Matrimonial Home

Under the Ontario Family Law Act, matrimonial home is defined as ‘every property in which a person has an interest and that is or, if  spouses have separated, was at the time of separation ordinarily occupied by the  person and his/her spouse as their family residence’. A home is a matrimonial home only if spouses are married.

The Family Law Act gives a special treatment to matrimonial home when spouses separate. Let us see how.

Right to Possession:  Both spouses have equal right to possession, regardless of ownership. This means they both have equal rights to live in the home. When spouses separate, the non-owner spouse is entitled to live the house. The owner spouse cannot ask the non-owner spouse to move out of the matrimonial home unless there is a separation agreement or a court order.

Prohibition against Sale: The owner spouse cannot dispose of or encumber an interest in a matrimonial home. Under the Ontario Family Law Act, this can be done only if:

  • The other spouse consents to the transaction;
  • The other spouse has released all rights under this Part by a separation agreement;
  • The court has ordered the authorization of the transaction;
  • The property is not designated by both spouses as a matrimonial home and a designation of another property has been made by both spouses which is registered in the relevant land registry office and not cancelled.

If either of the spouse disposes of or encumbers an interest in a matrimonial home in contravention of the above, the court may  set aside such the transaction on an application made the other spouse having an interest in the property.

Call us for more information @905-290-7205.

Financial Disclosures

Financial Disclosure is the most important part in any family law dispute. Family Law Act requires both parties to complete their financial disclosures stating their incomes, expenses, assets, debts and liabilities. The financial disclosures can be done by completing Financial Statement under the Ontario Family Law Act and Family Law Rules.

What is Financial Statement?

Financial statement is a court form where partied provide all financial information along with the associated documents. There are two court forms- Form 13 and Form 13.1. It is important to know which form is required.

Form 13 is required if a claim is made for support only, ie., child support, spousal support or both. Form 13.1 is required to be completed if there is a claim for support and property claim or for exclusive possession of the matrimonial home.

Financial statement is required to be affirmed or sworn.

Both parties are required to attach the following documents with their Financial Statement:

  1. Income tax returns, with all schedules and attachments, and Notices of Assessment for the three most recent years;
  2. Most recent pay stub;
  3. Record of Employment it the party has recently lost his/her job;
  4. If a party is self-employed, the party is required to provide three years of their business financial statement. The party is also required to provide the value of the business;
  5. If the party is on Employment insurance, Ontario Works, Ontario Disability Support Program or Workplace Safety and Insurance Board Benefits, Canada Pension Plan or a private pension plan, a statements showing the benefits paid and being paid;
  6. The Municipal Property Assessment Corporation assessment for all real estate owned by the party.

Documents required as of the date of separation and if available the date of marriage:

  1. A mortgage statement for any real property;
  2. Copies of all bank, RRSP, and investment account statements;
  3. Statements for Lines of Credit, Credit cards, car loans, personal loans, whether joint or sole.

The above list could be more depending on the complexity of the party’s financial situation.

Call us for more information @905-290-7205.

 

Closed and Open Mediation

There is a difference between closed and open mediation.

Closed Mediation maintains confidentiality of the parties. This means that the negotiations and offers made are not used as evidence in any legal proceedings between the parties. Mediators will not give any report to the court or to the lawyers of the parties. Most family mediations held in Ontario are closed mediations.

Open Mediation waives the confidentiality which means that whatever said during the mediation process can be disclosed in any legal proceedings between the parties. In an open mediation, the mediators prepare a report when the mediation comes to and. This report may be submitted to the court.

Pre-Mediation Screening

Pre-mediation screening takes place before the parties agree to proceed with the mediation process. It helps the mediator to determine the procedural needs of each party and whether mediation is appropriate for the parties or not. The mediator meets with each party separately at the intake meetings. Each party completes an intake form.

Screening is usually for domestic violence and abuse, mental health and any drug/alcohol addiction or any vulnerability fears the parties may have. This initial meeting gives an opportunity to the party to seek more information and to clarify any questions that will help the party to make a decision. This would establish if the mediation is appropriate or not.

Screening is an important step and is taken very seriously at our office.

Call us @ 905-290-7205 for more information.

Ontario Land Transfer Tax

Every person who has acquired a beneficial interest in the land by completing a registration of conveyance is liable to pay Land Transfer Tax under the Land Transfer Tax Act. Land Transfer Tax is payable on each transfer/conveyance of land in Ontario unless exempt under the Act. It is usually calculated based on the value of consideration. According to the Act, any conveyance completed on or after January 1 2017, tax will be calculated in the following manner at the rate of:

0.5% of a total consideration of the conveyance upto $55,000.00

1% of a total consideration of the conveyance that exceeds $55,000.0 upto and including $250,000.00

1.5% of a total consideration that exceeds $250,000.00 upto and including $400,000.00

2% of a total consideration that $400,000.00

2.5% of a total consideration that exceeds $2,000,000.00 and the conveyance of the land that consists of one and not more than two single family residences.

