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    • Month: January 2021

    Can My New Spouse or Partner Adopt My Biological Children?

    Integrating a new partner into your existing family can be an exciting step, but it is not always without challenges. Depending on whether the children’s other biological parent is still in the picture, your children’s age, and their opinion, the process of adoption could be difficult and you may face additional legal challenges.

    Is the other biological parent still in the picture?

    Unless the other biological parent is deceased or has abandoned the child, their consent to the adoption is required, because the adoption severely affects that parent’s rights with respect to the child. The step-parent, upon adoption, will obtain full parental rights. They will have increased rights to make decisions regarding your child’s medical treatment, education, their residence, and so on. The other biological parent will cease to be the child’s parent upon the order for adoption, (s. 217 (2)(b) of the Child, Youth and Family Services Act, 2017, [the “Act”]). The other biological parent’s ability to obtain an order for access to the child once the adoption order is issued, becomes much more difficult. Given these significant implications, and of course depending on each unique situation, it is likely that it will be difficult for you to obtain the other biological parent’s consent.

    The Test to Dispense with Consent of the Biological Parent:

    One possibility to circumvent this onerous requirement is to apply to the court for permission to adopt without the consent of the other biological parent. The permission to adopt without the other biological parent’s consent will only be granted in a very narrow set of circumstances, and only if the court is convinced that it would be in the best interest of the child to do so. The factors the court will consider in determining the best interest of the child are listed at s. 136 of the Act:

    1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
    2. The child’s physical, mental and emotional level of development;
    3. The child’s cultural background;
    4. The religious faith, if any, in which the child is being raised;
    5. The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family;
    6. The child’s relationships by blood or through an adoption order;
    7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity;
    8. The child’s views and wishes, if they can be reasonably ascertained;
    9. The effects on the child of delay in the disposition of the case; and
    10. Any other relevant circumstance. 

    In a motion brought to the Ontario Superior Court in 2016, a mother sought to dispense with the biological father’s consent to her new spouse adopting her ten year old biological son. However, the biological mother never informed the biological father of his son’s birth. After discovering he had a ten year old son, the biological father wished to establish a relationship with the child (S.D.K. v M.G.C., 2016 ONSC 4586). In this case, even though the child had provided consent to the adoption, the court dismissed the motion after considering the above-mentioned factors. The court explained that an adoption is final and irrevocable and would cut “any possibility of ties” between the child and the biological paternal side of the family. Furthermore, the child’s maturity level and understanding of the adoption process was not established clearly to the court through evidence. The court was also not convinced that denying the adoption order would destabilize the existing family unit. For these reasons, the child’s consent did not convince the court that the adoption – and dispensing with the biological father’s consent – would be in the best interest of the child.

    Is the biological parent unknown or unreachable?

    If, on the other hand, the other biological parent is unknown, or cannot be reached, the adoption will become somewhat easier. However, an application to court to obtain permission to proceed without consent is still necessary. The court must be convinced that the other biological parent cannot be located, despite reasonable efforts, and that it is in the child’s best interest to dispense with the consent requirement.

    Does my child need to consent?

    The answer to this question depends on the child’s age. A child who is under 7 years of age is not legally required to consent to being adopted. However, if the child is between 7 and 18 years old, their written consent is a necessary condition for the adoption under s. 180 (6) of the Act. In this case, the child is entitled to an opportunity to receive counselling and independent legal advice to determine their wishes. For a child under the age of 18, the Children’s Lawyer must be satisfied that the consent is fully informed and reflects the child’s true wishes. The Children’s Lawyer represents children under the age of 18, and is provided by the provincial government to ensure independent advice and assessment. The court itself will also take into account the child’s wishes and may assess the child’s capacity to understand what it means to become adopted.

    Once a child has turned 7 years old, the child’s consent can be dispensed only under narrow circumstances. Again, an application to court is necessary. The court must be convinced that obtaining the consent of the child would cause emotional harm to the child, or that the child is not able to consent because of a developmental disability.

    If you have more questions about your family law matter contact our Family Law department by calling 416-449-1400.

