Out of Time? Limitation Periods in the Family Law Context.

“There is no limitation period for bringing the proceeding for a declaration setting aside a marriage contract, whether as a stand-alone matter or if the proceeding also claims other family law relief. The other relief remains subject to the applicable limitation periods… In this case, those limitation periods are six years for the husband’s equalization claim, and there is no limitation period for his spousal support claim.”[1]

 A recent Court of Appeal decision, Kyle v Atwill, confirmed that there is no limitation period for asking to set aside a marriage contract (popularly referred to as a “prenup”). Limitation periods are important in all areas of the law as they determine whether a party is within the applicable limitation period or out-of-time in bringing, among other things, lawsuits, actions, applications, claims or requests.  

In Ontario, two statutes govern limitations issues in the family law context: the Limitations Act and the Family Law Act. For example, according to the Family Law Act, there are three limitations periods for applications for equalization of net family property. In particular, such applications shall not be brought after the earliest of: (a) 2 years after the day the marriage is terminated by divorce or judgment of nullity; (b) 6 years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; (c) 6 months after the first spouse’s death.[2] While these three limitation periods exist with respect to the parties’ property issues, there are no limitation periods under the Family Law Act for applications for spousal support. Instead, the Limitations Act states that there is no limitation period for bringing a proceeding to obtain support or to enforce a contract providing for support under the Family Law Act.[3] However, given that the Family Law Act is silent as to the limitation period that applies when a party is asking to set aside a marriage contract, the Court was tasked with determining which provisions of the Limitations Act, if any, apply to these circumstances.

Applying the Limitations Act, the Court determined that an application to set aside the marriage contract is a proceeding for a declaration or declaratory relief. The Court confirmed that while there is no limitation period that applies to the proceeding for a declaration or declaratory relief, the relevant limitation periods continue to apply to the substantive or consequential remedy that a party seeks against the other party. To illustrate the point, the Court stated at paragraphs 54-55:

[54] Applying the principle to this case, where the husband seeks a declaration that would remove a significant obstacle to his claims for equalization and for spousal support, that declaration is subject to no limitation period… The limitations governing the consequential relief he seeks, namely equalization and support, are the periods applicable to those forms of relief: six years from the date of separation for equalization, and no limitation period for support.

[55] Conversely, had the husband brought his equalization claim seven years after the date of separation with no reasonable possibility of reconciliation, and therefore out of time, the fact that he would be able to obtain a declaration setting aside the marriage contract would not mean that his equalization claim could proceed. That claim would remain time-barred, subject to the power of the court to extend the time under s. 2(8).

The Court’s analysis of the limitation issue is significant for the family law context. The decision appreciates both the philosophy and interplay of the Family Law Act and the Limitations Act. Given the importance of limitation periods and their impact, parties must stay mindful of the limitation periods that apply in their family law matters.

[1] Kyle v Atwill, 2020 ONCA 476 at para 57 [Kyle v Atwill].

[2] The Family Law Act, RSO 1990, c F 3, s 7(3). See also the Limitations Act, 2002, SO 2002, c 24, Sched B, s 19(1)(a).

[3] The Limitations Act, s. 16(1)(c). 

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Jurisdiction, Religious Divorce and Foreign Divorce in Canada

In our globalized world, people are increasingly living, working or travelling to countries other than the ones in which they were born or raised with a newfound ease, desire and frequency.

Given that the worldwide spread of the coronavirus has disrupted many people’s travel routines, both business and/or personal ones, many are considering their life’s circumstances and reflecting on their living conditions. In addition to deciding whether they are content with their current living arrangements, their place and country of residence and what place they want to call “home”, people have started to think about their home life and the state of their marriage.

As a result, family lawyers are receiving an increased number of calls about the divorce process and how one can obtain a valid divorce. In addition, common law spouses contemplating separation are inquiring about the validity of their religious or foreign divorce and its impact on the rights of their common law spouses. 

