Bennet Waugh Corne Lawyers - Lawyer - Family Law - Real Estate Law - Law Firm - Winnipeg - Manitoba

Tuesday, May 26, 2020

Renée Nichols joins board of Adoption Options

Renée Nichols has joined the Board of Directors of Adoption Options as of April 22, 2020.  Adoption Options is a licensed, not-for-profit agency that facilitates domestic and international adoptions, and provides information, education and counselling to birthparents, adoptive families, adoptees, professionals and the public.  Adoption Options Manitoba Inc. was incorporated in September 1989 as a not-for-profit organization.  In March 1999 Adoption Options became Manitoba’s first licensed adoption agency upon proclamation of The Adoption Act.  Since 1989 Adoption Options helped to create more than 500 families.

Renée is excited to add to her experience in the area of adoptions and assist Adoption Options as a board member.

 

Posted by Alison Bennet at 12:00 AM 0 Comments

Monday, April 20, 2020

Access with children and parenting time during COVID-19

In March 2020, due to the COVID-19 pandemic, in an unprecedented move, the Court of Queen’s Bench of Manitoba suspended all hearings. Recognizing the great impact that the pandemic would have on families, the Family Division can be accessed, but for emergencies only at this time, and by special permission. 

On April 1, 2020, the court agreed to hear a case in which one parent was denying the other parent access (parenting time) with the children. The parents had to that point shared custody of their children, pursuant to a court order on a week on/ week off schedule.  Alison Bennet represented the parent whom was being denied access.  

Under the custody order, the mother had the authority to make medical decisions for the children, to be exercised after consultation with the father. After cases of COVID-19 were found in Manitoba, the mother refused to follow the schedule, and instead offered the father daily visits to be exercised outdoors provided he maintained 6 feet distance from the children.  She also offered FaceTime calls.  There was no evidence that the father had contracted the virus or had been exposed to the virus.  The court accepted that the facts fit within the definition of an emergent matter as the mother had “abruptly, unilaterally” and “without apparent justification”, “virtually eliminated” access and contact with the father. For this reason, it allowed the hearing to proceed as an emergency.

The hearing proceeded 2 days later by teleconference. The mother was ordered to immediately return the children to the father, and the father was granted make-up time.  The mother’s future ability to make decisions on medical issues was suspended.  The police were ordered to enforce the order if required. All other issues were adjourned to be heard after court resumes its regular work. 

In making its decision, the court noted that the court had already determined that it was in the best interests of these children to be in the shared custody of their parents.  The court also noted that these are unprecedented times, nobody knows how long the current situation will last, and that children’s lives cannot be placed on hold.  The children have the need for guidance and emotional support from both of their parents.  

The decision makes it clear that the court expects parents to cooperate and to act reasonably in the best interests of the children.  In situations where this does not occur, and access with a parent is cut off without reasonable explanation or justification, it will intervene. Acting reasonably includes an obligation to follow court orders.  While there was already a court order specifying parenting time in this case, it is believed the result would have been the same if there was an agreement, or regular ongoing schedule in place. If this was a situation where a parent was exposing children to risk by not following health recommendations related to COVID-19, the decision may have been different, as these actions would not be reasonable to the protection of the children.  Each decision will be decided on its own facts specific to the family, and the children.  This said, the courts expect parents to work it out, and to act reasonably, and not to litigate.

The court referenced the Ribeiro v. Wright decision of the Ontario Superior court.  An excerpt from that decision reads:  

"None of us have ever experienced anything like this.  We are all going to have to try a bit harder - for the sake of our children."

Other take-away points from recent decisions in Canada include:

-There is a general presumption that existing parenting plans and parenting schedules should continue. Parents must follow all recommendations from our government and health officials for the safety of the children, the members of the family, and the community.  Modifications to exchange times and methods may be required.  In blended families, all members of the households need to follow precautions.

-If a parent is subject to a restriction such as self-isolation due to illness, exposure to illness, or recent travel, that parent may have to forego their time with the children, for the short term.

-Reckless exposure of a child or the household to COVID-19 will not be tolerated.

