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.

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.

Same sex couples from abroad who have married in Ontario face a one year residency requirement before seeking a divorce in the Province.  Under Canada’s Divorce Act, an applicant must meet a residency requirement of one year in the Province in which before the remedy is requested.

The issue has been challenged in the Courts.

There are new child support tables effective January 1, 2012.  The new tables can be accessed at the Department of Justice’s website.

Justice Brownstone of the Ontario Court of Justice recently wrote on the state of law on joint custody in Ontario.  In the case of Hsiung v. Tsioutsioulas, Justice Brownstone wrote:

[17]                  I am acutely aware that an order for joint custody should not be made in cases where the parents have been unable or unwilling to demonstrate the capacity and willingness to communicate and to co-operate with each other and make decisions together in a civilized, child-focussed way…..  However, courts are increasingly prepared to order joint custody, even in high conflict cases, where satisfied that the parents have insulated the children from the conflict and sufficient protective factors are in place to ensure that the joint parental authority will be workable…  Moreover, in recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship… consider this to be such a case.

The Elgners separated in 2007 after 33 years of marriage.  Their children were grown.  They were successful and  had accumulated a lot of assets over their marriage.

The former couple gained notoriety in 2009 when Justice Greer made the highest temporary spousal support order in Ontario.  The Court ordered the husband to pay the wife $110,000 per month, plus retroactive spousal support of $3,360,000 for the two years preceding the order.  That’s a lot of money.

Since the temporary support order of Greer, the husband has lost 3 separate appeals stemming from the same order. The procedural issues in the husband’s appeals have taken on their own life. The husband has argued that he has an automatic right under Canada’s Divorce Act to appeal any support order, temporary or final, made under the authority of that Act.  The husband pursued that argument despite the prevailing judicial authority in Ontario, that the appeal of temporary orders (whether made under the federal Divorce Act or the provincial Family Law Act) required leave from the Divisional Court.  The test for leave is an issue of public importancerounded on either the principle of public importance or conflicting decisions.

A single judge of the Divisional Court refused the husband’s first appeal because he failed to establish that th importance of the appeal was a public one that transcended the issues between the parties.  was a dismissed because he failed to obtain leave to appeal a temporary order.  He was unable to pursued the appeal court that the matter of the appear went beyond the parties’ immediate interests, an Despite well established case law that interi

He first appealed to single judge of the

Two years after the Alberta Court of Appeal released its decision in Ewing, a landmark case that had breathed life into the discretionary element of section 4 of the Child Support Guidelines.

The case dealt with guideline child support.  Where, in the past, courts had accepted the rational of Francis and Baker as establishing a burden of “clear and compelling evidence” of

There has been a lot of discussion lately about paying child support to adult children who are estranged from the support payor.   Should a father pay support to a child who is attending university, and who refuses to have a relationship with the support payor?  Are adult children required to communicate a minimum disclosure regarding their studies?

Smith v. Smith addresses the issue of support for adult children in circumstances where the children cut off their relationship with the support payor.  Without much analysis, the court simply terminated the children’s support.

A more thorough discussion of the topic can be found in Caterini v. Zaccaria, where Justice Pazaratz quoted a paper delivered by Justice Corbett, and the following comments as authority:

(a) Contrary to certain recent literature, there has not been “growing judicial recognition” that the quality of the relationship should have a bearing on child support.

(b) Courts have been willing to impose a few specific responsibilities on adult support recipients, and may properly do so, but not conditions that include maintaining a social relationship with a parent.

(c) The statutory basis for taking the quality of the child-parent relationship into account is dubious.

(d) There is appellant authority permitting the court to place some weight on the parent-child relationship, but that authority is more ambiguous than trial and motions court decisions suggest.

(e) On the current state of the law, there seems to be a discretion to take this factor into account, though few courts do, and fewer have found it a significant factor in a support decision.

(f) The better view is that if conduct is ever relevant, it should only be in truly egregious cases of misconduct by a child against a parent.

 
As has been commented by others, a review of case law in the area suggests that the over riding concern on the part of courts is the child’s need.  If the child needs the support, the weight given to the quality of his or her relationship with the payor spouse is less important.  If the support is not needed the quality of the parent child relationship is given more importance.