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Division of household items and contents

Posted on: March 4th, 2012 by admin No Comments

Division of household items and contents

By Jack Pantalone

This newsletter is based on the assumption that there is no Cohabitation Agreement or Marriage Contract in place, setting out how household contents are to be divided upon a breakdown of the relationship.

For separating couples, in addition to all of the other issues that they often times are faced with and have to address, there is often an issue as to how their household items and contents will be addressed and treated between them.

The first point is to distinguish between household contents and personal belongings.

Clearly, each spouse is entitled to retain his and her own personal belongings upon a breakdown in their relationship. For instance, the wife is entitled to keep her own sporting equipment and jewellery, and the husband is entitled to retain his tools, etc.

This does not mean that these items are not accounted for, for equalization purposes. In other words, even though each spouse is entitled to retain his or her own personal belongings, these belongings may have a significant dollar value, which will have to be included in their net family property for equalization purposes. For example, if the wife’s jewellery has a fair market value of $20,000 as of the date of separation, she will certainly be entitled to retain this jewellery; however, she will have to include it as property owned by her on the date of separation for equalization purposes.

For non-married spouses (common law spouses) the equalization scheme under Ontario’s Family Law Act does not apply. Therefore and absent a trust claim in the interest of the property owned by the other, each common law spouse is entitled to retain his and her own property, free from any claim by the other spouse. For common law spouses, there is no “equalization process”, and each spouse is entitled to his and her own property, without any claim by the other spouse (again, absent a trust claim).

Household items and contents are generally considered to be jointly owned property, owned by both spouses regardless of whether one of the spouses actually purchased a particular item. A stereo system purchased on one’s credit card during the marriage, for example, is commonly considered to be jointly owned property.

There are different ways to deal with the issue of household contents and items, at marriage breakdown.

DIVIDE IN SPECIE (EQUALLY): Firstly and most commonly, household items and contents can simply be divided in specie. This means that the household items and contents are divided equally between the spouses, such that each spouse feels that he or she has received a fair share of the items, having regard to their overall dollar value. In such event, the household items and contents are left out of the equalization process, as each side would be deemed to have received approximately an equal value of the household contents.

If they want to divide the items in specie, there are a few different ways to go about doing so. First, the parties can themselves agree on how the items will be divided (who gets what). They both get the items that they really want to have, and simply agree to treat this division as a set-off. Second and if the parties cannot agree on who gets what items, a comprehensive list of items can be constructed by both parties and, upon a flip of a coin, the parties take turns choosing items until all of the items on the list have been exhausted. Third, a less common method is for one of the spouses to create two mutually exclusive lists (both lists combined containing all of the items), and for the lists to be presented to the other spouse, who then gets to choose one of the lists. This method ensures that the spouse creating the lists will do so in such a way that there is more or less an equal value to both lists, otherwise running the risk that the other spouse will take the more “valuable” list!

DIVIDE AND ADJUST: Rather than dividing the items in specie and treating them as a set-off for equalization purposes, a second way to deal with the items is for the spouses to divide the items unequally, and to have this unequal sharing of the items reflected in the equalization process. For instance, if the wife received approximately $5,000.00 of household contents, such would be noted in her net family property. If the husband received $3,000.00 of the contents, this would be noted in his net family property. For equalization purposes, the wife will be deemed to have received $2,000.00 more in household contents than the husband.

In such instance, it may be necessary to retain the services of an appraiser/auctioneer, to provide an estimated fair market value of the household contents and items. Generally and in such event, spouses are shocked at how low a value is attributed to their household contents. The reason for this is that the household contents are appraised at their “garage sale” value, not their replacement value, purchase price, or insured value.

SELL EVERYTHING: If the parties are unable to agree on a division of these joint items, the parties can simply proceed to court for determination. However and  if the parties end up proceeding to court, undoubtedly the judge will simply order that all of the contents be sold, with the net proceeds of sale divided equally between the parties. This is really the last resort for the spouses as, once again, both spouses will end up receiving a fraction of the replacement cost of these items, once they are sold and the proceeds divided equally between them.

In the end and as difficult as it may be, the spouses are best off dividing the items between them, and either treating the items as having been divided in specie,  or agreeing on the necessary adjustment to be made to their respective net family properties in order to reflect the fact that the items were divided unequally. Sentimental value of items aside, this is clearly an issue where the cost of arguing over “who gets what” will very quickly outweigh any financial benefit that is derived from being able to retain the items in dispute.

Jack Pantalone is a family law lawyer based in Ottawa Ontario.  He has been practicing law for over 22 years and has focused on  family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.