-For the sake of the children, we must maintain important parental and family relationships, and we must do it safely.

Parents should use good judgement, recognizing the children’s need for continuity and consistency with their schedule, and that modifications to the schedule may be appropriate considering such factors as school and day care closures, the parents’ availability based upon changes to their own schedules, and specific needs of the children.  In appropriate cases, these factors may justify a change to the schedule.  Such decisions are not to be made unilaterally.  

Posted by Alison Bennet at 2:01 PM 0 Comments

Saturday, April 11, 2020

Parenting for separated parents during COVID-19


Attached is a link to material which appears on the Government of Manitoba website, called  Parenting Arrangements During COVID-19.


 

Posted by Alison Bennet at 4:07 PM 0 Comments

Thursday, March 26, 2020

Resolving separation issues during COVID-19 using Collaborative Methods

We realize that the social distancing measures in place during COVID-19 will cause additional worries for separated families wondering how they will be able to obtain help to deal with their separation.  COVID-19 may also add new challenges which will need to be resolved relating to adjustments to the parenting plan, decision making, and support.

The collaborative method of resolving issues relating to a family separation is not impacted by COVID-19. 

The initial consultation (where you determine if the collaborative process is for you) can be done via video or teleconferencing means. We have implemented the resources to allow this to happen.  Often the next step involves parenting coaches, and many times, that too can begin using the same methods. The roadmap to resolve a collaborative matter will remain the same and team meetings can be accomplished in an efficient and effective manner while keeping the health of your family a first priority. With COVID-19 comes a lot of unknowns, however having the professional guidance of your collaborative team will provide your family with certainties and support. 

We are here to support the reorganization of your family and the issues surrounding your separation in a collaborative manner.  We can help you walk through each step while adhering to the recommendations of our government relating to COVID-19.

Please see our other articles, and check back in as we will be posting updated information to help you.

 

Our lawyers who practice the collaborative method include:

Kimberly Soul        contact [email protected]         visit  http://bwlawyers.ca/about-us/associate-kim.cfm

Renée  Nichols      contact [email protected]      visit   http://bwlawyers.ca/about-us/associate-renee.cfm

Shasta Benaim     contact [email protected]     visit   http://bwlawyers.ca/about-us/associate-shasta.cfm




Posted by Alison Bennet at 12:00 AM 0 Comments

Sunday, March 22, 2020

COVID-19 and your legal matters - We Can Help

 

During this time, as we all adapt to the important measures due to coronavirus (COVID-19) we understand that you will continue to have a need for legal services.  We continue to be here to help. Here is some useful information, including links to resources.


Out of respect for our staff, our clients, and the general public, Bennet Waugh Corne has taken steps to change the way we will deliver our legal services to you.  The lawyers will be working from home offices, and will be limiting and co-ordinating their attendance to the physical office so our numbers are at or below the recommendations. We do not anticipate any significant disruption to working on your behalf while we carry out the measures needed during COVID-19.  We have access to emails and voicemail, but our response time may be delayed, or outside of our usual practice hours.  Meetings, including 4 way settlement meetings, and collaborative meetings will occur by video or teleconference, or other means discussed with your lawyer. From the outset of the issue, we have taken proactive steps to reduce the spread of the virus, and the impact on our communities, through limiting attendance to the office, cleaning, and other practices to meet, or exceed the levels recommended by our government, and the World Health Organization associated with COVID-19. We will continue to adapt and adjust our practices.


Staff is in attendance at the office to distribute faxes, mail or couriered documents, but we are not open to the general  public.  If you need to sign documents, please contact our office to make those arrangements in advance.


The majority of in-person court hearings in Winnipeg and throughout Manitoba have been cancelled until April 17, 2020, however the Law Court registry is still open, meaning that there is continued access to the justice system.  If you have an ongoing legal matter with upcoming filing deadlines, we remain able to assist.  It is expected that the profession will allow for greater flexibility for extensions as required. 


If you are a new or existing client, and have been served with documents, such as a Petition or Petition for Divorce, Notice of Motion to Vary, or other documents, it remains important to follow the filing deadlines set out in those documents.  Some “hearings” do not require the attendance of lawyers or parties, and it is anticipated those “hearings” will continue.  Failure to file the documents by the deadline, if other arrangements are not made, may result in an order being pronounced without your involvement.


