COVID-19 / Coronavirus: Can I take my child out of the province or out of the country?

Elisha Hale, LL.B (Hons) Dip.Custody and Access, Divorce, Family Law, Separation0 Comments

Given the recent COVID-19 crisis which has caused significant upheaval for many families across the world, many parents may be considering the impact of COVID-19 on their ability to travel or relocate with their child. Relocating or travelling with a child following the breakdown of a relationship is a commonly contested issue as any relocation by one party may make access or visitation with the child difficult. The relocation may be due to a new job, moving closer to family following the separation, moving to a new school or simply for a change of scenery; regardless of the reason, parties should be aware of their rights, and the other parents rights, to move their child or children out of the province or to another country. The leading Supreme Court of Canada case on this issue is Gordon v. Goertz,  which developed a two-fold test to determine whether the move should … Read More

Cyberbullying in Family Law

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Custody and Access, Division of Property, Divorce, Family Law, Spousal Support0 Comments

Cyber-bullying is a growing concern in family law litigation. Some provinces already have legislation to deal with such issues. While Ontario currently does not, in recent years Ontario courts have recognized new common law remedies to address these issues. In Yenovkian v. Gulian, 2019 ONSC 7279, Justice Kristjanson of the Ontario Superior Court of Justice recognized the act of publicly placing a person in a false light as a new cause of action under the tort of invasion of privacy. Yenovkian involved an extremely acrimonious separation and custody dispute involving two children, one of whom has special needs. Shortly after separating in 2016, the Respondent, Ms. Gulian, took the parties children to England and refused to return to Ontario. The Applicant, Mr. Yenovkian, engaged in a cyberbullying campaign spanning several years against his estranged wife. This campaign included videotaping court-ordered access visits with the children, without the children’s knowledge and … Read More

Six Ways to Get an Annulment in Ontario

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Child Support, Custody and Access, Division of Property, Divorce, Family Law, Spousal Support0 Comments

Civil annulments are uncommon in Ontario as most separating spouses in Ontario choose to get a divorce. Annulments deem a marriage invalid, rendering the marriage null and void, as if it never happened. Essentially, an annulment means your marriage never occurred in the eyes of the law. Annulments are granted under a few specific grounds: 1. One of the spouses does not have the capacity to marry or could not consent to the marriage. Section 7 of Ontario’s Marriage Act states no one shall issue a licence to or solemnize the marriage of any person who lacks the mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason. Predatory marriages, where a financially motivated person marries an elderly person to gain access to and control over their property, assets and estate, can fall under this category if the victim … Read More

Hurdles To Recognition and Enforcement Of Foreign Judgments

Sabrina Saltmarsh, B.A. (Hons), J.D.Commercial, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Interjurisdictional Disputes, International Litigation, International Sale of Goods, International Sale of Goods Arbitrator, International Trade Fraud, International Traders, Jurisdictional Challenges, Letters Rogatory, Of Interest to US Counsel, Offshore, Request for International Judicial Assistance0 Comments

In the recent Ontario Court of Appeal decision of H.M.B. Holdings Limited v. Antigua and Barbuda, 2020 ONCA 12, the Court of Appeal rendered a split (2-1) decision regarding the recognition of a foreign judgment which muddies the waters on the analysis to be applied to s.3(b) of the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 (REJA) Original Judgment: In this case H.M.B. Holdings Limited (HMB) was successful in obtaining judgment on February 26, 2014, against Antigua and Barbuda from the Judicial Committee of the Privy Council (the JCPC), which is the highest court of appeal for certain British territories and Commonwealth countries including Antigua and Barbuda. The case related to damages sought by HMB due to the expropriation of resort lands by the Antiguan government. The case has garnered some media attention because of the manner in which the lands were expropriated. HMB then brought a common law … Read More

The Matrimonial Home: What Happens  Post Separation?

