The need to amend the Act is to ensure that spouses who declare bankruptcy are not relieved of obligations under provincial marital property legislation.  This need was spearheaded in Manitoba after the Supreme Court of Canada decision in Schreyer v. Schreyer.

In the Schreyer decision, a farm wife of a 19 year marriage was left empty handed when she was unable to collect an equalization payment after her husband went bankrupt, yet the husband kept the entire family farm (the family’s main asset which was registered in his name alone).

The result does not seem fair and now a change is being urged to prevent similar results happening to others in Ontario and the rest of Canada.  Without a change to the Act, the same result would likely be unavoidable.

If these recommended changes are made in the future, it will be an important change for many Canadians and their future.

The IRD is calculated based on the amount of principal that you are prepaying, the remaining length of your mortgage term, and the difference between your original mortgage interest rate and the interest rate that your existing mortgage lender could charge today to borrowers. Basically, the IRD charge is an attempt to compensate your lender for the lost revenue that it would have generated had you remained with them for the balance of your mortgage term. The IRD becomes an important consideration when interest rates have decreased significantly from your original mortgage interest rate, and there is still a significant portion of your mortgage term remaining. In some cases, the IRD charge can make refinancing to capture a lower interest rate a less than profitable venture.

It comes as a surprise to many people that marriage automatically renders a Will signed prior to the wedding invalid (unless the Will was entered into “in contemplation of marriage” and this is specifically referenced in the Will).  Perhaps more surprising to people, however, is the fact that the breakdown of a marriage – either separation or final divorce – does not have the same effect.

Separation has no effect on a Will whatsoever.  In the absence of a separation agreement limiting a spouse’s entitlement, therefore, a gift under a Will remains valid regardless of the length of the separation.  In fact, the Succession Law Reform Act specifically provides that a Will is not revoked by a presumed intention based on a change of circumstance (section 17(1)).  What this means is that a Judge won’t have the authority to invalidate a gift to your good-for-nothing husband who left you 10 years ago if you didn’t bother changing your Will, entering into a Separation Agreement or finalizing a divorce.

While divorce also does not invalidate a Will, it does trigger changes that make sense to clients.  First, divorce invalidates gifts in the Will made to the ex-spouse.  Second, it revokes the appointment of the ex-spouse as Estate Trustee.  Third, it revokes any general or special power of appointment granted to the ex-spouse, who is deemed to have predeceased.

If the gift to the spouse is of “residue” (meaning the assets left over after all debts are paid and specific gifts to other beneficiaries are distributed), then an intestacy (meaning the legal equivalent of having no Will at all) may result for those assets, causing a distribution that will likely not be what the deceased would have wanted.

While the Succession Law Reform Act’s provisions may provide some comfort following a divorce, they are a poor substitute for proper planning following this major life event.

In the specific case in which the documents were filed, the couple wed in Toronto in 2005 and cannot divorce because (according to the documents) their marriage was not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.

The government’s statements cast sudden doubt on the rights and legal status of same-sex married couples who wed in Canada.  The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.

Since 2004, more than 5,000 of the approximately 15,000 same-sex marriages that have taken place since then involved couples from the United States or other countries.

The government documents specifically state that couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce and same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple.

Under this reasoning, the federal government would recognize the validity of marriages that take place in Canada provided the same-sex partners come from a state or country that also recognizes same-sex marriage.

Their divorce application will be considered next month by an Ontario Superior Court judge. They are asking the judge to either craft an exemption allowing them to divorce or to strike down any legislative provision that has the effect of preventing them from doing so.

In Aherne v. Chang, [2011] ONSC 3846 (Ont. Sup. Ct.), the defendants argued that they were not obligated to disclose their surveillance evidence until the moment they produced their defence medical report.

In keeping with the principle that expert witnesses are to take a non-partisan role in proceedings, Justice Perell upheld the decision of Master Short and found that the privilege associated with surveillance evidence was waived upon it being disclosed to the medical practitioner who conducted the defence medical examination.

Such disclosure was held to be supported by the existing law and deemed to be “procedurally fair, efficient and productive to the settlement or adjudication of the lawsuit”.