According to s. 3(1) of the Divorce Act, a court has jurisdiction to hear a divorce proceeding “if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”[1] 

A divorce proceeding is defined as a proceeding where “either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a custody order.”[2] However, in order to obtain a divorce in Canada, there must have been a breakdown of the marriage.

The breakdown of the marriage may be established in one of three ways:

  1. the spouses have been living separate and apart for at least one year;
  2. the spouse against whom the divorce proceeding is brought has been physically or mentally cruel to the spouse seeking the divorce; or
  3. the spouse against whom the divorce proceeding is brought has committed adultery. While one of these three criteria must be satisfied, living “separate and apart for at least one year” is the criterion most often relied on to establish the breakdown of the marriage. 

The divorce proceeding in Canada is not a religious divorce proceeding. In fact, Canada does not recognize religious divorces that occur in Canada as valid civil divorces. That being said, a religious divorce in Canada has its own importance for the parties to ensure that there is no barrier to religious remarriage.

However, if a party obtains a religious divorce in another jurisdiction outside of Canada and the religious divorce is recognized by that foreign jurisdiction, the divorce will also be recognized in Canada provided that the party was resident in the foreign jurisdiction for at least one year immediately preceding the application for a divorce.  

The residency requirement is a common theme that is both relevant to the court’s jurisdiction for a divorce proceeding commenced in Canada and to the determination of whether the foreign divorce, including a foreign religious divorce, will be legally recognized in Canada. Even if the religious divorce is recognized by the foreign jurisdiction, the residency requirement must be satisfied for the religious divorce to be legally recognized in Canada. If one of the spouses was not ordinarily resident in the foreign jurisdiction for at least one year before starting the divorce application, then the foreign divorce will not be recognized in Canada. 

The recognition of foreign divorces is based on the principle of reciprocity. Given that Canada expects the divorces granted by its Canadian courts to be recognized by other countries, the Divorce Act similarly provides for the recognition of foreign divorces. It is only in rare circumstances that a properly obtained foreign divorce should not be recognized as valid. However, given the importance of “ordinary residence”, each case will turn on its facts and the application of the case law to inform the analysis and determination of a party’s “ordinary residence”.

[1] Divorce Act, RSC, 1985, c 3 (2nd Supp) [emphasis mine]. 

[2] Ibid, s 2(1). 

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Words of Wisdom: Advocacy in the Family Law Context

“The famous American trial lawyer, Louis Nizer, once wrote that ‘[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.’ This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart.”[1]

In the case of Alsawwah v Afifi, a motion was brought for exclusive possession of the matrimonial home. Despite the fact that the motion only dealt with this one issue, Justice Kurz observed that one of the parties chose to “attack the other’s character and drag collateral issues into the case with a rhetorical fierceness that one would expect of a mixed martial arts cage match.”[2] 

In response and albeit to a lesser degree, the other party who originally refrained from this type of “advocacy” felt the need to respond in kind in his reply materials. In this context, Justice Kurz described the oratory in the materials as excessive, distracting, unnecessary and unhelpful in resolving the sole issue in the motion. As a result, under the section titled “A Word or two About Rhetorical Excess in Family Litigation,” Justice Kurz dedicated an entire part of his decision to sharing words of wisdom about advocacy, which are meant to assist parties, counsel and the profession. 

At paragraph 108, and “in the hopes of lowering the rhetorical temperature” of future materials, Justice Kurz repeated “essential facts, often stated by [his] colleagues at all levels of court, but which bear constant repetition.”[3] These essential facts serve as an important reminder and words of wisdom about the art of good advocacy. Quoting Justice Kurz, they are as follows:

