With financial pressures, it is becoming increasingly common to live together post-separation. In fact, the Ontario Supreme Court addressed this issue in the decision McBennett v Danis. The couple lived separate and apart, but under the same roof; in order to determine whether a couple is living “separate and apart” for the purpose of a divorce, the Ontario court summarized specific considerations:

  • Spouses living separate-and-apart involves two things: 1) living apart; and 2) an intent by one or both that they live apart from each other.
  • Living “apart” means physical separation. However, in some cases this can occur under the same roof.
  • With that said, having two residences for a period of time, and spending significant periods apart, may not be conclusive. The main reason for having separate residences will be a factor.
  • To qualify, one or both spouses must withdraw from matrimonial obligations with the intent of destroying or repudiating the marital relationship. 
  • The law does not require a “meeting of the minds” regarding the intent to separate. The decision need not be a mutual one.
  • A clear statement or unequivocal act by one spouse to terminate the relationship will be very relevant.
  • Brief references to the possibility of reconciliation – with no serious steps toward that goal – will not necessarily end or disrupt a state of living separate-and-apart.

Among these considerations, a court would consider whether the spouses (1) still have a sexual relationship or are romantically involved with other people; (2) participate in joint social activities; (3) spend vacations together; (4) attend family events and special occasions together; (5) eat meals together and share household chores.

September 29, 2022

A particular issue in parental conduct is the risk of children being victims or witnesses of family violence. The courts are more likely to assess such a risk when deciding parenting time of the child. The presence of violence must now be a part of the assessment of a person’s fitness to parent.

In fact, recent amendments of the Divorce Act of Canada enacted certain provisions recognizing that family violence is a highly significant factor that a court would consider when determining the best interests of a child in proceedings regarding parental rights and responsibilities.

Courts don’t necessarily grant parenting time to abusive spouses. A court could, instead, grant some time with the children, in order for them to maintain meaningful contact with the parent. However, a court can make an order indicating that the abusive partner is not able to freely contact the children whenever they desire. In other words, the court will clearly indicate the terms of the parenting time in the order.

If the children are at risk of any form of abuse, parenting time could be denied all together. Alternatively, a court could order that the abusive partner exercise parenting time with the supervision of a neutral third party.  

Swimming pools are impacted by the legal system primarily in two ways. First are the regulations that the province and your municipal government may impose. These would include, for example, zoning by-laws that restrict what kind of swimming pools can be constructed. Such regulations are enforced by government officials, and a typical penalty for breaching them is a fine. Secondly, you can be sued by another individual if they get injured in your pool. In this post, we will focus on this second aspect – how to minimize the risk of being sued because of a pool-related accident.

The area of law most applicable in this context is negligence. You are not obliged to absolutely guarantee the safety of people who come onto your property – that would be impossible. However, you are required to take steps to ensure that those who do come to your property are reasonably safe.

The first obvious risk swimming pools present is drowning. You are not obliged to supervise your guests when they are using the pool. However, you must take steps to prevent people from accidentally stumbling into your pool by fencing the pool area, or your property’s boundaries in general. You also should keep the water in the pool clear enough so that a person submerged into water can be easily seen from the outside.

The second major risk is diving. Nearly all swimming pools installed in private homes are not large enough or deep enough to allow for safe diving. Diving into such a pool creates a grave risk of catastrophic personal injury. Obviously, you should not dive into such a pool yourself, not encourage others to do so. In fact, you should place a conspicuous “no diving” or “shallow water” sign by the pool. That is the cheapest and easiest way to protect yourself from a lawsuit in case someone does dive into your pool and gets injured. At the same time, the mere fact that you built a structure (e.g. an elevated deck) which made diving possible does not make you liable, so long as pool users had been warned (e.g. by the “no diving” sign) that diving would be dangerous.

Finally, you should follow the administrative and municipal regulations that may be in place in your area – not just to avoid fines, but also because you are less likely to be found negligent in a civil case if you have followed the appropriate government regulations. This is so even though the administrative regulations and negligence law are separate legal areas and complying with one does not necessarily mean you are compliant with the other.

Determining what your rights are if you lose your job largely depends on the facts of your case. If your ex-workplace is unionized, the termination provisions will be governed by the collective labour agreement. In this case, you should talk to your union representative so that your matter could proceed through the labour grievance process.