If you are facing legal issues flowing from separation, including resolving parenting issues, support and division of assets, we remain able to assist you to resolve these issues.  Many legal problems are capable of being resolved without requiring court intervention.  All of our lawyers practice family law, and some have the added practice areas of real estate, will and estate work, and civil litigation.  All of our lawyers are experienced and skilled in negotiation.  Many of our lawyers are trained in collaborative practice, and mediation.   For those situations which require court assistance, the court will continue to hear matters which they consider urgent, even during this period.  For important, but less urgent matters, we can assist you in resolving those issues which can be sorted out and settled now, and for those issues which are more difficult to fully settle, we can assist by preparing your court documents, so that you are in a position to have the matter heard as quickly as possible once usual court operations resume.

 

While it is natural to experience a sense of unease, remember that this is temporary.  It is also a time for us to slow down from our typical rushed lives, and to enjoy quality time with our families.


All of us at Bennet Waugh Corne will be doing our absolute best to ensure that we are able to continue to provide quality legal services during these confusing times presented by COVID-19.  Please do not hesitate to contact us if you have any questions.  Remember, we can help. 

 

Please visit this site for further updates, and recommendations to assist you and your family.


As the situation is quickly changing, here are some links that we have found informative:

Understanding how COVID-19 spreads:

 

Canadian Government on being prepared, with good advice for home, and communities:

 



 

Posted by Alison Bennet at 12:00 AM 0 Comments

Friday, April 08, 2016

Communicating with your children

Here is a link to an article I came across on msn / Woman's Day providing useful tips on healthy communication with your children:

http://www.msn.com/en-ca/lifestyle/springliving/10-things-you-should-never-say-to-your-kids/ss-BBrvdXD?ocid=spartanntp

Posted by Alison Bennet at 7:02 PM 0 Comments

Thursday, February 18, 2016

Welcome to the Firm

Bennet Waugh Corne is pleased to announce that Shasta M. Benaim will be joining the firm in March 2016.  Shasta has a general practice, with particular interest in family law, collaborative law, and real estate.  

Posted by Alison Bennet at 12:40 PM 0 Comments

Wednesday, February 18, 2015

Kimberly Soul guest speaker at Manitoba Bar Association conference

Kimberly Soul shared her practical  views as a guest speaker at the program "Surviving and Thriving in Private Practice: Tips from Women at the Frontlines" at the Manitoba Bar Association Midwinter Conference on January 22, 2015.  Her insight was informative to all lawyers  juggling the demands of family with career development. 

Posted by Alison Bennet at 12:00 AM 0 Comments

Thursday, September 19, 2013

Where did our money go? - dissipation of family property

Week Six: Dissipation of Assets

by Kimberly Soul

Sometimes it would be unjust to divide family property equally.

The conduct of the parties, such as one party committing adultery or being abusive, is not relevant when determining whether property should be divided unequally.

Property could be ordered by the Court to be divided unequally if one party has dissipated assets. Dissipation of assets occurs when one party gives large gifts to another person, spends excessive amounts of funds on another person, or on gambling, or on vacations etc. The conduct of a person can be relevant when considering whether the person has dissipated assets.

The definition of dissipation in The Family Property Act of Manitoba is as follows:

"dissipation" means the jeopardizing of the financial security of a household by the gross and irresponsible squandering of an asset;

 

If the Court finds there has been dissipation, it can order that the value of the assets lost can be added back into the equation, as though they still existed.  A spouse or a common law partner is required to bring an application to the Court before the expiry of two years from the date of the dissipation or from the date of the discovery of the dissipation otherwise the request for considering the dissipation will be denied by the Court.

There are other situations in which family property can be unequally divided.  The test is different depending on whether it is a commercial or family asset.  Unequal division of assets is very rare.

