DIVISION OF FAMILY PROPERTY: ENTITLEMENT TO FARMLAND OWNED BY EX-SPOUSE AND THIRD PARTIES

When two parties are separating and dividing the family property, there may be questions surrounding property owned by one of the spouses and third parties. In Saskatchewan, this is particularly true for farmland. Often a husband or wife will own farmland with their parents for estate planning purposes. So how does the court deal with this in the division of family property?

Courts ask two questions: first, is the farmland matrimonial property? And if so, what value should be attributed to it?

The answer to the first question is simple. As defined in The Family Property Act, family property means any real or personal property, regardless of its source, kind or nature, that, at the time an application for separation is made, is owned, or interest is held, by one or both spouses, or by one or both spouses and a third person. A joint tenant owns a legal right in the property by virtue of being a registered owner on title. Therefore, farmland held by one spouse in joint tenancy with their parents is family property as defined in the Act.

The second question is where the true analysis lies – what value should be attributed to the jointly held farmland? If the joint tenancy was legitimately for estate planning purposes, its value for the division of family property will be nil. This is because the spouse, and therefore the family unit, did not collect a benefit from the farmland during the marital relationship. Rather, the spouse was simply on title for estate and succession planning once their parents pass away. Courts will look to factors such as who maintained control over the land, who used the land and who paid the expenses and received the benefits from the land when determining if a transfer of title was truly for estate planning purposes. If there is evidence to suggest the spouse received a benefit from the land during the marital relationship, it will be assigned a monetary value by the court and be subject to division. 

Should you have any questions about the division of family property, or need advice on your family law matter, please contact Robertson Stromberg LLP.

Can my child choose where they want to live?

The short answer is no. However, the wishes of children can be considered in determining parenting arrangements. As the Court does not want children to participate in family law disputes, this article briefly touches on how to put the wishes of a child before the Court for consideration. 

To begin, regardless of the age of the child, there is no law or legislative principle that the wishes of a child dictate the parenting arrangement.  (See M.L.S. v N.E.D., 2017 SKQB 183; Redstar v Akachuk, 2013 SKQB 223; and Kittelson-Schurr v Schurr, 2005 SKQB 90.)

However, a child’s wishes can be an important consideration in determining a parenting arrangement that serves their best interests.  The wishes of young children aged 11 and younger, are typically not taken into consideration by the Court. The Court is of the view that young children are not sufficiently emotionally or intellectually developed to articulate their true feelings.

Children are capable of forming their own views at 12 years of age, which Family Justice Services recognizes for the purposes of conducting a “Voices of the Child” report.

If a matter is proceeding to Court, either by a trial or an interim Chamber’s application, a “Voices of the Child” report can be of assistance in putting the wishes or desires before a judge for consideration.

A Voices of the Child report may be ordered by a judge at any stage of a family law proceeding and the reasons the Court orders Voices reports vary widely. For example, a Chamber Judge, may order a “Voices of the Child” report when conflicting affidavits about the “wishes” of teenage children have been presented. Voices of the Child reports are also ordered at Pre-trial Conference solely for the assistance of the trial judge, who is tasked with determining the parenting arrangement.

However, there is no automatic right to having a Voices of the Child report prepared.

In addition to the age requirement (child must be 12 years old or older), a party seeking to put forward their children’s wishes with respect to the parenting arrangement, must present evidence that leads the Court to conclude that a Voices report would be of assistance in determining the parenting arrangement in the child’s best interests.

If your child is above the age of 12 and has expressed views with respect to the parenting arrangement, a Voices of the Child report can be of assistance to the Court in determining a parenting arrangement.

In the right circumstances, your child’s wishes as expressed through a Voices Report can be the determining factor. In a recent Saskatchewan Court of Queen’s Bench decision, the Court found that irrespective of both parents’ capabilities of caring for the children equally, that a child’s wish was the “most dominant factor” in considering whether the relocation was appropriate. In that case, the child expressed a wish to relocate with the mother. Given the assistance of the Voices of the Child report, the Court granted the mother’s request to relocate with the children (A.R. v R.R., 2016 SKQB 206).

The family law lawyers at Robertson Stromberg LLP can assist in obtaining a Voices of the Child report and your parenting needs more generally.

Retroactive Child Support: Should you be Worried?

The recent Supreme Court of Canada decision, Michel v Graydon, 2020 SCC 24  is likely going to cause late night anxiety for some parents as the Court determined that, no matter how old the “children” are, parents may still collect unpaid child support from the other parent.  