Parental Alienation

Posted on: January 31st, 2012 by admin No Comments

Parental Alienation

By Jack Pantalone

Allegations surrounding “alienation” in Canadian courts have increased dramatically over the past several years, along with the responses and orders that judges have made, in dealing with parental conflict in this very difficult area.
The starting point in Canadian law for dealing with the relationship between a child and a non-custodial parent is the “maximum contact principle” of the Divorce Act:
 16 (10)…The court shall give effect to the principle that a child of the marriage  should have as much contact with each spouse as is consistent with the best  interests of the child and, for that purpose, shall take into consideration the  willingness of the person for whom custody is sought to facilitate such contact.
The maximum contact principle has two aspects. Firstly, the courts should ensure that there is as much contact with each parent as is “consistent” with the best interests of the child. Secondly, if one parent is thwarting contact between the child and the other parent or alienating the child from the other parent, that is an important factor in deciding whether to award custody to the parent who will facilitate contact with the other parent.
The first reported case using the term “alienation” was in 1989.
Over time, the concept of alienation progressed to the point where professionals were referring to it as “parental alienation syndrome”.

Recently, there has been controversy in the legal and medical worlds about whether parental alienation is a “syndrome”. The controversy seems to surround the issue as to whether it is appropriate to blame only one parent for family dysfunction.
Even the use of the term “alienation” has been questioned, with some professionals and judges preferring to use the term “estrangement”.
Nevertheless, whether it is referred to as a “syndrome”, as “alienation” or “estrangement”, or some other term, it is clear that it exists and, regrettably, that reports to it occurring following marriage breakdown, are on the rise.
Studies have concluded that where judicial intervention is required in order to assist parents and children in cases of this nature, it is important for the justice system to take an early and immediate response to cases where a child is resisting contact to a parent. Not surprisingly, earlier intervention is more likely to be successful, and a delay can result in the alienating parents escalating their behaviour if they are not confronted with a clear judicial response.
However and in responding to cases where there are problems with the relationship between a child and a parent, the court must be satisfied that the child is truly alienated, and not justifiably estranged from that parent (the distinction that is drawn between these two is whether the alienation is “rational” or “irrational”).
Further, there are cases in which a judge finds that there has been alienation, but concludes that any further attempt to enforce the relationship between the child and the rejected parent is more likely to harm, rather than help, the child.
Most often and before getting to the drastic stage of changing custody, judges are prepared to use mental health professionals to directly respond to alienation issues, by ordering therapeutic intervention with the explicit goal of re-establishing the child relationship with the rejected parent, while leaving the child in the custody of the parent who has alienated the child. In these cases of less severe alienation, counselling is most likely to be most effective when a judge persuades the parties of its value and the importance for a child having a positive relationship with both parents. However, counselling is unlikely to be useful if parties seem resistant to counselling, and are only attending the sessions in order to avoid contempt of court.
In the past few years and in cases of severe alienation, judges have been willing to transfer custody of a child from the alienating parent to the rejected parent, especially where counselling has been attempted and, as a result of the conduct of the alienating parent, has failed.
To be sure, judges have clearly struggled with the issue of whether custody should be transferred to the other parent, in cases of severe alienation. For example and in the case of A.A. v. S.N.A., the trial judge recognized that he faced a “stark dilemma” as to whether to leave the child with a “highly manipulative” and “intransigent” mother who would never permit her child to have any sort of relationship with her father, or to transfer custody to the father, who had little contact with the child for over a year. Despite the finding of alienation, the trial judge refused to award custody to the father due to a concern that “the immediate effect of that change will be extremely traumatic”. The British Columbia Court of Appeal reversed the trial judge’s decision, observing that:
The trial Judge wrongly focused on the likely difficulties in a change in custody –  which the only evidence on the subject indicates will be short-term and not  “devastating” – and failed to give paramountcy to the child’s long-term interests.
There were a number of breakthrough cases in Ontario starting in 2007, dealing with alienation.
In the case of L.(J.K.) v. S.(N.C.) Justice Turnbull of Ontario Superior Court of Justice received evidence from Dr. Richard Warshak, a licensed psychologist practicing in Texas, U.S.A. Dr. Warshak and Dr. Randy Rand founded the Family Workshop for Alienated Children, a structured and highly specialized program developed to assist families in which children have become so alienated from one parent and other relatives that they either refuse contact with the alienated parent or extreme reluctance to spend time with that parent.

