Law Times

www.lawtimesnews.com Page 12 February 4, 2008 / Law Times Conflicts involving blended families increasing I ssues involving blended families and second mar- riages are becoming increas- ingly prevalent in the context of estate planning and litigation, say lawyers in the field. According to Statistics Can- ada's latest census in 2006, 5.2 per cent of the province de- scribed itself as part of a step family. That's 194,000 fami- lies, with 2.4 per cent part of a blended family, with one or more children from the current union and one or more from previous relationships. From 2001 to 2006, the number of step families in On- tario had grown by 16,000. The percentage remained constant, due to total population growth. Jennifer Pfuetzner, of Dick- son MacGregor Appell LLP, says this is something she deals with quite often in her practice. The main issue, she says, is how to ensure that both the sec- ond spouse and the children from previous marriages will be looked after following their death. "There is a bit of a conflict that can sometimes arise between wanting to ensure that your sec- ond spouse is cared for, but at the same time that the children from your first marriage aren't entirely left out," she says. One of the issues that can arise, she says, is if one spouse dies and leaves everything to the second spouse, "The chances of that deceased spouse's children from the first marriage inheriting anything on the second spouse's death can become pretty slim, because they're not that second spouse's children," she says. This can be dealt with by providing a spousal trust or, if life insurance is available, desig- nating the children from the first marriage as the beneficiaries. Another issue for lawyers in acting for spouses that have children from previous relation- ships, says Pfuetzner, is that they can run into a conflict of interest in acting for both the husband and wife. "They'll sit down with you and they think that their inter- ests are the same, but as you start to talk about it and talk about the issues of ensuring that the children from the first marriage are protected, it becomes ap- parent — often fairly quickly — that their interests really do conflict," she says. At that point, it is often pref- erable that they each get their own counsel or, alternatively, if one lawyer is going to be draft- ing the wills for both clients, that at least one client seek inde- pendent legal advice, she says. John Peart, a lawyer with Low Murchison LLP in Ottawa, says one issue that can arouse con- cerns is property owned by one of the spouses in the second rela- tionship and lived in by the other spouse or partner in the second relationship. "One of the ques- tions that arises, [is] what hap- pens when the owner, spouse, or partner dies or becomes too sick to use that facility? And, obviously what happens to the other partner or spouse; can he or she stay in the prem- ises; does he or she have to leave the premises; how much does he or she have to pay to actually use the premises?" A similar situation is one where the spouses purchase a new house from the assets of the two families, and put the prop- erty in a joint name. If one of the spouses dies and the other inherits the property automati- cally, it can be to the detriment of one of the two families. One example, which Peart says he seems to run across on a fairly regular basis in this area, is when a second relationship is formed and the couple gets ad- vice from a source who says they can make things simpler for the other spouse if they put things in joint names. "Obviously if one of the par- ties does die, the survivorship rules say that the survivor in- herits it, and it may well be part of the first families assets that then form part of that surviving spouses assets," he says. The way to overcome these, says Peart, is to make sure to have a good cohabitation or marriage agreement of some kind, along with well-drafted wills to outline all of this. "If there is a cohabitation or marriage agreement, make sure the will refers to this docu- ment," says Peart. Kimberley Whaley of Wha- ley Estate Litigation, says she's seeing a lot of second-spouse lit- igation in circumstances where there was no will done in con- templation of marriage. One difficulty for estate planning lawyers, says Whaley, is that the duration of subse- quent relationships is not often determined when clients first go for planning. There are changes in long-term relationships, cir- cumstances, and testamentary intents, and a new will is not drawn up, she notes. Dependency-related issues or guardianship issues can arise in situations concerning minor children in a new family unit, where wills haven't taken them into account and when planning has taken place that has not re- ally reflected the reality of the testator's situation, she notes. Estate issues involving blend- ed families are becoming more common, says Whaley. "They're complicated and there's a lot of emotion in trying to resolve the dispute," she says. Part of the problem is that clients quite often will not come in to see a lawyer when they're thinking about living together or marrying for the second time, says Peart. "If a lawyer is meeting with a client either for a will or for the purchase of a house per- haps, certainly in my practice, I raise it with the couple and make sure they either have it in place or they understand very well the possibilities of a con- flict between either one of the two people who are in front of me and the families of the other person," he says. Peart adds that he is seeing these situations becoming more prevalent. As people live longer and as relationships change over the course of a person's lifetime, "I think there's more of this go- ing on that the potential for problems is certainly greater now than it would be even 10, 15 years ago," he says. FOCUS FEDERATION OF LAW SOCIETIES OF CANADA NATIONAL FAMILY LAW PROGRAM DEERHURST RESORT AND CONFERENCE CENTRE MUSKOKA ONTARIO JULY 14-17, 2008 (On Site Conference Ofce Opens & Reception July 13) Topics will include: • Domestic Violence • Representing Children • Judges' Program • High Conict Families • Evidence Primer • Tax Principles for Family Law Lawyers • Child Welfare • Professional Responsibility • Expert Evidence • Dealing with Burn Out • Collaborative Family Law Update • When is a Deal not a Deal? • Child Development • Property Issues • Issues Relating to Child Support • Pensions • Spousal Support Guidelines • Spousal Support Variation • Sec. 19 CSG • Estate & Insurance Issues • Law Ofce Management • PreNup Agreements in Quebec • Religious & Cultural Issues • Bankruptcy • Interaction between Criminal & Family Law • Immigration & Family Law • Future of Family law • Hot Issues in Family Law REGISTRATION FORM The National Family Law Program 2008 ( ) Please register me for the full fee of Name: $650.00 + $32.50 (G.S.T.) = $682.50 Firm Name: I have been in practice less than 5 years: ( ) Please register me for the reduced fee of $450.00 + $22.50 (G.S.T.) = $472.50 Address: ( ) I am enclosing a deposit in the amount of $100.00 Balance of registration due by May 15, 2008 Province: Postal Code: Telephone Fax: (Note: Payments are non-refundable after May 15, 2008) E- Mail: Please make cheques payable to The Federation of Law Societies of Canada. We are unable to accept credit card payments. I am enclosing a cheque in the amount of $_____________ GST Registration #: 124261140 Please forward payments and requests for information to: Heather Walker, Program Co-ordinator, P.O. Box 244, Woodville, ON, K0M 2T0 Telephone: Messages (705)879-3082 Fax: (705) 374-4131 /E-mail: nationalfamilylawprogram@sympatico.ca You are advised to make early travel and accommodation arrangements. Registrants are responsible for their own travel and accommodation arrangements. Special blended rates have been negotiated at the Deerhurst Resort & Conference Centre. The earlier you book the greater chance of the opportunity to reserve an upgraded room for the same price. For reservations please telephone the resort directly at 1-800-461-4393 and ask for the National Family Law Program conference rates. www.deerhurstresort.com (Blended rate of $199.00 single or double. A limited number of rooms are available at the rate of $169.00) These rates are offered pre and post conference to registrants. Federation of Law Societies web site: www.sc.ca FedLawSoc_LT_Feb4_08.indd 1 1/30/08 2:56:59 PM Kimberley Whaley says she is seeing a lot of second-spouse litigation in circumstances where there was no will done in con- templation of marriage. BY HELEN BURNETT Law Times LT *Pages 1-20.indd 12 1/31/08 6:56:21 PM

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