Canada Legal .com Articles

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

What is a Motion ?

A Motion is a court procedure that is used to obtain certain types of Orders from a Judge. You can bring a Motion to ask for an Order to resolve an issue on a temporary basis or to change an Order that has already been made. For example, a Motion may be brought for an Order determining support payments or visitation rights on a temporary basis until these issues are settled between the spouses or finally determined by a Judge at a trial.

When can you bring a Motion?

Under the Family Law Rules (Ontario), you can bring a Motion only after you attend a Case Conference. However, there are some exceptions to this general rule. A Motion can be brought before a Case Conference in situations of hardship or urgency (for example, if you need to apply for a restraining order because of immediate danger to the health and safety of you or your children), or if you need directions from a Judge (for example, you may need to ask for a Judge’s permission to file an Answer late if you have missed the deadline for filing).

If you bring a Motion before a Case Conference, the Judge will first decide whether your case fits within one of these exceptions. If the Judge decides that it does not, your Motion will only be heard after a Case Conference and you may be responsible for paying the other party’s costs.

Who can bring a Motion?

Anyone who is a party to a case or anyone (other than a child) who is affected by the case, can bring a Motion. The person who brings the Motion is the Moving party. The person who responds to the Motion is the Responding party.

How do you bring a Motion?

In order to bring a Motion, you must prepare, serve the other spouse with, and file in court, a Notice of Motion and sworn Affidavit. The Moving party must get a date for the Motion from the court office and include this date in the Notice of Motion so that the other party is notified of the hearing date. After the other party is served with the Notice of Motion and sworn Affidavit, a sworn Affidavit of Service must be filed in court to establish that the other party was served with the Notice of Motion and sworn Affidavit. In most cases, you must attend before a Judge to argue the Motion. If the Motion deals with financial issues such as support, then you must also prepare, serve and file a sworn Financial Statement. After all your documents are prepared, served and filed, the other party has the right to also serve and file a responding Affidavit.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“If we have settled everything between ourselves, do we still need a lawyer?” Yes.

Before any agreement is made, each spouse should obtain independent legal advise from a Family lawyer who will advise the spouse on his or her Family law rights and obligations.

This is necessary in order to recommend terms of settlement that are fair, practical and enforceable.

It may not seem necessary now, but it can prevent many problems from arising in the future and reduce further cost and grief.

Each spouse’s own Family lawyer will protect that spouse’s own legal interests, inform that spouse of issues that he or she may not have considered and ensure that any agreement is fair, practical and enforceable.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“Do I need a lawyer to go to court?” No. A spouse may appear in court without a lawyer. However, it is not recommended.

The court process is complex. It is based on rules of procedure, such as the Rules of Civil Procedure and the Family Law Rules.

The relief sought is based on legislation such as the Family Law Act and the Children’s Law Reform Act.

Family lawyers are educated, trained and licensed to represent spouses in court. Family lawyers are familiar with recent changes in the law and are familiar with the court process.

It is critical to obtain legal advice and representation by a Family lawyer when proceeding to court. If, however, a spouse decides not to retain a Family lawyer, he or she will then be responsible for preparing, swearing, serving and filing all of the appropriate court documents.

The spouse will also be required to make oral submissions to the Judge.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

A Marriage Contract (a.k.a. Prenuptual Agreement) is a written contract that permits a couple who intend to marry to agree, in advance, on issues such as property division and support, in the event that the marriage ends. More often, people are getting married later in life or for a second time. If they own property that they wish to protect, or want to confirm that they will not be expected to support their spouse after they separate, then they may agree to terms that are incorporated into a Marriage Contract.

The question of whether such an contract would truly provide the protection desired had recently caused a stir in the Family law community after a British Columbia Judge decided to set aside the contract because it was unfair to the wife. This very topic was so contentious that it was appealed to the provincial court of appeal, and then to the highest court, the Supreme Court of Canada.

In the case of Hartshorne v. Hartshorne that was decided on March 26, 2004, the court ruled that Kathleen Hartshorne was bound by the terms of a one-sided marriage contract that she signed on her wedding day in 1989.

The Hartshornes were both previously married and divorced. They begun to cohabit in 1985 and had their first child in 1987. After they married in 1989, their second child was born. They both were lawyers (the wife articled for the husband’s law firm). The husband brought assets worth $1.6 million into the marriage including a home, two recreational properties, R.R.S.P.’s, savings and his law practice, while the wife entered the relationship with no assets and heavily in debt. On the day of the wedding, the husband insisted that the wife sign a marriage contract that allowed both spouses to protect their pre-marriage assets except for their matrimonial home. In this regard, the wife was to be entitled to a 3 percent interest in the matrimonial home for each year of marriage up to a maximum of 49%. Both spouses consulted with separate lawyers and obtained independent legal advice. The wife’s lawyer advised her that the contract was grossly unfair. She nevertheless agreed to sign the contract with a few amendments, including a clause confirming her right to spousal support.

According to the contract, the wife was entitled to property worth $280,000 on separation, while the husband was entitled to property worth $1.2 million.

After they separated in January 1998, the wife commenced divorce proceedings against her husband for custody of the children, child support, spousal support and a division of property. The wife argued that the marriage contract should not be upheld because it was unfair and because she gave up her own law career to take care of their two children.

The husband relied upon the contract to avoid the usual legal procedure for equalizing family property upon separation. The husband further argued that, in keeping with the spirit of the contract, they managed their finances separately, there was no commingling of funds, there were no joint accounts of significant value and the assets that the husband brought into the marriage remained in his name. The husband argued that his wife knew what she was signing and agreed to be bound by its terms. Hence, a ‘deal is a deal’.

