Table of Contents. Foreword... v Preface... vii Acknowledgement... ix Editor & Contributing Editor... xi Contributors... xiii

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1 Table of Contents Foreword... v Preface... vii Acknowledgement... ix Editor & Contributing Editor... xi Contributors... xiii Chapter 1: Property Rights and Obligations of Married People: The Equalization Provisions Under Part I of the Family LawAct (Sections 4 and 5)... 1 Introduction... 1 The Equalization Payment Calculation and Section 4 of Part I of the FLA... 2 Proper Inclusions, Exclusions and Deductions... 4 Inclusions... 4 Trust Interests... 5 Pensions... 8 Licences... 9 Employment-Related Benefits Exclusions Gifts Tracing Excluded Property Losing the Exclusion Deductions Marriage Date Deductions Debts and Other Liabilities Proving Net Family Property Onus of Proof Standard of Proof Unequal Division of Net Family Property and Alternatives to Address Unfairness Unequal Division of Net Family Properties Alternative Remedies to Seeking Relief under s. 5(6) Schedule A - Consideration by the Court of Proper Inclusions Schedule B - Consideration by the Court of Proper Exclusions Schedule C - Consideration by the Court of Proper Deductions xxi

2 Property Rights and Obligations Schedule D - Treatment by the Court of Notional Disposition Costs in the Calculation of Net Family Property Since the 1994 Ontario Court of Appeal Decision in Sengmueller Chapter 2: Estates Issues Relating to Ontario Family Law Property Rights and Obligations Introduction Recourse for Surviving Spouses Under the Family Law Act Family Law Act Elections - Sections 5 and 6 of Part I of the FLA FLA Elections: Key Concepts The Impact of Elder Law Issues on Traditional Family Law Principles Recent Amendments to the Family Law Act Who Can Make the Election? The Deadline to Elect, Restrictions on Administration and Timing Issues Appropriate Notice of Election: The Commencement of an Application The Family Law Act Election - Making the Right Choice Revocation of an Election Bars to Electing Ancillary to Property Relief: Spousal Support Under Part III of the Family Law Act, An Obligation That Survives Death? An Order for Support Binds the Estate The Impact of Remarriages, Competing Spousal Support Claims and Death on Existing Support Obligations Domestic Contracts Made Pursuant to Part IV of the FLA A Note on Separation Agreements and Waivers of Rights Setting Aside a Domestic Contract Recourse for Surviving Spouses Under the SLRA Dependant Support Claims under the SLRA General Who Can Make an SLRA Claim? Who is a Spouse for Purposes of the SLRA? Failure to Make Adequate Provision The Deadline to Bring a Claim Interim Support The Support Award Domestic Contracts and the SLRA xxii

3 Table of Contents Separation Agreement - Contains Full and Final Release of Support Separation Agreement - Contains a Provision for Support Marriage and Cohabitation Agreements Conclusion Section 44 of the SLRA and the Impact of Remarriage or Common Law Arrangements on Prior Wills Common Law Property and Other Remedies Claims for Resulting Trust, Unjust Enrichment and Constructive Trust and New Developments in the Law as a Result of Kerr v. Baranow; Vanasse v. Seguin Resulting Trusts Unjust Enrichment and the Remedial Constructive Trust Application to Vanasse v. Seguin Application to Kerr v. Baranow Claims for Quantum Meruit Spousal Claims for Proprietary Estoppel Conclusion Chapter 3: Property Rights and Obligations: Practice Issues (Sections 7 and 8 of the Family LawAct and Rules Related to Disclosure in All PropertyApplications) Introduction Disclosure Obligations in Family Law Proceedings Disclosure Gathering Process Rule 19 - Affidavit Listing Documents Documents in Non-Parties Control Rule 22 - Request to Admit Financial Statements Lawyer s Obligations and Financial Statements Disclosure and Domestic Contracts Financial Disclosure Requirement under Section 56(4)(a) Valuation Issues The Obligation to Value Assets Valuation Date Interim Disbursements Valuing Business Assets What is a Chartered Business Valuator? xxiii

