Obtaining a Foreign Divorce Opinion Letter in Ontario – Additional Implications of Foreign Divorces

In my job as a Toronto family lawyer, I have  drafted numerous foreign divorce opinion letters – some more complex than others. In my previous foreign divorce opinion letters blog, I discussed the legal tests and requirement for remarriage in Canada. This post expands on the policy reasons and additional legal consequences of (non) recognizing foreign divorces in Canada. Why is the recognition of foreign divorces in Canada relevant and important? Most people will only worry about this issue if they wish to re-marry in Canada and need to obtain a foreign divorce opinion letter from a local family lawyer. The recognition of foreign divorces in Canada, however, extends far beyond a person’s eligibility for a marriage license.

Marriage and divorce carry specific rights, obligations and entitlements. For example, Canadian courts cannot grant a Canadian divorce if Canada had already recognized a foreign divorce. A foreign and recognized divorce has the same status on the parties as a Canadian divorce. Consequently, if the divorce is not recognized, a spouse may be able to divorce in Canada and make property and support claims here. Depending on the circumstances of each party and the family law regimes in their country of origin, this could be significant.

Furthermore, a widow(er) may not be automatically entitled to pensions and other succession interests if a foreign divorce is recognized in Canada. The estate law issues, including the interpretation and validity of wills are affected by (non)recognition of foreign divorces, including the effect on financial provisions for dependents (i.e. former spouse).

In my practice as a Toronto immigration lawyer, specializing in spousal sponsorships to Canada, I have come across cases where the existence of a non-recognized foreign divorce could have undermined the attempt by a Canadian citizen or a permanent resident to sponsor his or her foreign spouse. If one of the parties remains married in the eyes of Canadian law, the parties are unable to re-marry, or if they re-marry outside Canada, their new marriage will likely be considered invalid ab initio for immigration purposes. The question of bigamy also arises in this context and should not be taken lightly. Lastly, the recognition of a foreign divorce can have significant tax implication in Canada, and it may affect the parties’ entitlement to state and welfare benefits.

The laws in this area can be quite complex and technical. If you have been divorced outside of Canada and either wish to re-marry and obtain a foreign divorce opinion letter or if you wish to ensure that your divorce is recognized for other purposes, such as immigration, you should contact a knowledgable family lawyer in Toronto.

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To Disclose or Not to Disclose – The Importance of Full Financial Disclosure in Marriage Contracts (Prenups)

Toronto family lawyers have witnessed a growing number of clients entering into cohabitation agreements and marriage contracts (prenuptial agreements). Traditionally, Ontario has a strong public policy favoring individuals contracting autonomy – deciding their own interests through contractual arrangements. This interest, however, is not absolute. The agreements addressing matrimonial issues (marriage contracts, otherwise known as prenups) are subjected to higher level of judicial scrutiny – far beyond that applied to contracts in general. While a well drafted and properly executed agreement carries a significant presumption of validity, it may nevertheless be voided by a court if one party is able to prove fraud, duress, lack of financial disclosure, lack of understanding of the terms or other inequitable conduct. Compiling financial information required under the full disclosure requirement can often be a tedious and even onerous task. It is no wonder that clients often ask their family lawyers to provide only partial disclosure. Such instructions, however, could have a potentially devastating effect on the future  enforceability of a domestic contract.

When entering into a domestic contract, both parties have a positive obligation to disclose all significant assets under s. 56(4)(a) of the Family Law Act (FLA). In a 2008 case, LeVan v, LeVan, the Ontario Court of Appeal awarded a $5.3-million equalization amount to a wife who waived her matrimonial property and support rights in a prenuptial agreement. The court invalidated the prenup on the basis that the husband  failed to disclose his full income and net worth to the wife. The facts of LeVan also touched upon another possible basis for challenging prenups. Namely, the wife signed the marriage contract merely two days before the wedding under threats from the husband to call off the wedding if she refused to agree.

The essential rule to follow when deciding how much financial disclosure to make can be summed up as follows:  to be considered full and frank, disclosure must be complete and adequate, and it must include not only assets and liabilities but also the contracting spouses’ respective incomes. One party’s failure to make full disclosure could easily be interpreted by a judge as a deliberate attempt to mislead the other spouse.

A New York state Petrakis decision is informative. Here, the judge tossed out a prenuptial agreement where a real estate mogul pressured his fiancée, to either sign a one-sided prenuptial agreement days before their wedding or he would cancel the wedding. He also told his fiancée that he would tear up the agreement as soon as they had children, which he then failed to do.

As the cases across common law jurisdictions evidence, if you are entering into a marriage contract, be aware of complex nature of these agreement and err on the side of caution. If you are planning on signing a prenuptial agreement, it is wise to have one qualified family lawyer draft it and another to review it before signing and provide you with the best possible legal advice. Your marriage contract lawyer in Toronto or elsewhere in Canada should draft an agreement that will stand up to judicial scrutiny and thereby protect your assets. To do his or her job, your family lawyer will need your full cooperation.