Early disclosure was also found to be consistent with the policy of the modern Rules of Civil Procedure, and to reduce the risk of ambush and surprise being utilized as tactical weapons in the adversarial system of adjudication.

It is hoped that Justice Perell’s decision will lead to personal injury disputes being resolved faster and in a more expeditious manner.

The decision is thought to be unique and there are not many of its kind.  In fact, there does not appear to be any other social media defamation cases of family members in Canadian judgments.

The case is a warning to parents and ex-spouses who are tempted to publicly defame each other online.  It is also a good lesson to family lawyers, who may want to emphasize to some clients that their comments on social networking sites are not private and can come back to them in court. Clients need to realize that anything they write in an email, post on facebook, or other social networking sites can later be used against them in litigation.

The Christmas season is behind us and the annual speculation over immaculate conception forgotten for most.  A new tort was born just before the holidays and unfortunately not accorded much fanfare. New torts are almost as rare as shining stars in the East and deserve to be either publicly celebrated or vilified. 

The new tort is invasion of privacy.  Or perhaps more accurately stated, the old tort of invasion of privacy been has now been restated to expressly include intrusion upon exclusion. Or put another way, a new leg of the old tort has grown. Or perhaps an old leg of an old tort has now merely been recognized. Or put another way … 

Whatever the proper academic analysis of the jurisprudence may be, the bottom line is that the Ontario Court of Appeal did something it rarely does. In a one in a thousand ruling the Court would step up to recognize a new remedy for the 21^st century and then lay out its reasons in a laudable display of plain language. 

Judges and lawyers are by training slaves to precedent. Every time an action is commenced in a Court the hard question is always asked – what is the legal cause of action?  If there is no cause of action, one can expect the defendant to quickly move to strike the statement of claim for failing to disclose a cause of action.  999 times out of a thousand the defendant will succeed on this motion. 

What is often lost in translation is the ongoing common law that the provinces and the federation of Canada remain open to new causes of action when circumstances dictate.

In Jones vs. Tsige http://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.html, the Court was asked to recognize a right to bring a civil action for damages for invasion of personal privacy.  The plaintiff and the defendant were married bank employees. The defendant took it upon himself to access his wife’s banking records to assist him in their family law proceedings. 

The Court of Appeal expressly adopted the American law on the tort of invasion of privacy limited to: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which paints the plaintiff in a false light in the public eye, and (4) appropriation for the defendant’s advantage of the plaintiff’s name or likeness. 

To his credit, Justice Sharpe of the Ontario Court of Appeal performed a lengthy and wise analysis of the history of this tort in case law as well as the emergence of privacy as a right protected by the Charter of Rights and PIPEDA. As Justice Sharpe stated in his Reasons, “we are presented in this case with facts that cry out for a remedy”. 

So what is the bottom line on the amount of damages to be awarded?  The court was clear that no provable economic loss need be demonstrated and a general damages approach would be taken, much as in cases for pain and suffering. The Court awarded $20,000. 

What is the future of this tort? 

Our view is that it will become an add-on to the list of basket torts that are often pleaded by commercial litigators, it will certainly appear with frequency in family law litigation, and it may start appearing in a number of other types of litigation.  We expect to see a burgeoning of the pleading of this tort much as we saw the burgeoning of the pleading of new-found tort of breach of fiduciary duty after the success of the plaintiff in Lac Minerals v. Corona http://www.canlii.org/en/ca/scc/doc/1989/1989canlii34/1989canlii34.html. Unlike the birth of breach of fiduciary duty, the recent birth has been silent. Also unlike the birth of breach of fiduciary duty, the new tort can be expected to be more of an add-on to support exemplary or punitive damages.  On its own, the new tort does not promise to open the floodgates but who can know? 

At this time, we cannot foresee how this tort will arise in the setting of estate litigation, an area in which our firm’s practice is growing, but we are sure the creative minds of that Bar will be giving this thought.

When a error is discovered after death, can a Judge rectify the error by deleting words from, or adding words to, the Will?

The 2009 decision of Justice Pattillo in Lipson v. Lipson, provides assistance to counsel in understanding the circumstances in which the court can add or delete words to a will. Justice Pattillo confirms that the jurisprudence on the matter indicates that “it has long been an established in Ontario that the court has the power to delete or add words to a will by necessary implication” (at para.32).

