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  • Types of Child Visitation and Access

    As a divorcee with children, you have certain legal rights and obligations when it comes to your minor children. In many cases, the court will have outlined child custody, visitation, access, and support order. Depending upon the circumstances of the divorce and your existing relationship with your children, the court can decide to order different types of access and visitation.

    1) Reasonable Visitation and Access
    This type of visitation and access is where both parents are on amicable terms and the court feels the parents are responsible and reasonable enough to arrange child visitation and access on their own. As a result both parents are given full control over access and visitation schedules and the flexibility to modify them, without having to get permission from the court.

    2) Set Visitation and Access Schedule
    For less amicable divorces, the court can establish a set visitation and access schedule. This is where the parents are given a specific time when they will have their children, like every weekend from 5 pm on Fridays until dropping them off at school on Mondays. The schedule also stipulates which parent will have the children during school breaks, holidays, and other times of the year.

    3) Supervised Visitation and Access
    This type of access to your minor children is commonly prescribed in situations where the court is concerned about certain behaviors the other parent has exhibited in the past, but believes the parent should be allowed access to their children. For instance, the parent has had addiction problems in the past and the court wants to ensure the safety of the children while visiting with their parent. Supervision can be carried out by a responsible friend or relative or a court appointed designee.

    4) Rights as a Parent
    If you are not happy with the initial visitation and access orders, there are steps you can take, with help from your Toronto family law lawyer to seek modifications to the court’s original orders. However, even while the litigation is pending, you must still comply with the existing orders until a modification is granted by the court. Failure to do so could actually hurt your case.

    In some situations, one parent may begin to be less accommodating towards the other, refuses to be flexible, or creates difficulties that make access and visitation to the minor children difficult. Further, as your children get older, they might decide they would prefer to live with you, rather than the parent.

    Whenever you encounter these types of situations, it is best to work with your Toronto divorce lawyer  and work towards resolution using various legal methods and the courts. Courts will grant modifications to the original visitation and access orders, as long as they feel it is in the child’s best interests.

    Please remember, the content presented here is for informational purposes only, and by no means should be viewed as actual legal advice. To obtain legal advice about child access and visitation matters or modifications, contact the experienced family law lawyers at Kain & Ball by calling 647-499-4888 now to arrange a consultation appointment.

  • Do Cohabiting Couples Have the Same Rights as Divorcing Married Couples?

    Rather than getting legally married, you and your partner decided to cohabitate in the same residence for an extended period of time. Eventually, you and your partner decided to start a family and have children, but still chose to not legally get married. Then, the unfortunate happens and you or your partner decides to terminate the relationship and separate.

    At this point, there can be all sorts of feelings and emotions you may experience, ranging from hurt to anger. You may have questions in regards to your future, the future of your children, where you will live, and how property you acquired together as a couple is to be divided. Your ex-partner will most likely have their own ideas about their future, which you do not fully agree with, like whoever paid for the property gets the property.

    While cohabiting can have its benefits when couples first start out together, it can also have its drawbacks when things do not work out after being together for a long period of time. In many cases, if there are not any minor children involved, you may have limited options. However, it is worth your time to discuss your situation with a qualified and experienced Toronto divorce lawyer first, before making any decisions.

    In recent years, courts have considered the division of property of cohabiting couples in specific instances, like if the couple has a cohabitation agreement in place. Further, if you were together for most of your lives, you may have certain legal rights that would determine how property is to be divided, such as you jointly purchased a home together.

    In regards to minor children and cohabiting couples, the courts tend to adhere to similar practices like a divorcing, legally married couple. There are specific guidelines used to establish child support payments, visitation schedules, and access to and custody of the minor children.

    Just because you and your partner have decided to call it quits does not excuse your from your parental responsibilities. The family court’s primary concern is what will be in the best interest of the minor children and provide them the most stability now that their parents have decided to end their relationship. Further, both parents are expected to contribute equally towards the rearing and financial support of their minor children.

    At Kain & Ball, our Toronto family lawyers understand the pain and difficulties that can come with the end of long-term cohabiting living arrangement. We are here to help answer your questions in regards to division of property and issues concerning your minor children.

    Please remember the above content is for informational purposes only and should not be construed as actual legal advice. For actual legal advice for separating cohabiting couples and to find out your legal rights, call 647-499-4888 today to arrange a consultation appointment with Kain & Ball Family Law Lawyers in Toronto.

  • Debt & Divorce
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    Ever wonder what role debt has in your divorce? What are the implications of debt on the division of assets or support payable? Can debt work in your favor? This post will provide some insight on how debt factors into essential aspects of your divorce such as the division of property.

     

    In Ontario property is divided by equalizing the net worth acquired during marriage. This is referred to as equalization of the net family property. The net family property is calculated by subtracting the value of property at the time of marriage from the value of property at the time of separation. The spouse with the higher total must pay the spouse with the lower total half of the difference of their net family properties. So how does debt come into play? In calculating the net family property you are entitled to deduct any debts or liabilities existing at the time of separation from the total value of your property. In order to be allowed such a deduction, the court must be satisfied that an alleged debt is real.

     

    Alternatively, it is possible for a negative deduction to be made (an addition) when calculating pre-marital property if one spouse has only debts at the time of marriage. If someone enters a marriage with a $200K debt, pays it off throughout the marriage, and on the date of separation has $200K in assets, how much wealth did they accumulate? In such a scenario, the $200K debt that was paid off is actually considered an accumulation of wealth, making their final net family property $400K. In other words, if you pay off your debt which existed at date of marriage by the date of separation, the amount paid off must be added to your asset pile. The formula for equalization is essentially determining how much wealth was accumulated during the marriage.

     

    It is important to note that there are some instances in which a court may award a spouse more or less than half of the difference between the net family properties if doing otherwise would be unfair. One of such instances is when a spouse fails to disclose to the other their debts or liabilities existing at the date of marriage. Failing to disclose material debt can also be a basis on which a court may set aside a domestic contract which provides particular arrangements for the division of property. Another circumstance in which a court may award unequal division is when debts claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith. In such instances the courts will not allow intentional, reckless or bad faith conduct to reduce a spouse’s equalization entitlement. Yet another scenario is when one spouse has incurred a disproportionally larger amount of debt than the other in order to support the family. In these cases the courts may recognize the disproportionate contributions made between two spouses.

     

    Debts may also play a role when it comes to determining support payments. A spouse who has an unusually high level of debts that were reasonably incurred to support their spouse and children prior to separation, or to earn a living, may be permitted to pay less than the standard amount of spousal support required for their income level as it would cause undue hardship.

     

    It is clear that debt has significant implications on the division of property. At the end of the day, debt may work for or against you when it comes to equalization or support payments. The important thing to remember is that although debt can reduce an amount payable, the courts have the power to vary an equalization share or support amount and will do so when a party acts in bad faith.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

     

  • Prenuptial Agreements: What You Should Know
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    So you’re thinking about drafting a prenuptial agreement, or a ‘marriage contract’. Perhaps you’re wondering what sorts of issues the contract can address, and what will not be enforced by the courts. This blog post seeks to tell you a few things you should know.

    How do you make a Prenuptial Agreement or Marriage Contract?

    First things first – making the contract. Section 55(1) of the Family Law Act is exceptionally clear about creating a marriage contract. “A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.” If you and your spouse are discussing an agreement and shake on it, it will not be enforced by courts. If you and your spouse write an agreement but do not sign it, it will not be enforced by the courts. And finally, unless your written and signed agreement is witnessed by a third party, it will not be enforced by the courts.

    When can a Prenuptial Agreement or Marriage Contract be set aside?

     

    There are also grounds under which the courts will set aside properly made domestic contracts. The court has the authority to set aside either an entire contract or any section within one. Section 56(4) of the Family Law Act addresses the grounds upon which courts will do so. For instance, if you do not disclose all of your assets, debts, and liabilities to your spouse when the agreement is made, it can be set aside. To avoid this, it is important to make full and accurate financial disclosure; ideally by completing a Financial Statement which includes the estimated value of your assets.

     

    If you or your spouse do not understand the nature or consequences of the marriage contract, it can be set aside. Most people do not fully understand all of their rights and obligations under family law. It is therefore common for spouses to misunderstand the nature or consequences of a marriage contract. If you intend to create an enforceable contract, it is extremely important that both you and your spouse retain family law lawyers to provide you with independent legal advice and to fully explain all of the consequences of signing a marriage contract.

     

    If the marriage contract in any other way violates a rule of contract law, it can be set aside. You cannot be coerced into signing a contract. Unless you commit yourself to the contract consensually and free from coercion, it will not be enforced by the courts. Coercion or duress violate contract law and are therefore grounds for setting aside a marriage contract.

    What can you put in a Prenuptial Agreement or Marriage Contract?

     

    What sort of issues can a marriage contract deal with? Section 52(1) of the Family Law Act addresses the content of marriage contracts. In general terms, a marriage contract can address anything to settle the affairs of separated spouses – but this general clause has limits. More specifically, a marriage contract can outline how property will be divided or owned after separation or divorce. A marriage contract can address what the support obligations will be post-separation. It must be remembered that when it comes to children, courts make decisions based on the best interests of the child. Therefore, as Section 56(1) of the Family Law Act states, the court can ignore any provision of a marriage contract if doing so is in the best interests of the child.

     

    There are several aspects of separation that a marriage contract cannot address. For example, any provisions in a marriage contract outlining the rights to custody of or access to children is unenforceable. Any provision in a marriage contract which limits a spouse’s possessory rights to the matrimonial home is similarly unenforceable.

    Finally, as mentioned earlier, a marriage contract can address what the support obligations will be post-separation. Does this mean spousal support or child support? It can be both. However, as Section 56(1.1) of the Family Law Act states, the courts can ignore any provisions of a marriage contract which deals with child support if “the provisions is unreasonable having regard to the child support guidelines.” In other words, if you make one million dollars a year, and you and your spouse agree that child support should be $50 per month, the courts will likely ignore that provision because it flies in the face of what the child support guidelines demand.

     

    Hopefully this post has shed some light on the nature of marriage contracts. They can be very useful, but they must be extremely clear, and both you and your spouse must completely understand what you are getting yourselves into.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.