Elisha Hale, LL.B (Hons) Dip.Division of Property, Divorce, Marriage Contracts0 Comments

The matrimonial home is often viewed as sacred ground for divorcing couples and disputes commonly arise over the ownership and possession of the property. In Ontario, special status is given to the matrimonial home due to it often being the most valuable and sentimental asset that a couple or family possesses. What is a ‘matrimonial home’? Section 18 of the Ontario Family Law Act defines the matrimonial home: “every property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and their spouse as their family residence”. Can there be more than one ‘matrimonial home’? There can be more than one ‘matrimonial home’ as long as at the date of separation, all of the properties are “ordinarily occupied” by the spouses as the “family residence”. The residence(s) being claimed as the ‘matrimonial home’ must … Read More

Common Law Couple Entitlements

Elisha Hale, LL.B (Hons) Dip.Division of Property, Divorce, Spousal Support0 Comments

Common Law Couples A common law relationship is not defined universally in law. Federal and provincial legislation use differing criteria to define common law relationships. For example, Ontario’s Family Law Act, defines common law relationships as one where parties reside together for at least three years or where parties are in a relationship of some permanence and have a child. Whereas, under the Income Tax Act, a common law relationship is defined as one where parties are in a conjugal relationship and living together for at least twelve continuous months. When you reside as common law spouses you are ‘spouses’ for the purpose of Government programs or benefits, except for those specifically applicable to ‘married spouses’. There is no formal separation process which must be followed. Married Couples  A married couple is a couple who have chosen to commit their lives together and have undertaken to legally bind their relationship. … Read More

Do I have to split an inheritance I’ve received in my divorce?

Elisha Hale, LL.B (Hons) Dip.Division of Property, Divorce, Family Law0 Comments

During a divorce, couples often argue over whether an inheritance received by one spouse is to be included in the assets and property to be divided. As a rule, inheritances or gifts received by one spouse are excluded from the property division calculation used when spouses separate and divorce. Be aware that the inheritance or gift must not be treated as matrimonial property or placed into a joint account, as this will create complex accounting issues in your joint finances which will be difficult to unravel to prove the ownership of the inheritance or gift. At the time of the divorce, the inheritance or gift must still be in existence, whether this is in the form of a physical object, or non-tangible property such as stocks and shares. Upon receipt of inheritance or a gift, unless a spouse wishes for it to form part of the matrimonial property, a spouse … Read More

2020 – Does the 20th year of marriage mean an indefinite spousal support obligation?

Elisha Hale, LL.B (Hons) Dip.Division of Property, Divorce, Spousal Support0 Comments

With 2020 now upon us, it seems appropriate to consider the impact of reaching your twenty-year anniversary and what impact this may have on your spousal support obligations. The Spousal Support Advisory Guidelines suggest that where spouses have been together for twenty years or more, the duration of spousal support should not end at a specified point, in essence rendering the obligation to be indefinite. However, the Courts will look at the particular circumstances of the spouses including the requirement to become self-sufficient, the standard of living that the spouse grew accustomed to throughout the marriage and the age and employment potential of the spouse claiming spousal support. In the recent case of Cowan v Cowan (2019) , the parties were married for 21.5 years. The wife was an anaesthesiologist and associate professor earning over $300,000 annually, and her husband who claimed spousal support was a teacher earning $92,000 per … Read More

What is a legal separation?

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Division of Property, Divorce, Family Law, Separation, Separation Agreements0 Comments

In Ontario, there is no such thing as ‘legal separation’. Married couples need to get divorced to finalize their separation and common law couples are not required to complete any formal process to separate. Separated spouses may wish to enter into a separation agreement. A separation agreement is a domestic contract between both spouses who no longer wish to remain together. A separation agreement can detail rights and obligations relating to property, spousal support, obligations relating to children, and any other issues that spouses may wish to regulate. Once the agreement is signed by both parties and witnessed, it is a legally binding contract just like any other and you cannot change the terms without an amendment or court order. Both spouses should always take independent legal advice to help avoid any agreement being overturned. Separation agreements are not mandatory, but they can provide a reassuring avenue to avoid acrimonious … Read More

The Quickest Way To Get Divorced

Elisha Hale, LL.B (Hons) Dip.Divorce, Family Law, Marriage Contracts0 Comments

With the first two weeks of January, following the Christmas and New Year holidays  statistically the most common time for couples to file divorce proceedings, parties will inevitably want to know the quickest and most cost-effective route to obtaining a divorce.  While there are routes which may aim speed up the process; unfortunately obtaining a divorce in Ontario tends not to be a speedy process. In order to obtain a divorce under the Divorce Act  you must show that your marriage has broken down. You can obtain a fault or non-fault divorce. Non-Fault Divorce You and your partner have lived apart for one continuous year and consider your marriage to have ended. This still applies if you live in the same property, however you must be living separate lives i.e. not file taxes together,  not sleep in the same bed, not attend social occasions together and not be supporting each … Read More

Broken Engagements- Who Keeps the Ring?