     “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Family Law

    Why You Might Want A Cohabitation Agreement

    Granted, it is not a particularly romantic gesture to ask your common-law partner for a cohabitation agreement. If you are busy building a happy life together, bringing up the possibility of separation and legal consequences that may result can be uncomfortable. Here are several reasons why that discomfort should be faced, overcome, and how your relationship can enter a stage of increased certainty and security with the protection of a cohabitation agreement.

    Protect your Property

    Many people think that common-law partners are treated just like married spouses in family law when they separate. Right? Wrong.

    When a marriage breaks down, both spouses are equally entitled to the property accumulated over the time of the marriage, subject to some exceptions. You start by calculating your Net Family Property, and the resulting transfer of money is called an “equalization payment”. This statutory scheme does not apply to unmarried cohabitants.

    When a common-law partnership breaks down, you are not automatically entitled to one-half the Family Law Value of your partner’s assets, including their pension, property to which you are not on title, or their savings or investments.

    The default rule is that each common-law spouse keeps the property that they own at the end of the relationship. This is determined by legal ownership or title. If one partner feels like they deserve a share in the other partner’s property, they must seek recourse through general equitable legal principles, such as resulting and constructive trusts, or on the basis of a “joint family venture”. In many cases, this means that the partner claiming a share of the property or a monetary payment must prove that the other partner has been “unjustly enriched”. The court may then endeavor to repay or reverse the unjust enrichment only if the claim meets several legal thresholds determined by case law. Therefore, making these claims in court is much more difficult without a contract.

    In a cohabitation agreement, common-law partners can contractually agree to a property arrangement that suits them. They can agree to share equally in the accumulated property during the relationship upon separation, or specify the property they will have a share in, or even specify a ratio if they wish. Alternatively, they can agree that there will be no entitlement to share in the other partner’s property at all, not even pursuant to the equitable principles described above. Such an agreement can prevent time-consuming and expensive litigation and evidence gathering that may otherwise be necessary if the parties cannot agree on a settlement. In many cases, it is much easier to part ways if there was a clear agreement setting out the property consequences the partners have agreed upon in advance of a separation.

    Specifying Any Spousal Support Obligations

    On the other hand, spousal support legislation does provide a framework for unmarried cohabitants. In other words, your entitlement to spousal support is not dependant on whether or not you were married. However, in order to be eligible to claim spousal support under the Family Law Act (“FLA”), common-law partners must either: 1. have cohabitated for at least three years, or 2. have a child together (including through adoption) and be in a relationship of some permanence. However, the issue of spousal support at the end of a common-law relationship still gives rise to a great deal of litigation.

    Once an unmarried cohabitant meets that first threshold, their entitlement to spousal support is generally determined having regard to the Spousal Support Advisory Guidelines, and case law in Ontario. Their claim may be compensatory or non-compensatory (needs-based). To avoid costly litigation upon separation, it is prudent to enter into a cohabitation agreement that can stipulate exactly at what point one party will be entitled to spousal support. Alternatively, the agreement can provide for a complete spousal support waiver. In any case, a cohabitation agreement can be a useful tool to reduce litigation of the issue later.

    Care must be taken that these provisions are not “unconscionable”, because if the court finds that they are, they may be set aside. Mere unfairness, however, does not suffice (Miglin v Miglin). For this reason, it is also prudent to update the cohabitation agreement from time to time to indicate that the terms still reflect the parties’ intentions. For instance, after only one year of cohabitation, a complete spousal support waiver may be equitable, but after a significant passage of time, that same waiver may be determined to be unconscionable and set aside by a court.

    Custody/Access and Child Support

    For custody, access, and child support issues, however, cohabitation agreements are not as helpful and are not often included in the contract. Custody and access arrangements in a cohabitation agreement are not enforceable. In this regard, the legislative provisions are mandatory and apply to married spouses and unmarried cohabitants equally. A cohabitation agreement can merely provide an understanding regarding the upbringing of the child, for example, religious education. However, these provisions are still subject to the court’s overriding jurisdiction to determine the best interests of the child, such that courts will set aside provisions of a contract if it is contrary to the best interests of the child.