     

  • Family Law Myths: What You Don’t Know About Family Law Can Hurt You.
    law-myths

    Most people know something about Family Law. After all, at one time or another, everyone has heard a “divorce story” from a friend or family member, seen something in TV or movies, or read something on the subject. From all these different sources, the information regarding Family Law in Ontario often gets lost, and common myths are perpetuated. This article is intended to clear up some of the most common misconceptions that people have about family law.

    Myth#1: A Common Law Relationship has all of the same rights as a Marriage.

    People often assume that once a couple has lived together in a common law relationship for a period of time, they automatically have all of the same rights as a married couple. This is incorrect. Unmarried spouses have no automatic right to the division of assets the way that married couples do. Sadly, often people do not realize that this is the case until the relationship is ending and it is too late to arrange one’s affairs in accordance with his or her intentions. That does not mean, however, that unmarried spouses are left without options. There are legal arguments that can be made in pursuit of a property claim; however it is often an uphill battle, and one that people in these circumstances sometimes do not have the time, energy, and resources to pursue.

    Myth #2: We just divide the assets in half, right?

    Wrong. Many people are under the impression that the only thing that has to happen with respect to property division is that any and all assets are divided equally between the parties. Property division in Ontario is done based on a formula. There are certain deductions and exclusions that are factored into that formula, and most people are completely unaware of these concepts. To complicate matters even more, there are certain exceptions which can apply depending on the way that people have chosen to arrange their finances over the course of their relationship. These decisions can significantly impact a party’s financial outcome. Often, people are completely unaware of the impact of their financial decisions at the time they are made, and suffer the consequences at the breakdown of the relationship.

    Myth #3: The kids are living with me, that means I have sole custody.

    One of the most common mistakes people make when talking about family law is to assume that custody and residence are one and the same. Custody deals with decision making, where as residence arrangements deal with where the children live. Parents can have joint custody of a child while that child lives primarily with one parent. This would mean that both parents, together, make major decisions
    about the child’s life; for instance decisions regarding religion, non-emergency healthcare, and education even though that child may live with one parent majority of the time.

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.


Recent Posts

  • Toronto Divorce Lawyer Shares Signs Your Spouse Might Be Cheating

    There are all different reasons why marriages fail and one of the biggest ones is where one spouse simply falls out-of-love with the other. He or she might attempt to remain in the marriage if there are minor children involved, but sooner or later, chances are they are going to start cheating because they do not like living in a loveless marriage(in their mind). There are telltale signs to watch for that could indicate your spouse is cheating.

     

    1. They start doing their own laundry. If you are the one that normally does the laundry and all of a sudden they take an interest to help you out, it could be because they are hiding something.

     

    2. They start arguments and fights over minor issues. This tactic is so that if they are caught, they can simply make the excuse you were always fighting.

     

    3. There is a change to sexual activity. Instead of objecting to times when you don’t want sex, they are more agreeable and are perfectly content watching TV or a movie with you instead or just cuddling.
    Toronto Divorce Lawyer Shares Signs Your Spouse Might Be Cheating

     

    4. Their dress and appearance changes. You notice they start wearing a new perfume or cologne, they are wearing new clothes, wear their hair differently, or are dressing fancier than they normally do.

     

    5. They keep their smartphone with them all of the time. If it is a new habit, it means they don’t want you to see their text messages or have access to the phone.

     

    6. They start turning the phone off when they spend time with you or the family, when they have not in the past. Shutting the phone off avoids getting caught or worrying about getting a text or phone call.

     

    7. They have changed the passwords on their devices and refuse to give it to you. Most couples share their passwords on their devices in healthy marriages. If they are refusing to share, it could indicate they are cheating.

     

    8. Date nights become less frequent or are cut short. Instead of spending time with you, they start making excuses they are having a “guys” or “girls” night out instead.

     

    9. You discover your spouse has a “secret” credit card. Most couples share joint accounts and in cases where they have separate ones, they at least know about them.

     

    10. You notice strange posts to their social media pages. Some cheaters forget they are friends with their spouse, and are actually caught from posts on their Facebook or other social media sites.

     

    Please keep in mind, in some cases, your spouse may exhibit one or more of the above behaviours, but may not be cheating. There are also times when they are overly cautious and may not do any of the above, yet could still be cheating.

     

    Before confronting them, it is better to be 100% sure, otherwise, if your marriage is just going through a rough patch, you could make things worse, leading to separation and divorce, rather than a reconciliation. If you have confronted them, and they have acknowledged they are cheating and want to end the marriage, then it is time to consult with an experienced divorce lawyer in Toronto from Kain & Ball Family Law Lawyers by calling 647-499-4888 today.

  • Divorce and Gambling Addictions

    Trust is a vital part of healthy marriages and the willingness to openly share the good, along with the bad. You may be perfectly fine with your spouse placing the occasion bet at work in a hockey pool or spending time at a casino every so often to play some poker. But, you may notice your spouse is spending less time at home with you, they could start making up excuses, like they had to work late, or they were just out with some co-workers for a few rounds to celebrate a co-worker’s birthday.

    The extent of the lies a person with a gambling addiction tells, depends upon whether they are actually winning. When they are winning, then the lies may not seem that unbelievable or they could actually even tell you the truth that they were out gambling. However, when they start losing and racking up gambling debts that is when the lies start to become more frequent and prevalent, since they will not want to tell you they just lost several thousands of dollars.

    Divorce and Gambling Addictions

    Furthermore, you could notice unusual activity on your credit cards or large withdrawals from your joint bank accounts. Initially, your spouse might tell you they lent money to a close friend or relative and figured you would be okay with it. Eventually, however, the money and their luck will run out where you could find out, so they might turn to applying for new credit cards, taking out signature loans, or even start borrowing money from friends and relatives in order to cover up their addiction.

    At some point, you will find out. You might be on the phone with a close friend and they ask when to expect a payment for the money they lent you. You could be at the checkout line at a store and be told your credit card was declined. No matter how you find out, once you do, it needs to be confronted.

    Your spouse could be willing to seek help for their gambling addiction and make a serious effort at saving your marriage. They might tell you they want to get better, but are just telling another lie to prevent you from filing for divorce, too.

    Regardless, it is in your best interests to contact an experienced Toronto divorce lawyer to discuss your situation and determine the most appropriate course of action. In some cases, even though you did not incur the gambling debt, you might be required to pay at least half of the debt during a divorce.

    The above content is presented for reference purposes and is not actual legal advice. Please feel free to contact Kain & Ball Family Law Lawyers in Toronto today at 647-499-4888 to schedule a consultation appointment to discuss your legal rights and options in regards to your spouse’s gambling addiction.

  • Divorced with Children and Moving? What You Need to Know

    Before you pack up your belongings and kids and move to a new home, it is important you understand the legal implications of moving after a divorce when there are children involved. It is in your best interests to consult with a family lawyer in Toronto at Kain & Ball Family Law Lawyers to find out your rights and obligations.

    Depending upon the nature of your child custody and visitation agreements, there are several things you might have to do before you can move and relocate to a new home with your children, including, but not necessarily limited to:

     

      • Get permission to move from the other parent. If you are moving a long distance away from the other parent, whether it is in the same province, different province, or internationally, you need to confirm the other parent is in agreement with the move. Otherwise, the other parent has certain legal rights, like requesting through their lawyer and court to block the move. Keep in mind the other parent might not get to see their kids as often or there might need to be a modification made to the visitation agreement in order to accommodate your move request.

     

      • Sell the marital home. If you are currently living in the marital home, there could be a stipulation in your divorce and settlement agreement where you have to sell the home and split the proceeds of the sale with your ex-spouse. Simply selling the home, pocketing the proceeds and moving away would violate the agreement and give your ex-spouse certain legal rights to file against you in court.

     

    • Request modifications to the current child support, child custody and visitation agreements. Depending on where you are moving and the reasons why, like you are re-entering the work force and have a new job or want to move closer to your family, often require these agreements be reviewed and adjusted accordingly so both parties are in agreement and your ex-spouse will agree to let you move with the children. In addition, if you are receiving spousal support, this amount may also need to be updated to reflect changes in your earnings.

     

    If you fail to find out your legal responsibilities before you move, it could result in legal action being taken by the other parent. You could risk losing custody of your children, be required to move back to the Greater Toronto Area, and more. Not to mention the added costs and expenses you would incur.

    Even in cases where you have sole custody, it does not hurt to get a professional legal opinion before you move from our family law firm in Toronto. Remember, the courts primary focus, when dealing with children in divorce matters and custody, is determining what is in the best interest of the children.

    Keep in mind the above information is provided for reference purposes only and should not be viewed as actual legal advice. For actual legal advice, schedule a consultation appointment with Kain & Ball Family Law Lawyers by phoning 647-499-4888 today.

  • Adult Child Support

     

    Black Mortarboard and canadian dollar, concept of education finance

    As Kanye West famously sang in his 2005 hit, “Golddigger”:

    “Eighteen years, eighteen years She got one of yo[ur] kids got you for 18 years.”

    If you think that your obligation for child support automatically ceases upon a child’s eighteenth birthday…. then you should stop taking legal advice from Mr. West.

    The courts view child support on a case by case basis. The key factor in every situation is always to keep the best interests of the child in mind. With the current trend of children remaining dependent on their parents well into their 20’s, the question remains… can child support obligations last passed the age of majority?

    The reality is, Canada to an extent, puts a legal obligation on divorced couples to support their children into adulthood. This is not to imply that a child who lives on their own, is self-sufficient, and has a full time job can ask for support simply because the parents have separated. What this does mean however, is that the Courts will look at requests for child support for adult children who remain dependent on their parents for a variety of reasons.

    The social context surrounding the subject does having supporting rationale, and overall it does make sense based on emerging trends. Adult children have a multitude of reasons and circumstances that have elongated their ‘dependent status’, such as: attending post-secondary education has become almost imperative in order to stay competitive, finding secure employment as well as affordable housing have also become increasingly difficult, and people are choosing to marry or enter common law relationships later in life.

