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Tag: Family Law

Realtors; learn how to save a deal when spouses are feuding and being uncooperative over the sale of a property!

This article applies to legally married couples and not those in common-law arrangements.  The long and the short of it is that IF both spouses are on title of the property [that means they are both registered owners in one capacity or another (commonly as Joint Tenants or even Tenants In Common)], then you will need them BOTH to sign the listing agreement, representation agreement, the offers in between, any other required Realtor documents/amendments, and the finally accepted Agreement of Purchase and Sale and its amendments.  So long as that is the case, the two FINAL documents you should ask their lawyer to produce while signing the listing agreement is, first an Un-revocable Direction to the lawyer (presuming he/she will be the one closing the deal) as to how the Proceeds of Sale are to be divided and that he/she is to be the closing lawyer.  This ensures that the two spouses cooperate and do not hold each-other hostage on the eve of closing threatening not to close unless one spouse gets what they want out of the deal.  It also ensures that the lawyer who holds this direction will be able to use it because he/she will be closing the deal.  Second, and at the same time ask the lawyer to also draft and provide a declaration that both spouses will be providing vacant possession on the day of closing before 4:00 pm.  This will help the scenario where one spouse is being

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ESTATE ADMINISTRATION: Advising the Surviving Spouse

The precise nature of the executor/trustee/personal representative’s obligation to advise the surviving spouse is not clear. If the estate trustee is responsible only to the estate and its beneficiaries, he or she should not be required to tell the surviving spouse of the potential rights he or she may have under the Family Law Act (“FLA”). However, if it is the duty of the personal representative to help the surviving spouse, then how far does that duty extend?Recently, the Superior Court of Justice decided in Webster v. Webster Estate, where the surviving spouse missed the six-month period, within which to file an election in favour of an equalization of Net Family Property (“NFP”). It was argued, in the application to extend the time to elect, that the personal representatives of the deceased husband’s estate had a duty to advise the surviving spouse of her entitlement to make an equalization claim. Although Robertson, J. rejected this argument, the facts were somewhat unusual:

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ESTATES & NFP: Income Tax and Family Law considerations at death

Income Taxes at DeathClaims arising on the death of a spouse are not many, nor is there much jurisprudence dealing therewith. But claims arising on marriage breakdown are not uncommon and a frequently litigated issue is whether, for the purpose of computing a spouse’s Net Family Property (NFP), property owned by him or her should be valued at its after tax amount in the spouse’s hands. For a time after the enactment of the Family Law Act (FLA), cases were all over the place on this point, some suggesting that income tax costs of disposition should be taken into account (with or without a discount for the likelihood of the disposition taking place relatively soon), while others suggested that in the absence of a clear indication that property would be sold by the owner spouse, no tax costs should be taken into account on the grounds that such a calculation was too speculative.When the valuation date is one day before the death of the deceased spouse, the argument that income tax costs should be taken into account is more compelling than in the case of marriage breakdown. As the Income Tax Act (ITA) deems that the deceased spouse immediately before death:

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ESTATES & EQUALIZATION: How the Courts can enforce your Family Law rights

Court OrdersThe court has extensive powers to enforce the equalization order, Family Law Act (FLA) section 9. It can order:Money to be paid;Security to be given;Payment to be deferred for, or made in instalments over a period of up to 10 years;Transfer of property in specie; orPartition and sale of property. If deferred or instalment payments are ordered, subsequent variation orders are permitted provided the court is satisfied that there has been a material change in the circumstances of the paying spouse. However, the amount of the equalization payment previously determined cannot be varied, FLA, s. 9(3).

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ESTATES & EXECUTORS: How the Family Law Act impacts the administration of an estate

Restrictions on Distribution of EstateAfter the death of a spouse, no distributions can be made out of the estate during the six month period immediately following the deceased spouse’s death without:1) Written consent of the surviving spouse; or2) Authorization of the court, the Family Law Act (“FLA”), section 6(1).If the personal representative receives notice that an application, for extension, has been made under Part I of the FLA, no distributions can be made out of the estate without:1) Written consent of the applicant; or2) Authorization of the court, FLA, section 6(15).

