There is no right of survivorship and a tenant in common can deal with his or her share in the property according to their wish.Call us @905-290-7205 for more information.

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.

For more information or for opionion letter, please contact my office.or Visit us BKLAW

What is Family Mediation? How Family Lawyer can help?

What is Family Mediation?

Family Mediation is an effective way to resolve and settle family conflict. Unlike, the court litigations, family meditation allows parties to maintain control and ownership of the entire process and emphasises the significance of cooperation and fairness. Parties are encouraged to communicate with each other to explore their respective needs and interests in order to reach to an agreement with the help of the Mediator.

The Mediator is not judging the parties neither is he/she providing legal advice to the parties. The Mediator facilitates a series of discussions with the parties leading to an agreement on the issues between the parties. The agreement is prepared in the form of Memorandum of Understanding. The parties would then take independent legal advice on the Memorandum of Understanding drafted by the Mediator. Now the process of drafting the Separation Agreement based on the Memorandum of Understanding begins.

Benefits of Family Mediation:

Parties and children are the priority
Parties determine the outcome
Removes adversarial atmosphere.
Cost Effective than court processes.
Short and simple than court processes.
Confidential and private process.

How Family Lawyer can help?

Before mediation process begins, it is important to first identify if family mediation is appropriate for you. It is recommended that you obtain legal advice before entering the mediation process. Your Family Lawyer can help in this regard.

Balvinder Kumar, the author of this article is a trusted Family Lawyer in Mississauga serving families across Mississauga, Milton, Brampton and GTA. Call us @ 905-290-7205 for more information.

Uncontested Divorce

Procedure for Obtaining an Uncontested Divorce in Ontario

An application for a divorce can be brought in three ways:

A Simple Application: This application deals only with divorce.
A General Application: This deals with a request for divorce, and other claims; and
A Joint Application: This is brought by both spouses jointly which is on consent of both parties.

This article is intended to address the procedure for bringing a Simple Application.

Simple application for divorce is filed in the court in the municipality where you live along with your original marriage certificate and the application fee. Once the Application has been filed, the respondent is served with the copy of the complete application of divorce as has been filed. The respondent has 30 days to review, respond and serve an answer to the applicant.

If no answer is received, then second set of documents are filed with the Court. The second sets of documents are Affidavit of Divorce and Divorce Order alongwith the set down fee.

Your completed file is then sent to a judge to be reviewed. Neither you nor the respondent is required to appear before the judge. If the judge is satisfied with all the materials filed, he or she will grant the Divorce Order. The divorce order is then sent to the applicant or his lawyer and to the respondent.

Obtaining the Certificate of Divorce

The Certificate of Divorce is proof that the divorce has been granted. It is not automatically sent to you or the respondent. It must be requested from the court and an additional fee must be paid. Once the court staff obtains the request, they will check the file to ensure that there has been no appeal of the Order. If everything is clear, the certificate is issued.

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HOW TO MAKE A WISE DECISION ON MORTGAGE

Whether you are the first time real estate buyer or refinancing an existing mortgage, one of the issues that always bothers most Canadians is the mortgage financing. In order to have peaceful transaction completed you should always consider the following steps besides others:

Mortgage should be arranged well in advance, preferably before you sign the agreement of purchase and sale. You would know where you stand.
Always obtain a mortgage pre-approval confirmation in writing.
All the terms and conditions should be discussed in details specially with regard to the rate of interest, term of mortgage, whether your mortgage is open or close,variable or fixed, pre-payment and penalty clauses, CMHC fee.
Make sure to confirm dollar to dollar amount to be adjusted towards any HST, property tax hold back, interest adjustment, first installment, etc. This would give you a fair idea of the amount of finance being sent to law office and how much, if any, you would be arranging from personal sources.
For existing homeowner, before your mortgage is due for renewal you should check up with the existing financial institution and compare with the other institutions offer. When homeowners consider refinancing, they usually look at the interest rate of the existing mortgage and the interest rate of the new mortgage, the cost of borrowing and any accumulated equity in their homes.
Whether you are dealing directly with the financial institution or through a mortgage broker, make sure that all the requirements and documentation are satisfied much before the scheduled closing date.,eg. proof of income, proof of funds, proof of employment, proof of cash down payment, payment of other debts obligations, if any, appraisal, etc.
Always stay in touch with financial institution representative or mortgage broker with whom you are dealing to make sure that the mortgage instructions are sent to your lawyer well in advance of the closing date. Sometimes I have seen clients struggling up to the last moment to complete the requirements of the lender which sometimes results in delay in closing due to non availability of funds from the lender.