    The Divorce Act, and in Ontario, the Family Law Act, both provide authority for a court to order child support for a “child” over the age of 18. The Divorce Act provides a broad definition for adult children eligible for support, while the FLA takes on a more defined approach. The Divorce Act, only allows for spouses and former spouses to apply for support. Although rare and far between, there have been some cases involving young adults bringing claims against their divorced parents for support.

    There are some reasons why adult support would be necessary that most can relate to, or even agree with. For instance: if an adult child lives with a disability or severe illness we tend to accept or even assume that they will receive some form of support from their parents, concurrently children who pursue post-secondary education often need financial assistance from their parents.

    What if you owed child support because an adult child was unemployed? Now this would seem to be a bit less acceptable to some;however, if an adult child is unemployed, and is still dependent on a parent, then the other parent may still owe child support. The potentially frustrating aspect of this legal obligation is that this is only expected from divorced couples. There is no legal obligation for a married couple to support their adult children financially.  Concomitantly, the courts appear to have made a legal obligation on divorced parents to provide financial support for their children’s post secondary education, an onus which does not exist on parents in an intact family. Have you ever heard of parents in an intact family being court-ordered to make some contribution to their child’s post secondary education? Precisely. The courts do however make this an obligatory responsibility for divorced parents. This hasn’t gone unnoticed, as divorced spouses have brought forth Charter challenges under section 15, the right to equality, for this very reason. Though none of these challenges have been very successful.

    It is important to keep in mind that child support awards are very fact specific. The same rules do not apply to intact families versus divorced ones. There is no guarantee that you will be able to close down the “Bank of Mom and/or Dad” when your child turns 18.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

  • Frances Bean and Isaiah Silva are headed from the Alter to Court
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    News broke back in March that Frances Bean Cobain was filing for divorce after less than two years of marriage to Isaiah Silva.  It was made clear that he was not entitled to any of the money from her late father, Kurt Cobain’s $450 million dollar estate.  Frances  was the one to file for divorce, citing ‘irreconcilable differences’ and according to TMZ reports she stated that she was open to discussing spousal support …however since then there has been a recent dramatic development in this initially straightforward split.  The New York Daily news notes that the two are currently going head to head in court battling over which of the two has legal ownership to Kurt Cobain’s D-18E acoustic-electric guitar.  It is a very rare guitar, and it was the very instrument he played while filming the now infamous “MTV Unplugged” episode. It was the last guitar he played as he committed suicide approximately six months later.   To any Nirvana fan wanting to buy this instrument it would most likely sell for millions, but to the child of the deceased artist this could be considered a priceless and irreplaceable possession.

    Isaiah is claiming that the guitar was gifted to him by Frances on their wedding night, Frances in turn is denying this claim whole heartedly. Courtney Love, Frances’ mother, voiced her opinion on the matter as well, stating: “It’s not his…it’s a treasured family heirloom”.  Even without the direct correlation to Cobain the instrument itself would be considered a valued collectable to any musician since there were only 300 models made, not to mention the custom modification made so that it could be left handed friendly.  Love, has added fuel to the divorce fire by stating she’s “glad [Frances is] out of this dangerous and toxic relationship.”   Even if the ownership of the guitar is currently up in the air, one thing is for certain, the loss of this guitar in conjunction with her decision to get a divorce has brought the estranged pair of Love and Cobain back together… Love and Cobain….now that’s a set of last names that throws us back to the glorious grunge days of the 90’s.

    The legal process will soon shed light on who is entitled to the famous instrument.  Stay tuned for a correlating post that will be outlining how the Canadian legal system deals with legal rights and ownership of gifts in the process of a separation.  Please note the above information is not legal advice of any kind,  the information quoted was used from online news sources, and you should be sure to speak to a qualified toronto family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

  • “The Litigation Version of 50 Shades of Grey”: How Your Conduct and Online Presence May Not Be Relevant in Custody and Access Cases
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    A parent’s conduct is only relevant to custody and access cases if it affects the parent’s ability to care for the child and meet their needs (Durham v Robertson (1998), 79 ACWS (3d) 958.) So what happens when your ex-partner drags up something from your past? How about an embarrassing post you made online? What privacy are you afforded? With social media playing such a large role in our daily lives, privacy is hard to come by. But before you start taking screen shots of your ex-partner’s Facebook posts and Twitter account in order to embarrass them in court, maybe take a second thought.

    In the recent case of S(J) v M(M), a Father brought a motion for primary residence of the older child, and expanded access of the younger child. The Father attached a number of explicit images of the Mother and sexually graphic text conversations to his materials. His reasoning for doing so was speculation from the Father’s counsel that the Mother must have spent so much time “sexting” in 2013, that “possibly she neglected their son (para 28(c)).” This was not received well by Justice Pazaratz, who set out to make a point in his decision: “nasty doesn’t work… nasty won’t be tolerated (para 30&31).”

    Justice Pazaratz’s no-nonsense (and rather entertaining) decision laid out the instances where social media has helped the courts:

    “Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:

     

    1. Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
    2. Intimidating and threatening behaviour often becomes self-evident in texts.
    3. A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
    4. It’s quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them (para 12.)”

     

    It should be noted that the images and text messages in S(J) v M(M) were retrieved from the Mother’s cell phone, and were not posted publicly by the Mother. In contrast, the Mother in M(KL) v B(J) 2013 BCSC 2041 provided a number of screenshots from the Father’s Facebook page as evidence of what the Father was actually doing when he was supposed to be exercising access with their chid. The Court held that these screenshots were admissible as evidence because they were relevant to the parenting question in the case and they were the Father’s own words provided to his peers publicly. The court concluded that the Father’s Facebook postings were not “truly private” communications and he could have no real expectation of privacy (para 9).

    For Justice Pazaratz, the embarrassing evidence dredged up in S(J) v M(M) was proof of just one thing: “the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life. Big deal (Paras 15 and 16).” Furthermore, Justice Pazaratz brings this Father and his counsel back into the 21st century, reminding us that “all of this smacks of a puritanical double standard. The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent. That kind of hypocrisy is a thing of the past (para 32(d)). ” Ultimately, Justice Pazaratz ruled the Father’s “evidence” as inadmissible, and denied his motion.

    As entertaining as Justice Pazaratz’s decision may be, his message rings load and clear – do not provide the court with embarrassing evidence in a custody/access case unless it is truly relevant to one’s ability to parent. Or, in the case you do decide to provide explicit information to the court, being polite about it and using some discretion may be to your benefit: “The Applicant could have collectively referred to them as ‘a lengthy exchange of sexually explicit messages.’ Instead, the Applicant felt it was necessary to file about 89 full page colour enlargements of the texts. The litigation version of 50 Shades of Grey (para 28(b)).”

    The moral of this story is twofold: beware what you choose to share with the court of your ex-partner’s online presence or personal conduct. Embarrassing them will not grant you an advantage in court and runs the risk of being unappreciated by the Judge presiding.  Secondly, beware what you make available about yourself online. If you post something embarrassing or unbecoming that can be seen as relevant to your ability to parent, you may regret it, as that brief moment in social media time could potentially have a negative impact in the future.

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

  • How Is Division of Property Handled During a Divorce?

    Division of property can be a rather complex and complicated manner as part of a divorce proceeding. The Family Law Act contains the set of specific methods and procedures used to divide property between divorcing couples. In Toronto, this is not just a simple manner of dividing up individual assets, but rather requires going through a process known as equalization of net family property. Property, in this context is referred to any type of asset which was acquired during the marriage and includes real estate, bank accounts, stocks, bonds, vehicles, pensions, and more.

     

    In addition, the total liabilities the couple has accumulated is examined, since this value is subtracted from the gross total value of all assets to arrive at the net total value of all assets. Equalization requires examining all assets, whether they were acquired individually or jointly during the marriage. Further, liabilities are examined in the same manner, as to whether they are individual or joint liabilities.

     

    To illustrate how equalization is carried out, one person has acquired individual assets valued at $50,000 and liabilities of $10,000 while the other person has acquired individual assets valued at $75,000 and liabilities of $20,000. The first person’s net assets would amount to $40,000 and the second person’s net assets would amount to $45,000. Since there is a variance of $5,000, the second person would essentially owe the first one $2,500 in this basic example.

     

    However, joint assets and liabilities must also be considered and evaluated. This is where things often become more complex. For instance, what happens to the martial home, if it is owned or being purchased? Does the divorcing couple sell it and split the proceeds or does one person reimburse the other for their interest in the property? Further, in cases where there are minor children involved, there can be specific stipulations as to how property will be divided and when.

     

    Dividing up property, assets, and liabilities can quickly turn into a nightmare, further adding to the emotional stresses of divorce. In order to ensure you receive a fair and satisfactory division of property settlement, it is highly recommended you seek advice and representation from a qualified and experienced family lawyers in Toronto, who specialize in family law.

     

    Going through a divorce is often a very stressful and emotional period of time. You might overlook certain assets or liabilities and your lawyer is there to help ensure asset and liability is included in the division of property settlement. Further, your Toronto family law firm offers several different cost effective methods using alternative dispute resolution for reaching amicable and mutually acceptable division of property settlements. These methods potentially help avoid placing you into a position, where the judge and court decides how property and assets are divided between you and the other party.

     

    Keep in mind the above information is for reference purposes only and should not be used as actual legal advice. For professional legal advice and assistance with your divorce and the division of property settlement, contact Kain & Ball Family Law Lawyers now at 647-499-4888. We have the expertise and knowledge to help you obtain a satisfactory settlement agreement.

  • Are Child Support Payments Fixed Once Established by the Court?

    One common misconception divorcing parents have is in regards to child support payments ordered by the court. Many divorcing couples are under the impression once the child support payments are established by the court, they are fixed until such time the child reaches the age of majority or receive their first post-secondary degree.

    This is not the case, and child support payments can be adjusted, modified, and changed at any point, after the court determines and establishes the initial support payments. One common situation where a change in support payments would be needed, is in cases where the payor’s income changes. If the payor has been with their current employer for several years, chances are they are going to get a pay raise or promotion with a higher salary. On the other hand, if the payor’s employer is downsizing or goes out of business, they may not be able to find a job earning what they were at their previous employer.