The goals of the program are as follows:
a.) To facilitate, repair and strengthen the child’s healthy relationships with both parents;
b.) To help a child avoid being in the middle of his or her parents’ conflicts;
c.) To strengthen the child’s critical thinking skills;
d.) To protect a child from becoming pathologically alienated from a parent in the future;
e.) To help a child maintain balanced views and a more realistic perspective of each parent as well as him/herself;
f.) To strengthen the family’s ability to communicate effectively with each other and to resolve conflicts in a productive manner; and,
g.) To strengthen the parents’ skills in nurturing their children by setting and enforcing appropriate limits.

Dr. Warshak’s program consists of seven phases, which include gaining physical possession of the child, and transporting the child to the location of the intervention (a facility in Texas or California) where the child is oriented to the program. Contact is facilitated between the child and the rejected parent, the parent-child relationship if repaired, and the child is ultimately reintegrated back to his or her family, while either remaining with the previously alienated parent or returning to the rejecting parent (if appropriate).
In most cases of severe alienation, a child will not willingly accompany the alienated parent to the workshop. Therefore, a court must order that law enforcement agents or professional transport agents be used to safely escort the child to the program site. If a child is still unwilling to attend, the transport agents are able to use physical restraints to ensure the child’s safety, during transportation.
Through the use of audio visual materials, such as a DVD’s and slide shows tailored to the child’s developmental level, the child begins to understand how it is possible that he or she has developed an unrealistic and negative view of his or her parent. If and when, through the “repairing” phase, the child begins to relate positively to the former rejected parent, the workshop then provides tools for the parents and child to be able to deal with the inevitable conflicts which will arise once they return home together.
The repair stage of the workshop generally lasts from 3 – 7 days. Once completed, the “aftercare” stage begins, in order help nurture the newly restored relationship and solidify the positive feelings that have developed during the intervention stage.
Dr. Warshak’s workshop is obviously quite expensive, and is considered by many judges to be overly intrusive to a child’s privacy and wellbeing. Many opponents to the program have understandably claimed that it is a violation of a child’s rights, to force him or her (especially by physical force) to leave one parent’s care and attend a program in a different country.
In the case of Filaber v. Filaber (2008), Justice Van Melle ordered that custody of the children be transferred from the alienating father to the rejected mother, and ordered that the mother have the sole authority to pursue whatever remedy is necessary to transition the children from the current alienated state to a normalized and stable relationship with her, including participation in Dr. Warshak’s family workshop.
The recent case of Fiorito v. Wiggins (2011), is not only an excellent review of the topic of alienation, but it also involves one of the most proactive judicial steps that appears to have been taken by any judge in dealing with a high conflict custody case.
In Fiorito, Justice Harper of the Ontario Superior Court of Justice stated the following:

“I find that it is not necessary or helpful to engage in the controversy within the  clinical profession about the merits of concepts of parental alienation, realistic  estrangement, or family systems based “alienated child” approach. I do find that  the focus on the concept of parental alienation creates an environment that could  lead to narrow and limiting analysis of very complicated dynamics of family  interaction that must be understood in order to find a solution that has the best  chance of success. In this case, the pursuit of the label of PAS, diverted many of  the professionals.

The relevant inquiry by assessors should not be the search for a diagnosis or a  label. The relevant inquiry must be the critical review of the actions of the parents  as they impact on the children’s functioning and their needs. If emotional abuse is  a serious risk the professionals and the protection agencies must attempt to be  more specific as to the cause of the emotional abuse and be more specific as to  the depth of the negative consequences, both short term and long term on children  in each case”.

Cleverly, Justice Harper finds that all 3 children in this case are “in need of protection” as defined under the Child Family Services Act. This highly unusual step allows Justice Harper to make orders under that legislation, including the involvement of the local Children’s Aid Society (CAS). Justice Harper directs the CAS to act as a supervisor, overseeing the time-sharing arrangements between the parents. Further, he makes an order finding that the mother is in contempt of court, but puts her on probation and requires that the term of her probation be that she comply with all of terms of the custody and access order. If there is breach of the probation order, the matter is brought back before Justice Harper for submissions on sentencing. Justice Harper then makes a multi- directional order, as follows:
 “I make the following order:

1. Anna Fiorito is found in Contempt of the order of Thomas J. dated October 24, 2008 and the order of Quinn J. dated, March 5, 2010.
2. Pursuant to the Family Law Rules to enforce my finding of contempt I sentence Anna Fiorito to 6 months probation. The terms of her probation being that she shall comply with all of the terms of the custody and access order as set out below.
3. If there is a breach of probation the matter is to be brought back to me for submissions on sentencing for that breach.