An Overview of the Divorce Process in Ontario

In Canada (and Ontario), a divorce may be obtained by filling the Application at the local Superior Court of Justice, pursuant to the Divorce Act. The requirements for obtaining a divorce in Canada are the following:

1) In order to request the dissolution of your marriage, you must first demonstrates to the court that you have a valid marriage. A marriage certificate, with a certified English or French translation, if necessary, is required. If you do not have the original marriage certificate and cannot obtain one, you or your  divorce lawyer will need to provide an explanation in the Affidavit format. The court may still require you to adduce some alternate evidence of the marriage prior to granting divorce.

2) You must establish if the court has jurisdiction to grant your divorce. Superior Court of Justice in Ontario only has power to grant a divorce if either party has ordinarily resided in the Province for at least one year (12 months) prior to the submission of the application for divorce. In an uncontested divorce, the Application must be served on the other party according to the Family Law Rules. If the party cannot be located, your Toronto divorce lawyer can assist you by submitting a motion to dispense with service or a motion for substituted service.

3) There is only one legal ground for divorce. Namely, the court must be satisfied that your marriage has broken down irretrievably, without a prospect of reconciliation. A period of separation of 12 months immediately before filing the application usually satisfies the court of this fact. A couple may be separated and still live together provided they satisfy the court that they are not living as spouses. That is to say, their relationship has reduced to sharing accommodation. The Court is normally satisfied that separation has taken place by the applicant swearing as to the separation on the application for divorce – unless there is some evidence of collusion.

3) Superior Court will not grant a divorce in Ontario unless the presiding judge is fully satisfied that appropriate arrangements for any children of the marriage have been put in place. Your Toronto family lawyer may explain this requirement in greater detail, but essentially, this requirement does not mean arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for.

A Toronto Family Lawyer’s Guide to Using Facebook During Divorce Proceedings

How many times have you checked your facebook app today? Facebook has become an irreplaceable tool, which allows us to stay in touch with family and friends, who are often dispersed around the world. At the same time, Facebook posts have become a rich source of evidence, which can and will be used against you by your ex spouse and his or her lawyer in family court. The amount of information other people see on social media sites is controlled by privacy settings or permissions. For its own marketing purposes, Facebook  and other social networking websites default permissions usually favour widespread sharing. Always remember that you cannot be anonymous on the web. Most family and divorce lawyers in Toronto have experienced the occasional inability of their clients to behave online. Facebook is designed to share your real personality and your actions and attitudes. This is exactly why social media is one of the best lie detection methods that afamily court judge can use.

Behave and Do Not Over-share

Do not denigrate your ex on Facebook and other social media websites, especially if you have children in common. Wile venting your hurt emotions and seeking solace in cyber space can be therapeutic, Facebook is hardly the most appropriate place for healing. Not only is it in arguably poor taste to over-share your innermost emotional struggles in a public forum, but putting down and ripping into your ex can seriously jeopardize your legal position. As your family lawyer will likely caution you, If you are embroiled in a custody dispute, your vitriolic rants against your co-parent can be seen as evidence of your inability to put your child’s best interests above your own. Fighting over child custody in Ontario can get very nasty very fast. Facebook expressions of animosity can also show that you are unwilling to work cooperatively with your ex in parenting your child. These indicators may demonstrate to a family court judge that you cannot be trusted to promote the maximum contact and meaningful relationship between your child and the other parent. Furthermore, if you post an untruthful comment, you could be sued for libel. On a very human and practical level, sounding like a raving maniac will seriously undermine your credibility in the eyes of an adjudicator and public at large.

Post Wisely

Who doesn’t have some embarrassing photographic evidence of a crazy Friday night, drinking with friends? That picture of you drinking with your BFFs, smoking a bong or a photo of your kid “pretend” drinking a bottle of rum with a funny caption can all support your spouse’s claims that you have a problem with alcohol or that you are an unfit parent. as you can see, social media can show poor parenting skills or judgement, show capacity to work or show smoking or the use of substances not normally associated with someone who is an exemplary parent.

Checking into luxury hotels, enjoying expensive vacation packages and showing off your newest car or a boat is a great ego boost, but your bragging rights come with a potentially significant price tag. When it comes to equalizing family property or dealing with spousal support or child support issues, Facebook photos and status updates can unwittingly reveal your financial circumstances that differs drastically from the claims that you made in your financial disclosure. While hiding assets and understating your income are reckless and imprudent moves in any family law case, getting caught doing it is even worse. A picture of that piece of jewelry that you claimed was lost or a trip to Paris with your new love interest can result in a reassessment of your equalization calculation and support payments, and you could have costs ordered against you. Make sure to work closely and follow the advice of your Toronto family lawyer to avoid these costly missteps.

To Check in or Not to Check In

Checking into various venues, restaurants, movie theatres and travel destinations is fun and addictive. If you are involved in a particularly contentious divorce or if have applied for a restraining order because you fear physical or emotional abuse from your ex, you may not want to post your whereabouts on social media. Even the best family lawyer in Toronto is not a substitute for common sense. Posting your location is an open invitation for trouble and should be resisted.

 Parting Words of Caution 

While most divorce lawyers recommend a dating “time out” immediately following your separation, if you choose to pursue romantic interests during a particularly contentious family law matter, you will need to refrain from sharing this sweet information on Facebook. Your ex, a mutual friend, a family members or even an acquaintance can pass this information on to your ex and his lawyer, who may use it to their advantage.

This legal information brought to you by Ivan Steele Law Office.