    Another common situation is where the recipient parent was a homemaker prior to the divorce. After the divorce, they decide they want to return to school to complete job retraining courses or earn a degree. Once they complete their education and reenter the job market, they will be earning income and would be responsible for contributing more towards the children’s expenses, which was more equally proportionate to the payor’s earnings.

    In cases where the recipient parent was working prior to the divorce, they could also receive a pay raise or get a promotion with a higher salary, just like the payor. Again, the change in income between the time the child support payment order was put in place and now, would warrant a review by the courts to determine if there should be a change in the payor’s amount.

    A Change in Child Custody/Access Can Affect Support Payments

    In situations where there is a change in child custody/access, which results in the change in how much time each parent spends with their children, changes in support payments may be warranted. For instance, initially, the custodial parent had the children the majority of the time and the other parent (payor) only had the children on the weekends. However, now the payor has the children throughout their children’s entire summer school break. Since they now care for the children more than they did before, they have the right to ask for a modification to support payments.

    Am I Required to Report Changes to the Court?

    Most of the time, it is the responsibility of each parent to report changes in income and custody/access to the court. It can be beneficial to request a hearing with the court, with assistance from a Toronto Child Support lawyer, if there are changes in income or child custody/access. Granted, these changes could benefit the custodial parent in some cases and the noncustodial parent in others.

    There are times when one parent chooses not to inform the court of changes in income and that could have serious consequences, should the other parent discover their ex-spouse is now earning more money. Either parent has the right to request a review of child support payments, in the event they discover the other parent is earning more income, even if you decided not to report it yourself.

    It is always in your best interests to report changes when they occur, regardless of whether they will benefit you or the other parent. The important thing to remember, is both parents are equally responsible for the financial support of their minor children.

    It is highly recommended to obtain assistance from an experienced Toronto family law firm, like Kain & Ball Family Law Lawyers Toronto, since child support review proceedings are sometimes as emotional and stressful as the initial divorce proceedings. Contact our law firm today at 647-499-4888 for further questions about child support, child custody and child visitation modifications, or assistance in requesting a review to modify existing orders.

  • To Snoop, or Not to Snoop?
    snoop

    Developments in personal technology are complicating legal disputes. Everyone has a Facebook account. Everyone texts. Most people do their banking online. Glimpsing into the private affairs of one another has become fairly easy and fairly commonplace – in other words, snooping. Is snooping ok? As far as the courts are concerned, no.

     

    In January 2012, the Ontario Court of Appeal ‘s decision in Jones v. Tsige addressed this very issue. The court recognized a novel tort claim, that of ‘intrusion upon seclusion.’ This newly adopted rhyming tort allows someone to sue another if damages arise from the invasion of their personal privacy.

     

    In Jones, Ms. Jones was in a relationship with Ms. Tsige’s former husband. Ms. Tsige paid child support to her ex-husband. However it was her belief that her ex-husband was paying the child support to his new partner, Ms. Jones, rather than the money going to the children. It just so happened that Ms. Tsige and Ms. Jones both worked at the Bank of Montreal, and so Ms. Tsige began to inspect Ms. Jones banking information to see if she was getting deposits from the ex-husband.

     

    Naturally, Ms. Jones wasn’t very happy about this. She felt that her privacy had been violated. The Ontario Court of Appeal agreed. They established a principle, one which spouses would be smart to take note of: One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

     

    What exactly are the implications of this rule for spouses who are separating? To be frank, it is yet unclear. This new tort has not been applied in any family law cases, but it has been considered in family law decisions. In C.(B.D.) v. B.(B.J.), a father was concerned about negative comments that his ex-wife was making about him while speaking on the phone with her son. In response, the father made audio and video recordings of the phone conversations without the mother’s knowledge. The father then tried to put forward these recordings as evidence against her.

     

    With a clear voice, the court said that evidence of this sort is inadmissible. Yes, the evidence showed a clear attempt of the mother to manipulate her child. But it was also obtained by invading upon her privacy, and it just so happened that there is a criminal prohibition to recording private conversations. To allow these recordings as evidence would be to allow evidence which was obtained by breaking the criminal code as well as the novel tort of invasion upon seclusion.

     

    Privacy is becoming increasingly valued in Canada – be wary with your electronics. If you do decide to snoop on your spouse, don’t expect the court to go easy on you. You may think that the boundaries in a relationship are flexible. In a court, they are formalized and rigid.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.

     

  • Separation and the Matrimonial Home
    separation

    Upon separation, both you and your partner may want to stay in the matrimonial (family) home. If you and your partner are married, both of you have an equal right to stay in the matrimonial home until it is sold or until there is a court order or agreement, even if the legal title to the property is only in one of your names. A spouse cannot sell or mortgage a matrimonial home without the other spouse’s written permission.

    A matrimonial home is defined as the home where the spouses ordinarily reside together at the time of separation. Parties can also have multiple matrimonial homes as this definition can apply to vacation properties, ski chalets, and cottages.

    However, these rules for matrimonial homes do not apply to unmarried or “common-law” spouses, because the definition of matrimonial home applies only to married spouses. An unmarried spouse does not automatically have the right to stay in the family home if it is not in his or her name. If one unmarried spouse owns the home they can sell or mortgage it without the other spouse’s permission.

    If you and your partner cannot agree on who should stay in the family home, you can use lawyers, a mediator or an arbitrator to help you decide, or you may have to go to court to have a judge decide. An order or agreement for exclusive possession grants one spouse use of the home and excludes the other. It should be noted that while the court can grant one party exclusive possession of the matrimonial home, the court cannot prefer one joint owner over another by forcing a sale of one party’s interest to the other. A sale of one spouse’s interest in a matrimonial home to the other spouse can only take place if both spouses have agreed to it.

    If you and your partner have children, the partner who has custody of the children will most often be the one who gets to stay in the matrimonial home. This is because it helps children to adjust to a new family situation if they are in a place and neighborhood that they already familiar with.

    The spouse who stays in the matrimonial home may have to pay occupation rent to the other spouse. Occupation rent is a measure to compensate the spouse who is forced to leave the matrimonial home despite having equity in it. However, there is an uncertainty of recovering occupation rent. There is no strict stance on how the courts handle claims for occupation rent; the court exercises their discretion and bases their decisions on the circumstances pertinent to each case. For instance, the court may offset the amount of occupation rent by the expenditures incurred in maintaining the matrimonial home.

    On an interim basis, a court may also provide a nesting order. Such an order leaves the children in the matrimonial home while the parents alternate periods of possession of the home.

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.


Archives

  • Toronto Divorce Lawyer Shares Signs Your Spouse Might Be Cheating

    There are all different reasons why marriages fail and one of the biggest ones is where one spouse simply falls out-of-love with the other. He or she might attempt to remain in the marriage if there are minor children involved, but sooner or later, chances are they are going to start cheating because they do not like living in a loveless marriage(in their mind). There are telltale signs to watch for that could indicate your spouse is cheating.

     

    1. They start doing their own laundry. If you are the one that normally does the laundry and all of a sudden they take an interest to help you out, it could be because they are hiding something.

     

    2. They start arguments and fights over minor issues. This tactic is so that if they are caught, they can simply make the excuse you were always fighting.

     

    3. There is a change to sexual activity. Instead of objecting to times when you don’t want sex, they are more agreeable and are perfectly content watching TV or a movie with you instead or just cuddling.
    Toronto Divorce Lawyer Shares Signs Your Spouse Might Be Cheating

     

    4. Their dress and appearance changes. You notice they start wearing a new perfume or cologne, they are wearing new clothes, wear their hair differently, or are dressing fancier than they normally do.

     

    5. They keep their smartphone with them all of the time. If it is a new habit, it means they don’t want you to see their text messages or have access to the phone.

     

    6. They start turning the phone off when they spend time with you or the family, when they have not in the past. Shutting the phone off avoids getting caught or worrying about getting a text or phone call.

     

    7. They have changed the passwords on their devices and refuse to give it to you. Most couples share their passwords on their devices in healthy marriages. If they are refusing to share, it could indicate they are cheating.

     

    8. Date nights become less frequent or are cut short. Instead of spending time with you, they start making excuses they are having a “guys” or “girls” night out instead.

     

    9. You discover your spouse has a “secret” credit card. Most couples share joint accounts and in cases where they have separate ones, they at least know about them.

     

    10. You notice strange posts to their social media pages. Some cheaters forget they are friends with their spouse, and are actually caught from posts on their Facebook or other social media sites.

     

    Please keep in mind, in some cases, your spouse may exhibit one or more of the above behaviours, but may not be cheating. There are also times when they are overly cautious and may not do any of the above, yet could still be cheating.

     

    Before confronting them, it is better to be 100% sure, otherwise, if your marriage is just going through a rough patch, you could make things worse, leading to separation and divorce, rather than a reconciliation. If you have confronted them, and they have acknowledged they are cheating and want to end the marriage, then it is time to consult with an experienced divorce lawyer in Toronto from Kain & Ball Family Law Lawyers by calling 647-499-4888 today.

  • Divorce and Gambling Addictions

    Trust is a vital part of healthy marriages and the willingness to openly share the good, along with the bad. You may be perfectly fine with your spouse placing the occasion bet at work in a hockey pool or spending time at a casino every so often to play some poker. But, you may notice your spouse is spending less time at home with you, they could start making up excuses, like they had to work late, or they were just out with some co-workers for a few rounds to celebrate a co-worker’s birthday.

    The extent of the lies a person with a gambling addiction tells, depends upon whether they are actually winning. When they are winning, then the lies may not seem that unbelievable or they could actually even tell you the truth that they were out gambling. However, when they start losing and racking up gambling debts that is when the lies start to become more frequent and prevalent, since they will not want to tell you they just lost several thousands of dollars.

    Divorce and Gambling Addictions

    Furthermore, you could notice unusual activity on your credit cards or large withdrawals from your joint bank accounts. Initially, your spouse might tell you they lent money to a close friend or relative and figured you would be okay with it. Eventually, however, the money and their luck will run out where you could find out, so they might turn to applying for new credit cards, taking out signature loans, or even start borrowing money from friends and relatives in order to cover up their addiction.