    Similarly, if a cohabitation agreement specifies a child support obligation, provisions of the contract may be set aside if they are found to be contrary to the Child Support Guidelines.

    Preparing a Cohabitation Agreement

    As you can see, the law in this area is complex. In most cases, it will be best to retain a family lawyer to draft a cohabitation agreement on your behalf to ensure it has the same legal effect that you intend it to have, and to ensure it complies with the formal validity requirements of domestic contracts. It is generally best for both parties to have independent legal advice before signing the agreement. Also, if you do decide to get married, the cohabitation agreement automatically becomes a marriage contract and remains valid. However, at that point, it is wise to update your agreement, because, as we have seen, the law lays out different rules for common-law partners and married spouses.

    If you have more questions about your family law matter contact our Family Law department by calling 416-449-1400.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Family Law

    Why Everyone Should Have a Continuing Power of Attorney for Property: A Personal Injury Context

    While the mental incapacity of a plaintiff in the formal  personal injury/disbility litigation is adressed via litigation guardian, the need for a guardian may be pressing and independent from any litigation. Having a Continuing Power of Attorney for Property in place is a recommended way to ensure that your property is seamlessly and immediately looked after by your chosen attorney in case of your incapacity, which helps prevent potential losses and financial hardships, while only requiring a small upfront expense.

    What is the Power of Attorney?

    The term “Power of Attorney” refers to the legal document by which a “grantor” grants decision-making power to another person (the “attorney”).   There are two main types of Power of Attorney in Ontario:

    1. A Power of Attorney for Personal Care, which appoints an attorney to make personal care decisions for a person who is unable to do so; and

    2. A Power of Attorney for Property, which authorizes an attorney to make property- related decisions.

    Powers of Attorney for Property are further subdivided into two types:

    a. A Non-Continuing Power of Attorney for Property, which allows the attorney to make certain decisions in the grantor’s absence. This would be used if, for example, the grantor is out of the country for an extended period of time, or for the period of inconvenience such as temporary immobility caused by injuries or illnesses; and

    b. A Continuing Power of Attorney for Property, which allows the attorney to make decisions pertaining to the grantor’s property and financial matters if the grantor becomes mentally incapacitated. An attorney under a Continuing Power of Attorney for Property can do anything on your behalf other than to make your last will, with the scope and onset of the attorney’s powers solely left up to the grantor’s discretion if chosen so.

    Who can be a Grantor?

    Section 8 of the Substitute Decisions Act (Ontario), SO 1992, c30, (SDA) provides that:

    8 (1) A person is capable of giving a continuing power of attorney if he or she,

    (a) knows what kind of property he or she has and its approximate value;

    (b) is aware of obligations owed to his or her dependants;

    (c) knows that the attorney will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;

    (d) knows that the attorney must account for his or her dealings with the person’s property;

    (e) knows that he or she may, if capable, revoke the continuing power of attorney;

    (f) appreciates that unless the attorney manages the property prudently its value may decline; and

    (g) appreciates the possibility that the attorney could misuse the authority given to him or her.

    (2) A person is capable of revoking a continuing power of attorney if he or she is capable of giving one. 

    Notably, s. 9 (1) SDA provides that a person may be incapable of managing the person’s own property and yet be capable of giving a Continuing Power of Attorney. As such, Ontario jurisprudence provides for an additional capacity test, and S. 8 may not be typically considered as an absolute necessary one.

    Plaintiff’s Personal Injury & Disability Outside of Litigation

    Situations that result in personal injury or disability may lead to litigation. The litigation guardian for a mentally incapable plaintiff may commence or continue action on behalf of the plaintiff without the court appointment, subject to filing an affidavit with the court.

    However, the plaintiff’s litigation guardian has no powers outside of litigation and cannot look after the plaintiff’s other property affairs, which could be possibly much more significant and pressing than the litigation per se.

    For any property matter unrelated to the subject litigation, and absent a Continuing Power of Attorney for Property, the guardian must be appointed for the plaintiff, either by the court, or through the Public Guardian and Trustee, which is the ultimate statutory guardian. This means that the proceeding must be commenced, and either procedure may be protracted and costly due to needs for legal representation and costs for the expert’s evidence by duly qualified assessors and medical experts.