 

Posted by Alison Bennet at 12:00 AM 0 Comments

Wednesday, September 11, 2013

Inheritance

Week Five: Inheritance

by Kimberly Soul

Inheritances received by one party are not shareable with the other party if the gift was intended for that party alone. In addition, the inheritance must be kept separate and not converted to a family asset otherwise the value is shareable. If an inheritance is used to pay for a family vehicle, deposited into a joint bank account, used for a family trip or used as a down payment on a jointly owned home these funds are no longer exempt from sharing - in other words, they are part of the assets to be shared with the other spouse.   If an inheritance is kept in a separate bank account (in the recipients own name) these funds would remain the separate property of the recipient of the inheritance (in other words, you do not have to share the value with the other spouse).

Posted by Alison Bennet at 3:11 PM 0 Comments

Monday, August 12, 2013

Pensions - What happens to my plans for retirement?

Week Four:  Pensions

by Kimberly Soul and Alison Bennet

Pensions are an important asset, not to be overlooked upon separation. Like all other assets that accumlate while in the relationship, these too must be shared and/or divided.  The rule of thumb is that one half of the increase in value of a party’s pension during the relationship is shareable with that party’s spouse or common law partner; there are some differences between plans which impact how they are divided. 

The first step, as with any other asset, is to figure out its value.  Often, the Pension Plan Administrator will complete this calculation at no cost.  It is important that prior to contacting your Pension Benefits Administrator that the parties agree on the date of cohabitation and date of separation as these dates will be used to calculate the amount of the entitlement. Often Pension Benefits Administrators will not redo the calculation if the date of cohabitation and date of separation change. The calculations are complex actuarial calculations and typically we have found that clients are only able to obtain one calculation.  In some cases, it is necessary to obtain the services of an actuary to calculate the value of the asset. 

Federally regulated employment pensions are deemed property and shareable pursuant to The Pension Benefits Standards Act.  The value of the asset is then included in the family property accounting along with all other assets.  This legislation sets out that the division of the pension can be done in any amount. For example: if one party’s entitlement is $10,000.00 but pursuant to the other property accounting the party is only receiving $4,000.00, the parties are permitted to conduct a transfer of $4,000.00. It is common practice to include the value of a federally regulated pension in the parties’ Family Property Act accounting. In addition, with federally regulated pensions a party waiving their interest to their entitlement does not need to know the exact amount of their entitlement to effectively and legally waive their interest. This is not the case with provincially regulated pensions.  It is of course recommended that you never waive your interest to any asset without knowing what it is worth.  Once the accounting of assets is completed, and included as part of a separation agreement or court order, it normally cannot be changed.  Because federally regulated pensions do not have to be divided equally, as part of the negotiation process the parties may balance part of the value of the pension against other assets.

The Pension Benefits Division Act applies to certain federally regulated pensions such as pension plans provided by Public Service Superannuation Act, Canadian Forces Superannuation Act, Royal Canadian Mounted Police Superannuation Act to name a few. The transfer of funds to one party must be in an amount equal to their entitlement which is similar to The Pension Benefits Act.

The Pension Benefits Act applies to provincially regulated pensions in Manitoba. A party waiving their entitlement to a pension governed by The Pension Benefits Act must sign a Pension Benefits Spousal/Common Law Agreement and obtain Independent Legal Advice. In addition, the party waiving their interest must know the exact amount of their entitlement. The party opting out of receiving their entitlement to the other party’s pension must be provided with a statement showing their entitlement, called a commuted value statement. A commuted value statement can be requested from a Pension Benefits administrator. The transfer of funds of an entitlement to a provincially regulated pension can only be done if the full entitlement is being transferred. For example: if one party’s entitlement is $10,000.00 but the parties have negotiated a resolution and they’ve agreed that only $4,000.00 is to be transferred – this transfer would not be able to occur. The Pension Benefits Act prohibits the transfer of any amount except the exact amount of the entitlement as set out in the Commuted Value Statement (plus the interest accrued).

The Pension Benefits Standards Act, The Pension Benefits Act and The Pension Benefits Division Act all apply to married persons and common law relationships but vary in their definition of a common law relationship.

Pursuant to The Pension Benefits Division Act a common-law partner “means a person who establishes that the person is cohabiting with a member of a pension plan in a relationship of a conjugal nature, having so cohabited for a period of at least one year”.