In Michel v Graydon, the Court unanimously ruled that a British Columbia father must pay $23,000 in retroactive child support to his former common-law partner and child, even though the “child” is now 29 years old.

The Court held that child support is a right that belongs to the child, it is not something that parents can negotiate away. Child support should provide the child with the same standard of living they had prior to parental separation. Payments required of a parent must be reasonable when taking payor income into account. Back payment orders, or retroactive child support orders, hold parents accountable to responsibilities they may have neglected.

The judges in Michel v Graydon unanimously agreed that the prevention of retroactive child support places a disproportionate burden on women as caregivers. The Court further noted it would be wrong to create an incentive by granting payor parents immunity after the child ceases to be “a child of the marriage”.

“The courtroom doors should not be closed because certain categories of debt owed to children are classified as coming too late”.

The Supreme Court was clear in their message to parents who knowingly avoid or diminish their child support obligations, payor parents will no longer profit from bad behaviour.

Should you have any further question about collecting retroactive child support, or need advice on your family law matter, please contact Robertson Stromberg LLP.

 

Summary Judgment in Family Law Proceedings: Where Are We Now?

Summary Judgement in Family Law Proceedings: Where Are We Now? (CPD 259)

Join Sean Sinclair (Robertson Stromberg) for this informative discussion about summary judgment in family law proceedings. The “new Rules of Court” were introduced with considerable fanfare and with the potential to assist litigants seeking timely and cost-effective access to justice. Among the changes was the development of a summary judgment procedure to avoid the needless expense and time of a trial. In the family law realm, the summary judgment process was potentially a tool to allow families to obtain affordable judicial finality. At the now seven year mark of the introduction of the “new Rules”, this webinar will explore the reported cases and developments regarding summary judgment in family law proceedings with an eye on whether the summary judgment process has been successful in promoting timely and cost-effective access to justice.

September 15 (Online) | 12:00 – 1:00 PM

Qualifies for 1 CPD Hour

Am I in a Common-Law Relationship?

In Saskatchewan, The Family Property Act and The Family Maintenance Act defines “spouse” as either two persons who are legally married or have been cohabiting with the other person as spouses continuously for at least two years (often referred to as a “common-law relationship”). This means that once you have cohabitated with another person continuously for at least two years, the same rights arise under these acts as couples who are legally married. Meeting the above definition of spouse triggers certain rights and obligations with respect to property owned both together and individually as well as support.

Unlike legal marriage where you have a definite ‘start’ date, the date when people commence cohabitation is dependant on several factors and may not necessarily be when one or both persons think. There are also many misconceptions about preventing the ‘cohabitation clock’ from starting which includes: not changing your address, filing a tax return as single, keeping separate bank accounts, owing/maintaining separate homes or paying the other person rent.

There are several factors that the Court will consider when determining if two people are cohabitating as spouses and when it commenced. These include:

  • Do they live together?
  • What are the sleeping arrangements?
  • Do they have an exclusive relationship with one another?
  • Do they eat meals together?
  • What are their feelings toward one another?
  • What is the conduct between them about:

    • Preparation of meals;
    • Washing of clothes;
    • Shopping for groceries; and
    • Household upkeep and maintenance.
  • Do they participate together or separately in activities, including but not limited to, work functions, weddings, family gatherings, etc.
  • How do their neighbours, co-workers, friends, families view the couple?
  • What are their financial arrangements or attitudes?

The above list is not exhaustive and no factor is determinative. Courts will still examine the relationship as a whole to make their determination. It is also important to note that a temporary break-up or separation does not necessarily restart the ‘cohabitation clock’.

Couples can enter into a Cohabitation Agreement which is a contract made between them allowing them to protect their individual assets and set out what rights and responsibilities each person has should the relationship end in the future. A Cohabitation Agreement can be tailored to a couple’s specific needs and requires each person receives independent legal advice with respect to the Agreement.

If you have further questions about your rights and obligations under The Family Property Act and Family Maintenance Act, the definition of ‘spouse’, cohabitation, or Cohabitation Agreements, Robertson Stromberg’s team of Family Law lawyers would be happy to assist you.

COVID-19 and Parenting: How can I seek relief from the Court?

COVID-19 has presented many new challenges for parents to face.  You may find yourself in difficult situations.  What if the other parent is not physically distancing and continues to see relatives and friends and I feel their access should be limited to FaceTime only to protect the children?  What if I am not receiving the child or spousal support I should be?  Or what if I want to make an application for child or spousal support?  If you cannot reach an agreement with the other individual concerning these and other family law issues, you may want to seek relief from the Court.  However, the Court is only hearing matters on an emergency basis.

