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Aug 31, 2021

Portfolio Confidential

by Barbara Stewart
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Real world confidential portfolio discussions:

Q: My wife and I have been married for nearly 20 years now. Second marriage for both of us, and when we moved in together, it was into a house she bought with her money, and she did the smart thing. Her lawyer wrote a legal agreement saying that the house was hers and hers alone, no matter what. At first, that made sense—we might break up, and why should I get anything from the house? So, I signed with clear legal advice. Although she has paid for all the mortgage payments and taxes and most of the renos, I have recently contributed to renos and new features. Everything is perfect, and I’m not expecting us to split up…but if we did, I would be 60 and have none of the gains in equity. That doesn’t seem fair. My wife thinks it would be reasonable for me to get something (Not half, but maybe 10%?) How would this work?

A: Kulvinder Deol of K Deol Law Professional Corporation practices criminal and family law in Brampton, Ontario, and she weighed in on this one:

Section 56 of the Family Law Act provides the ability to set aside a domestic contract, which includes a marriage contract if either party fails to disclose significant assets or liabilities if the party seeking to have the contract set aside did not understand the nature or consequences of the contract or if there was undue influence or duress. None of those seems to apply here. Instead, it appears that contrary to the original marriage contract, parties agree that the Husband should now receive a certain percentage of the matrimonial home, percentage to be determined. The parties would draw up another agreement, either replacing the original agreement or an amendment in conjunction with the original agreement. Both parties should receive independent legal advice and exchange sworn financial statements/financial disclosure. This will increase the likelihood that the new agreement/amendment is upheld by a Court if ever reviewed at a later date.

 

Q: I am 26 years old, not working right now (previously a waitress), and in an unhappy common-law relationship. My boyfriend Bob is a well-paid 30-year-old banker, and we’ve officially been living together for nearly two years. I gave notice to my roommate in November 2019 and officially moved in with Bob at that time. I am currently staying in this situation because I can’t afford to leave. And I also don’t want to leave our dog. At our previous house, we had a roommate, and I was paying $700 a month. We moved six months ago, and now I only pay $500 because I’m not making very much money these days. Bob originally paid for our dog—he was a Christmas present for me and cost about $600. I pay for all the vet bills and medication, and we share the cost of dog food. What advice can you give me?

 

As I’m not a family lawyer, I also outsourced this question this time to Stephanie Tadeo, who practices criminal and family law at Baidwan & Baidwan Lawyers LLP in Brampton, Ontario:

First, there is the issue of pet ownership and which party is more likely to keep the dog in the event of a separation. In Coates v Dickson, 2021 ONSC 992, the Superior Court of Justice recently confirmed that pets are treated as personal property, and the law must decide who owns the pet. In disputes between people claiming the right to possess an animal, the Court will examine factors based on ownership and not in the animal’s best interests. Some factors the Court will look at include whether the animal was owned or possessed by one of the people before their relationship began, any express or implied agreement as to ownership, who purchased and/or raised the animal, who exercised care and control and whether at any point the animal was gifted by one party to the other.

The reader advises that although her partner purchased the dog, the dog was given to her as a gift. Since pets are considered personal property, like jewellery, if given as a gift during the marriage or relationship, it belongs exclusively to the recipient of that gift (in this case, the reader). If the reader can provide documentary evidence showing the dog was given as a gift (in the event ownership is contested), she is likely to be considered the dog’s owner, notwithstanding continued financial contributions from her partner.

Next, I’ll address the claim of a common-law relationship and what rights/entitlements, if any, the reader may have in the event of a relationship breakdown. In Ontario, a common-law relationship is established if two people have lived continuously in a conjugal relationship for at least three years. If they have a child together, they only need to live together for one year to be considered common-law spouses. A conjugal relationship bears some semblance to marriage, e.g. the parties share a home, maintain finances, and have an emotional connection in addition to being sexual partners.

Based on the reader’s situation, it doesn’t appear a common-law relationship has been established yet. This would make it difficult for the reader to make a claim relating to spousal support in the event of a relationship breakdown. As a side note, you do not have to be married to claim spousal support—common-law spouses may also claim spousal support at the end of a common-law relationship. However, even if a common-law relationship is established here, there is still no automatic entitlement to spousal support despite the partner making financial support to the reader during their relationship. Under Canada’s Spousal Support Guidelines, spousal support is determined holistically by factors such as the incomes of both parties, length of the relationship, the roles of the parties during the relationship (did one party stay home to care primarily for the household). Essentially, the amount of spousal support owed, if any, is entirely dependent on each case.

Though a common-law relationship is not established here, it remains open to both parties to enter into a domestic contract under Part IV of the Family Law Act concerning their relationship and organization of their financial affairs as a couple. The parties could enter into a cohabitation agreement (similar to a marriage contract) outlining what obligations the parties will have toward each other in the event of a relationship breakdown. The parties may also wish to have a cohabitation agreement reflecting a waiver of any support that may be owed to one party by the other in the event of a relationship breakdown. Or, if there is already a relationship breakdown, the parties may wish to enter into a separation agreement to address any financial issues arising from the breakdown of their relationship. Both parties are encouraged to seek independent counsel to determine whether a domestic contract is appropriate and advisable for their unique situation.

Do you have questions about your own investment portfolio? I have recently set up The Rich Thinking® Financial Advice Hotline. This will be a win/win: you get a free 30-minute confidential Zoom chat offering an independent, unbiased perspective on your financial situation with no sales pitch! In exchange, I get to use the anonymized data that will come from these conversations to make my Rich Thinking research even better. Email me to book your Zoom discussion: barbara@barbarastewart.ca