A non-unionized worker legally does not have a right to a job – the employer is entitled to terminate a worker at will. However, unless the termination is for cause, the worker is entitled to a notice of termination, or pay in lieu of notice – that is, the amount you would have earned during the notice period. Under the Employment Standards Act, a worker who has worked between 6 months and 5 years is entitled to a notice period of 2 weeks, while someone who worked 5 years or more is entitled to 4 weeks’ worth of notice. The notice must be in writing.

However, in addition to the Employment Standards Act there also exists a concept of “reasonable notice”. That is, the worker is entitled to notice that is reasonable given factors like the worker’s age, position, type of work, and most importantly, the length of time worked. This reasonable notice is usually higher than the minimum amount provided by the Employment Standards Act. Sometimes you may get a month worth of notice for each year of work. Thus, a worker working for the same employer for 5 years may be entitled to a 5-month notice before termination, or a payment equivalent to 5-months’ salary. However, there are no clear-cut rules when it comes to reasonable notice – each case is decided on its specific facts.

For finding out what your rights are if you lose your job, or for any other legal issue, please contact us.

February 10, 2022

If your land is being flooded by water from your neighbor’s land, the dispute will usually (but not always) fall under the law of nuisance. Nuisance allows you to sue someone who uses their land in a manner that interferes with your ability to reasonably enjoy your land.

When it comes to disputes over flooding, several things need to be kept in mind. Your neighbor is not liable for the flow of surface water so long as the flow is natural. However, in such a case you are free to protect your land from this water, even if it results in the water remaining on your neighbor’s land and flooding it. For example, suppose your neighbor’s lawn is naturally higher than yours, and after every rainfall the water from it flows onto your lawn. You cannot sue your neighbor, but you can build a barrier to block that water.

However, it would be a nuisance to alter the land so as to artificially increase or concentrate the natural flow of surface water. So, if your lawn gets flooded after your neighbor dug a ditch that redirects rainwater from their lawn onto yours, you may be able to sue them.

Finally, if the water flows in a natural watercourse (a river or a stream), then your neighbor cannot cut off that stream from your land, but nor can you block that stream so as to flood your neighbor’s land. The natural watercourse should not be disturbed by either side.

If you have a dispute with your neighbors because of water damage or any other issue, please contact us.

January 10, 2022

The short answer is – possibly. Domestic contracts are agreements that govern the parties’ rights and obligations under family law – such as the ability to claim support or apply for division of property. Domestic contracts include separation agreements, prenuptial agreements, marriage contracts, and so forth.

Generally, the courts say that domestic contracts cannot be disturbed lightly, because they promote stability and are seen as embodiment of the intention of the parties. However, domestic contracts will be disregarded in some circumstances. That is especially true if the party seeking to set the contract aside did not have independent legal advice. But even if both parties had lawyers when the domestic contract was made, it can still be set aside on the grounds of unconscionability – that is, when one party was somehow vulnerable, and the other party took advantage of that. For example, if one party misrepresented their true wealth during the contract negotiations, the other party essentially does not know what they are giving up when they agree to a certain support amount or property division scheme. Such circumstances can help to set the contract aside.

If you are dealing with a separation, a dispute over a domestic contract, or for any other legal issue, please contact us.

December 2, 2021

A death of a loved one is stressful enough. Worse still if the living cannot agree on what to do with the body. Given the cultural significance of funeral and mourning rites, it is possible for funeral arrangements to become a source of contention. Should the body be buried, or cremated? If buried, where should it be buried? If cremated, who will keep the ashes?

The law establishes a clear decision-making hierarchy when it comes to finding the final resting place for the deceased. The right and the duty to dispose of the remains belongs to the personal representative of the deceased. A personal representative is either the executor named in the will, or, if there is no executor, a court-appointed administrator of the deceased’s estate. If there is no personal representative, then the duty passes on to the next of kin – first to the spouse, then to the parents if there is no spouse, then to other next of kin in order of consanguinity.

Whoever the decision-maker may be, they have the sole authority to decide what happens with the body. They do not need to follow the wishes of the family or even of the deceased. So long as the manner in which the body is disposed is reasonable, the law will not interfere. Thus, for example, if the spouse of a deceased wants a cremation but the parents object on cultural grounds, they likely will not be able to prevent the cremation, because cremation would be considered a reasonable way to dispose of the body. The same is true of related issues – such as deciding in which cemetery to bury the body, or what happens to the ashes if it is cremated.

While the wishes of the deceased can (and normally should) be taken into account, they are not binding. In fact, the personal representative may be required not to follow the deceased’s wishes if they are too extravagant, unreasonable, and expensive in a way that harms the estate’s creditors.