4 Property Rights and Obligations When to Retain a Chartered Business Valuator Selecting an Expert The Retainer Process: Checklist Maintaining the Expert s Independence Issues Requiring Expert Assistance Valuation Methodologies Other Assets Requiring Valuations by Experts Pensions Real Estate Other Property Export Reports Rule Expert s Disclosure Obligations Service of Expert Reports Expert Qualifications Number of Experts Time for Service of Expert Reports Qualifying the Expert Fact versus Opinion Evidence Admission of Expert Evidence Examination-in-Chief Cross-Examining the Expert Reply Sanctions For Non-Disclosure Non-Compliance with Court Orders Failure to File Financial Information Failure to Follow Rule or Obey Order Regarding Documentary Disclosure Striking Pleadings for Non-Disclosure Reinstatement of Pleadings Motions for Contempt for Non-Disclosure Test for a Finding of Contempt Orders Subject to Contempt Requirements Sanctions Chapter 4: Property Rights and Obligations of Married People: The AncillaryTo Equalization Provisions Under Part I of the Family LawAct (Sections 9 to 15) xxiv

5 Table of Contents Introduction Section General Section 9(1) Section 9(1)(a) Section 9(1)(b) Section 9(1)(c) Sections 9(1)(d)(i) and (ii) Section 9(1)(d) is Not a Redistribution of Property Provision Evidence of Past or Future Mala Fides Required Not Meant to Satisfy Lump Sum Support Section 9(1)(d) and Bankruptcy A Word on Pensions Other Considerations Section 9(2) Section 9(3) Section General Section 10(1)(a): Declarations of Ownership and Possession Possession Ownership Constructive Trusts Unjust Enrichment The Remedies Quantifying the Monetary Remedy Some Interesting Post Kerr v. Baranow Decisions Section 10(1)(b): Compensation After the Sale of a Property Section 10(1)(c): Partition and Sale General The Interaction of the Partition Act and the Family Law Act Sale Under the Partition Act Sale Under Section 10(1)(c) Interim Sale Sale to Spouse/Right of First Refusal Section 10(1)(d) Section General Jointly Owned Farms/Businesses xxv

6 Property Rights and Obligations The Alternatives Set Out in Section 11(2) Section 11(2)(a) Section 11(2)(b) Examples of When a Sale is Ordered Examples of When a Sale is Refused Section The Purpose and Effect of a Section 12 Preservation Order Considerations When Asking A Court to Order A Preservation Order The Level of Evidence Required to Be Successful at Obtaining a Preservation Order The Effect of a Section 12 Preservation Order on Third Parties Section 12 Affects Assets Outside of the Jurisdiction as a Result of In Personam Jurisdiction A Section 12 Preservation Order Is Not A Mareva Injunction Mareva Injunctions Section Section General Exceptions Onus or Burden of Proof To Avoid or Defeat Creditors Estate Planning Section Chapter 5: The Development of Property Rights and Obligations for Cohabitants Preamble Introduction Common Intention Resulting Trusts and Constructive Trusts Common Law Couples, Unjust Enrichment and Constructive Trusts The Constructive Trust as a Proprietary Remedy The Current Law of Unjust Enrichment: Kerr v. Baranow Issue 1: Resulting Trusts No Longer Have a Role Issue 2: Unjust Enrichment and Monetary Remedies Monetary Awards Quantum Meruit A New Approach to the Monetary Remedy: Joint Family Ventures xxvi