  1. Evidence regarding a former spouse’s moral failings is rarely relevant to the issues before the court.
  2. Nor are we swayed by rhetoric against the other party that verges on agitprop.
  3. Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for “context”.
  4. Exaggeration is the enemy of credibility. As it is often said, one never gets a second chance to make a first impression. If that impression, arising from a parties’ materials or argument, is one of embellishment, that impression will colour everything that emanates from that party or their counsel.
  5. Affidavits that read as argument rather than a recitation of facts are not persuasive. They speak to careless drafting.
  6. Similarly, hearsay allegations against the other side which fail to comply with r. 14(18) or (19) are generally ignored, whether judges feel it necessary to explicitly say so or not.
  7. A lawyer’s letter, whatever it says, unless it contains an admission, is not evidence of anything except the fact that it was sent. The fact that a lawyer makes allegations against the other side in a letter is usually of no evidentiary value.
  8. Facts win cases. A pebble of proof is worth a mountain of innuendo or bald allegation.
  9. Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party’s failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
  10. One key to success in family law as in other areas of law is the race to the moral high ground. Courts appreciate those parties and counsel who demonstrate their commitment to that high ground in both the framing and presentation of their case.  
  11. While dealing with that moral high ground, many capable counsel advise their clients against “me-too” ism. One side’s failure to obey a court order or produce necessary disclosure does not give licence to the other side to do the same. Just because the materials of one side are incendiary or prolix, that does not mean that the other side is required to respond in kind. Judges are usually aware when a party has crossed the line. Showing that you or your client does not do the same is both the ethical and the smart thing to do.[4]   

Justice Kurz clarified that these comments should not be construed as minimizing the type of “resolute advocacy” that is often valued, necessary and expected of the best lawyers. Instead, they are words of caution that “rhetorical excess is the enemy of good advocacy.”[5] As a result, it is important to remind parties, counsel and the profession that the lawyer’s “role as advocate should often be as rational counsel not flame-throwing propagandist.”[6]  To be a great advocate, it is crucial to keep these words of wisdom on the dos and don’ts of strong advocacy in mind. 

[1] Alsawwah v Afifi, 2020 ONSC 2883 at para 1 (Alsawwah v Afifi). 

[2] Ibid at para 2. 

[3] Ibid at para 108.

[4] Ibid at para 108.

[5] Ibid at para 109.

[6] Ibid at para 107. 

Toronto boutique family law firm dedicated to resolving your family law case justly and effectively, restoring your balance and dignity. Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.

Enforcing Contracts: The Treatment of Maher in Canadian Courts

“These cases treat Mahers like any other contract… The outcome of each case depends, just as in any other case of contractual interpretation, on the objective intentions of the parties as ascertained through the particular wording of the Maher when read as a whole and considered in light of its factual matrix. As such, evidence about the religious and/or cultural significance of the Maher to the parties could conceivably be relevant to the factual matrix in determining their objective contractual intentions. In the final analysis, however, the court’s role is confined to enforcing only those undertakings that fulfil the requirements of a civil domestic contract under provincial legislation.”[1]

The Ontario Court of Appeal in Bakhshi v. Hosseinzadeh[2] has described the Maher (also spelled Mahr, Mohr and Mehr) as an Islamic marriage contract. While some cases have inaccurately called it a “religious” agreement or a dowry, the Maher is “a formal requirement of all Muslim marriages…in which an agreement is entered into prior to marriage concerning a sum of money that a groom promises to pay his bride in the event of a marriage breakdown or death.”[3]  As a result, Canadian courts have considered the proper treatment of the Maher. In doing so, certain basic principles and considerations have come to light through the developing case law on this issue. 

First, courts are likely to enforce the Maher under Ontario law if it satisfies the elements of a valid civil contract. In the case of Akkawi v Habli,[4] the judge found the Maher to be a valid contract, which was enforceable in Ontario. In making this finding, he noted: “the agreement was in writing, signed by both parties, witnessed and entailed clear obligations. I find that both parties believed the contract to be binding and at no time did either party testify that they did not understand the terms of the agreement or that they misunderstood when the obligation crystallized. Both parties testified that they relied on the marriage contract as it was a pre-condition before entering into their marriage.”[5]

Second, given that each contract has its own terms, the courts will consider “the objective intentions of the parties through the particular wording of the Maher when read as a whole and considered in light of its factual matrix.”[6] Like all family law cases and cases involving contractual interpretation, each case will turn on its own facts with a consideration of the form, content and context of the agreement. 