    At some point, you will find out. You might be on the phone with a close friend and they ask when to expect a payment for the money they lent you. You could be at the checkout line at a store and be told your credit card was declined. No matter how you find out, once you do, it needs to be confronted.

    Your spouse could be willing to seek help for their gambling addiction and make a serious effort at saving your marriage. They might tell you they want to get better, but are just telling another lie to prevent you from filing for divorce, too.

    Regardless, it is in your best interests to contact an experienced Toronto divorce lawyer to discuss your situation and determine the most appropriate course of action. In some cases, even though you did not incur the gambling debt, you might be required to pay at least half of the debt during a divorce.

    The above content is presented for reference purposes and is not actual legal advice. Please feel free to contact Kain & Ball Family Law Lawyers in Toronto today at 647-499-4888 to schedule a consultation appointment to discuss your legal rights and options in regards to your spouse’s gambling addiction.

  • Divorced with Children and Moving? What You Need to Know

    Before you pack up your belongings and kids and move to a new home, it is important you understand the legal implications of moving after a divorce when there are children involved. It is in your best interests to consult with a family lawyer in Toronto at Kain & Ball Family Law Lawyers to find out your rights and obligations.

    Depending upon the nature of your child custody and visitation agreements, there are several things you might have to do before you can move and relocate to a new home with your children, including, but not necessarily limited to:

     

      • Get permission to move from the other parent. If you are moving a long distance away from the other parent, whether it is in the same province, different province, or internationally, you need to confirm the other parent is in agreement with the move. Otherwise, the other parent has certain legal rights, like requesting through their lawyer and court to block the move. Keep in mind the other parent might not get to see their kids as often or there might need to be a modification made to the visitation agreement in order to accommodate your move request.

     

      • Sell the marital home. If you are currently living in the marital home, there could be a stipulation in your divorce and settlement agreement where you have to sell the home and split the proceeds of the sale with your ex-spouse. Simply selling the home, pocketing the proceeds and moving away would violate the agreement and give your ex-spouse certain legal rights to file against you in court.

     

    • Request modifications to the current child support, child custody and visitation agreements. Depending on where you are moving and the reasons why, like you are re-entering the work force and have a new job or want to move closer to your family, often require these agreements be reviewed and adjusted accordingly so both parties are in agreement and your ex-spouse will agree to let you move with the children. In addition, if you are receiving spousal support, this amount may also need to be updated to reflect changes in your earnings.

     

    If you fail to find out your legal responsibilities before you move, it could result in legal action being taken by the other parent. You could risk losing custody of your children, be required to move back to the Greater Toronto Area, and more. Not to mention the added costs and expenses you would incur.

    Even in cases where you have sole custody, it does not hurt to get a professional legal opinion before you move from our family law firm in Toronto. Remember, the courts primary focus, when dealing with children in divorce matters and custody, is determining what is in the best interest of the children.

    Keep in mind the above information is provided for reference purposes only and should not be viewed as actual legal advice. For actual legal advice, schedule a consultation appointment with Kain & Ball Family Law Lawyers by phoning 647-499-4888 today.

  • Adult Child Support

     

    Black Mortarboard and canadian dollar, concept of education finance

    As Kanye West famously sang in his 2005 hit, “Golddigger”:

    “Eighteen years, eighteen years She got one of yo[ur] kids got you for 18 years.”

    If you think that your obligation for child support automatically ceases upon a child’s eighteenth birthday…. then you should stop taking legal advice from Mr. West.

    The courts view child support on a case by case basis. The key factor in every situation is always to keep the best interests of the child in mind. With the current trend of children remaining dependent on their parents well into their 20’s, the question remains… can child support obligations last passed the age of majority?

    The reality is, Canada to an extent, puts a legal obligation on divorced couples to support their children into adulthood. This is not to imply that a child who lives on their own, is self-sufficient, and has a full time job can ask for support simply because the parents have separated. What this does mean however, is that the Courts will look at requests for child support for adult children who remain dependent on their parents for a variety of reasons.

    The social context surrounding the subject does having supporting rationale, and overall it does make sense based on emerging trends. Adult children have a multitude of reasons and circumstances that have elongated their ‘dependent status’, such as: attending post-secondary education has become almost imperative in order to stay competitive, finding secure employment as well as affordable housing have also become increasingly difficult, and people are choosing to marry or enter common law relationships later in life.

    The Divorce Act, and in Ontario, the Family Law Act, both provide authority for a court to order child support for a “child” over the age of 18. The Divorce Act provides a broad definition for adult children eligible for support, while the FLA takes on a more defined approach. The Divorce Act, only allows for spouses and former spouses to apply for support. Although rare and far between, there have been some cases involving young adults bringing claims against their divorced parents for support.

    There are some reasons why adult support would be necessary that most can relate to, or even agree with. For instance: if an adult child lives with a disability or severe illness we tend to accept or even assume that they will receive some form of support from their parents, concurrently children who pursue post-secondary education often need financial assistance from their parents.

    What if you owed child support because an adult child was unemployed? Now this would seem to be a bit less acceptable to some;however, if an adult child is unemployed, and is still dependent on a parent, then the other parent may still owe child support. The potentially frustrating aspect of this legal obligation is that this is only expected from divorced couples. There is no legal obligation for a married couple to support their adult children financially.  Concomitantly, the courts appear to have made a legal obligation on divorced parents to provide financial support for their children’s post secondary education, an onus which does not exist on parents in an intact family. Have you ever heard of parents in an intact family being court-ordered to make some contribution to their child’s post secondary education? Precisely. The courts do however make this an obligatory responsibility for divorced parents. This hasn’t gone unnoticed, as divorced spouses have brought forth Charter challenges under section 15, the right to equality, for this very reason. Though none of these challenges have been very successful.

    It is important to keep in mind that child support awards are very fact specific. The same rules do not apply to intact families versus divorced ones. There is no guarantee that you will be able to close down the “Bank of Mom and/or Dad” when your child turns 18.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

  • Frances Bean and Isaiah Silva are headed from the Alter to Court
    cobain7f-2-web

    News broke back in March that Frances Bean Cobain was filing for divorce after less than two years of marriage to Isaiah Silva.  It was made clear that he was not entitled to any of the money from her late father, Kurt Cobain’s $450 million dollar estate.  Frances  was the one to file for divorce, citing ‘irreconcilable differences’ and according to TMZ reports she stated that she was open to discussing spousal support …however since then there has been a recent dramatic development in this initially straightforward split.  The New York Daily news notes that the two are currently going head to head in court battling over which of the two has legal ownership to Kurt Cobain’s D-18E acoustic-electric guitar.  It is a very rare guitar, and it was the very instrument he played while filming the now infamous “MTV Unplugged” episode. It was the last guitar he played as he committed suicide approximately six months later.   To any Nirvana fan wanting to buy this instrument it would most likely sell for millions, but to the child of the deceased artist this could be considered a priceless and irreplaceable possession.

    Isaiah is claiming that the guitar was gifted to him by Frances on their wedding night, Frances in turn is denying this claim whole heartedly. Courtney Love, Frances’ mother, voiced her opinion on the matter as well, stating: “It’s not his…it’s a treasured family heirloom”.  Even without the direct correlation to Cobain the instrument itself would be considered a valued collectable to any musician since there were only 300 models made, not to mention the custom modification made so that it could be left handed friendly.  Love, has added fuel to the divorce fire by stating she’s “glad [Frances is] out of this dangerous and toxic relationship.”   Even if the ownership of the guitar is currently up in the air, one thing is for certain, the loss of this guitar in conjunction with her decision to get a divorce has brought the estranged pair of Love and Cobain back together… Love and Cobain….now that’s a set of last names that throws us back to the glorious grunge days of the 90’s.

    The legal process will soon shed light on who is entitled to the famous instrument.  Stay tuned for a correlating post that will be outlining how the Canadian legal system deals with legal rights and ownership of gifts in the process of a separation.  Please note the above information is not legal advice of any kind,  the information quoted was used from online news sources, and you should be sure to speak to a qualified toronto family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

  • “The Litigation Version of 50 Shades of Grey”: How Your Conduct and Online Presence May Not Be Relevant in Custody and Access Cases
    Fifty-Shades-of-Grey

     

    A parent’s conduct is only relevant to custody and access cases if it affects the parent’s ability to care for the child and meet their needs (Durham v Robertson (1998), 79 ACWS (3d) 958.) So what happens when your ex-partner drags up something from your past? How about an embarrassing post you made online? What privacy are you afforded? With social media playing such a large role in our daily lives, privacy is hard to come by. But before you start taking screen shots of your ex-partner’s Facebook posts and Twitter account in order to embarrass them in court, maybe take a second thought.

    In the recent case of S(J) v M(M), a Father brought a motion for primary residence of the older child, and expanded access of the younger child. The Father attached a number of explicit images of the Mother and sexually graphic text conversations to his materials. His reasoning for doing so was speculation from the Father’s counsel that the Mother must have spent so much time “sexting” in 2013, that “possibly she neglected their son (para 28(c)).” This was not received well by Justice Pazaratz, who set out to make a point in his decision: “nasty doesn’t work… nasty won’t be tolerated (para 30&31).”

    Justice Pazaratz’s no-nonsense (and rather entertaining) decision laid out the instances where social media has helped the courts:

    “Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:

     

    1. Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
    2. Intimidating and threatening behaviour often becomes self-evident in texts.
    3. A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
    4. It’s quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them (para 12.)”

     

    It should be noted that the images and text messages in S(J) v M(M) were retrieved from the Mother’s cell phone, and were not posted publicly by the Mother. In contrast, the Mother in M(KL) v B(J) 2013 BCSC 2041 provided a number of screenshots from the Father’s Facebook page as evidence of what the Father was actually doing when he was supposed to be exercising access with their chid. The Court held that these screenshots were admissible as evidence because they were relevant to the parenting question in the case and they were the Father’s own words provided to his peers publicly. The court concluded that the Father’s Facebook postings were not “truly private” communications and he could have no real expectation of privacy (para 9).

    For Justice Pazaratz, the embarrassing evidence dredged up in S(J) v M(M) was proof of just one thing: “the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life. Big deal (Paras 15 and 16).” Furthermore, Justice Pazaratz brings this Father and his counsel back into the 21st century, reminding us that “all of this smacks of a puritanical double standard. The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent. That kind of hypocrisy is a thing of the past (para 32(d)). ” Ultimately, Justice Pazaratz ruled the Father’s “evidence” as inadmissible, and denied his motion.

