From pre naps to custody battles, or ask a lawyer: we continue with a look at the sticky subject of family law from CTV news. This is Janet. I am with Beverly Thompson and marki good morning is Tuesday, February 26th on Beverly Thompson and I'm Marci Ian's. Coming up on, Canada AM family laws. The focus of today's ask a lawyer week segment and if you've ever wondered what you need to know before signing a prenup family lawyer and your Feldstein will answer that question and others. Lady joins us in just a couple of minutes. We ask a lawyer week continues with an area of law that can get very messy. Family law covers everything from divorce to custody disputes to prenups. Here to answer your emails today is Andrew Feldstein. He is a senior partner at Feldstein Family Law Group. Thank you for taking part in this and got some tough questions to tackle in a short amount of time, so we want to get right to it. This is from Lee this first question. At what age can a child with which parent he or she wants to reside? What steps must be taken to allow this to happen? Well, to begin with, there isn't a clear-cut age where a child can decide what, where they want, 16 or 17 or 18. There'S no specific, there's not a magic age. Part of it depends on the maturity of the child, the reasons for the child, so a children, a child who is 12 or 13 years old, may express their opinions, and if the matter was before a court in Ontario, a court would appoint the office of the Children'S lawyer may appoint the office of the children's lawyer, and that would mean either a social worker and/or.
A lawyer would meet with the child here the child's opinions and try to understand why the child wants to live with one parent or the other, to ensure that the child isn't just repeating what one parent wants them to say right, because that's, the tough part is To make sure that it is, in fact, the child's feelings, absolutely okay. So the next question we have is an email. This one is from Robert, my common-law wife of 30 years, and I split up. We jointly owned a home. She moved out five years ago and I still live in the house. We both want to sell but she's being slow in getting her stuff out. She has refused to pay half the taxes and the insurance on her house. It'S in the thousands. What can I do? Well, in his situation, he can commence a court action for the partition and sale of the home, and the law is very straightforward, that if there are joint owners, especially in a common-law situation, that the home would be sold the issue that he needs to consider and think About is else, is he going to raise? Does she have a claim for spousal support against him after a 30-year relationship, and if you take an aggressive tack for the sale of the home, she may come and say I want some spousal support now, so that would negate the fact that he says that she's, Not paying for tech like if it's a jointly owned home, could he push for her to pay the property tax he could try, but the offset for that would be her saying. https://jamesnoblelaw.com.au/practice-areas/ You'Ve had the benefit of being in the home, and if there isn't very much of a mortgage, how much did he have to pay to live there? What would it compare to paying rent on a home? Okay? So our next question I am engaged and my fiance has agreed to sign a prenuptial agreement. What should I know before I sign it? What should I be, including on my end? Well, before any prenuptial agreement or recall the marriage contracts and sign, you need to have full Frank, financial disclosure, meaning you need to understand what agreement you're getting yourself into. What does your spouse make? What do they have? Because what are you contracting out of and what and you need to consult a lawyer and make sure you have a family custody lawyers review the agreement, because if somebody is giving you an agreement you're 25 years old, that says, I'm never gonna pay your spousal support and I'M not going to give you any division of a property. Well, what happens? Thirty years later, it's a pretty unfair deal that would probably be set aside, but you shouldn't sign it. So, in most cases in this world of prenuptial agreements, I guess in which we live. Is it something that, generally speaking, is drawn up for the benefit of both people or it does it tend to be someone drawing it up? Who seems to think that that person has more money? Therefore, you must sign well, it's usually somebody has a motivation to do it. But the question is: what's the motivation and what's the reason and what are the objectives of it? Because if you want an agreement that is really one-sided like the one I just suggested, it's not gonna. It probably will not be enforceable years later. Much like in the recent McCain and McCain case that was all over the news. Makeda McCain case enlight necessary remind us, that's the Wallace, I think was, I shouldn't say: Wallace McCain, but one of the mechanic's heirs and they had a marriage contract that was set aside by the court and the spousal support the wife got was about 175 thousand dollars. A month, yeah yeah. No, I do remember that okay, so, lastly, we have a question: do I have to disclose all of my assets to my spouse and what about my inheritance? Absolutely in family law? You need to disclose all of your income, all your assets, all your liabilities. If you get an inheritance, the important piece is from the day you receive it. You need to show it coming in as an inheritance, and you have to trace it all the way through to the data separation. So if you spend the inheritance, you don't get to keep it and the exception, as well as, if you put it into the matrimonial home, for example, paying down the mortgage, which is what most people will do. It'S gone. You no longer is jointly held. Therefore, whatever money goes into, it is also jointly held exactly otherwise an inheritance. So what should you do if you have an inheritance that comes to you? Well, I guess, before or during a marriage well from a family law perspective. If you get an inheritance during the marriage, then the best route to take is to go open, an investment account at a completely different institution than you deal with and leave the money in that account and let it grow there and don't mingle it with anything else. That'S offset against practical reality of the fact most people want to pay a mortgage down and you may want to protect it with a marriage contract at that point which you could do during the course of your marriage. Is that popular or common? Now that people would draft a, I guess, a postnup really exactly it's not popular, but that would be an option. And but the practical reality again is what happens when you're 15 years into a marriage. And you get an inheritance and you go to your spouse and say I need a contract to protect my inheritance that may end the marriage right there. Well, that could be an argument for sure. Tell me what-what holds up in court when we're talking about prenups. What are the, what are the kinds of prenuptial agreements that are most likely to stand up? Well, one of the weird exceptions and family law is that if I come into the marriage - and I have $ 500,000 in my bank account when I separate I get to deduct that 500,000 - that's what you had going in exactly, but if what I had going into The marriage was my house, and that house is still my matrimonial home on the date of marriage and I had five hundred thousand of equity in it. I have to share that because it was the matrimonial home and, in addition to that, that home might be worth more money on the market. Yes, that also, but that's less offensive, because it's not as if you're losing out on what brought in at least that's growth that you shared during the course of the marriage. So if you did a marriage contract that says I want to protect that $ 500,000. I'M bringing into the marriage that type of contract is certainly going to apply, but it's hard to predict which type of contract is going to stick with certainty or not at the end of the day. What'S really important is try and be fair in the contract? Don'T try and do something that is really extreme and one-sided, because that's where a judge is gonna want to help out the other side, and when you talk about it as a contract, does it then have to be signed? Should it be signed by a lawyer? Should it be like a will, that's notarized! Well, every separation agreement, marriage contract domestic contract in Ontario has to be signed and witnessed. Should it be done by a lawyer, but one of the first things that's going to happen with any contract if you're going to look at it and say? Was there independent legal advice? It'S not completely fatal if there wasn't, but if there is, it certainly gives a better opportunity to suggest that the side who doesn't like the contract knew and understood what they were getting themselves into: okay, good information after that scene. Thank you so much for coming in, and thank you for having me. You bet our ask. A lawyer series continues tomorrow when we answer your questions about employment law.
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