It is always a good idea to communicate in confidence with the concerned representative and seek his/ her guidance and opinion. .

Do not hesitate calling me or having an appointment before you finalize.

WHETHER YOU ARE FINANCING FIRST TIME OR REFINANCING BEFORE TERM OR ON RENEWAL, CONSULT WITH ME AND ANY SUCH CONSULTATION IN MY OFFICE WILL BE FREE FOR YOU.

DO NOT HESITATE TO CALL ME FOR ANY QUESTION. Please note: the information contained in this newsletter is not legal advice

Travel Consent Letter

CONSENT LETTER FOR THE CHILDREN TRAVELLING ABROAD

Are you sending your minor child or children abroad alone or without one parent abroad? If yes, there are some concerns that you should be aware of. What are these concerns? These concerns could be the identity of the child, why the child/children are travelling without the parents, who is the child traveling with, are the parents aware of it, have the parents given their permission to travel without them.

Remember one thing: the main focus is “identification and safety of the child or children and identification of the person accompanying the child or children.”

What you should do?

Your child or children should be in possession of a travel consent letter if the minor child or children are travelling alone or with one parent or with family or are going on a school trip. The Government of Canada strongly recommends this. It make it easier and a safe travel for Canadian children, as it may be requested by immigration authorities when entering or leaving a foreign country or by Canadian officials when re-entering Canada. The consent letter confirms that the child or children have permission to travel abroad from parents or guardians who are not accompanying them.
It is recommended that the consent letter must be notarized by a Notary Public appointed by the Government and who has the authority to administer oaths and declarations.
If parents are separated or divorced, it is recommended that you check with embassy of the destination country if they would require any additional document like separation agreement or court order. You may also check this with the concerned Airlines at the time of buying ticket.

I can prepare and notarize travel consent letters at my office. If you have any question on the consent letter, please address to me when you come to my office.

Please make sure when you come to my office you bring all the relevant original identification documents of the child and yourself like passport, birth certificate, citizenship card.

Should you need any legal help concerning consent letter or any other matter relating to Immigration Law, please address to me. Do not hesitate in calling my office to book your appointment.

You may also check this link. http://travel.gc.ca/travelling/children/consent-letter/faq

Please note that this is for information only and not to be considered a legal opinion or advice and each situation is different. This information does not constitute client relationship. You need to check up with me along with details of your case.

Feel free to call me.

Title Insurance

Title Insurance is a insurance policy that protects the owners of the residential and commercial property owners and lenders against the losses related to the property title. It provides coverage for the title related risks associated with real estate transactions

Title-related risks insured by title insurance include:

1. Unknown defects in title ie., any defects that prevents you from having clear title to the property;

2. Compliance risks, such as non-compliance with restrictive covenants, the existence of major encroachments;

3. Any liens against the property title, for eg. Unpaid debt from utilities, mortgages, property taxes or condo fees secured against the property.

4. Title frauds

5. Any other title related issues that prevent a homeowner from selling, mortgaging or leasing the property.

There are two types of title insurance policies:

1. Lender Policy- provides coverage’s for the amount of the property’s mortgages

2. Owner Policy-sets out the maximum coverage for various title related losses set out in the policy for the owner of the property.

For a onetime fee called premium, title insurance will protect the home owner as long as he/she own the property and will cover losses to the maximum coverage as set out in the policy.

The premium is based on the value of the property and the choice of the title insurance company. The title insurance policy is usually purchased when you buy the property.

Steps buying selling homes

Important Steps for Buying a Home (Resale home or condominium) in Ontario:

Agreement of Purchase and Sale is signed by the buyer and the seller.
Agreement of Purchase and Sale to be final has certain conditions which are for the benefit of the buyer. For example, Agreement is conditional upon buyer obtaining financing or conditional upon buyer obtaining home inspection to his satisfaction. If you are buying a condo, then the agreement is conditional upon review of the Status Certificate by the buyer’s solicitor. Status certificate can be obtained from the property management of the condominium.
Once the conditions of financing, home inspection and review of status certificate is complete within the time limit specified by the Agreement, a waiver must be signed

by the buyer and the seller stating that the conditions have either been complied with or waived , pursuant to which the Agreement becomes final.

Having completed these steps, you as a buyer should inform and send the executed Agreement of Purchase and Sale along with any amendments and the waivers to your lawyer

The buyer’s lawyer will then communicate with the seller’s lawyer and the buyer’s lender from the start to end, prepare all the necessary documents required for the completion of the real estate transaction.