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January 2015 — Law Office of Thomas J. MacLennan

Month: January 2015

The recent case of Cosentino v. Cosentino has an interesting treatment of contingent tax liabilities owing at separation.  The decision confirms the willingness of courts to discount even tax liabilities where, at the date of separation, they are uncertain.  In the Cosentino case the tax liability did not exist at the date of separation, but arose after. The solicitors online are the best way to go for legal options.

Justice Perkins wrote:

It would be stretching the meaning of “liability” to include an obligation that arose later, merely because it was calculated in relation to a year when the parties were still living together. Not only had the reassessment not come into existence on the valuation date, but also there was no suggestion that it was coming. Taking a financial snapshot of the husband on that date, no one would have suggested he was subject to any contingent liability for income tax.

The decision once again confirms the approach of valuing contingencies prospectively.  The approach requires looking at the circumstances that were in existence at the date of separation  rather than in hindsight.

Does a separation affect your will ? 

Let’s say you have a Will in place. You named your spouse as a beneficiary and perhaps your young children as secondary beneficiaries, just in case something were to happen to you and your spouse. Now add in a separation between you and your spouse, mix it with a pinch of chaos and you have a recipe for disaster, and you will need a lawyer expert on wills, as well as possibly seeking corporate investigation services to ensure the legality and integrity of your affairs during this tumultuous time. Upon separation, a gift to a spouse in your Will becomes revoked under the Wills, Estates and Succession Act (WESA). You may think everything’s fine and there is no need to update your Will…wrong! If you do not update your will upon separation, the mere revocation of your spouse as a beneficiary does not allow for adequate planning for other beneficiaries, especially young children. A minor beneficiary requires an appointed trustee to manage the money and they are unable to receive the benefit until they are of age. For a revocation of a spouse as a beneficiary, there must be clear evidence of a separation to end a spousal relationship. Married couples must wait one year prior to obtaining a divorce, however, putting a separation agreement in place immediately at separation is not only efficient and saves you money when obtaining a divorce, but is also clear evidence of a separation which bars your ex-spouse from being a beneficiary in the event of your death. Common law couples (couples cohabitating with one another for a period of two years in British Columbia, three in Alberta) often think a separation agreement is unnecessary; however, a separation agreement is evidence to support the end of a spousal relationship and it can ultimately prevent your ex-spouse from being a beneficiary.

If one spouse dies prior to finalizing a separation agreement or a divorce, the surviving spouse could make a claim to their estate under WESA. If your Will has been updated to clearly reflect that a separated spouse is not entitled, a claim under WESA cannot be made. It is therefore important to seek advice from an Estate Planning Lawyer soon after separation so these provisions can adequately be drafted.

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Married spouses share in any increase in the value of family property between the date of marriage and the date of separation.  When the marriage ends, the spouse with the lower Net Family Property receives a payment for one-half the difference in the two.  That means an equalization payment.
The debt that a spouse brings into the marriage will impact on the spouse’s equalization entitlement.
What happens when the face amount of the debt is greater than its “real value”?  Should a court reduce the face amount of the debt to reflect the likelihood that it will remain unpaid?  The Ontario Court of Appeal was recently confronted with that issue for a debt owing on the date of marriage.
In the case of Zavarella v. Zavarella, the Court of Appeal discounted the wife’s date of marriage debt to zero.  The wife owed about $60,000.00 on the date of marriage.  She had made an assignment into bankruptcy a few weeks before the date of marriage.  Under the Bankruptcy and Insolvency Act, the debt remained owing until the wife’s discharge from bankruptcy.  Given the wife’s assignment into bankruptcy just before the marriage, there was no prospect of payment of the debt.  The Court discounted the debt to zero and remove a county Court Judgement.
The Zavarella case is consistent with the Court’s approach of discounting of family debts based on likelihood of repayment.  In the past, the Court of Appeal has discounted debts owed to family members because they are not likely to enforce them.  The Court has also allowed parties to discount assets based on the contingent costs of realizing the asset.  The court has allowed parties’ to reduce the value of those assets by the anticipated legal fees on the date of separation.

In navigating such legal intricacies, it becomes crucial to enlist the support of experts in the field. Engaging the services of the best private investigator UK can provide valuable insights into the circumstances surrounding familial debts and asset valuations. A prospective approach, rather than hindsight, remains fundamental in evaluating these complex matters within the legal framework. Furthermore, when suspicions of marital discord arise, infidelity investigations can offer additional clarity and understanding.

 

 

 

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We don’t like worrying about the future. We don’t want to think about what happens to our house or money after we’re gone.

But what about our loved ones? Our loved ones will have enough to worry about.  If the worst happens, we can make life easier for them by planning ahead.

We have practiced estate law for years.  We know that preparing a will can be draining . We can guide you through the steps and explain your best options.

Preparing a will ensures that your property will be dealt with according to your wishes. You can make sure that a cherished family heirloom stay in the family.  You can decide if your common-law-spouse lives out his or her life in your house.

Part of your estate plan involves a power of attorney. Ontario has three different types of powers of attorney.  You choose another person to make decisions on your behalf. Do you expect needing a medical proxy to help you make healthcare decisions when you are incapacitated? You may want to start planning now.  You can make your wishes known in case of your future incapacity.

These are difficult issues to think about, but they are too important to ignore. Consult a lawyer with expertise in the area of estate planning.  Give yourself peace of mind about the future.

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