    As entertaining as Justice Pazaratz’s decision may be, his message rings load and clear – do not provide the court with embarrassing evidence in a custody/access case unless it is truly relevant to one’s ability to parent. Or, in the case you do decide to provide explicit information to the court, being polite about it and using some discretion may be to your benefit: “The Applicant could have collectively referred to them as ‘a lengthy exchange of sexually explicit messages.’ Instead, the Applicant felt it was necessary to file about 89 full page colour enlargements of the texts. The litigation version of 50 Shades of Grey (para 28(b)).”

    The moral of this story is twofold: beware what you choose to share with the court of your ex-partner’s online presence or personal conduct. Embarrassing them will not grant you an advantage in court and runs the risk of being unappreciated by the Judge presiding.  Secondly, beware what you make available about yourself online. If you post something embarrassing or unbecoming that can be seen as relevant to your ability to parent, you may regret it, as that brief moment in social media time could potentially have a negative impact in the future.

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

  • How Is Division of Property Handled During a Divorce?

    Division of property can be a rather complex and complicated manner as part of a divorce proceeding. The Family Law Act contains the set of specific methods and procedures used to divide property between divorcing couples. In Toronto, this is not just a simple manner of dividing up individual assets, but rather requires going through a process known as equalization of net family property. Property, in this context is referred to any type of asset which was acquired during the marriage and includes real estate, bank accounts, stocks, bonds, vehicles, pensions, and more.

     

    In addition, the total liabilities the couple has accumulated is examined, since this value is subtracted from the gross total value of all assets to arrive at the net total value of all assets. Equalization requires examining all assets, whether they were acquired individually or jointly during the marriage. Further, liabilities are examined in the same manner, as to whether they are individual or joint liabilities.

     

    To illustrate how equalization is carried out, one person has acquired individual assets valued at $50,000 and liabilities of $10,000 while the other person has acquired individual assets valued at $75,000 and liabilities of $20,000. The first person’s net assets would amount to $40,000 and the second person’s net assets would amount to $45,000. Since there is a variance of $5,000, the second person would essentially owe the first one $2,500 in this basic example.

     

    However, joint assets and liabilities must also be considered and evaluated. This is where things often become more complex. For instance, what happens to the martial home, if it is owned or being purchased? Does the divorcing couple sell it and split the proceeds or does one person reimburse the other for their interest in the property? Further, in cases where there are minor children involved, there can be specific stipulations as to how property will be divided and when.

     

    Dividing up property, assets, and liabilities can quickly turn into a nightmare, further adding to the emotional stresses of divorce. In order to ensure you receive a fair and satisfactory division of property settlement, it is highly recommended you seek advice and representation from a qualified and experienced family lawyers in Toronto, who specialize in family law.

     

    Going through a divorce is often a very stressful and emotional period of time. You might overlook certain assets or liabilities and your lawyer is there to help ensure asset and liability is included in the division of property settlement. Further, your Toronto family law firm offers several different cost effective methods using alternative dispute resolution for reaching amicable and mutually acceptable division of property settlements. These methods potentially help avoid placing you into a position, where the judge and court decides how property and assets are divided between you and the other party.

     

    Keep in mind the above information is for reference purposes only and should not be used as actual legal advice. For professional legal advice and assistance with your divorce and the division of property settlement, contact Kain & Ball Family Law Lawyers now at 647-499-4888. We have the expertise and knowledge to help you obtain a satisfactory settlement agreement.

  • Are Child Support Payments Fixed Once Established by the Court?

    One common misconception divorcing parents have is in regards to child support payments ordered by the court. Many divorcing couples are under the impression once the child support payments are established by the court, they are fixed until such time the child reaches the age of majority or receive their first post-secondary degree.

    This is not the case, and child support payments can be adjusted, modified, and changed at any point, after the court determines and establishes the initial support payments. One common situation where a change in support payments would be needed, is in cases where the payor’s income changes. If the payor has been with their current employer for several years, chances are they are going to get a pay raise or promotion with a higher salary. On the other hand, if the payor’s employer is downsizing or goes out of business, they may not be able to find a job earning what they were at their previous employer.

    Another common situation is where the recipient parent was a homemaker prior to the divorce. After the divorce, they decide they want to return to school to complete job retraining courses or earn a degree. Once they complete their education and reenter the job market, they will be earning income and would be responsible for contributing more towards the children’s expenses, which was more equally proportionate to the payor’s earnings.

    In cases where the recipient parent was working prior to the divorce, they could also receive a pay raise or get a promotion with a higher salary, just like the payor. Again, the change in income between the time the child support payment order was put in place and now, would warrant a review by the courts to determine if there should be a change in the payor’s amount.

    A Change in Child Custody/Access Can Affect Support Payments

    In situations where there is a change in child custody/access, which results in the change in how much time each parent spends with their children, changes in support payments may be warranted. For instance, initially, the custodial parent had the children the majority of the time and the other parent (payor) only had the children on the weekends. However, now the payor has the children throughout their children’s entire summer school break. Since they now care for the children more than they did before, they have the right to ask for a modification to support payments.

    Am I Required to Report Changes to the Court?

    Most of the time, it is the responsibility of each parent to report changes in income and custody/access to the court. It can be beneficial to request a hearing with the court, with assistance from a Toronto Child Support lawyer, if there are changes in income or child custody/access. Granted, these changes could benefit the custodial parent in some cases and the noncustodial parent in others.

    There are times when one parent chooses not to inform the court of changes in income and that could have serious consequences, should the other parent discover their ex-spouse is now earning more money. Either parent has the right to request a review of child support payments, in the event they discover the other parent is earning more income, even if you decided not to report it yourself.

    It is always in your best interests to report changes when they occur, regardless of whether they will benefit you or the other parent. The important thing to remember, is both parents are equally responsible for the financial support of their minor children.

    It is highly recommended to obtain assistance from an experienced Toronto family law firm, like Kain & Ball Family Law Lawyers Toronto, since child support review proceedings are sometimes as emotional and stressful as the initial divorce proceedings. Contact our law firm today at 647-499-4888 for further questions about child support, child custody and child visitation modifications, or assistance in requesting a review to modify existing orders.

  • To Snoop, or Not to Snoop?
    snoop

    Developments in personal technology are complicating legal disputes. Everyone has a Facebook account. Everyone texts. Most people do their banking online. Glimpsing into the private affairs of one another has become fairly easy and fairly commonplace – in other words, snooping. Is snooping ok? As far as the courts are concerned, no.

     

    In January 2012, the Ontario Court of Appeal ‘s decision in Jones v. Tsige addressed this very issue. The court recognized a novel tort claim, that of ‘intrusion upon seclusion.’ This newly adopted rhyming tort allows someone to sue another if damages arise from the invasion of their personal privacy.

     

    In Jones, Ms. Jones was in a relationship with Ms. Tsige’s former husband. Ms. Tsige paid child support to her ex-husband. However it was her belief that her ex-husband was paying the child support to his new partner, Ms. Jones, rather than the money going to the children. It just so happened that Ms. Tsige and Ms. Jones both worked at the Bank of Montreal, and so Ms. Tsige began to inspect Ms. Jones banking information to see if she was getting deposits from the ex-husband.

     

    Naturally, Ms. Jones wasn’t very happy about this. She felt that her privacy had been violated. The Ontario Court of Appeal agreed. They established a principle, one which spouses would be smart to take note of: One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

     

    What exactly are the implications of this rule for spouses who are separating? To be frank, it is yet unclear. This new tort has not been applied in any family law cases, but it has been considered in family law decisions. In C.(B.D.) v. B.(B.J.), a father was concerned about negative comments that his ex-wife was making about him while speaking on the phone with her son. In response, the father made audio and video recordings of the phone conversations without the mother’s knowledge. The father then tried to put forward these recordings as evidence against her.

     

    With a clear voice, the court said that evidence of this sort is inadmissible. Yes, the evidence showed a clear attempt of the mother to manipulate her child. But it was also obtained by invading upon her privacy, and it just so happened that there is a criminal prohibition to recording private conversations. To allow these recordings as evidence would be to allow evidence which was obtained by breaking the criminal code as well as the novel tort of invasion upon seclusion.

     

    Privacy is becoming increasingly valued in Canada – be wary with your electronics. If you do decide to snoop on your spouse, don’t expect the court to go easy on you. You may think that the boundaries in a relationship are flexible. In a court, they are formalized and rigid.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.

     

  • Separation and the Matrimonial Home
    separation

    Upon separation, both you and your partner may want to stay in the matrimonial (family) home. If you and your partner are married, both of you have an equal right to stay in the matrimonial home until it is sold or until there is a court order or agreement, even if the legal title to the property is only in one of your names. A spouse cannot sell or mortgage a matrimonial home without the other spouse’s written permission.

    A matrimonial home is defined as the home where the spouses ordinarily reside together at the time of separation. Parties can also have multiple matrimonial homes as this definition can apply to vacation properties, ski chalets, and cottages.

    However, these rules for matrimonial homes do not apply to unmarried or “common-law” spouses, because the definition of matrimonial home applies only to married spouses. An unmarried spouse does not automatically have the right to stay in the family home if it is not in his or her name. If one unmarried spouse owns the home they can sell or mortgage it without the other spouse’s permission.

    If you and your partner cannot agree on who should stay in the family home, you can use lawyers, a mediator or an arbitrator to help you decide, or you may have to go to court to have a judge decide. An order or agreement for exclusive possession grants one spouse use of the home and excludes the other. It should be noted that while the court can grant one party exclusive possession of the matrimonial home, the court cannot prefer one joint owner over another by forcing a sale of one party’s interest to the other. A sale of one spouse’s interest in a matrimonial home to the other spouse can only take place if both spouses have agreed to it.

    If you and your partner have children, the partner who has custody of the children will most often be the one who gets to stay in the matrimonial home. This is because it helps children to adjust to a new family situation if they are in a place and neighborhood that they already familiar with.