Justice Pattillo holds that before a court can add or delete words to a Will, it must be satisfied that:

(i) upon a reading of the Will as a whole, it is clear on its face that a mistake has occurred in the drafting;

(ii) the mistake does not accurately or completely express the testator’s intentions as determined from the Will as a whole;

(iii) the testator’s intention must be revealed so strongly from the words of the Will that no other contrary intention can be supposed; and

(iv) the proposed correction of the mistake, by the deletion of words, the addition of words, or both, must give effect to the testator’s intention, as determined from a reading of the Will as a whole and in light of the surrounding circumstances.

In the case at hand, Justice Pattillo found that the mistakes before him (which would result in the deceased’s major assets being excluded from the Will and therefore not being transferred exclusively to his wife, whom the testator had clearly intended to receive his entire estate) met the criteria outlined above and his Honour therefore ordered deletion of words necessary to rectify the mistake and give effect to the deceased’s true intentions.

Mistakes will keep happening.  Whether they can be fixed in any particular case will depend on whether the criteria laid out by Justice Pattillo will be met so as to permit rectification by the Court.

One case that will be heard on January 18, 2012 is A.G. Quebec v. A., which is a s. 15 Charter equality rights argument on the Quebec Civil Code’s exclusion of “de facto” spouses (common law spouses in Ontario) from the matrimonial property division and spousal support provisions that benefit Quebec couples that are either married or in civil unions.

The appeal has the potential to affect not only the many Quebec couples that cohabit but also all Canadian common law couples if the court decides to make a decision on property rights.

At this time, Quebec is the only province that does not grant de facto (common law) spouses the possibility of obtaining spousal support under its family law regime.

The issue of the exclusion of common law couples from matrimonial property division was last raised in the case Nova Scotia (Attorney General) v. Walsh in 2002.  In that case, the court refused to require provincial matrimonial property laws to treat common law spouses the same as married couples.  They decided that unmarried couples made the “choice” to not marry and this choice had to be respected.

It will be interesting to hear the court’s decision on this Quebec case – keep you posted!

The case commenced by way of a motion to change child support, brought by the father to terminate his child support obligation payable to the mother. The child commenced her own claim in her response, claiming child support from her parents on the basis that she was less than 18 years of age, more than 16, in need of support, and had not voluntarily withdrawn from care.

Counsel for Father argued that the Court cannot make an interim Order in a motion to change. Counsel for Father also argued that there were significant factual disparities in the affidavits filed on behalf of the Father and child, and that those factual disputes cannot properly be resolved and that, therefore, the matter needs to be adjourned to trial and no interim Order can be made.

Justice Johnson found that the child is entitled to interim child support from both her mother and father, pending trial to determine if the child is entitled to support.

In granting interim relief, the judge relied on the decision of Ball v. Broger, which states:

“The fact that trial will be required and that a Court might subsequently determine that [the child] is ineligible for support does not preclude the Court from making a temporary Order. The prejudice to a parent of overpaying support (and not being able to recover it) is more than offset by the prejudice to a child if he or she immediately needs support and the Court does not make a temporary Order.” The test is whether the child has established a prima facia case that she is entitled to support on the balance of probabilities.”

The judge further considered the following factors in deciding that child is entitled to interim support:

(1) The child did not move to a life of independence, rather moved into another parent and childlike environment, with the parents of a school friend;

(2) The child did not drop out of school but, rather, returned to high school full time and is passing her courses;

(3) The child did experience conflict in relation with adults other than her father and his partner, however, the child has resided for approximately one year with the parents of a school friend without difficulty;

(4) The child demonstrates distress and regret at the breakdown in the relationship between herself and her father. She is working to repair the relationship with her mother. The child was open to mediation;

(5) The child had a difficult childhood, witnessing domestic abuse and herself was sexually assaulted;

(6) Special consideration ought to be given to the emotional difficulties of the child’s childhood;

(7) There is ongoing conflict between the child and her father. At this stage, it is not reasonable to require the child to return to her father’s care; and

(8) The child is attempting to better herself by way of education. She is under the age of eighteen and unable to support herself. The child requires child support. The father has a legal obligation to do so.