Khloe Kardashian and Lamar Odom

Previous Los Angeles Lakers forward Lamar Odom recently filed his response to Khloe Kardashian’s divorce petition and it appears that both are in sync with the idea of a divorce.

Lamar lists the exact same date of separation as Khloe does, December 13, 2013 and her cited irreconcilable differences at the reason for their divorce their own attorneys, a rarity in Hollywood divorces. However, Lamar has asked the Judge to deny spousal support.

Now that Lamar has officially responded it seems like it is just a matter of time before their divorce becomes final.

In Ontario, while marriage has a date in which status is immediately bestowed, separation and break down of a family does not happen on one date – it happens over a period of time which eventually results in an order for divorce.

Divorce proceedings require couples to: (1) be married; (2) be ordinarily residents in the province for one year per section 3 of the Divorce Act and; (3) prove grounds that there has been a breakdown of the marriage per section 8 of the Divorce Act. If the Court is satisfied that these three conditions have been met, spouses can get an order for divorce governed under section 12-14 of the Divorce Act.

What does it mean when the Court asks for evidence of marriage breakdown?

In Khloe and Lamar’s case the controversial breakup spurred from alleged adultery by Lamar. In Ontario there are three breaches that can support a marriage breakdown.

(1) Living Separate and Apart, section 8(2)(a) Divorce Act: The first breach, requires a one-year separation. Pursuant to section 8(3) of the Divorce Act, one spouse must show an intention to live separate and apart for the one-year separation period, and an intention to destroy the matrimonial consortium.

Note that while physical separation is required,

It is possible to live under the same roof and be separated. If the date of separation is in dispute and the parties reside under the same roof courts look at the following factors to determine the date of separation in Dupere v Dupere:

• Spouses occupy different bedrooms
• Absence of sexual relations
• Little if any communication between spouses
• Wife providing no domestic services for husband
• Eating meals separately
• No social activities together
• Spouses not sharing the living room/recreational facilities

Mental capacity is also required for intent and it must recognize and understand the three levels: (1) separation, (2) divorce and (3) instructing counsel. In essence, divorce requires slightly more capacity than separation (Calvert v Calvert).

(2) Adultery, s. 8(2)(b)(i) Divorce Act: This second breach happens to be the underlying cause for Khloe and Lamar’s divorce proceeding. It has been alleged that Lamar committed adultery and as a result, Khloe chose to file for divorce. In Ontario, once opportunity to commit adultery, and intimacy are established on a balance of probabilities, there is a burden on the alleged adulterer to call evidence in rebuttal sufficient to dislodge the preponderant evidence (Burbage v Burbage).

(3) Cruelty, s. 8(2)(b)(ii) Divorce Act: The final breach to evidence the breakdown of a marriage allows innocent spouses to file for divorce if there is cruelty in the marriage. Cruelty amounts to physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. Evidence of impact is required:

• Objective: The impact must be of a grave nature and not merely conduct that is a manifestation of incompatibility of temperament.
• Subjective: The impact depends on the circumstances of each particular case having due regard to physical and mental condition of the parties, their character and attitude towards the marriage relationship (Knoll v Knoll).

It is important to know and understand why you or your spouse are seeking a divorce but know that even where there is proof of a marital breakdown, the Court will investigate whether there is a bar to granting a divorce decree per section 11 and 21.1 of the Divorce Act. Reasons for a court not to grant a divorce include:

• Collusion, s. 11(1)(a): This is an absolute bar to divorce as spouses cannot collude against the administration of justice.
• Connivance and condonation, s. 11(1)(c): If either spouse has allowed or encouraged the adultery, spouses will be barred from divorce unless it is in the public interest to grant the divorce.
• Reasonable arrangements for child support, s. 11(1)(b): The Court must satisfy itself that there have been reasonable arrangements for the support of children and the Court can stay a divorce until arrangements are made.
• Removal of religious bars, s. 21.1: The Court can take action in a context where one spouse refuses to remove any religious barriers that would bar the other spouse from remarrying after the divorce is granted.

Conclusion

Divorce is never easy. For Khloe and Lamar it seems that adultery and media scrutiny has created a toxic environment that has stunted any chance at reconciliation.

Most divorces are one-sided. Very rarely, will a couple sit down and come to the decision to divorce, together. Normally a spouse who has already separated themselves emotionally from the marriage wants the divorce. That spouse have gone through an “emotional divorce” and now needs to be unattached legally from their spouse.

Whether you are the spouse (a) seeking the divorce, or (b) seeking reconciliation, there are important legal steps that can be taken in each case.

 

Conflict with the Estate Trustee

When it comes to an inheritance, not many of us realize how problematic the “life-changing lotteries” might become for everyone involved. They can create a lot of ill-will not only among distant family members, but also between siblings, parents and children.

Disputes between the estate trustee(s) and beneficiaries of the estate are as common as those between the beneficiaries themselves.  While many people who are preparing their estate plans are mainly preoccupied with the dilemma of ‘who gets what’, very few will thoroughly scrutinize the ability of the estate trustee(s) to perform his/her duties.

As such, while courts will always try to honour a testator’s intentions and wishes as to the chosen estate trustee(s), in certain circumstances a trustee may be removed. Generally, the removal may be initiated by (a) beneficiaries of the estate, (b) another co-trustee, (c) any person interested in the estate of the deceased or (d) at the trustee’s own volition.  Section 37(1) of the Trustee Act. R.S.O. 1990, c.T.37, gives the Court the authority to remove an estate trustee.

While the overarching principle and the main consideration in such application would be ‘the welfare of the beneficiaries’, courts will also look into clear evidence of necessity. The acts, misconducts or omissions of the estate trustee(s) should be of such a nature and degree as to endanger the administration of the estate. The applicant would be required to persuade the court as to the necessity of the trustee’s removal.

Historically, the case law recognized the following as sufficient grounds for the removal of the estate trustee(s):

incapacity (either through illness, age or inclination);

• lack of bona fides;
• misconduct;
• substantial breach of trust;
• bankruptcy of the trustee(s);
• committing a criminal offence;
• unwillingness to carry out the terms of the trust;
• acting to the detriment of the beneficiaries;
• personally benefiting from the trust;
• permanently moving out of the jurisdiction;
• a trustee’s lack of appreciation of his or her duties;
• conflict of interests;
• undue delays; and
• pre-taking of compensation;

One should note, however, that there is no certain rule to each of these grounds and every removal case will be decided based on its own facts. In fact, this is not an exhaustive list of examples and there could be circumstances where certain individual grounds in and of itself might not be sufficient to grant the removal order. One such example is the 2015 decision of the Ontario Superior Court of Justice in Bunn v Gordon, 2015 ONSC 4768 where the beneficiaries of the estate raised several grounds in support of their application to remove the estate trustee (lack of care with the estate assets, disregard for the interests of the beneficiaries, failing to report to the beneficiaries, to name a few). Although individually in and of themselves the grounds were not sufficient to grant the removal order; however, the Court held that the relationship between the beneficiaries and trustees had become toxic such that it prevented the trustee from properly administering the Estate.  Therefore, the Trustee was removed.

Thoughtful consideration when selecting estate trustee(s) will help go a long way to reducing potential issues and ensuring you leave behind a positive and memorable legacy – so choose your estate trustee wisely!

Rick Bickhram – for more information on Rick Bickhram, please follow this link.