    The spouse who stays in the matrimonial home may have to pay occupation rent to the other spouse. Occupation rent is a measure to compensate the spouse who is forced to leave the matrimonial home despite having equity in it. However, there is an uncertainty of recovering occupation rent. There is no strict stance on how the courts handle claims for occupation rent; the court exercises their discretion and bases their decisions on the circumstances pertinent to each case. For instance, the court may offset the amount of occupation rent by the expenditures incurred in maintaining the matrimonial home.

    On an interim basis, a court may also provide a nesting order. Such an order leaves the children in the matrimonial home while the parents alternate periods of possession of the home.

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.

  • Married vs Unmarried Spouses: What’s the Difference?
    common

    Several misconceptions seem to exist with respect to the definition of a common-law relationship and the rights and obligations that flow from these kinds of relationships. This post intends to clarify two of the most common misconceptions:

    If my partner and I move in together, we are automatically considered common-law spouses.

    False. Section 29 of the Ontario Family Law Act puts forth specific criteria which must be met in order for a relationship to be deemed “common-law”. According to section 29, a common law relationship exists only where:

    1. The parties have been cohabiting as a couple for three years; or,
    2. The parties are in a relationship of some permanence and are natural or adoptive parents of a child.

    If my common-law partner and I separate, we have the same rights and obligations as married couples.

     

    This is also false. Unmarried and married spouses are subject to different rights and obligations upon a breakdown of the relationship. In Walsh v. Bona, the Supreme Court of Canada explained that the reason for this was that marriage involved a positive intention to share in the assets and liabilities accrued during the marriage, whereas this intention does not flow from the mere decision to live together.

     

    While both common law and married spouses are entitled to make a claim for spousal support following a separation, common law couples do not have the same rights and obligations with respect to property division.

     

    Generally speaking, and subject to certain exceptions, when married spouses separate, they are automatically entitled to share equally in the assets and debts accrued during the marriage. This entails that each spouse undertake an accounting of the assets and debts accrued during the marriage. The figure reached is called the spouse’s Net Family Property. The spouse with the higher Net Family Property is required to pay one-half of the difference between the parties’ NFP’s to the party with the lower NFP, called the Equalization Payment. Unmarried or common law spouses are not contemplated within this Equalization scheme.

     

    Despite the fact that common law spouses do not have the same automatic right to property as married spouses under the Family Law Act, they can potentially share in their spouse’s property by making a claim for constructive trust or Joint Family Venture.

     

    However, it must be remembered that these types of claims can be complex and difficult to prove successfully.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

     

  • Debt & Divorce
    debt

    Ever wonder what role debt has in your divorce? What are the implications of debt on the division of assets or support payable? Can debt work in your favor? This post will provide some insight on how debt factors into essential aspects of your divorce such as the division of property.

     

    In Ontario property is divided by equalizing the net worth acquired during marriage. This is referred to as equalization of the net family property. The net family property is calculated by subtracting the value of property at the time of marriage from the value of property at the time of separation. The spouse with the higher total must pay the spouse with the lower total half of the difference of their net family properties. So how does debt come into play? In calculating the net family property you are entitled to deduct any debts or liabilities existing at the time of separation from the total value of your property. In order to be allowed such a deduction, the court must be satisfied that an alleged debt is real.

     

    Alternatively, it is possible for a negative deduction to be made (an addition) when calculating pre-marital property if one spouse has only debts at the time of marriage. If someone enters a marriage with a $200K debt, pays it off throughout the marriage, and on the date of separation has $200K in assets, how much wealth did they accumulate? In such a scenario, the $200K debt that was paid off is actually considered an accumulation of wealth, making their final net family property $400K. In other words, if you pay off your debt which existed at date of marriage by the date of separation, the amount paid off must be added to your asset pile. The formula for equalization is essentially determining how much wealth was accumulated during the marriage.

     

    It is important to note that there are some instances in which a court may award a spouse more or less than half of the difference between the net family properties if doing otherwise would be unfair. One of such instances is when a spouse fails to disclose to the other their debts or liabilities existing at the date of marriage. Failing to disclose material debt can also be a basis on which a court may set aside a domestic contract which provides particular arrangements for the division of property. Another circumstance in which a court may award unequal division is when debts claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith. In such instances the courts will not allow intentional, reckless or bad faith conduct to reduce a spouse’s equalization entitlement. Yet another scenario is when one spouse has incurred a disproportionally larger amount of debt than the other in order to support the family. In these cases the courts may recognize the disproportionate contributions made between two spouses.

     

    Debts may also play a role when it comes to determining support payments. A spouse who has an unusually high level of debts that were reasonably incurred to support their spouse and children prior to separation, or to earn a living, may be permitted to pay less than the standard amount of spousal support required for their income level as it would cause undue hardship.

     

    It is clear that debt has significant implications on the division of property. At the end of the day, debt may work for or against you when it comes to equalization or support payments. The important thing to remember is that although debt can reduce an amount payable, the courts have the power to vary an equalization share or support amount and will do so when a party acts in bad faith.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.

     

  • Prenuptial Agreements: What You Should Know
    prenuptuals

    So you’re thinking about drafting a prenuptial agreement, or a ‘marriage contract’. Perhaps you’re wondering what sorts of issues the contract can address, and what will not be enforced by the courts. This blog post seeks to tell you a few things you should know.

    How do you make a Prenuptial Agreement or Marriage Contract?

    First things first – making the contract. Section 55(1) of the Family Law Act is exceptionally clear about creating a marriage contract. “A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.” If you and your spouse are discussing an agreement and shake on it, it will not be enforced by courts. If you and your spouse write an agreement but do not sign it, it will not be enforced by the courts. And finally, unless your written and signed agreement is witnessed by a third party, it will not be enforced by the courts.

    When can a Prenuptial Agreement or Marriage Contract be set aside?

     

    There are also grounds under which the courts will set aside properly made domestic contracts. The court has the authority to set aside either an entire contract or any section within one. Section 56(4) of the Family Law Act addresses the grounds upon which courts will do so. For instance, if you do not disclose all of your assets, debts, and liabilities to your spouse when the agreement is made, it can be set aside. To avoid this, it is important to make full and accurate financial disclosure; ideally by completing a Financial Statement which includes the estimated value of your assets.

     

    If you or your spouse do not understand the nature or consequences of the marriage contract, it can be set aside. Most people do not fully understand all of their rights and obligations under family law. It is therefore common for spouses to misunderstand the nature or consequences of a marriage contract. If you intend to create an enforceable contract, it is extremely important that both you and your spouse retain family law lawyers to provide you with independent legal advice and to fully explain all of the consequences of signing a marriage contract.

     

    If the marriage contract in any other way violates a rule of contract law, it can be set aside. You cannot be coerced into signing a contract. Unless you commit yourself to the contract consensually and free from coercion, it will not be enforced by the courts. Coercion or duress violate contract law and are therefore grounds for setting aside a marriage contract.

    What can you put in a Prenuptial Agreement or Marriage Contract?

     

    What sort of issues can a marriage contract deal with? Section 52(1) of the Family Law Act addresses the content of marriage contracts. In general terms, a marriage contract can address anything to settle the affairs of separated spouses – but this general clause has limits. More specifically, a marriage contract can outline how property will be divided or owned after separation or divorce. A marriage contract can address what the support obligations will be post-separation. It must be remembered that when it comes to children, courts make decisions based on the best interests of the child. Therefore, as Section 56(1) of the Family Law Act states, the court can ignore any provision of a marriage contract if doing so is in the best interests of the child.

     

    There are several aspects of separation that a marriage contract cannot address. For example, any provisions in a marriage contract outlining the rights to custody of or access to children is unenforceable. Any provision in a marriage contract which limits a spouse’s possessory rights to the matrimonial home is similarly unenforceable.

    Finally, as mentioned earlier, a marriage contract can address what the support obligations will be post-separation. Does this mean spousal support or child support? It can be both. However, as Section 56(1.1) of the Family Law Act states, the courts can ignore any provisions of a marriage contract which deals with child support if “the provisions is unreasonable having regard to the child support guidelines.” In other words, if you make one million dollars a year, and you and your spouse agree that child support should be $50 per month, the courts will likely ignore that provision because it flies in the face of what the child support guidelines demand.

     

    Hopefully this post has shed some light on the nature of marriage contracts. They can be very useful, but they must be extremely clear, and both you and your spouse must completely understand what you are getting yourselves into.

     

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.

     

  • Family Law Myths: What You Don’t Know About Family Law Can Hurt You.
    law-myths

    Most people know something about Family Law. After all, at one time or another, everyone has heard a “divorce story” from a friend or family member, seen something in TV or movies, or read something on the subject. From all these different sources, the information regarding Family Law in Ontario often gets lost, and common myths are perpetuated. This article is intended to clear up some of the most common misconceptions that people have about family law.

    Myth#1: A Common Law Relationship has all of the same rights as a Marriage.

    People often assume that once a couple has lived together in a common law relationship for a period of time, they automatically have all of the same rights as a married couple. This is incorrect. Unmarried spouses have no automatic right to the division of assets the way that married couples do. Sadly, often people do not realize that this is the case until the relationship is ending and it is too late to arrange one’s affairs in accordance with his or her intentions. That does not mean, however, that unmarried spouses are left without options. There are legal arguments that can be made in pursuit of a property claim; however it is often an uphill battle, and one that people in these circumstances sometimes do not have the time, energy, and resources to pursue.

    Myth #2: We just divide the assets in half, right?

    Wrong. Many people are under the impression that the only thing that has to happen with respect to property division is that any and all assets are divided equally between the parties. Property division in Ontario is done based on a formula. There are certain deductions and exclusions that are factored into that formula, and most people are completely unaware of these concepts. To complicate matters even more, there are certain exceptions which can apply depending on the way that people have chosen to arrange their finances over the course of their relationship. These decisions can significantly impact a party’s financial outcome. Often, people are completely unaware of the impact of their financial decisions at the time they are made, and suffer the consequences at the breakdown of the relationship.

    Myth #3: The kids are living with me, that means I have sole custody.

