Canada Legal .com Articles

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

Jurisdiction: Ontario (Canada)

Canada Revenue Agency (CRA) is responsible for administering the Canada Child Tax Benefit. The benefit is a tax-free monthly payment for children under the age of 18 and is intended to help families with the cost of raising their children.

In situations involving separated or divorced parents, CRA pays the benefit to the parent who resides with the child and who primarily fulfils the responsibility for the care and the upbringing of the child. According to CRA, this is generally the mother and, therefore in situations of separation or divorce, CRA presumes the mother to be entitled to the benefit.

In cases where both parents claim the benefit, CRA will conduct a review to determine which parent qualifies for the benefit. If it is determined that the child resides with both parents, CRA will pay one parent for 6 months and then rotate the payments to the other parent for the next 6 months.

Details of this and further information can be obtained at the CRA website at www.cra-arc.gc.ca or by calling toll free 1-800-387-1193.

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

Jurisdiction: Ontario (Canada)

“Does the law presume that common law spouses are entitled to the same equal division of their property after separation as married spouses?”

The Ontario Court of Appeal in the May 21, 2003 decision of Wylie v. Leclair did not think so. In that case, the parties lived together from 1985 to 2000 and had two children. After they separated, they agreed to a shared custody arrangement, with the children living with each parent on alternate weeks. A trial was held on the issues of support and division of property. Regarding the division of property, the trial judge found that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship. The trial judge awarded Ms. Leclair $150,000, and calculated this amount based on an equalization of net family property – a calculation that is used when married spouses separate by calculating each spouse’s assets and liabilities at the date of marriage and the date of separation.

Mr. Wylie appealed the trial judge’s decision to the Ontario Court of Appeal. The appellate court felt that the trial judge was wrong in attempting to provide an equalization of net family property for a common law couple.

When married spouses separate, it is necessary to equalize the parties’ net family property. However, this is not the law in common law relationships. The appellate court felt that the trial judge was attempting to adjust the law to provide for an equalization of net family property for common law spouses - while there is no legal authority or presumption to do so.

The appellate court did consider the fact that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship, but also considered that Ms. Leclair lived rent-free for the duration of their 15 year relationship.

The appellate court reduced Ms. Leclair’s award to $70,000.

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

Jurisdiction: Ontario (Canada)

In the landmark decision of Nova Scotia (Attorney General) v. Walsh 2002 S.C.R. 83, the Supreme Court of Canada has ruled that excluding unmarried spouses from provincial matrimonial property laws is not discriminatory.

Susan Walsh and Wayne Bona cohabited for 10 years until 1995. Two children were born out of this relationship. Ms. Walsh applied for spousal support and child support. She also sought a declaration that the definition of “spouse” in Nova Scotia’s Matrimonial Property Act was unconstitutional because it failed to provide her with the right to an equal division of matrimonial property – a right that is available to married spouses.

In an 8-1 decision, the Supreme Court of Canada ruled that excluding unmarried spouses from provincial matrimonial property laws is not discriminatory because the distinction reflects the differences between married and unmarried relationships and respects the fundamental personal autonomy and dignity of the individual. The highest court stated that the decision to marry, or not to marry, is personal and that many common-law couples have chosen to avoid marriage and its legal consequences. They are free to marry each other or take other steps if they want to enjoy the benefits available to married couples.

As an aside, this ruling is moot for Ms. Walsh and Mr. Bona. Before the appeal was concluded, Ms. Walsh and Mr. Bona settled their dispute and agreed to a 50-50 property split. In addition, Nova Scotia amended its laws in June 2001 to allow common-law spouses, including same-sex couples, to register their relationships as domestic partnerships, thereby entitling them to many of the same rights and obligations as married couples, including division of assets upon separation or death.

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

Jurisdiction: Ontario (Canada)

“Will I have to share my pension?” A spouse’s pension is treated the same as any other asset that a spouse accumulated during the marriage.

That means, the spouse with the pension gets credit for the value of the pension on the date of marriage, but will share with the other spouse the rise in the value of the pension during the marriage.

The pension will need to be valuated by a professional to determine its value on the date of separation.