Third, the payment owing under the Maher will be part of the calculation of the parties’ net family property unless there is an express agreement by the parties in the Maher stating otherwise. As such, the courts will consider whether the Maher has an explicit term where the parties have agreed to exclude the payment owing from the net family property calculation. In the case of Khanis v Noormohamed,[7] the payment owing under the Maher was excluded from net family property precisely because the parties agreed that the payment of the agreed sum of money by way of Maher “shall be in addition and without prejudice to and not in substitution of all [of the husband’s] obligations provided for by the laws of the land.”[8]

Fourth, “absent any evidence of an objective intention at the time of the contract to treat the Maher differently, the payment is treated under the Family Law Act like any other payment obligation owing between spouses.”[9] To that end, the payment owing under the Maher has been described as “a demand obligation that is a debt for the husband on the date of separation, an asset for the wife on the date of separation; [with] the wife [being] entitled to collect the debt owed to her.”[10]

As a result, whether the Maher will be found to be a valid and enforceable contract will turn on the facts and merits of each case. Like any case involving contractual interpretation, the courts will consider the form, content and context of the contract in deciding whether it should be upheld and enforced. 

[1] Bakhshi v Hosseinzadeh, 2017 ONCA 838 at para 22.

[2] Ibid.

[3] For a full discussion and emphasis on how “marriage in Islam…is a civil contract” see Fareen L. Jamal, “Enforcing Mahr in the Canadian Courts” in Law Society of Upper Canada, Six-Minute Family Law Lawyer, 2015. 

[4] Akkawi v Habli, 2017 ONSC 6124 (“Akkawi”).

[5] Ibid at para 228.

[6] Ibid at para 225.

[7] Khanis v Noormohamed, 2009 CanLII 27829 (ON SC).

[8] Ibid at para 74 [emphasis added].

[9] Akkawi, supra note 4 at para 225.

[10] Ibid. 

Toronto boutique family law firm dedicated to resolving your family law case justly and effectively, restoring your balance and dignity. Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.

What Impact does COVID have on Existing Parenting Arrangements?

“There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child. On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times…” 

– Justice Pazaratz[1]

While COVID should not be used as an excuse to reduce one’s support obligations absent a factual and evidentiary basis, COVID concerns should similarly not be used as a justification for denying parenting time where there is no specific concern that a child’s health or someone in the child’s household is at risk.

As Justice Pazaratz noted in the well-known case of Ribeiro v Wright, “[i]n most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to.”[2] However, if there is some specific concern, the courts will consider whether the concern warrants a change to the existing parenting arrangements in accordance with the best interests of the child. Each case will turn on its own specific facts. 

Making every effort to work with the other parent is expected

Absent a specific concern, the fact that a child must go from one parent’s household to another is not a basis for ignoring parenting arrangements or applying for a variation. Instead, courts have stated that “each parent is expected to show some flexibility by making every effort to work with the other parent and to comply with recommendations of public health officials regarding things such as self-isolation, physical distancing, and proper hygiene.”[3] 

Courts expect parents to cooperate and to act in the best interests of the child instead of engaging in unilateral self-help behaviour. Courts will consider whether the “parents have made good faith efforts to communicate; to show mutual respect, and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.”[4]

Failure to adhere to the recommendations could be a basis for varying an existing parenting order

A parent’s failure, inability or refusal to adhere to the coronavirus recommendations of public health officials could be a basis for varying an existing parenting order. This requires specific evidence or examples of behaviour or plans by the other parent that are inconsistent with COVID-19 protocols. On the other hand, the parent responding to these claims will need “to provide specific and absolute reassurances that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.”[5]  

Where arrangements need to be reconsidered in light of case-specific evidence such as one parent not adhering to the COVID recommendations of public health officials or where one household is subject to heightened risks associated with COVID, courts will consider how those risks can be minimized in a manner consistent with the best interests of the child. In this regard, realistic time-sharing proposals which fully address COVID 19 considerations in a child-focused manner will be taken into account. 