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ESTATES & INTESTACY: Spousal statutory rights when there is no Will

Continuing the discussion of the effects of a Family Law election on various aspects of estate administration; its effect on intestacy is now reviewed.Effect on IntestacyIn an intestacy (where a spouse dies without a will), either partial or total, the election in favour of an equalization claim (FLA, subsection 6(9)) will result in the surviving spouse’s forfeiture of his or her entitlement under Part II of the Succession Law Reform Act (“SLRA”). In a partial intestacy, even when the will states that the benefits under the will are to be in addition to the surviving spouse’s equalization claim, that statement would not prevent the latter’s forfeiture of entitlement under Part II of the SLRA for the other part of the estate that is under intestacy.In intestacy, the SLRA has no control over a surviving spouse’s entitlement to property situated outside Ontario. Succession to immovable property as dictated by conflict of laws rules is under the law of the situs (position or site).  So, unless the laws of the jurisdiction in which immovable property is situate require that Ontario law be applied (i.e. the SLRA), the surviving spouse who elects in favour of an equalization claim can get the assets located outside Ontario. This is a glaringly unfair, and probably an unintended result, caused because the Net Family Property (“NFP”) of the deceased spouse is calculated on the basis of his or her worldwide assets.

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ESTATES & EQUALIZATION: Spouses electing their Family Law rights and the consequences thereof

It cannot be stressed enough how important it is for the surviving spouse to establish his or her entitlement to insurance proceeds and to survivorship benefits under pension and similar plans arising on the death of the deceased spouse.With this in view, the surviving spouse, who makes his or her decision on the basis of a will in respect of which no certificate of appointment of estate trustee has been issued, should also be cautioned. In the end, if the will put forward is found to be invalid; the surviving spouse would find that the election should have been made the other way. A wise course of action would be to defer the filing of the election until after the certificate of appointment of estate trustee with a will has been issued. Should there be difficulty in locating a will or there be litigation over the validity of a will, it would be appropriate to apply for an extension of time for filing the election beyond the six-month period following the deceased spouse’s death, (under subsection 2(8) of the Family Law Act (“FLA”)).

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ESTATES & NFP: How your estate will be impacted by your spouse’s statutory rights

The Impact of the Family Law Act on Estate Administration The administration of estates became very complicated with the enactment of Ontario’s Family Law Act (“FLA”) in 1986. Before that, the lawyer was to advise an estate trustee that the only statutory claim to interfere with the testate or intestate distribution of the deceased’s assets was one brought by a “dependant” under Part V of the Succession Law Reform Act (SLRA), on the grounds that the deceased had not made “adequate provision” for the claimant (usually a dependant). With the FLA in operation, the estate trustee is now also to be prepared for a potential property claim by a surviving married spouse.Net Family Property (NFP)A solid grasp of the rules in Part I of the FLA is essential to understand the nature of the surviving spouse’s claim and how it affects the estate trustee’s responsibilities and authority. “Net Family Property” (“NFP”) is the key concept underlying those rules, which is defined in subsection 4(1) of the FLA. In a nutshell, the NFP of a spouse is intended to be a measure of his or her increase in net worth during the

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More Provisions in the Real Estate Agreement of Purchase and Sale

Spousal consentWhen selling a matrimonial home like a principal residence or cottage, it is always necessary to have the non-title holding spouse consent to the sale.  For the purposes of real property, the term “spouse”, is defined as a married spouse and matrimonial home is as defined in the Ontario Family Law Act (R.S.O. 1990), therefore the term spouse does not contemplate common-law spouses in this situation.  The provisions in the Agreement serves as a warranty, the Seller is warranting that the property is being sold in accordance to the Family Law Act by ensuring that both spouses are consenting to the disposition of a matrimonial home.Urea Formaldehyde Foam Insulation Warranty (“UFFI”)

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Guardians Chosen in a Will, and the the Children’s Law Reform Act

Guardians, Custodians, and the Children’s Law Reform ActConventionally, “guardians” of minor children are whomever the parent has named in his or her will to take care of, and have “custody” over, the children after the parent’s death. In view of this, such appointees are “custodians” in waiting and not “guardians” at all, despite the fact that “custodian” is not a term specifically defined in the Children’s Law Reform Act (CLRA). A “guardian” is a person who has guardianship of the property of the minor.According to s. 61(1) of the CLRA, the father and the mother of a minor child are equally entitled to custody of the child. So long as a parent has not lost custody of a minor child by order of a court, no court order is required to bestow the right of custody on a surviving parent. After the enactment of the Children’s Law Reform Amendment Act, 1982, on October 1, 1982, the father and mother of a minor child have been permitted by will to “pass on” the statutory right to custody which each enjoys. Under s. 61(4)(a) of the CLRA (which is the consolidated

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