1. contemplated marriage or cohabitation;

2. during marriage and/or cohabitation;

3. marriage breakdown or breakdown of a common law spousal or same-sex partner relationship; and

4. other situations related to the family.

A financial institution may have concerns as to how it should properly comply with the terms of a court order served upon it. Because of the possibility that a representative of the financial institution could be subject to examination in the family law proceedings giving rise to the court order, it is very important that the financial institution seek legal advice early on. In this way, the client’s interests can be protected even as the institution performs its obligations pursuant to the court order.

A financial institution should also seek legal advice as to its obligations to ensure that parties to transactions have independent legal advice. For example, if a loan is advanced to a spouse requiring the participation of the other spouse, that other spouse should have independent legal advice as to the nature and implications of the loan. It is critical that the significance of security for a loan is fully explained. If this independent legal advice is not meaningfully made available, the financial institution will be at risk of a claim later being advanced by the spouse, alleging that the loan is void vis a vis that spouse. The grounds of the claim will likely include the absence of independent legal advice, such that the spouse was not aware of the consequences to him/her if the spouse seeking the loan were to default in his/her obligations. If the claim is successful, the financial institution may find itself in the undesirable position of being unable to pursue or enforce claims against both spouses who were parties to the transaction. If such a claim is advanced, Ms. Kerr is ideally qualified to defend it.

Shareholders of a corporation may also require advice. For example, shareholders may complete an agreement addressing the implications of a marriage breakdown of shareholder(s) party to the agreement. This agreement may confirm that the spouses of the shareholders have no or limited rights or entitlements to the company in respect of which the shareholders’ agreement is completed, whether with respect to the value of any shareholders’ interests or the actual property itself. Usually, it is critical to shareholders that their company not be used as security for any of its shareholders’ spousal obligations, and that the company not be made the subject of a preservation order. To ensure that the terms of a shareholders’ agreement are binding on the spouses of the shareholders, the shareholders should each complete either a cohabitation agreement or marriage contract, as the case may be. As set out below, each spouse to this contract must have and make full financial disclosure and receive independent legal advice. These principles also apply to partnerships and other forms of business interests.

Issues also arise in the employment context. For example, an employer may require advice regarding its obligations in response to being served with a court order setting out an employee’s obligations of support or other obligations, in some way requiring the employer’s participation. Employees earning a high level of income may benefit from advice as to how their compensation or termination packages should be structured from a family law perspective. Employees may find it helpful to know that options and pensions may be relevant for purposes of both property and support. Patterns of income, including the historical payment of bonuses, are relevant to establishing levels of ongoing support obligations. With some planning, it may be possible to limit a potential payor’s overall obligations if and when a breakdown of the marriage occurs.

More generally, issues as to spousal or same-sex partner status and the related implications arise in the context of what may be primarily an insurance or pension issue. Depending upon the language of the contract in issue, it is possible to have more than one spouse or to have a same sex spouse. Where it is not clear that a relationship is actually spousal, Ms. Kerr can assist in considering the relevant factors.