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

Jurisdiction: Ontario (Canada)

Ontario’s Family Law Act provides a formula for dividing the value of assets and debts that were acquired during the marriage. The method is called Equalization of Net Family Properties.

Each spouse must fill out and swear a Financial Statement.

The Financial Statement lists all assets that each spouse owned on the date of separation, all debts that each spouse owned on the date of separation, all assets that each spouse owned on the date of marriage, all debts that each spouse owned on the date of marriage and any gifts or inheritances that each spouse received during marriage.

The Financial Statement will be used to calculate each spouse’s Net Family Property.

In the end, the spouses’ Net Family Properties will be equalized.

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

Jurisdiction: Ontario (Canada)

Can you get a divorce if your husband has an affair with another man? Historically, the answer to this question was “No”. Because Canadian federal law only permitted a spouse to obtain a divorce if the other spouse had an extramarital affair with someone of the opposite sex.

Indeed, Canada’s Divorce Act states that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty”.

Adultery has historically been defined by the courts as voluntary sex between a spouse and someone of the opposite sex, outside of the marriage.

But this week, a Vancouver woman was granted a divorce after Justice Nicole Garson decided the woman’s husband had committed adultery by having an affair with another man.

It is expected that this decision may have a significant impact on same-sex partners whom are likely to engage in extramarital affairs with persons of the same gender, if they engage in adulterous affairs at all.

The court’s written decision is expected to be published in two weeks.

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

Jurisdiction: Ontario (Canada)

In Canada, the Divorce Act permits a spouse to seek a divorce if the other spouse has committed cruelty. But this does not entitle the victim to collect compensation for Emotional Distress.

In fact, Canadian law seems to minimize the relevance of spousal misconduct when determining the issues of custody, access, support and division of property. However, a Wyoming Supreme Court decided that extreme and outrageous conduct by one spouse, that results in severe emotional distress to the other spouse, can create a cause of action for intentional infliction of emotional distress and entitle the victim to collect compensation for her suffering.

In the decision of McCulloh v. Drake (Wyoming, 24 P. 3d. 1162 (2001)), the court heard that shortly after the husband and wife were married, the husband began to physically and sexually abuse the wife. The trial court found that the wife had proven the abuse and the emotional distress that she suffered.

The husband appealed this decision by arguing that intentional infliction of emotional distress, within a marriage, is not a tort (a legal wrong). In an effort to preserve domestic harmony, courts have tried to remain indifferent when it comes to regulating behaviour within a marriage. However, courts have recently begun to distinguish claims for civil relief in marriage cases, by pronouncing that a tort claim may provide a better remedy for spouses than a divorce claim.

The court concluded that ‘emotional distress is as real and tormenting as physical pain, and psychological well-being deserves as much legal protection as physical well-being’. In preserving marital harmony as their main goal, the court held that ‘behaviour that is truly outrageous and results in severe emotional distress should not be protected in a misguided attempt to promote marital harmony.’

It remains to be seen if Canadian courts will follow this reasoning.

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

Jurisdiction: Ontario (Canada)

An Uncontested Divorce usually takes between 8 to 16 weeks.

A Petition for Divorce that is contested usually takes much longer.

There are many factors that affect the length of time it takes to get divorced.

Unless the reason for the divorce is adultery or cruelty, the spouses must have lived separate and apart for at least one year.

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

Jurisdiction: Ontario (Canada)

When the spouses have signed a Separation Agreement that resolved all issues such as custody, access, support and property division, and they now both want to be divorced, then one of the spouses can commence a Petition for Divorce that consists of a request for a divorce only.

One spouse has it served on the other spouse.

If the other spouse agrees to a divorce, then he or she may choose to not contest the Petition for Divorce.

That is why it is called an Uncontested Divorce.

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

Jurisdiction: Ontario (Canada)

“When can I ask for a divorce?” As soon as 1 of the following 3 circumstances has occurred;

• the other spouse has committed adultery, or
• the other spouse has committed cruelty, or
• the spouses have separated.

As soon as one of these circumstances has occurred, a spouse can commence a Petition for Divorce.

If separation is used as the ground to obtain a divorce, the spouses need to have been separated for at least 1 year before a Judge will grant a Divorce Judgment.