In the end, COVID concerns will not automatically result in a suspension or decrease in parenting time. Instead, courts will address these issues on a case-by-case basis. A parent’s parenting time will not be curtailed absent case-specific evidence that this is warranted and in the best interests of the child. 

[1] Ribeiro v Wright, 2020 ONSC 1829 (CanLII) at paras 7-8 (“Ribeiro v Wright”). 

[2] Ibid. at para 11.

[3] CGR v JLR, 2020 BCSC 790 (CanLII) at para 20. 

[4] Ribeiro v Wright at para 23.

[5] Ibid at para 21.

Toronto boutique family law firm dedicated to resolving your family law case justly and effectively, restoring your balance and dignity. Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.

COVID’s impact on child or spousal support: The worst excuse or the best support for a reduction of payment obligations

“In general, the lay off of an employed person due to COVID 19 closures and that person’s receipt of Employment Insurance could well provide a compelling reason to temporarily reduce child support obligations. The respondent is not that person.”

– Justice Mackinnon

That being said, the question remains: are you “that person”? The answer: “it depends.”

The worldwide impact of the coronavirus pandemic is well-known. These unprecedented and challenging times have taken a significant toll on people all across the world. In addition to the increased health-related worries and anxieties that mirror the ever-growing number of confirmed cases, given the coronavirus’ devastating economic impact, many families are also experiencing financial insecurity and instability due to job losses and lay-offs.

As a result, many families are trying to see what financial relief they can obtain to either assist with the ongoing payments towards their monthly obligations and/or to suspend or minimize the quantum of their various monthly obligations. Unsurprisingly, in this context, both the recipients and payors of spousal support and/or child support are considering what impact, if any, the coronavirus pandemic will have on their monthly obligations and entitlements.

What impact does the coronavirus pandemic have on monthly obligations and entitlements?

To quote the usual lawyerly answer, “it depends.”

There is not a one-size-fits-all response to the impact of the coronavirus on child support and spousal support obligations given that each case turns on its own facts. In addition to the court’s specific fact-finding process, there are several principles that should be kept in mind:

#1. Court orders must be obeyed

As judges have repeatedly stated, court orders are not suggestions. They are orders. They are to be respected. Parties should not be required to bring motions or threaten to bring motions to expect compliance.

#2. Make best efforts to ensure compliance

If due to unforeseen circumstances beyond one’s control (i.e. not an intentional self-induced change), the ability to obey a court order is genuinely affected, one must first make best efforts to ensure compliance, and if the matter returns to court, to come to court with “clean hands.” In the context of someone whose income is reduced as a result of the coronavirus pandemic, best efforts and clean hands would require first trying to avail oneself of the various government relief programs such as the Wage Subsidy Program or the Canada Emergency Response Benefit. It is not enough to simply rely on the pandemic to completely shirk one’s responsibilities especially if there are financial options and other avenues that can be pursued. “Other avenues,” for example, could include the receipt of a new job offer or employment opportunity despite these difficult times.  

#3. Try to reach a temporary agreement outside of court

If there is a change in one’s circumstances that would warrant a temporary reduction in one’s support obligations, best practices would include explaining the financial situation to the child support and/or spousal support recipient in an effort to reach a temporary agreement without the involvement of the courts. Proceeding to court by way of an urgent motion should be the avenue of last resort.

#4. If you do go to court, the court will make its findings based on the evidentiary record

Whether you are bringing or responding to an urgent motion for support, the court will make its findings based on the evidentiary record. However, as part of its gatekeeping function, the court retains the discretion in determining whether the issues raised in the motion are “urgent”.

While the issues might be important, they might not necessarily meet the threshold of urgency. Similarly, whether the pandemic has played a role in one’s ability to pay support will also be fact-specific. As one judge noted in a recent case, “In general, the lay off of an employed person due to COVID-19 closures and that person’s receipt of Employment Insurance could well provide a compelling reason to temporarily reduce child support obligations. The respondent is not that person. His income has not gone down or been discontinued on account of COVID 19. Given his area of work as an IT Consultant it cannot simply be presumed that he has been and is unable to obtain any contract work now.”