    On top of these expenses, a delay of guardianship for property may negatively affect the plaintiff’s assets. For example, it might prevent acquisitions, liquidations, financing or significantly delay proper execution and pursuit of insurance coverage or applications for disability benefits.

    The aforementioned issues may leave the plaintiff and his/her dependents in a difficult and undesirable financial position especially during a challenging  time of injury or illness where they are experiencing a loss of income or wages. What could have been accomplished with the modest expense of having a Continuing Power of Attorney for Property properly prepared in advance, a sudden and last minute need for one turns into unnecessary legal expenses, delay in the payment of insurance coverage or disability benefits, and financial losses for the plaintiff.

    Establishing a Continuing Power of Attorney for Property

    The grantor should choose a trusted person, who is aware of the grantor’s property intentions, to act as the grantor’s attorney. There are certain formal legal requirements for drafting and witnessing a Continuing Power of Attorney for Property which must be met in order for the documents to be valid.

    The Ministry of the Attorney General has very detailed information, including a kit here regarding how to have a Continuing Power of Attorney for Property properly executed and prepared.

    Notwithstanding its apparent simplicity, the Continuing Power of Attorney for Property may require legal advice before its execution as it may have far reaching consequences on the grantor’s property. For example, the grantor may need advice regarding its onset, safe keeping, use, and potential multiplicity of attorneys, related decision making rules and/or attorney’s substitution(s), to name a few. If the grantor’s personal and family milieu is contentious, the legal advice is recommended.

    If the Continuing Power of Attorney for Property is being prepared after the injury or onset of disability which brings the grantor’s capacity in question, then legal advice is highly recommended. The capacity to grant the Power of Attorney is a legal test, and as the fluctuating capacity is endorsed by the courts, legal assessment and opinion would be a must to make the Attorney properly and soundly established, and ultimately operational and valid if later challenged for any reason.

    If you have any questions about Powers of Attorney, please contact Dejan Ristic, a lawyer at Devry Smith Frank LLP at 416-446-5812, or at dejan.ristic@dsf.theleadshub.biz.  Home and hospital visits, and video conferencing are available as necessary.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Personal Injury

    Mediator Selection: Skills Often More Important than Expertise

    As per Rule 24.1 of Ontario’s Rules of Civil Procedure, certain court proceedings in Ontario are subject to mandatory mediation. Even if it is not mandatory in a particular proceeding, mediation is a form of alternate dispute resolution that parties may want to consider to avoid a full trial, reduce the costs of litigation, and hopefully arrive at a settlement that is agreeable to everyone involved. Whether or not a mediation is successful is, in large part, dependant on the choice of mediator.

    When choosing a mediator, parties tend to focus on the mediator’s expertise. They want to find someone knowledgeable in the subject matter of the case. There is no doubt that such expertise can be helpful. However, for a mediation to truly be successful, the mediator must also have a certain skillset. The mediator must be able to listen, understand the parties’ concerns and identify the parties’ interests even if they are not obvious on the surface. Consider, for example, that disputes can be emotionally driven. A good mediator should be able to sense and identify underlying issues, such as the desire of one of the parties to reconcile or receive an apology from the other and then facilitate that. Time and again, these skills prove to be much more important in a mediator than subject-matter expertise.

    Moreover, these skills apply to all types of mediation, including commercial disputes. In fact, it is in a commercial dispute that a mediator may be more likely to overlook the emotional component or other underlying issues, which may not be as obvious as they are in family or estate-related matters. A skilled mediator will always go beyond a strict reading of the law and leverage the unique set of facts, as well as the uncertainty and expense of a trial, to bring the parties to a mutually agreeable resolution.

    If you have any questions about choosing a mediator, or about mediation in general, please contact Eric Gossin, partner at Devry Smith Frank LLP. Eric is experienced mediating in a wide variety of legal disputes, including personal injury, corporate and commercial law, real estate, and family law and has a thorough understanding of what is required for a mediation to be successful. You can reach him at 416-446-5828 or eric.gossin@dsf.theleadshub.biz.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Mediation

    Quelling the “Magna Carta Lawful Rebellion”: Part Two

    . . . MCLR gurus harm people. [. . . .]. These gurus teach illusions that will predictably fail. They promise much, but their clientele gets less than nothing.[1]

    In spite of a recent decision of the Alberta court which should have persuaded her otherwise,[2] “Jacquie Phoenix”, whose last name is really Robinson, continues shamelessly to employ pseudo law.