7 Table of Contents (1) Mutual Effort (2) Economic Integration (3) Actual Intent (4) Priority of the Family Proprietary Awards: Constructive Trust Issue 3: Mutual Benefit Conferral Issue 4: Reasonable or Legitimate Expectations The Vanasse Appeal and the Kerr Appeal The Vanasse Appeal The Kerr Appeal The Steps for Establishing Unjust Enrichment in Family Cases Step One: Establish Unjust Enrichment Step Two: Determine the Appropriate Remedy Jurisprudence Following Kerr Post-Kerr Cases on Unjust Enrichment Post-Kerr Cases on Unjust Enrichment and a Joint Family Venture Post-Kerr Cases on Mutual Benefit Conferral Presumption of Resulting Trust The Presumption of Resulting Trust and the Presumption of Advancement The Applicability of the Presumption of Advancement Possessory Rights of the Home Family Home is Owned by One Party Exclusive Possession as an Incident of Spousal Support Claims for an Interest in the Home Domestic Violence Family Home is a Rental Property Canada Pension Plan: Credit Splitting Property Rights Upon Death Constitutional Challenges Property Division for Heterosexual Unmarried Cohabitants Chapter 6: Tax Principles Arising From Property Rights and Obligations Under Family Law Introduction Matrimonial Property: Family Law Schedule 1: Examples of Matrimonial Property Types of Property - The Income Tax Act Schedule 2: Types of Property Referred to in the Income Tax Act xxvii

8 Property Rights and Obligations The Basic Taxation of Property Schedule 3: Examples of Matrimonial Property Classified by (Usual) Income Tax Act Property Type Schedule 4: Basic Taxation of Property - Basic Tax Calculations The Basic Taxation of Non-Depreciable Capital Property The Basic Taxation of Depreciable Capital Property The Basic Taxation of Personal-Use Property and Listed Personal Property The Tax Implications of Transferring Property Between Married, Separated and Former Spouse (and Common Law Partner) Tax Definition of Married, Separated and Former Spouse (and Common-Law Partner) Tax Effects of Using the Section 73(1) Tax-Free Rollover and Electing Out of the Section 73(1) Tax-Free Rollover Automatic Tax-Free Rollover between Spouses (and Common Law Partners) [Section 73(1) Rollover] Section 73(1) Rollover - Qualification Criteria Section 73(1) Rollover - Meaning of Capital Property Section 73(1) Rollover - Mechanics Election Not to Have the Section 73(1) Rollover Apply Section 73(1) Rollover - Transfers to a Spousal Trust Section 73(1) Rollover - Equalization Payment Transfers Income and Capital Gains Attribution - Who Pays the Tax on Subsequent Income and Capital Gains? Non-Residents Transfers of U.S. Real Estate Basic Tax Minimization Strategies Schedule 8: Basic Tax Minimization Strategies Tax Planning Opportunities Matrimonial Home: Principal Residence Deduction Capital Loss Utilization Pensions: Tax Free Transfers Registered Retirement Savings Plan ( RRSP ) Registered Retirement Income Fund ( RRIF ) Registered Pension Plan ( RPP ) Locked-in Retirement Account ( LIRA ) RRSP Contribution Room: Lump Sum Payments Spousal RRSP Withdrawals Registered Education Savings Plan ( RESP ) Capital Gains Exemptions xxviii

9 Table of Contents Small Business Corporation Capital Gains Exemption General Capital Gains Exemption Tax Free Savings Accounts ( TSFA ) Canada Pension Plan ( CPP ): Pension Splitting Private Corporation, Partnership, Proprietorship and Trust Interests Other Considerations Life Insurance Release of Marital Support Rights Joint and Several Tax Liabilities Deductibility of Legal Fees Deductibility of Financing Interest Appendix A: IT325R2 Property Transfers After Divorce and Annulment Appendix B: Joint Election Under Paragraph 74.5(3)(b) of the Income Tax Act Appendix C: Transfer from an RRSP or RRIF to Another RRSP or RRIF on Breakdown of Marriage or Common-Law Partnership Appendix D: Direct Transfer of a Single Amount Under Subsection 147(19) or Section Appendix E: Definition of Fair Market Value Chapter 7: Insolvency Law Related to Ontario Family Law Property Rights and Obligations Introduction Overview of Insolvency Law Bankruptcy and Insolvency Act Purposes of Insolvency Law The BIA is a Businessman s Statute Consumer Aspects of Insolvency Regime Statutory Framework Relevant to Personal Insolvency Ancillary Provincial Legislation The Personal Property Security Act (the PPSA ) The Execution Act Creditors Relief Act, 2010 (the CRA ) The Mortgages Act Administrative Officials in a Bankruptcy Trustee in Bankruptcy Superintendent of Bankruptcy Registrar in Bankruptcy xxix