Meanwhile, in another case, the court found that “Absent the COVID-19 pandemic, based on this information, the court would have assessed the [payor’s] annual income at $40,000. However, the court is very aware that the pandemic is having a detrimental financial impact on taxi drivers and will make a more conservative estimate of the [payor’s] income on a temporary basis. On a temporary basis, the court will impute the [payor’s] annual income at $25,000.” The court will determine the cause of the reduction of the payor’s income and the payor’s ability to earn an income. In its consideration of whether the status quo should remain or whether the support amount should be reduced, the court will also determine the appropriate amount (i.e. quantum) of support that should be paid.

This serves as a reminder that the impact of the coronavirus on child support and/or spousal support obligations, if any, will depend on the facts of each case. However, one should always take their child support and spousal support obligations seriously. The courts will be wary of those who try to rely on the coronavirus pandemic to shirk their responsibilities especially where the facts show that the claim is baseless and meritless given the evidentiary record. The key takeaway is that the coronavirus should not be used as an excuse. Without an evidentiary basis, the coronavirus pandemic will not support the reduction of your child support and/or spousal support obligations.

For some, reliance on the coronavirus will be the worst excuse and yet for others the best support for a reduction in support obligations.

Toronto boutique family law firm dedicated to resolving your family law case justly and effectively, restoring your balance and dignity. Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.

Optimism is vital to your ability to skillfully resolve conflict

by Meysa Maleki

This power of optimism coupled with additional sources of inner power can tip the equation to your side even where worldly dimensions of power favour the other side in a conflict dynamic.

In my recent Thrive article, I talk about how optimism is the ability to choose “hope” despite the conditions in which you find yourself. You don’t deny the situation, but you choose to have hope and rise above it notwithstanding the conditions.

Read More at Thrive >

Toronto boutique family law firm dedicated to resolving your family law case justly and effectively, restoring your balance and dignity. Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.

Conflict resolution skills are more important than ever

by Meysa Maleki

Conflict is one of the top challenges the world faces today. The survival of the human race demands that we pay attention to our own role in conflict, but resolution on a global scale requires change from each individual.

In my recent Thrive article, I talk about how to think about conflict resolution. Whenever someone hears the term conflict resolution, they may think it is a term reserved for the professional conflict resolver or negotiator such as the attorney, the mediator, the politician, or the business person negotiating the multi-million dollar deal. However, thinking about conflict resolution in this way is a mistake.

Read More at Thrive >

Toronto boutique family law firm dedicated to resolving your family law case justly and effectively, restoring your balance and dignity. Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.

Contemplating a separation during the COVID lockdown? Here’s the one thing you need to think about.

As we are asked to quarantine in our homes and as the uncertainties of the economy may have impacted our livelihood, some of us may reconsider our decision to separate from our partner or spouse for the time being. 

Being afraid of the impact of a high-conflict separation as we continue to live under the same roof, in particular with the lockdowns, we may prefer to wait it out before taking any steps. At the same time, estate planning may be top of mind for us as we face COVID-19 and what it may mean for us. 

In these circumstances, one of the things to think about is what you would like to see happen to your interest in jointly held property in the event that something were to happen to you.

Understanding the two types of ownership in law

Two or more persons may own property either by way of:

  1. Joint tenancy, or;
  2. Tenancy in common.

Joint tenancy means that you and the other co-owner(s) hold an equal interest in property. In contrast, a tenancy in common means that one co-owner may be entitled to more or less interest in the property than you.

The critical difference between the two types of ownership has to do with what happens at death and what is called, “the right of survivorship.”

The right of survivorship

The right of survivorship allows for the entirety of your interest to pass equally to the other co-owner(s) upon your death. In other words, if you own a home jointly with your spouse, upon your death, the entirety of your 50% share will automatically devolve to the other spouse and he or she can claim exclusive ownership of the home.  In contrast, if you own the property by way of “tenancy in common,” your interest upon death passes to your estate.