The purpose of this article is to provide a summary of the threshold you must meet in order for your matter to be heard by the Court right now.  If your matter does not reach this urgent threshold, then you may wish to consider mediation, arbitration, collaborative law, or another form of negotiation.

The Court’s Directive:

 

There are essentially four ways that your family law matter will be heard by the Court right now:

  1. The safety of either the child or a parent is at risk. This includes things like restraining orders, non-contact orders, and orders for exclusive possession of the family home;
  2. An essential medical decision must be made regarding a child or if a child has been wrongfully removed from the jurisdiction or wrongfully retained by one party (such as if one party withholds the child from the other; more on this below);
  3. There are dire circumstances of financial need, including where one party may squander or dispose of property such that an order to preserve property is required; or
  4. Any other circumstance which the Court considers urgent.

There are few reported decisions in Saskatchewan and, therefore, much of the case law is from Ontario. These cases are certainly still relevant in Saskatchewan as the Court looks to cases outside of the province, especially when dealing with novel matters such as COVID-19. The following are examples of cases which were, or were not, considered urgent enough to be heard by the courts.

The benchmark case is Ribeiro v Wright, 2020 ONSC 1829. In this case, the Ontario Superior Court explained that the presumption in most cases is that orders or agreements for parenting time should remain in place during COVID-19, unless there is evidence that one parent has been exposed to COVID-19 through their employment or otherwise, or there are heightened risk factors given their employment or personal behaviours. In these circumstances, a matter will be considered urgent and adjustments to the parenting schedule required.

The courts in Ontario have been clear that there needs to be a real concern for the safety of a child or parent in order for a matter to be heard on this ground. One example would be an imminent risk of harm to a child or one of the parties involved. Cases on this topic are addressed below in the “any other circumstance” category.

Essential Medical Decisions or Wrongful Removal/Retention/Relocation:

 

In L-AF v KVS, 2020 ONSC 1914, the father brought an application to prevent the mother from relocating with the child to a different city. His evidence was that the mother had listed her home for sale. The father was also concerned with strangers coming to view the house during the current quarantine as it violated physical distancing protocols.  The matter was viewed as urgent and set to be heard at a later date.

Placha v Bennett, 2020 ONCJ 164, was a case where the father took the child, who normally resided with the mother, on a holiday to Newfoundland and Labrador from Ontario. In the midst of the trip, the COVID-19 pandemic became an emergency and he refused to return the child to the mother in Ontario, saying it would be unsafe for the child. This was deemed an urgent matter and the child was ordered returned to the mother.

In an unreported decision from the Saskatchewan Court of Queen’s Bench from March 24, 2020, Justice Brown considered a case where a father was withholding the child from the mother under the guise that, since schools were closed down, the summer break had started such that they shared parenting equally. The mother applied to have the child returned to her care. This was determined to be an urgent circumstance and the child was ordered returned to the mother.

Amirzada v Alemy, 2020 ONSC 1979, was a case where the mother applied to move from Toronto to Vancouver until the COVID-19 pandemic was over. The father had assaulted the mother recently and there was a restraining order in place. The court deemed this matter urgent, and ultimately ordered that the mother was not allowed to move due to the risks associated with travelling cross country, the unknown length of time the pandemic will last, and the father’s restricted access to the child.

Dire Financial Circumstances:

 

In Roberts v Roberts, 2020 ONSC 2341, an anaesthesiologist applied to reduce his spousal support payments to his ex-wife. In 2018, he earned $634,747, but he later suffered a heart attack and had to stop working. He was currently earning $104,400 per year on disability.  Given the extent of the drop in income, the Court concluded these were dire financial circumstances and scheduled the application to proceed.

An application for child support which had previously been deemed urgent and subsequently scheduled to be heard on an emergency basis was considered in Lafond v Blouin, 2020 ONSC 2396. While the decision did not indicate why the matter had previously been deemed urgent, the case involved a mother whose sole sources of income were social assistance and tax credits of around $12,000 per year.  There were two children involved.

In Mohamed v Osman, 2020 ONCJ 172, a woman from the United States brought an application for child support prior to COVID-19 shutting the courts down.  The Court made a temporary order providing that the father pay child support and adjourned the application until after the courts return to normal operation.  Of relevance here is that the father’s income was unknown, and the Court imputed it to $25,000, noting that it would have normally imputed income of $40,000 if we were not in the midst of COVID-19.  In making the temporary support order, the Court noted that the mother was supporting three children on her own without help from the father which was unacceptable.