Pursuant to the Pension Benefits Act of Manitoba, a common law partner is defined as follows:

"common-law partner" of a member or former member means

(a) a person who, with the member or former member, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or

(b) a person who, not being married to the member or former member, cohabited with him or her in a conjugal relationship

(i) for a period of at least three years, if either of them is married, or

(ii) for a period of at least one year, if neither of them is married;

 

As a result of this definition if neither party is married but only cohabitated for one year, one half of the increase in value of the pension is shareable. If either person is married the pension is not shareable until they have cohabited for three years.

Pursuant to The Pension Benefits Standards Act, a common-law partner is “in relation to an individual, a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year”.

Canada Pension Plan credits are handled a bit differently. These are shareable between married persons and persons that have cohabitated together in a conjugal relationship for at least one year. Currently in Manitoba, parties are not permitted to enter into an agreement not to divide their pension credits between them. Canada Pension Plan will not abide by an agreement between parties not to share in each other’s pension credits unless the agreement was signed before June 4, 1986 and specifically sets out that Canada Pension Plan credits are not to be split. 

 

Posted by Alison Bennet at 1:23 PM 0 Comments

Monday, July 22, 2013

But I Bought this Before I Even Knew You: Assets Acquired Before the Relationship

Week Three: Previously Acquired Property

by Kimberly D. A. Soul and Alison L. Bennet

All property and the increase or decrease in value of this property, acquired in contemplation of a relationship or during a relationship are shareable. The value to be shared is the value as at the date of separation.

Only the increase or decrease in value during the relationship of pre acquired property is shareable. For example, prior to the commencement of a relationship one party has an RRSP worth $10,000.00. At the end of the relationship, on the date of separation, the party’s RRSP is worth $25,000.00. The increase in value, $15,000.00, is shareable between the parties in the overall accounting.

Often one party owns real estate prior to commencing a relationship. If the real estate remains in the sole name of that person only the increase in value of the property is shareable. For example Party A owns a home in his/her own name prior to commencing a relationship with Party B. Party B moves into the home and lives with Party A for 10 years. Party B is entitled to one half of the increase in the property value during those 10 years. In addition, Party B has Homestead Rights in the property. See The Homesteads Act of Manitoba.

 

Posted by Alison Bennet at 12:00 AM 1 Comments

Monday, July 08, 2013

Jointly owned property

Week Two: Jointly held property (real and personal)

By Kimberly D. A. Soul

Jointly held assets and debts are to be divided equally. Because they are owned jointly, these assets are not necessarily valued at date of separation; rather the value on the date of sale or transfer is relevant. A common example is a jointly owned house (real property). Unlike other assets it is possible to apply to the court to partition or sell real property.

If the house has a value of $200,000.00 at date of sale but is not sold until a year later, by which time it increased in value to $250,000.00, it is the $250,000.00 that is equally shared. One party will often keep an asset and then compensate the other for one half of the gain or keep a debt and be compensated for one half of the loss. Assets and debts can be transferred from one party to the other or put into the sole name of one party to finalize the division.  

If the parties cannot agree on how to deal with the joint asset, the court can order sale of the property.  When it comes to the family home, certain factors may resulting in postponing the sale.

Personal property (for example: household contents) are typically jointly owned however as a matter of practice lawyers often include these items in a Family Property Act accounting.

Posted by Alison Bennet at 12:00 AM 0 Comments

Tuesday, July 02, 2013

How is Property Valued and Divided?

Week One: How is Property Valued and is it Divided?

by Kimberly D. A. Soul, and Alison L. Bennet

After separation it is helpful if clients make a list of all the assets and debts in their name as well as in their partner’s name. Oftentimes parties do not know the complete financial picture of their partner. Each party is required to disclose to the other all property and debts in their name. Each party will ultimately complete and sign a Form 70D which sets out their respective assets and debts. If a party does not voluntarily disclose their assets and debts they will be ordered to do so by the Court.