 

a.) The mother, Anna, shall have custody of the three children under the supervision of the Society.

b.) This order shall be the subject of a review before me in six months to determine if any gains are being made. The expected gains to include:

i. The mother has transformed her present projection of the children’s father as a person to be feared to someone who is a safe and loving father who should be respected and trusted.
ii. The father has stopped any pursuit of having the mother designated as someone who has infused parental alienation syndrome into her children. He must recognize that my findings in these Reasons are findings that relate to the mother’s and his conduct and functioning, based on all of the evidence, that impact on the children’s needs and define each parent’s ability to meet those needs.
iii. The negative actions of one parent that lead to the negative reactions within the other parent must stop now.
iv. Both parents must work with the Children’s Aid Society and any therapist recommended by the Society in accordance with this order.


c.) The mother shall allow the Society to attend at her home without prior notice to her, and interview the children and supervise the custody.
d.) The mother shall not speak negatively about the father or his present wife, Sarah, and she shall promote the father, Jefferson, positively to the children at all times.
e.) The mother shall not permit the children to be subjected to any negative comments or actions of anyone that would negatively impact on the relationship with father and the children.
f.) The children shall meet with me immediately following my oral presentation of these Reasons to the parents. I will then present my reasoning to the children.
g.) The mother shall attend at a meeting with the children and me, immediately following my oral presentation of these Reasons to the parents and the children. She shall tell the children that she promotes the contact and the loving relationship they should have with their father and she will participate in whatever the judge sets out in his judgment in order to make this family work so that the children can have both parents for the rest of their lives.
h.) The Children’s Aid Society shall arrange for counselling for the children to deal with the emotional abuse, their distorted reality of their father and to promote the reunification of the children and the father.
i.) The Children’s Aid Society shall arrange for such counselling for the mother to deal with her anger and need to learn to communicate with the father in order to allow the children to have a positive relationship with their father.
j.) The father shall attend at a meeting with me and the children immediately following my separate meeting with the children and then the children and the mother. This meeting with the father, me and the children is to start the reunification of his relationship with the children and he shall tell the children that he loves them and will do whatever is necessary as the judge directs in order to have a positive loving and healthy relationship.
k.) The father shall attend counselling to deal with his negative perceptions and anger towards the mother and to learn communication skills in order to communicate with his children, given this six month period of transition to the goal of achieving a normalized relationship. The counsellor shall be arranged by the Children’s Aid Society.
l.) The father and the mother shall each produce reports from their respective counsellors detailing the progress, if any, in the father and the mother’s counselling. These reports are to be sent to the other side and filed in court no later than one week prior to the review of this matter.
m.) The parents shall sign any releases necessary for the Children’s Aid Society to receive any report from their counsellors and the children’s counsellors.
n.) The father shall have access to the children in accordance with the schedule below that is a stepped up transition access scheme:
i. The first access after the meeting with the father, myself and the children to outline this judgment to them shall be from 4 p.m. to 6 p.m., supervised at the Children’s Aid Society, on the first two Thursdays following the release of this judgment. At that access visit the father shall tell the children that his wife Sarah will never replace their mother. That he loves them in a way that will never change and cannot be compared to his love for anyone else. Sarah wants to have a close relationship with them but she too does not want to replace their mother.
ii. The father shall have access to the children on the Saturday following the second access visit at Glengarda Children’s Centre. This access shall be monitored by Glengarda. It shall commence at 10 a.m. and end at 1 p.m. The father’s wife Sarah may attend this access.
iii. On the Thursday following the Saturday access as above, the father shall have access to the children from 4:30 p.m. to 7:30 p.m. This access shall not be monitored. The father shall pick up the children and drop off the children at the children’s residence with their mother. The mother shall bring the children to the father and promote the access in a positive manner.
iv. On the weekend following the above Thursday, the father shall have access to the children, unsupervised at his home from Saturday at 10 a.m. to Saturday at 7 p.m. The mother shall deliver the children to the father’s residence and ensure their transfer to the father and promote the access in a positive manner. The father’s wife Sarah may be present during this access, The father shall return the children to the mother’s home.
v. On the following weekend the father shall have the children from Saturday at 10 a.m. to Sunday at 7 p.m. The mother shall deliver the children to the father’s home and the father shall return the children to the mother’s home.
vi. Following the weekend set out in (v) above, the father shall have the children during the week, on Thursday evenings with no supervision from 4 p.m. to 7 p.m. in each week. And on weekends form Fridays at 6 p.m. until Sunday evenings at 7 p.m. alternating from the weekend after the Tuesday set out in this paragraph.
vii. Neither parent shall take the children out of the province without the written consent of the other or further order of this court.
viii. The Children’s Aid Society shall provide a report to me once per month setting out the progress and describing the therapy and counselling that has been put into place pursuant to this order.
ix. Costs of this trial shall be reserved to me to the hearing of the review of this matter as provided in this order.

