The husband argued that wife did not contribute at all to the purchase or maintenance of the property.  He claimed that he had only put the property in joint names for estate planning purposes, so that the wife would get the property by right of survivorship if the husband pre-deceased her.  When their relationship broke down, the husband took the position that a resulting trust applied i.e. that the wife was holding her share of the property in trust for him, such that the entire property properly belonged to him.  The wife argued that the husband had made a gift of one half of the property to her.

It is the husband’s intention at the time of purchase that is relevant in this case.  The court held that the fact that the husband’s Will and estate plan at the time of purchase treated the property as a joint asset was significant and sufficient evidence to conclude that he had made a gift to the wife of one half of the property.

How could this fight have been avoided? Simple.  The parties should have entered into a cohabitation agreement to address with how the property would be treated in the event of relationship breakdown.  The contract would have determined how the property would be divided in the event of the parties’ separation or in the case of a death.  Instead of paying minimal legal fees up front for a contract, these parties paid significant legal fees in order to litigate the issue after the fact.

The post Title Trumps: The Effect of Placing a Property in Joint Tenancy appeared first on Toronto Family Law Blog Canada.

This got me thinking.  I am trained as a social worker and a lawyer, so this may be a more “social worky” than legal post.  But the t.v. show got me wondering about whether I had any advice for people who want to stay married, based on the experience I have had with parties getting divorced.  So here goes.

Talk to each other.  This is possibly the most important piece of advice I could give.    Many of my clients complain that they just stopped talking and grew apart as a result.  Share yourself with your partner.  Talk about your day, your life, your goals, your dreams, your frustrations.  You used to talk for hours when you were dating, remember? Don’t allow that to stop because you are married.

Following a close second is listen to each other.  Be an active listener.  When you converse, consider what your spouse is actually saying.  Be present and think about what is being communicated.  And be honest in your responses.

This is especially important in times of conflict.  Don’t jump to respond or defend yourself.  Hear your spouse out.  Let him or her express what they need to convey before you share your thoughts and feelings.  Being right is not important.  What is important is a resolution you can both live with.

Third, fight fair.  Stay in the moment and don’t dredge up the past.  Be specific.  Avoid general  statements like “You always” or “You never…”  They do not help resolve the problem.

Make time for each other is my fourth recommendation.  Otherwise you will look up, years will have passed and you will no longer have a partner but a room-mate.  Life is busy.  Schedule regular partner time.  Commit to it.  Do things together.  Remind yourself why you fell in love with this person to begin with.  And let your partner know the many new reasons you continue to adore him or her to this day.

Finally, share the crummy tasks.  This may sound silly, but clients tell me they hated being the one who always had to do the dirty work: disciplining the children, taking out the garbage, doing the laundry and dishes, etc.  Find out what tasks your spouse considers unpleasant, or a burden, and do them at least some of the time.  You will be amazed at the positive feedback that engenders.   Be part of the team.  Isn’t that part of why you wanted to be in a relationship in the first place?

The post Relationship Tips: Talk, Listen and Love appeared first on Toronto Family Law Blog Canada.

“The better I get to know men, the more I find myself loving dogs.” (Charles de Gaulle)

“Once you have had a wonderful dog, a life without one, is a life diminished.”(Dean Koontz)

People love their dogs. Dogs are treasured members of the family. Some people even treat their dogs like their children – or better.  When a couple breaks up, a decision needs to be made about the family dog. How is this determination made? Is it based on best interest like a child custody decision?  Or is a dog just another piece of property?  

Much to the surprise of dog lovers across this country, dogs are not human and, hence, the court will not deal with “custody” of the dog per se.  As much as individual judges may adore their dogs, and even imbue them with human characteristics, the law does not share this view.   Rather, dogs (like other pets) are considered personal property.  Which means that, if the parties cannot agree on who gets the dog, and the court has to make a determination, the decision is based on traditional concepts of ownership.  The relationship of love and affection between each party and the dog is not relevant in determining ownership, nor is the dog’s best interests.

Who gets the dog is based solely on who owns the dog i.e. who bought and paid for the dog.  If someone enters the relationship with a dog, the dog leaves the relationship with that party. If the dog is purchased during the relationship, then whoever paid for the dog keeps the dog. 

I don’t know what would happen if the dog was owned jointly, for example, if the money for the dog came from a joint account or the dog’s registration papers were in joint names. I haven’t come across a case that dealt with this issue.  Perhaps parties would be granted shared ownership of the dog?  I have seen separation agreements that deal with family pets, but I have yet to see a marriage contract do so.  Theoretically, a marriage contract could deal with the ownership of the dog since, in the eyes of the law, a dog is just like any other property that parties can contract about.

The post See Spot Divorce: Who Gets the Family Dog? appeared first on Toronto Family Law Blog Canada.

Parents will sometimes provide monies to children as a wedding gift, or to assist with the purchase of a home. Frequently, the funds are not characterized in any way, often there is no paperwork signed, and no effort is made to repay the money over the course of the marriage. When the parties separate, however, one spouse or the other may claim the monies were either a gift or a loan, depending on how the nature of the monies would impact the equalization payment and/or other property arrangements. For example, a husband might want to characterize the funds from their in-laws as a gift, such that there is no obligation to repay them. The wife, conversely, might want the money from her parents to be a loan, such that the debt has to be split between the parties and repaid.

If the parties disagree, a hearing will have to be held at separation to determine the nature of the monies. At the hearing, the court or arbitrator will consider the following factors:
a. Are there any documents contemporaneous with the provision of the funds?
b. Has the manner of repayment been particularized?
c. Is there security?
d. Were there similar advances made to other children?
e. Was there any demand for repayment before the parties separated?
f. Has any repayment on account of the monies been made?
g. Was there a likelihood or expectation of repayment?

The best approach is to avoid this thorny issue altogether by clarifying the nature of the funds up front. If the money is a gift, have everyone sign a deed of gift. If the money is a loan, a promissory note should be executed and payments made on the note throughout the marriage.

The post Is it a GIFT or a LOAN? appeared first on Toronto Family Law Blog Canada.

WHY? I find it is because people are not aware of the fact that marriage is a legal relationship. If they are, most do not want to think about its implications. The Family Law Act applies as soon as you say “I do”.

You should be saying “I don’t” unless you know the answers to the following questions:
1. What is your net worth?
2. What does your fiancé(e) earn?
3. What is his or her net worth?
4. If one of you owns a home where you plan to reside once married, is that person prepared to share its value in the event of a future separation?
5. Is common law marriage the same as legal marriage?

At least 8 months before the wedding, take the time to either read up on the above or, better yet, arrange a consultation with a family law specialist. The lawyer will walk you through how the law applies to your particular situation. Only then can you decide whether or not you think a marriage contract would be a good idea in your unique circumstances. Seeing a lawyer might not be the most romantic part of the wedding planning, but it could end up being the most useful. You won’t ever regret the hour or so you spend learning about family law. It could make the difference between an amicable and a litigated separation down the road.

You might need a marriage contract if:
1. One of you owns a home
2. There are children from a previous relationship
3. There are financial obligations to a former spouse
4. You have assets you want to protect from sharing upon marriage breakdown
5. It is a second marriage

Get legal advice. Then go and choose the dress, the rings and the band.

The post Do you need a marriage contract? appeared first on Toronto Family Law Blog Canada.