The value of property is generally determined as of the date of separation (the current market value as of that date). To determine the value of an item it can be appraised by a professional appraiser. Oftentimes parties will agree as to the value of minor items to avoid appraisal costs. Bank account statements, credit card statements, investment statements etc will prove the value of the property at the date of separation. Vehicle values can be determined using a Black Book Value or consulting with a dealership. Prior to meeting with your lawyer it is best to have as many of these documents compiled as possible.

Once the value of assets and debts are determined a Family Property Act Accounting (for non joint assets or debts) can be completed. The total of Party A’s assets less their debts provides a net position for Party A. The same is done for Party B. The net positions are then equalized. Each party should end up with one half of the total value. For example:

                Party A has $10,000 of assets and $2,000 of debts for a net position of $8,000

                Party B has $15,000 of assets and $5,000 of debts for a net position of $10,000

Total: $18,000/2 = $9,000 to each party. Party B would thus owe Party A $1,000 to equalize their positions.  The payment would then equalize the value of the 2 parties' date of separation net worths, but each party keeps their own assets and debts.

The court, or the parties by agreement, then determine how the payment will be satisfied, and this can include transferring of assets.

This is the general scheme.  Like many things, the devil is often in the detail; when it comes to family property, the issue is usually what value should be attributed to the items, after consideration of tax and other issues.  Another issue is whether the value of the asset should be included in the accounting at all for reasons including it was preacquired, acquired by way of gift or inheritance, or, in some cases insurance benefits.  More about some of these issues will be discussed in later posts. 

 

Posted by Alison Bennet at 1:13 PM 0 Comments

Thursday, June 13, 2013

Family Property Division

Family Property Division

By Kimberly D.A. Soul

When a couple, married or common law, decides to separate, the division of family property is always a pressing issue. At Bennet Waugh Corne we strive to ensure that our clients are well educated in the areas affecting their matter. Over the next several weeks we will post a brief overview of  different  property  issues and how it is to be dealt with upon separation pursuant to the relevant legislation. 

The Family Property Act applies to residents of Manitoba. If one of the parties does not live in Manitoba the Family Property Act will apply if Manitoba was the last place of residence of the parties. Family Property subject to the Family Property Act  is property that has been acquired during a relationship or in contemplation thereof. Generally, the value of all property held by either party on the date of separation is equally shareable with the other party. Property includes things such as vehicles, investments, jewelry, real estate, RRSP’s, pensions, bank accounts, household contents. Etc.

Jointly held assets and debts are not dealt with in the same way as assets and debts held in each parties own name. Jointly held assets and debts are subject to The Law of Property Act of Manitoba for real property. They do not get added into the Family Property Act accounting. Jointly held assets and debts are already owned and owed equally between the parties.

The date of separation is important as all assets and debts, except joint, are valued as of the date of separation. Oftentimes parties disagree as to the date of separation. It is important to meet with a lawyer to canvass the law in this area.

Unless otherwise specified the explanations provided apply to married couples as well as common law couples who have either been living together for 3 years (and permanently separated after June 30, 2004) or have registered their relationship with The Vital Statistics Agency.  Note that common law couples must make an application for an accounting and equalization of assets within 3 years of the date of separation. There is no such timeline for married persons unless a divorce has been granted by the Court wherein the parties have 60 days to apply for an accounting and equalization of property if same has not yet been dealt with.

 

Posted by Alison Bennet at 12:00 AM 0 Comments

Tuesday, May 28, 2013

Collaborative Practice Workshop

Nadia Rumore and Kimberly Soul attended the day and a half workshop offered by Collaborative Practice Manitoba on May 24th and 25th entitled: The Disarming Power of Questions.  Sharon Strand Ellison, Director of the Institute for Powerful Non-Defensive Communication was the guest speaker.

Posted by Alison Bennet at 12:00 AM 0 Comments

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Notice to Readers:

The articles on our website are for general information purposes only, and are not intended to be complete or exhaustive descriptions of the law. The articles and comments should not be relied on as legal advice or opinion. The articles are current only as at the date they are posted on the website, and the law is subject to change without notice. If you require legal advice or opinion on your own unique fact situation, we would be pleased to offer you our assistance and we invite you to contact us.