 

Benefits of Family Law Mediation

Here are some of the reasons why one should opt for family law mediation over litigation. Court process is stressful and expensive. Mediation is a dispute resolution process facilitated by the neutral and impartial third party.

Family Law Mediations is a voluntary process. The parties meet face to face (with or without their respective lawyers) with the mediator. The parties have control over the mediation process. It is the party’s decision to participate and to continue the mediation process. If they are not happy with this process, they can terminate it at any time.

Mediation is an informal process and removes the adversarial atmosphere found in the court process and litigation. There is no win and lose situation in mediation. Problem solving is the key where parties have the priority to negotiate the terms of their separation.

Mediation is confidential and private. It gives the parties a platform to communicate and have an open discussion to arrive at a mutual settlement. The mediator facilitates this communication between the parties and helps them make decisions for themselves. The mediator does not make decisions, the parties make decision.

Mediation process focuses on settlement of all the issues between the parties and in the interest that is common to both parties. In this process the parties and the children are the priority.

It is cost effective. Parties share the cost of the mediator. Of course party pays for their own lawyers, if they have one, but since the purpose is to settle the matter, the costs are usually kept low. This is not so when the matter is in court or out of court negotiations.

If you require family law mediation, Call me @ 905-290-7205 for more information.

Occupancy Date

Occupancy date also known as interim closing date is a date on which the purchaser takes possession of the new condo from builder, prior to final closing and transfer of title. The buyer pays an occupancy fee from this date until the unit transfer date.

Interest Adjustment Date

It is a date on which an adjustment is made for interest that accumulates between the date the loan/mortgage was advanced and the first charge payment date for the following month.

Ontario Land Transfer Tax

Every person who has acquired a beneficial interest in the land by completing a registration of conveyance is liable to pay Land Transfer Tax under the Land Transfer Tax Act. Land Transfer Tax is payable on each transfer/conveyance of land in Ontario unless exempt under the Act. It is usually calculated based on the value of consideration. According to the Act, any conveyance completed on or after January 1 2017, tax will be calculated in the following manner at the rate of:

0.5% of a total consideration of the conveyance upto $55,000.00

1% of a total consideration of the conveyance that exceeds $55,000.0 upto and including $250,000.00

1.5% of a total consideration that exceeds $250,000.00 upto and including $400,000.00

2% of a total consideration that $400,000.00

2.5% of a total consideration that exceeds $2,000,000.00 and the conveyance of the land that consists of one and not more than two single family residences.

Forfeit Of Deposits In A Collapsed Real Estate Transaction

The buyer in a real estate transaction pays a deposit at the time when an offer is presented or when the offer is accepted by the seller. This deposit is usually held in the trust account of the listing brokerage or the seller’s lawyer. What is the purpose of this deposit?

The giving and receiving of the deposit confirms the contractual obligation between the parties and is a consideration towards the purchase price. The deposit is adjusted as a credit to the buyer if the transaction is successfully completed. But what happens when the transaction is not completed. The buyer is in default and is in breach of the contract.  The seller is willing, able and ready to close the transaction. The deal has collapsed and the buyer is not in position to close the deal. The buyer now wants his deposit back. What is the treatment of the deposit in a situation like this? Is this deposit immediately released to the buyer or the seller has a right to forfeit the deposit? Ontario’s standard real estate form is silent on it.

What are the remedies for the seller?

In practice the seller has few options if the buyer defaults:

  1. The seller will forfeit the deposit and put the property back in the market for sale. The buyer will have to sign a release form to release the deposit to the seller. This form is usually provided by the real estate brokerage if the deposit is with them. Sometimes it is negotiable between the parties and a portion of the deposit is released to the seller and the balance to the buyer.

 

  1. Apart from the deposit, the buyer is also responsible for all of the seller’s losses. If property is back into the market and the seller does not get the same price and sells for less, the buyer is responsible not only for  the  difference in the price but also for all the other costs incurred by the seller in the sale of the property. He could file a court case for damages against the buyer.

 

  1. The law also provides that the seller could sue the buyer for specific performance of the contract. But litigations are expensive and the seller should be able to financially sustain it.

As the seller has a right to take the deposit, most prudent sellers would go with option 1 and move on.

Call us @905-290-7205 for more information.

January 19 2017.