This is an excellent and comprehensive decision with a far reaching order, one which I believe that many judges will find appealing if resistant to make an order either transferring custody of a child to the rejected parent or forcing a child to attend Dr. Warshak’s workshop.
In the Fiorito case, Justice Harper was prepared to make a very thorough and detailed order in which he was prepared to remain involved in the case in order to ensure that the children’s relationship with the rejected father was restored. If more and more Judges are prepared to deal with these high conflict situations similarly, this will certainly help many rejected parents deal with the disastrous consequences of alienation.

Jack Pantalone is a family law lawyer based in Ottawa Ontario.  He has been practicing law for over 22 years and has focused on  family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.

 

The Engagement Ring

Posted on: January 17th, 2012 by admin No Comments

The Engagement Ring

By Jack Pantalone

In Western culture, most often a marriage proposal is accompanied with an offer of an engagement ring. Engagement rings are symbols of the love, devotion, commitment and fidelity a couple shares.

Conventionally, the woman’s ring is presented as a “betrothal” gift by a man to his prospective spouse while he proposes marriage or directly after she accepts his marriage proposal. It represents a formal agreement to future marriage. Rings can be bought by the man, the woman, the couple together, or by each partner for the other.

Betrothal rings were used during Roman times, but weren’t generally revived in the Western world until the 13th century. The first well-documented use of a diamond ring to signify engagement was by the Archduke Maximilian ofAustriain imperial court of Vienna in 1477, upon his betrothal to Mary of Burgundy.

However, engagement rings didn’t become standard in the West until the end of the 19th century, and diamond rings didn’t become common until the 1930s. Now, 80% of North American women are offered a diamond ring to signify engagement.

In addition to being symbolic, engagement rings are expensive! A “rule of thumb”, apparently, is that a bridegroom should spend approximately 10% of his total annual salary on his fiancée’s engagement ring.

Not surprisingly, therefore, if an engagement is broken off and the couple do not end up marrying, often times a dispute arises as to who gets to keep this valuable ring.

A gift is a voluntary transfer of property from one individual to another, made gratuitously to the recipient. Three elements must be present; delivery, donative intent, and acceptance. It is generally free of any conditions, strings or “consideration”.

Clearly, an engagement ring is given in contemplation of marriage. In this respect, proceeding with the actual marriage can be viewed as a condition on which the ring is given. However, if a gift cannot be conditional, how can the bridegroom require its return, if the engagement is broken off?

This issue is not dealt with under any legislation, such as the Family Law Act, or the Divorce Act. Rather, it is a common law issue, one that has been dealt with by the courts on many occasions.

Cases have held that, in spite of the fact that a gift cannot be conditional, a donor can nevertheless legitimately require its return if the condition is not fulfilled, in that the engagement is broken off prior to the wedding; however, the issue is dependent upon who breaks off the engagement.

If the donor (the bridegroom) decides that he does not want to proceed with the wedding and cancels the engagement, the bride is entitled to keep the ring. If, on the other hand, the bride is the one who initiates it and breaks off the engagement, the ring must go back to her former fiancé.

Of note is that the reason for the wedding cancelation appears to have no relevance; if the bridegroom discovers that his wife-to-be has been unfaithful and angrily breaks off the engagement, he is not entitled to the return of the ring.

Another issue that arises with respect to engagement rings, is whether the ring is included as property to be equalized between the spouses if, after they marry, they end up separating.

An engagement ring is property and, as such, is to be included as property owned by the wife on the date of separation, for equalization purposes. However, if the engagement ring was given to her by her bridegroom prior to marriage, it is also pre-marital property, which is deductible from her net family property. Therefore and unless the engagement ring has increased in value from the date of marriage to the date of separation, there is no benefit to the husband by having the wife include the ring as property owned by her on the date of separation. Although she will include the value of the ring as property owned by her on the date of separation, she will then turn around and deduct its value as property owned by her on the date of marriage.

Jack Pantalone is a family law lawyer based in Ottawa Ontario.  He has been practicing law for over 22 years and has focused on  family law since 1998, which includes divorce, custody and access, child and spousal support, property disputes, domestic contracts (such as separation agreements), and variation applications.