In Scion v White, 2020 ONSC 1915, the father applied for relief regarding access, finances, and property. However, the Court determined that only the access issue was urgent and refused to hear the issues relating to finances and property.

Regarding family property, in order for a property issue to be urgent, there must be an imminent risk of irreparable harm, including unnecessary financial loss, if the application is not heard immediately (JW v CH, 2020 BCPC 52).

Any other Urgent Circumstances:

 

These cases have been described as “exigent” or “critical” in the case law. The Court will ask itself whether any harm or prejudice would result to one party if this matter is not heard immediately. In the vast majority of cases, the answer will be no.  Most matters will be able to wait until the Court is back in regular session.  The cases previously discussed, and those discussed below, provide an indication of what is urgent in the eyes of the Court.

In Thomas v Wohleber, 2020 ONSC 1965, the Ontario Superior Court laid out four factors which must be met in order for a matter to be considered urgent:

1. The concern must be immediate and cannot wait to be dealt with later;

2. The concern must significantly affect the health or safety or economic well-being of the parties or their children;

3. The concern must be tangible. It must be a real, proven concern, not something that is speculative; and

a) For example, you cannot simply say that you do not think the other parent will follow physical distancing protocols. Rather, you must have clear and specific evidence that they are not doing so.

b) In NJB v SF, 2020 BCPC 53, the B.C. Provincial Court dealt with a matter where the father had restricted all access to the mother. The father did not think the mother would take COVID-19 seriously, based largely on her history of mental health issues which lent themselves to conspiracy theories.  The Court found the father’s concern was only speculative and not born out by the evidence presented.

4. The concern must be clearly articulated and proven in the evidence put before the Court.

The case law shows there is a high standard to be met here. In KB v KK, 2020 SKQB 86, a father applied to the Saskatchewan Court of Queen’s Bench to place the children in his primary care, rather than the mother’s. The father had concerns with the mother’s parenting and that she was abusing drugs.  The Court determined that this was not an urgent matter and it was adjourned, largely because there was no evidence that the children were in any way at risk.

The KB v KK decision referenced an unreported Saskatchewan Queen’s Bench decision of March 25, 2020, in which Justice Brown explained that most matters will feel urgent to the parties involved, however, those matters which are currently being heard are those with importance in the context of the physical distancing and isolation reality we are presently living in. If the matter can wait until after the current pandemic is over, it is not urgent.

In a recent Saskatchewan decision, TDL v SDS, 2020 SKQB 97, the father, prior to COVID-19, applied to vary a judgment from 2014 regarding parenting of the children. The matter was adjourned after the Court largely restricted its services to emergencies only. The father then applied again for the matter to be heard on an urgent basis, part of which was that the mother was not obtaining and administering the requisite hormone therapies for their transgender child.  Since the child had not yet started hormone therapies for transition, the Court did not consider this to be urgent to the child’s health or wellbeing.

In Davis v Eby, 2020 ONSC 2011, an application was made by the mother to restrict the father’s access to supervised only due to safety concerns.  The child had been present in the father’s home when the father’s cousin overdosed on drugs.  There were also concerns that the father continued to have drug issues as he refused to submit to a drug sample per a court order.  This matter was deemed urgent and heard by the Court.

In Scion v White, 2020 ONSC 1915, the Ontario Superior Court noted that issues relating to access with children can only “potentially” be urgent if there is a complete denial of access. So, even if you are upset with a lack of access, the Court may only see it as urgent if there is a complete denial of access.

  • In Tessier v Rick, 2020 ONSC 1886, the father applied to enforce a court order for his access. The mother had been denying all access to the father, but her evidence was that the father was not observing COVID-19 safety protocols.  The Court saw this as an urgent matter, largely due to the apparent risks to the child and the child’s young age (3.5 years-old).
  • Likewise, in Le v Norris, 2020 ONSC 1932, the mother was withholding all access to the father for several reasons, one being COVID-19. The Court determined this matter was urgent and ordered that the father’s access be restored per the court order in place.  The Court noted that people should use basic common sense to follow court orders and respect physical distancing protocols at the same time.

For more information, please contact:

 Curtis P. Clavelle

306.933.1341

Email: c.clavelle@rslaw.com

Area of Expertise Family Law