If the wife was successful in setting aside the contract and receiving an equalization of the family property, she would have received $654,000, as opposed to $280,000.

In the end, the court ruled that when a couple’s circumstances at the time of separation was within their contemplation at the time that they signed the marriage contract, they both should be bound by the terms of the contract. In this case, the Hartshornes’ financial and domestic arrangements unfolded exactly as they had expected. Regarding the wife’s argument that she gave up her own law practice to take care of the children, the court concluded that it was a decision that she made prior to the marriage and it was not realistic to assume that she did not understand the consequences of this choice.

In declaring that ‘a deal is a deal’, the Supreme Court of Canada emphasized that the contract was indeed fair because the wife’s rights to spousal support were preserved by the contract and her husband, a successful lawyer, was in a position to pay the wife a generous amount of child and spousal support.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“What happens to a Separation Agreement if you later reconcile and then separate again?”

The Ontario Court of Appeal was asked to address this question in the 2003 case of Sydor v. Sydor. This couple separated in 1995 and signed a Separation Agreement on February 29, 1996. Sometime later, they reconciled and then, in October 1998, they separated again for the last time. Under the 1996 agreement, the wife transferred her share in the family residence to her husband in exchange for $115,000. When they reconciled, the wife moved back into the family residence and resided together with her husband until their final separation. At trial, the wife argued that the agreement did not survive their reconciliation and asked that all property that the husband owned at the time of their final separation - including the former family residence - be equalized once again under the Family Law Act. The trial judge ruled that the prior settlement of property under the agreement remained in force and, therefore, the wife could not have the familys assets divided again. The wife proceeded to the Court of Appeal.

The appellate court ruled that a Separation Agreement becomes void upon a couple reconciling. But the court went on to say that the agreement may contain a release clause that overrides this and that specifically states that it is the intent of the parties that the agreement will remain in effect even if they reconcile and later separate.

The appellate court decided that, in this case, the agreement did indeed contain such a clause where the wife specifically released her rights to the former family residence. The appellate court found that the earlier transfer of the family residence to the husband to be final and binding.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

After having experienced the financial consequences of a separation, most people are motivated to avoid this experience again. If you intend to remarry or reside with a new partner, you need to understand the potential financial consequences of the relationship ending.

Here are a few examples.

If you marry your new partner, you may be required to pay spousal support and share the increase, during the marriage, of the value of your assets when you separate.

If you support your new partner while you reside together, even though you are not married, you may be responsible for spousal support when you separate.

When a couple separates, there are many issues that may arise. Many of these issues can be resolved - even before you marry or cohabit - if both spouses agree to enter into a Marriage Contract or Cohabitation Agreement. These documents are written legal agreements, signed by both spouses, that permit partners who cohabit or intend to marry to agree, in advance, on issues such as property division and support, in the event that the relationship ends.

More often, people are getting married later in life or for a second time. If you own property or assets that you wish to protect, or want to avoid paying spousal support after you separate, then you may wish to consider entering into a Marriage Contract or Cohabitation Agreement.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In the California case of Diosdado v. Diosdado, 118 Cal. Rptr. 2d 494 (Ct. App. 2002), a couple signed an agreement after the husband had an extramarital affair. The agreement banned each spouse from engaging in extramarital sexual conduct and, specifically, stated that one spouses infidelity could cause the other spouse serious emotional, physical and financial injury. The agreement included a clause that stated that the spouse who committed adultery was required to pay to the other spouse $50,000 in liquidated damages irrespective of any other property settlement resulting from a divorce proceeding.

When the husband committed adultery, the wife asked the court to enforce this clause. Both the trial court and the California appellate court found for the husband and ruled that the clause vi­olated state public policy. It held that the legislature had made a social policy based decision to change the grounds for divorce from a fault ba­sis to a marriage breakdown basis. Consequently, the court said, fault is generally not a relevant consideration in the legal process of divorce. Further, recovery in divorce cas­es is basically limited to half the community property, ap­propriate support and legal fees - with no premiums for emotional pain. The court said that the agreement here violated this policy by imposing such a premium for the emotional angst the husband’s infidelity had caused his wife. Moreover, the agreement contravened public policy by attempting to penalize one of the parties as a result of his conduct during the marriage… only in California.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“Can I enter into a Marriage Contract after we get married?” The best time to enter into a Marriage Contract is a few months before the marriage.

Once married, each spouse immediately obtains Family law rights which can only be waived or limited by a Marriage Contract that is signed by both spouses.

If the Marriage Contract is prepared after marriage and one of the spouses refuses to sign it, these rights will not be limited or waived.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

A Marriage Contract is a written agreement that permits a couple who intend to marry to agree, in advance, on issues such as property division and support in the event that the marriage ends.

More often, people are getting married later in life or for a second time.

If they own property that they wish to protect, or want to confirm that they will not be expected to support their spouse after they separate, then they may agree to terms that are incorporated into a Marriage Contract.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“Can we negotiate a Separation Agreement ?” Yes.

After a couple separates, there are many questions that need to be answered such as:

• which parent will the children live with ?
• how much child support will be paid ?
• how will the family property be divided ?

Usually, these issues can be resolved when the spouses agree to terms that are incorporated into a Separation Agreement.

This document is a product of each spouse’s desire to settle their affairs reasonably, amicably and inexpensively.

A Separation Agreement is one of the best alternatives to going to court because it is faster, cheaper and more complete than a court order but has the same enforceability as a court order.