If you do not wish for your interest to devolve to your husband or wife automatically upon your death, you must do what in law is referred to as “severing” the joint tenancy. There are three ways in which you can sever joint tenancy in law.

  1. You can unilaterally act on your own share.
  2. You can agree with the other side to sever the joint tenancy.
  3. There is what is referred to in law as “a course of dealing” between you and other co-owners from which it can be inferred that you intended to sever the joint tenancy. To establish a “course of dealing” is a fact-specific inquiry and can be the subject of much litigation. The issue recently was before the Court of Appeal for Ontario in Marley vSalga 2020 ONCA 104 (C.A.).  

Ensure your intention is carried out upon separation

The simplest way to ensure your intention is carried out upon separation is simply to instruct a real estate lawyer to sever the joint tenancy. While ordinarily dealing with a matrimonial home which is defined as the home that is ordinarily occupied by you and your spouse on the date of separation as your family residence requires the other party’s consent e.g., if you wish to encumber or dispose of the property in any way to a third party, this is not the case in terms of severing joint tenancy. You can sever the joint tenancy in the absence of your spouse’s consent, without violating the Family Law Act.

Are you considering a separation in Ontario? Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.

To sign or not to sign a prenuptial or cohabitation agreement during COVID lockdown

Parties usually sign marriage contracts (popularly referred to as “prenups”) or cohabitation agreements for various reasons. One of the driving reasons is a sense of control and peace of mind as to what will happen upon relationship breakdown or one of the parties having significant family wealth that they wish to protect.

The parties’ clear expectations, most often with respect to property and/or spousal support (popularly known as “alimony”), are outlined in the agreement. Down the road, this can streamline the separation and divorce process and in turn save lots of time, money and headaches.

Negotiating the agreement

In an effort to negotiate as close to a bulletproof agreement as possible, it is important for the parties to exchange financial disclosure, understand the nature or consequences of the agreement and ensure that they are entering the agreement voluntarily — free from duress, coercion, intimidation and undue influence.

Best practices also include not having a rushed negotiation but having both parties provide meaningful input and negotiating the terms instead of one party merely presenting the terms as a fait accompli. However, given that one party can seek to set aside the agreement, both the content of the agreement and the context of the negotiations are relevant considerations for the court.

Setting aside the agreement

For example, a party can try and set aside the agreement if the provision for support or the waiver of the right to support results in unconscionable circumstances. In addition, the party can seek to set it aside on the basis that:

  • the other party failed to disclose significant assets, debts or other liabilities existing when the agreement was made (i.e. lack of disclosure or non-disclosure);
  • the party did not understand the nature or consequences of the agreement; or
  • otherwise in accordance with the law of contract. The law of contract is a broader catch-all provision, which also focuses on the circumstances surrounding the formation of the agreement, including for example duress, unconscionability and undue influence.

However, even where a party successfully engages one of these grounds, the court will still consider whether it should exercise its discretion to set aside the agreement.

Entering into an agreement during the COVID lockdown

Against this backdrop, should parties be entering into prenuptial or cohabitation agreements during the COVID lockdown?

While parties are always free to do what they wish, a better course of action would be to enter into a standstill agreement during these unprecedented and challenging times.

It is known that many are struggling with adapting to the current circumstances and are experiencing upheavals in their life, including job losses, financial (in)security, pressures and worries, among other things.

Consider a standstill agreement

In addition to feelings of isolation, increased mental health issues and even the experience of increased abuse as the home is not a safe haven for all, the voluntariness and the context of negotiations could attract increased scrutiny down the line.

On the other hand, with a standstill agreement, the parties can continue their negotiations afterward in good faith when there is more of a return to “normalcy” without having the pressure of reaching an agreement in the context of the COVID lockdown and these uncertain and unprecedented times. However, where parties are adamant to enter into agreements, best practices should always be followed. It is better to set aside more time and do things properly now, than have the agreement set aside in the future with more time and more money being spent litigating something that could have been done right from the very beginning. 

Are you considering entering into a cohabitation or marriage contract in Ontario? Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.