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Division of Property, Family Law, Gift Law, Personal Property, Separation0 Comments

When an engagement ends, the question of who keeps the engagement ring is not as straight forward as one might assume. There is a long line of case law dating back centuries in which courts have struggled with this question. The traditional common law approach held that the party who ended the engagement loses claim to the ring. If the engagement ring is seen as conditional gift, the ring would go back to the donor. Section 33 of Ontario’s Marriage Act changed the common law approach slightly by stating the donee will keep the engagement ring if it’s an absolute gift, whereas the donor will get the ring back if it was a conditional gift. However, the Marriage Act also states a promise to marry cannot be enforced nor can a party bring a court action for a breach of a promise to marry. Removing the issue of fault in … Read More

Four Things to Know About Common Law Relationships

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Division of Property, Family Law, Marriage Contracts, Separation, Spousal Support0 Comments

1. Definition of Common Law Relationships There is no universal definition of a common law relationship. Federal and provincial legislation use differing criteria to define common law relationships. For example, Ontario’s Family Law Act, defines common law relationships as one where parties reside together for at least three years or where parties are in a relationship of some permanence and have a child. Whereas, under the Income Tax Act, a common law relationship is defined as one where parties are in a conjugal relationship and living together for at least twelve continuous months. 2. Spousal Support Common law spouses, like married spouses may be entitled to receive spousal support upon separation under Ontario’s Family Law Act. Once an entitlement to spousal support is established, the quantum and duration of spousal support is calculated based on the Spousal Support Advisory Guidelines. These guidelines determine the quantum and duration of support based … Read More

Recognition of Foreign Divorces in Ontario

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Appeals, Divorce, Family Law, Interjurisdictional Disputes, Separation0 Comments

In Novikova v Lyzo, 2019 ONCA 821,  the Ontario Court of Appeal considered the grounds in which foreign divorces are recognized in Canada. The parties in this matter are Russian citizens but after moving to Canada in 2013, became permanent residents of Canada. The Appellant, Mr. Lyzo, returned to Russian and started divorce proceedings in February 2016, while Ms. Novikova stayed in Canada. In October 2016, Ms. Novikova commenced family law proceedings in the Ontario Superior Court of Justice. Mr. Lyzo obtained a divorce from Ms. Novikova on June 8, 2016 in Russia. Ms. Novikova did not receive the notice of the divorce application as these letters were sent to her parent’s address in Russia. Ms. Novikova also did not receive a copy of the divorce order within the appeal period. Mr. Lyzo brought a motion for summary judgement to have the Russian divorce recognized and to dismiss Ms. Novikova’s … Read More

Child Custody and Access in Ontario

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Custody and Access, Divorce, Family Law, Separation0 Comments

What is Custody? Custody refers to the ability of parents to make major decisions concerning health, education, and religion in their children’s lives. Types of Custody Arrangements in Ontario Sole custody means that one parent makes most of the major decisions in the children’s lives. However, the non-custodial parent usually has the right to be given information and make inquires about the welfare, health and education of the children. Joint custody means both parents share the ability to make major decisions in the children’s lives. For joint custody to be successful, parents need to be able to cooperate and communicate with each other. With joint custody, the children may primarily reside with one parent or the children may live equal amounts of time with both parents. Shared custody is a form of joint custody where the children spend at least 40% of their time with each parent. The children have … Read More

Gilbertson Davis LLP Welcomes Family Law Lawyer Kimberley Wilton!

John L. Davis, B.A. (Hons.), J.D.Adoption, Child Support, Collaborative Family Law, Custody and Access, Division of Property, Divorce, Family Law, Gilbertson Davis LLP News, Interjurisdictional Disputes, Marriage Contracts, Mobility Issues, Spousal Support0 Comments

Gilbertson Davis LLP extends a Warm Welcome to Family Law Lawyer Kimberley Wilton.  Kim was called to the Bars of Ontario, Newfoundland and Labrador in 2013, after obtaining her Doctor of Jurisprudence degree from Dalhousie University (2012; Schulich School of Law), a B.Sc. (Hons.) degree from the University of Toronto (Psychology and Middle Eastern Studies; 2006) and a B.A. degree from Memorial University (English Language and Literature; 2009).  Kim is also certified as a Collaborative Family Law Lawyer.   Kim is passionate about the provision of client service to a standard of excellence.  She has experience in a broad range of Family Law matters, including contentious custody and access disputes, child and spousal support claims, complex property disputes including the division of assets, adoption applications and mobility issues. She is also experienced in drafting parenting plans, separation plans and domestic contracts.  Kim is sensitive to the specific needs of each client, … Read More