10 Property Rights and Obligations Inspectors National Insolvency Jurisdiction of the Courts How Does Bankruptcy Occur? Voluntary Assignment Application for Bankruptcy Order Failed Proposal The Debtor is Now Bankrupt: What Happens Next? Meetings of Creditors Voting on Bankruptcy Matters Proofs of Claim Specific Aspects of Insolvency Law Affecting Property Rights and Obligations Pursuant to Ontario Family Law General Rule Regarding Vesting of Property on Bankruptcy Support Claims Vis-a-vis Equalization Claims: When Is a Claim Provable in Bankruptcy Not a Claim Provable in Bankruptcy? The Implications of Holding a Claim Provable In Bankruptcy The Stay The Release Preferred Status of Support Arrears Effect of Section Using Section 68 Garnishment Proceedings in Matrimonial Proceedings Release of Equalization Claims The Timing of the Bankruptcy in Relation to the Date of Separation Alternative Suggestions for Dealing with Equalization Claims Can Separation Agreements Be Used to Defeat the Priority of the Trustee in Bankruptcy? Summary Re: Basics of the Interplay Between Bankruptcy Principles and Family Law Concepts Effect of Insolvency on Specific Property Matrimonial Home Severance of Joint Tenancy Application for Partition and Sale Interest of Non-Bankrupt Spouse Set Off The Potential for the Application of Equitable Doctrines to Assist the Non-Bankrupt Spouse The Equity of Exoneration Equitable Charge xxx

11 Table of Contents Equitable Accounting Estoppel Rights to Personal Property Chattels Interest in an Equalization Payment Interest in Support Payments Registered Retirement Savings Plans ( RRSPs ), Registered Retirement Income Funds (RRIF s) and Pensions Registered Educational Savings Plans ( RESPs ) Special Considerations Regarding Pensions The Effect of the Family Orders and Agreements Enforcement Assistance Act (the FOAEAA ) Annulment of the Bankruptcy Costs of Family Law Proceedings Conclusion Re: Costs Trust Claims Express Trusts Certainty of Intent Certainty of Subject Matter Certainty of Object Resulting Trusts Constructive Trust The Concept of Joint Family Venture Conclusion Chapter 8: Planning: Family Property Protection Techniques Under Ontario Family Law Introduction The Domestic Contract Enforceability of Domestic Contracts Independent Legal Advice Financial Disclosure Fairness Property Models Complete Release of all Property Claims under the FLA and/or Complete Release of all Common Law Trust Claims (Also referred to as Separate as to Property ) Graduated Equalization Scheme Exclusion of Certain Assets or Categories of Assets Exclusion of Marriage-Date Assets and Future Growth xxxi

12 Property Rights and Obligations Additional Provisions to Consider Compensation for a Release of an Equalization Payment Dispute Resolution Exclusion of Certain Assets from Satisfying an Equalization Entitlement or Other Property Claim Establishing a Formula for the Valuation of Certain Assets Asset-Specific Provisions Intergenerational Gifts or Bequests Gifts to Children Request a Particular Use Loans Other Alternatives Recommended Formalities and Record Keeping of Gifts Purchasing Property with Excluded Property Trusts Transfer into Joint Ownership Protection Techniques Specific to Business Interests The Shareholders Agreement The Spouse as a Party to the Agreement Buyout Provisions Funding the Buyout Other Possible Provisions for the Shareholders Agreement The Articles of Incorporation The Relationship between the Domestic Contract and Shareholders Agreement Estate Freezes The Net Family Property Estate Freeze The Net Family Property Estate Freeze Plus Control Issues Giving Children the Option to Purchase Shares in Certain Circumstances Improvident Depletion and Unconscionability Issues General Index xxxii

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