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In Egan v. Burton [2013] O.J. No. 2408, the parties had been married for twenty years with the husband having brought into the marriage a cottage which he had owned prior to the parties’ marriage.  The husband paid for all the expenses for the upkeep and improvements to the cottage.  The wife did not contribute to the operation or maintenance of the cottage during their marriage aside from some ordinary housekeeping.  The parties had resided at the cottage from May until September almost every year of their marriage.

At separation the parties disagreed upon whether the cottage constituted a second matrimonial home.  In this case the Court held that the evidence clearly showed the parties had used the cottage when they were spouses.  The court found that:

“ “family residence” must mean some-thing more than two spouses using the cottage.  I consider that evidence of the intention of the parties, at the time of their use, must be part of the analysis.  To do otherwise would be to undermine the purpose of the section which is remedial and intended to achieve a fair result where the parties have treated a cottage or a second home as a family residence with both parties contributing in one way or the other as one would expect a family home – which was registered only in the name of one of the parties – and after separation for the other party to be told you have no interest.”

The court held that the wife never treated the cottage as a family residence.  Unlike the matrimonial home, she made no contribution to the cottage.  Therefore, the Court held that the cottage was not a matrimonial home.

This case is a significant departure from prior cases in which the courts have generally found a cottage, vacation property and even a second occasionally-used residence to be a matrimonial home.  For example, in Oliver v. Oliver-Estate 2012 ONSC 718, a Toronto condo was found to be a second matrimonial home. In that case the condo was only being used by the husband when he came to Toronto for medical treatments or as a transit point if the couple was flying somewhere from Toronto.

At this time there appears to be a conflict in the jurisprudence on the issue of determining whether a cottage is a second matrimonial home.  It will be interesting to see how the courts deal with this issue in the future.

Couples should give consideration to whether or not there is a need for a marriage contract prior to getting married.  It would be prudent to meet with a family law lawyer to discuss your situation and determine whether a marriage contract would be appropriate.  Marriage contracts are especially important if one party owns a home or cottage and is bringing that asset into the marriage, as it will likely become a matrimonial home.  Unlike other assets brought into the marriage, at separation, a spouse is not entitled to a date of marriage deduction in the event that home or cottage is still a matrimonial home on the date of separation.  For example, if an individual has $100,000.00 in a bank account on the date of the marriage, and another individual has $100,000.00 equity in a home on the date of marriage, and that home is still a matrimonial home on the date of separation, then the individual with the bank account will be given a date of marriage credit of $100,000.00 whereas the individual with the equity in the home will not be provided with a date of marriage credit.    If the intention is to keep a home or cottage separate or to obtain credit for the value of the property coming into the marriage, one should meet with a family law lawyer to discuss having a marriage contract prepared.

In the Egan v. Burton case, if the spouses had prepared a marriage contract prior to getting married, they could have confirmed their intentions for the cottage and then likely avoided the high costs of litigating that issue.

Our lawyers in our Family Law Department would be pleased to assist anyone wishing to obtain more information on Marriage Contracts or Cohabitation Agreements.

Article written by: Jennifer Black
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In order to prepare an expert report (context of medical negligence), one needs to understand the role of an expert within litigation. There are several leading Court decisions that define the expert’s role, and, in lieu of citing these cases and quotes, the following is a paraphrased summary:

An expert has acquired special or peculiar knowledge through education and experience, on matters he/she undertakes to provide an opinion. This opinion is to assist the Court with scientific information which is likely outside of the experience and knowledge of the Judge or Jury. Before any weight is attached to the expert’s opinion, the facts upon which the opinion is based must be found to exist.

Simplified for this article, the process is generally – a request from a lawyer to review specific documents (hospital chart), provide an initial opinion (verbal or written), usually a draft. Post examinations for discovery a final report is provided, and, usually a reply report to the opposing party’s expert.

IMPORTANT ASPECTS TO AN EXPERT REPORT

Prior to accepting:

  1. The opinion must be within your expertise.  Your CV should be up to date.  Be prepared to produce any referenced articles.
  2. Check for any conflicts of interest or potential bias. Your opinion is to be unbiased and independent.

Preparing report:

  1. The facts relied upon or the foundation of the opinion must be fully described, including any assumptions and documents. Your opinion should be relevant to the facts. Do not assume what occurred. If gaps in the facts exist-either ask for further information or state what is missing.
  2. Do not draw conclusions or inferences or speculate based on what you think happened, or what you believe the nurse was thinking or based on what has occurred in other cases.
  3. Speak with the lawyer to determine any report formalities. (Rules of Civil Procedure)
  4. Your report will likely not be filed as an Exhibit at trial. However, it should be a reflection of your testimony, which is essentially confined to the 4 corners of your report.
  5. Do not assess credibility – that is the Court’s function. If a fact, for example statements at examinations for discovery, do not make sense given your knowledge and experience; then, indicate what the difficulty is and use supporting literature or scientific reasoning.
  6. Note any differences in facts between plaintiff and defendant, but do not decide who is correct. Refer to contradictions if it relates to your opinion.
  7. Be extremely careful of templates, they can come back and haunt you. Similarly, using textbooks or articles that provide a report outline- is only a guide and not a precedent. Choose your words and style; otherwise, you will not be comfortable in Court.
  8. State clearly what is the standard of practice, and whether the defendant met the standard.  Be careful when using words such as “not appropriate” or “in my practice”.  These phrases are not sufficient.
AREAS OF CROSS EXAMINATION

The most common areas of attack either at trial or by opposing expert are:  qualifications, facts/assumptions used,  authoritative works,  being an advocate and not independent.

In conclusion – be professional not arrogant; objective not subjective; not an advocate but independent, do not try to persuade. If you are confident in your opinion, and it is fully supported, then, you have done your job as an expert.

Article written by: Steven Kenney
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SorbaraLaw lawyers, Cynthia Davis and Susan Liu, were acknowledged at SorbaraLaw’s Christmas Party this year, having both celebrated 5 years with the firm in 2013.

 Cynthia Davis is an experienced civil litigator who joined SorbaraLaw in January 2008. She specializes in corporate/commercial litigation, employment law matters, commercial leasing disputes and personal injury matters, including medical malpractice. Cynthia has forcefully and successfully represented her clients at various levels of Court, including the Superior Court of Justice, the Ontario Court of Justice and the Ontario Court of Appeal. In addition to her courtroom successes, Cynthia has also demonstrated her commitment to our community, serving as a Unit member at the Canadian Cancer Society for over four years and as a Trustee of the KidsAbility School Authority.

 cynthiasusan

Originally a lawyer in China, Susan Liu joined our team initially as a corporate/commercial law clerk, after moving to the area. Susan diligently proceeded to become licenced as an immigration consultant, while working to be called to the Bar in Ontario. In January, 2012, Susan joined our corporate law team and has proven to be a dedicated and skilled counsel. Susan’s clients have greatly benefited from her depth of experience and ability to tackle challenging transactions.

SorbaraLaw is very pleased to celebrate the achievements of both Cynthia and Susan.


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