It is possible for someone to acquire the authority over the remains after the burial has been completed. This is especially likely if there is no executor appointed by will. Since it takes a while for a court to appoint an administrator of the estate, the body will most likely be already buried by the next-of-kin before the administrator assumes their office. In such circumstances, it will be difficult for the administrator to undo the funeral arrangements the next-of-kin had chosen. While it is possible to exhume a body, the administrator’s wish to effect a different funeral arrangement most likely will not be considered a good enough reason by the law to permit an exhumation.

For more questions about this or any other legal issue, please contact us.

It is common for spouses to make “mirror” wills, leaving their property to each other, with the provision that the property will go to agreed-upon beneficiaries (such as the children) after both pass away. However, nothing legally prevents one of the spouses from secretly changing their will – before or after the other spouse’s death – in a way inconsistent with the agreement. These concerns can be particularly pressing for a spouse who has children from a previous relationship and who wants to make sure that the surviving step-parent would not disinherit those children. And even when family dynamics are entirely positive, a remarriage of the surviving spouse can disrupt estate planning: a will is automatically revoked by marriage, and the remarried spouse may simply forget to draft a new will to revive the terms agreed upon with the previous deceased spouse.

For all such reasons, some couples want wills that can be changed or revoked only with the knowledge and approval of both spouses. This can be accomplished by so-called “mutual wills”. Essentially, mutual wills are a set of two wills with terms that mirror each other, and which contain clauses stating that the wills cannot be revoked or changed without the consent of both spouses. The non-revocation provisions are considered by law to be a binding contract. If a spouse secretly changes their will in breach of the contract, the beneficiaries under the old will would be able to sue the beneficiaries under the new will and obtain the property they were entitled to under the mutual will. A mutual will survives even when an ordinary will would be revoked by operation of law – e.g. automatic revocation by marriage.

A mutual will can thus provide you with confidence that the estate planning arrangements you make with your spouse will endure after you pass away. It ensures that the people you want to take care of in your wills will be taken care of, while at the same time allowing your spouse to be the owner of the family property while they live. To learn more about mutual wills, or for any other will and estate planning inquiries, please contact us.

October 14, 2021

Traditionally, engagements gave rise to various legal – not just social or moral – obligations. For example, a woman could sue her faithless fiancé and obtain money damages for her injured feelings and mental distress resultant from his breach of the promise to marry. No equivalent cause of action was available to a man, though. The cause of action for the breach of promise to marry has been abolished in several Canadian provinces, and while it is technically still on the books in New Brunswick, recent judicial pronouncements suggest such a suit would have slim chances of success.

Historically, the question of who gets to keep the engagement ring was tied to the question of fault. If the man was the one to end the engagement, the woman had the right to keep the ring, but if the woman ended the engagement, the ring had to be returned. That is no longer the case today. It no longer matters who ended the engagement or what are the genders of the giver and the recipient of the ring. The decisive question is: was the ring a conditional, or an unconditional gift? Was the ring really given in contemplation – and on the condition – of the marriage taking place? Or was it simply a gift, with no strings attached, given simply on an occasion of the engagement? The intentions of the partiers in the particular case at hand are key.

In short, it is certainly possible (thought not guaranteed) to recover the engagement ring if the engagement falls through. If you are facing this or any other legal issue, please contact us.

August 26, 2021

It is uncontroversial that a commercial host (someone who is paid to serve alcohol) can be held responsible if their drunken guests injure themselves and others. This is a default legal rule. For example, if a bar over-serves a customer, and the customer then drives drunk and injures someone, the victim can sue the bar owner.

No such default rule exists for social hosts. Thus, someone who is injured by a drunk driver usually cannot sue the host of the party where the guilty driver had gotten drunk. However, sometimes a social host can be held responsible, particularly when the party itself was such that it posed an inherent and obvious risk to the public. For example, someone who hosts a boisterous, out-of-control party for hundreds of teenagers and supplies the guests with generous amounts of alcohol and illegal drugs may well end up being liable when the unruly partygoers injure someone. By contrast, a host of a respectable family dinner will likely not be held responsible if a long-lost cousin sneaks one too many a glass of one before setting to drive home, and injures someone as a result. The absence of a hard-and-fast rule means that the outcome of each case will depend on the specific facts.

If you were injured by a drunk driver, are being sued because of a party that you have hosted, or facing other legal issues, please contact us.