Tag: Common Law Spouses

27 Aug

Predatory Marriages: A Growing Concern in Ontario

Kira Domratchev Capacity, Elder Law, Estate & Trust, Estate Planning, Guardianship, Litigation, Power of Attorney, Wills Tags: , , , , , , , 0 Comments

We sometimes hear about an elderly person marrying a much younger person. What we often do not consider, however, is the possibility that such a marriage is entered into by a “predatory” spouse in order to take advantage of an elderly victim with the ultimate goal of assuming control of his or her finances.

The “predator” is often a caregiver or a family friend or neighbour. In most cases, it is a person who uses a position of trust to cause an elderly victim to change a Will, a power of attorney, an insurance policy designation or other documents. It is also not uncommon for inter vivos transfers to be made while the senior is alive.

According to Ontario law, the act of marriage grants the new spouse certain property rights, specifically with respect to the matrimonial home and spousal support. The most significant effect of a marriage, however, is the fact that the Succession Law Reform Act, revokes any Will executed prior to the marriage. To make matters worse, predatory marriages often occur in private such that the senior’s family members are not aware that he or she has married.

The evidentiary burden imposed upon the elderly victim’s adult family members to prove that a marriage should be declared void as it is a marriage of a “predatory” nature is significant.

Why is it so tough to show that a marriage is void?

Capacity is a fluid concept. It means that a person could have capacity for one task and no capacity for another, as capacity is time and situation specific. Capacity to enter into a marriage, is the lowest threshold of capacity. As such, a person can be entirely capable to enter into a marriage but may be incapable of managing his or her own financial affairs.

In addition, a person likely does not just lose capacity in a day; it is a gradual process such that there is a “grey zone” between having capacity and having no capacity at all. It is in that “grey zone” that a predator will take advantage because a person may start forgetting things but is otherwise capable for all intents and purposes.

Because of that, many are of the opinion that Ontario laws make seniors an easy target for “predatory marriages”. Will there be a change in the law coming our way, in light of the growing phenomenon of such marriages? Only time will tell.

For more information regarding this growing concern and the manner in which this issue has been treated by the courts, please see a paper by Kimberly Whaley of WEL Partners on Predatory Marriages.

Thanks for reading.

Kira Domratchev

31 Oct

Hull on Estates #532 – Do common law spouses need to live together?

76admin Common Law Spouses, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Uncategorized Tags: , , , , , , , , 0 Comments

This week on Hull on Estates, Ian M. Hull and Stuart Clark discuss the recent case of Stajduhar v. Wolfe, 2017 ONSC 4954, and whether two individuals need to live together to be considered spouses within the confines of Part V of the Succession Law Reform Act.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Ian M. Hull.

Click here for more information on Stuart Clark.

25 Jul

Joint Accounts Between Spouses

David M Smith Joint Accounts, Litigation, Uncategorized Tags: , , , 0 Comments

Subsection 14(a) of the Family Law Act provides that property held by spouses in joint accounts shall be intended, in the absence of proof to the contrary, to be owned jointly. The presumption may be rebutted by the spouse who seeks to have such monies excluded from net family property (Belgiorgio v. Belgiorgio, 2000 CanLII 22733 (ON SC)).

In LeCouteur v. LeCouteur, 2005 CanLII 8726 (ON SC), the court held that the husband failed to rebut the presumption of resulting trust in respect of funds in a joint account that had “traditionally been used to carry out family decisions for funding special projects”, such as renovations.

In Belgiorgio, the court held that a joint bank account in which the husband deposited his inheritance was used for household expenses and purchases, and was commingled with household income. The court found that the inheritance lost its excluded character when it was placed in a joint bank account; it was his intention at the time he deposited the funds that was relevant.

In the recent Ontario Superior Court of Justice case of McLean v. Dahl, a husband sought a declaration that he was the sole owner of proceeds in a joint bank account in the amount of $94,565 at the date of separation.

The Court considered the following facts in arriving at a determination that the presumption of joint ownership was not rebutted:

  • Both parties used the account as they saw fit; however, it was their practice to consult one another if major purchases were to be made;
  • When the parties decided to grant a sizeable loan to friends, the funds came from the joint account. When the funds were repaid to the wife alone, she returned them to the joint bank account;
  • When the parties decided to work on their marriage, they agreed to put these funds into a joint account on the condition that both their signatures were required to make a withdrawal;
  • Mr. McLean intentionally transferred solely-held funds to the parties’ joint names;
  • the spouses discussed major transactions using these funds;
  • the parties shared the tax liability for income on these funds.

In summary, the Court observed that “…when the parties agreed to work on their marriage, after Mr. McLean closed the first joint account, they opened a second joint account into which each deposited monies in his or her control. This was the second time that Mr. McLean intentionally placed funds in Ms. Dahl’s control. It is obvious from his pattern of conduct that he intended her to have access to funds in joint accounts.”

Accordingly, the Court found that, “from the time that Mr. McLean added Ms. Dahl’s name to the account, she became a half-owner, and the parties were entitled to one-half the funds in the parties’ joint account in the amount of $47,282 each.”

Thanks for reading,
David Morgan Smith

Other blogs that may be of interest:

Think Your Joint Accounts Will Pass Automatically on Your Death? Don’t Bank On It

Decisions on the Difficult Issue of Joint Accounts

 

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