    In August of 2020, the Alberta court released a decision about Ms. Robinson’s meddling in a high-conflict child custody dispute.[3]  She had claimed to act for the mother, maintaining that she had the latter’s power of attorney.  To justify her actions, Ms. Robinson relied on the pseudo-law concept of what the court described as the “Magna Carta Lawful Rebellion” (“MCLR”), a muddled mishmash of misbegotten mumble jumble that does not withstand the application of an iota of basic common sense.

    In its August decision, the court took apart the notion of the MCLR,[4] pointing out that the act of employing pseudo-law strategies is abusive and causes harm.

    At that time, the court ordered that, among other things, Ms. Robinson could not act for the mother in the custody dispute and invited her to make submissions on why she should not be forbidden in any other matter before the Alberta courts.

    Was Ms. Robinson contrite?  Did she learn a lesson? 

    The answer is most emphatically, “No”.

    A court decision which was released just before the end of 2020[5] sets out what subsequently happened:

    • MHVB, the mother, did not appear for a hearing of criminal charges for abduction and a warrant was issued for her arrest;
    • AVI, the father, successfully applied  to the court to vary parenting arrangements;
    • in his application, he stated that he and his lawyer had been “threatened by MHVB and Ms. Robinson, who claim that they are above the law”;[6]
    • Ms. Robinson made public statements, including video rebuttals which rejected the court’s authority, proclaiming that the court’s judgment “had no more effect on (her) than a statement by the CEO of McDonalds”;[7] and
    • Ms. Robinson sent “notices” and other documents to court staff and had a hand in other materials sent to the Associate Chief Justice which were similar to those she had already sent, erroneously relying on “Article 61 of Magna Carta 1215”,[8] declaring that commonwealth governments had been dissolved, stating that the Alberta court had been “Usurped by a Treasonous Regime”,[9] that the Nazis had laid the foundation of the European Union as part of some nefarious plan,[10] that a succession of UK prime ministers had been engaged in high treason and sedition, and that the last “constitutionally correct Coronation Oath was taken by the traitor James II in 1685”.[11]

    In response to the foregoing, the court made various orders designed to prevent Ms. Robinson from continuing to employ pseudo-legal tactics.   It also warned Ms. Robinson that she could face contempt of court and concluded as follows:

    These schemes are nothing more than cons, led by people who rely and feed on the oft-quoted statement attributed to P.T. Barnum (of circus fame): a sucker is born every minute. That is true now as it was when spoken more than 150 years ago. The Courts are not suckers. And the courts will not be intimidated. [12]

    The use of pseudo law is abusive,[13] may constitute contempt of court, [14] and “gurus” like Ms. Robinson who propagate it are charlatans.  They provide no small disservice to the public, including people who genuinely need a lawyer.   

    Those who need legal assistance should stay far away from the likes of Ms. Robinson and seek the aid of a lawyer or a reputable organization which can provide legitimate, timely and practical help and guidance.

    [1] AVI v. MHVB, 2020 ABQB 790 [hereinafter AVI #2] at para.53.

    [2] AVI v. MHVB, 2020 ABQB 489 [hereinafter AVI #1]. An earlier blog about the decision can be found here.

    [3] Ibid.

    [4] Particularly at Ibid., para. 72 et seq.

    [5] AVI #2, supra note 1.

    [6] Ibid. at para 24.

    [7] Ibid. at para. 26.

    [8] Ibid. at para. 28.

    [9] Ibid.

    [10] Ibid. at para. 33.

    [11] Ibid. at paras 35.

    [12]Ibid. at para 54.

    [13] AVI #1, supra note 2 at para. 72 et seq.

    [14] AVI #2, supra note 1note at para. 52.

    By Fauzan SiddiquiBlog, Litigation