    One of the most common mistakes people make when talking about family law is to assume that custody and residence are one and the same. Custody deals with decision making, where as residence arrangements deal with where the children live. Parents can have joint custody of a child while that child lives primarily with one parent. This would mean that both parents, together, make major decisions
    about the child’s life; for instance decisions regarding religion, non-emergency healthcare, and education even though that child may live with one parent majority of the time.

    The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.


Family Law News

  • Best Friends and… Parents?: How these Co-Mommas have Changed the Declaration of Parentage Game

    When you hear the word “parents,” what comes to mind?

    “Parents” is a fairly broad term when you think about it: parents may be divorced, they may be a same-sex couple, they may have non-biological children that they care for… there is any number of unique combinations that fit the term “parents.”

    But, did you think of two best friends acting as parents to a child? Likely not. Best friends Natasha Bakht and Lynda Collins, self-proclaimed “co-mommas,” would like you to.

    Bakht and Collins are colleagues, neighbours, best friends, and thanks to the Ontario courts, now parents to a seven-year-old boy, Elaan. When Bakht chose to get pregnant by way of a sperm donor, Collins immediately offered to be her friend’s birth coach. When Bakht’s son, Elaan, was born, Collins upgraded her role from birth coach to “co-parent.” Collins assisted Bakht in all aspects of raising Elaan, who was born with severe disabilities.

    After several years of co-parenting, Bakht and Collins decided to ask the courts to grant them an unusual request: they wanted to both be legally regarded as Elaan’s mothers, despite not living together and not having a sexual relationship with one another. In other words, Linda wanted to legally adopt Elaan.

    Generally speaking, this is not an unusual situation – a mother or father with a new partner may apply for a “Declaration of Parentage” so that their partner is legally considered a parent of their stepchild. Bakht and Collins’ challenge was that they do not have a sexual relationship with one another, which is required for adoption.

    Thankfully, this has changed with the Ontario’s legislature’s acknowledgement that today’s families can be created in unique ways. On January 1, 2017, Ontario’s “All Families are Equal Act” came into force, and it requires that “co-parents” have a written agreement prior to conception. Bakht and Collins did not have such an agreement.

    Bakht and Collins petitioned the court to grant their unique situation an exemption- and it worked. November 2016, the court granted Collins parentage of Elaan. This means that Linda has the same rights as any other parent. She can make important decisions for Elaan, just as his natural mother, Bakht, does. Furthermore, they are permitted to grow their family if either woman does meet a romantic partner in the future. If their relationship ever falters, custody of Elaan would be treated as any other family break up would, with custody arrangement made through courts.

    Natasha and Linda’s efforts have created a wonderful precedent and paved the path for a further expansion of the definition of “parents.” Do you have a close friend whom you would co-parent with? If you do, your ability to have that person declared a parent to your child just became a little bit easier, thanks to Bakht and Collins.

    Should you find yourself in a situation where you are unsure of your parental rights, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced Toronto family law lawyers.

    All information in this post was found at https://www.cbc.ca/news/canada/ottawa/multimedia/raising-elaan-profoundly-disabled-boy-s-co-mommas-make-legal-history-1.3988464.

  • Reasons to Retain the Services of Family Law Lawyers in Toronto

    The most obvious reason to hire family law lawyers in Toronto is if you are getting ready to file for separation or a divorce. Divorce proceedings can be extremely stressful and full of uncertainties. Experienced divorce lawyers help alleviate your stress and provide you with accurate advice about potential outcomes and they always ensure that your interests are protected throughout the entire process.

    Aside from filing for separation and divorce, there are other situations where you may need legal advice and counsel from a family law lawyer. Family law encompasses more than just the dissolving of a marriage as there are issues such as child custody, access, child support, spousal support, division of property, etc. Let’s look at several of these areas in more detail to see how a family lawyer could benefit you.

    Child Custody

    If you have a minor child while legally married, in a common-law marriage, or out of wedlock, both parents have specific rights. In recent years, involvement by both parents is highly regarded by the courts, so long as it is in the child’s best interests. If you have concerns about the custody of your child and your legal rights, obtaining help from a family lawyer is beneficial, and at the same time, helps protect your rights as the child’s parent. Following suit with custody there is also the issue of deciding who will make the major decisions regarding education, healthcare etc. Some parents have the ability to make decisions solely, whereas others require permission from the other parent before making any major decisions for the child.

    Reasons to Retain the Services of Family Law Lawyers in Toronto

    Access

    People often assume that custody and access are the same things. However, though they are interrelated they mean different things. Access deals with the amount of time each parent is allowed spend with their child, this is sometimes a decision made during mediation or by the courts. There are circumstances where parents bring forward an access schedule that they have both agreed on, however in many cases this can be an ongoing issue and point of contention for the separating parties. In any case the bottom line for determining access deals with what is in the child’s best interests, sometimes that requires the assistance of legal counsel.

    Family lawyers aid in attempting to reach amicable access schedules.  If there is a current visitation schedule that the other parent is not adhering to, or a parent feels the schedule should be reviewed for potential changes, these are two more areas lawyers can lend their expertise and guidance.

    Child Support

    The courts expect both parents, regardless of whether they were legally married, to contribute towards their child’s financial needs for food, clothing, shelter, healthcare, and education. Simply because one parent may not want you in the picture, so to speak, does not mean you do not have financial obligations. In addition, people’s financial situations do change, where they might find themselves unemployed, face a reduced income, or receive a promotion with a higher salary. Any substantial changes in circumstance should be reported to your lawyer to ensure that you and the other parent are always paying a fair support amount.

    As you can see, there are other areas of family law divorce lawyers practice and can provide expert counsel. To discuss any of the above matters or other family law issues in greater detail, please feel free to contact Kain & Ball Family Law Lawyers in Toronto at 647-499-4888 today to schedule a consultation appointment.

  • Tips for Divorced Parents and Celebrating the Holidays

    The holidays can be a stressful time of year for everyone. Being a divorced parent can add to tension and stress if you are trying to work out schedules with your ex-spouse and parenting time. To help alleviate stress and tensions between parents, and to ensure that your kids have a positive holiday experience, consider the following suggestions.

     

    1. Get input from your children.

    Far too often parents will decide what they think is best when making visitation schedules for the holidays. They might feel like the children have to spend time equally between both households or have timing issues where one parent needs to have the kids at a specific time or day for other holiday activities or events.

    The thing to remember is what you and your ex-spouse deem as fair, might not seem like it or be the best for your children. It is better to sit down and talk to your children and find out how they want to spend the holidays. In addition, try to remain flexible with plans, in case things change.

    1. Should parents celebrate the holidays together or apart?

    Depending upon the nature of the divorce, and the amount of time that has passed, some parents celebrate certain holiday events together as a family. You should only consider this if both you and your ex-spouse can keep you feelings in check and are amicable towards each other. Otherwise, it is better for you and your children to celebrate holiday events apart for the least amount of tension.

    1. Inform your children of the scheduling arrangement.

    Once you have decided on visitation schedules for the holidays, it does not hurt to make a calendar and use different colours for the times your children will be with you and their other parent. You can also put the times of other holiday activities and events on the calendar. Make sure to give a copy to the other parent and hang the calendar in an area where your kids can easily see it. Not only will this help you and your ex-spouse stay on track with the visitation schedule, but also makes it easier on your kids so they know when they will be with each parent.

    1. Plan your visit with help from your kids.

    One mistake some parents can make is to decide what they want to do with their kids for every single waking moment. This can lead to your children becoming agitated, irritable, and unhappy. Rather, remember to be flexible with them, just like you were when making the visitation schedule. Let them have a say in how they want to spend time with you. It can just as rewarding for them to have time to do fun, yet simple things, like staying up late and watching movies with you.

    If you are having difficulties working out a holiday visitation schedule with your ex-spouse, do not hesitate to contact Kain & Ball Family Law Lawyers at 647-499-4888 and speak with one of our Toronto family lawyers for legal advice and assistance.

  • Common Questions about Child Custody and Child Access

    When children are involved in separation and divorce proceedings, parents often have several questions in regards to child custody and child access. Our Toronto family law firm understands how child custody and access issues can further add to the stresses of getting divorced. Below, we provide a general overview of some of the more frequently asked questions.

    Is there a difference between access and custody?

    Child access refers to the amount of time each parents gets with their children. In some cases, one parent may have the children the majority of the time, while the other parent has access to the children on weekends. In other cases, parents split access more equally, where both parents get about the same amount of time with their children.
    Child custody refers to the parent’s ability to make major decisions for their children. Joint custody is where both parents have an equal say in making major decisions for their children. Sole custody is where one parent makes all or most of the major decisions and does not have to consult with the other parent.

    Is access and custody determined by the courts?

    In amicable divorce situations, the parents might be in agreement about child access and custody arrangements prior to appearing in court. While the Judge will review and listen to what agreement the parents have arrived at, the Judge does reserve the right to make modifications.

    In addition, the Judge evaluates what is in the best interests of the children, not necessarily what each parent wants. In reaching a decision regarding access and custody, the Judge will consider the following:

    • The stability of the children and their living arrangements.
    • The ability of each parent to properly care for their children, both currently and in the future.
    • The wishes of the child, depending on the age of the child and the circumstances.
    • The relationship between the child and each parent.
    • Whether there have been any known violent incidents or abuse towards the children.

    What if one parent is refusing to adhere to the court ordered access and custody agreements?

    Sometimes, one parent might refuse to allow the other parent access and custody to the children. It is best in these situations to work with your Toronto family law lawyer and the courts to resolve access and custody problems. The courts could modify and change the original agreements and impose penalties against the other parent.

    DISCLAIMER:  Please keep in mind the above information is provided for reference purposes only and should not be used as actual legal advice. For further assistance and actual legal advice in regards to child custody and child access issues, or other family law matters, contact Kain & Ball Family Law Lawyers by calling 647-499-4888 now to arrange a no-obligation consultation appointment.

  • Kain & Ball Named Most Trusted Family Law Firm of the Year: Ontario
    Основные RGB

    We are proud to announce that Kain & Ball has been selected as Ontario’s Most Trusted Family Law Firm of the Year in 2013 by Acquisition International.

    Read the press release below:

    2013 Legal Awards Press Release


Kain & Ball Family Law
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