Epstein & Associates Blog

In the November 25, 2010 judgment in King v. King, 2010 ONSC 6271, the Ontario Superior Court of Justice held that a general pension release in a separation agreement was not a sufficient waiver of the wife’s entitlement to her husband’s OMERS pension. 

When the parties separated, the husband’s pension was already being paid and had therefore become a “joint and survivor pension”, giving the wife a right to benefits upon the husband’s death. 

When the husband remarried, he wanted to appoint his new wife as beneficiary of the pension but OMERS denied the request on the basis that it had not received a proper waiver of the former wife’s entitlement. 

Section 46 of the Pension Benefits Act (Ont.) requires that “a written waiver in the form approved by the superintendent or a certified copy of a domestic contract….containing the waiver” be provided. 

The general release in the parties’ separation agreement was not in the proper form and therefore could not be accepted by OMERS as a valid waiver.

- Summary prepared by Jennifer L. Wright, Associate Family Law Lawyer with Epstein & Associates

The judgment of Mr. Justice J.W. Quinn in Bruni v. Bruni [2010 ONSC 6568] should serve as a warning to all parties involved in high-conflict family law cases.
The decision addressed several disputes arising from the “hardened, harmful, high-octane hatred” between two separated parents.

In describing the conduct of the parties and their family members, Quinn J. made a number of astute observations, including the following:

(1) “[s]ome family trees have more barren branches than others”;

(2) it “is always a telltale sign that a husband and wife are drifting apart” [when one tries to run the other over with a van];

(3) “a finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words”; and

(4) “when the operator of a motor vehicle yells ‘jackass’ at a pedestrian, the jackassedness of the former has been proved, but, at that point, it is only an allegation as against the latter.”

In the end, Quinn J. concluded that the mother’s deliberate alienation of the parties’ 13-year-old daughter from her father was sufficiently thorough that enforcing access with the father would be contrary to the daughter’s best interests. However, he reduced the mother’s entitlement to spousal support to one dollar per month as a means of condemning her conduct.

- Summary prepared by Jennifer L. Wright, Associate Family Law Lawyer with Epstein & Associates

”How long?” and “how much?” are two questions that are often at the forefront of any divorce-oriented thought process, particularly when separating spouses attempt to resolve such issues as property division, child custody, and support. While the financial cost of finalizing a divorce depends on a great number of variables, the emotional costs during a hotly contested dispute can be great, taking its toll on both the parents and the children.

Mediation and collaborative law are two methods of finalizing a divorce without litigation. Mediation involves using a mediator, usually someone with a background in social work, to act as a negotiator between the opposing spouses in order to resolve the outstanding issues. The parties’ respective lawyers are involved in the mediation process and can opt to amend a mediator’s recommendations or the parties’ themselves can make changes to a recommendation.

In contrast, collaborative law involves the separating spouses and their respective lawyers, who are all active participants in the negotiation of the matrimonial issues. Should any of the issues related to the divorce fail to become finalized, the collaborative lawyers are prohibited from representing the spouses in court. Collaborative law is less expensive and time-consuming than litigation.

U.S. popstar Hillary Duff and Canadian NHL player Mike Comrie were married last week in a ceremony that took place in California. In 2007, Forbes magazine estimated Duff’s earnings for the year at $12 million, and not only did Comrie make an NHL paycheck (he’s a free agent this year), his father is the co-founder of The Brick and his family’s fortune is an estimated $500 million. It has been reported that prior to their marriage, the couple signed a prenuptial agreement (known as a ‘marriage contract’ in Canada).

Some view a marriage contract as an “easy out” if a couple were to divorce, and that if two people were really in love they would not need a marriage contract. Contrary to this belief, few couples enter marriage thinking divorce is inevitable. Most couples who say, “’til death do us part,” mean it, never intending to become part of the 38 per cent divorce rate in Canada.

Divorce may be unplanned but it does occur. Therefore, couples should protect themselves, their finances and their assets by entering into a marriage contract. Initiating discussions about a marriage contract may be difficult however it is beneficial to a couple in the event of something unforeseen. A marriage contract is similar to buying life or car insurance, neither means that one intends to die or become injured, but it can protect you should it occur.

Marriage contracts are not just for the wealthy, there are many reasons to enter into such an agreement. Those who sign marriage contracts include couples marrying for a second time or are older couples marrying for the first time in life, both of which usually have built up assets to protect and may have children from previous relationships for whom they would want to preserve those assets.

Similar to the marriage contract for married couples, common-law couples can also protect themselves and enter into a cohabitation agreement.