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Here we go again. There's always something new in the ever evolving Family Law. This time it's the Alberta Court of Appeal in the case of Mann v. Mann decided April '09. The issue was retroactive child support. The wife was denied retro child support because she had accepted voluntary lower payments while the procedure was winding it's way through the courts. Scenario - husband is making a good income which might suggest an income of $80,000.00 but since he is self employed he only declares $20,000.00 per annum. He offers to pay monthly child support based on the $20,000.00. The wife (who needs something at least to survive) takes it expecting that the correct amount will be proved at trial. Once the correct amount is determined at trial she will not get retro support because she agreed to accept the lower payments. For the husband the answer is obvious - make a lowball offer from the start. For the wife - make sure any accepted temporary amount is without prejudice.

Harmonization Tax:- I've just heard some astonishing figures. How much do you think the Government will grab from taxpayers if they harmonize the GST and PST? Well based on the number of lawyers in Ontario times their average billings it has been estimated that the Ontario Government will hit taxpayers for 4 hundred million every year for additional taxes. That is just on legal services alone. It doesn't count the extra tax on all the other services that are not currently subject to PST. Nor does it include the extra $20,000.00 to $30,000.00 that it will cost to buy a house. It's time to get angry and email your local MPP.

FAMILY LAW: The Recession - Dropping values - Equalization - Now there is a new wrinkle in the ever changing law of Equalization. It comes in the form of Serra v. Serra (2009 O.J. No 432.) in which our Court of Appeal has decided to alter the strict rule that equalization takes effect on valuation day (separation date). In these times of dropping values the Court has decided to invoke section 5(6)(h) of the Act and permit unequal division of assets on the basis that it would be unfair to do otherwise.This raises the question of what happens in a rising market. Now at least the Court have openned the door to an argument.

Beware of a new scam being perpetrated on the public when someone is leasing a car. In the past when you signed a car lease the dealer would give you a guaranteed residual price for which you could buy the car for at the end of the lease. A residual value that you could take or not take at you option. Of course if you damaged the car and did not take up the option you would have to pay for the damage as well as any overage in mileage. Now there has been a slight shift that most members of the public are not aware of. Three cases have recently come to my attention in court. The lease will now read - "guaranteed residual value". What most people don't realise is that instead of the dealer guaranteeing a price at which you can buy at the end of the lease, now YOU are guaranteeing that the dealer can sell the car at that price when you turn it back. Moreover the dealer will not sell retail. He will send the car to any auto auction and gets a low wholesale price. Then he comes after the original leasee for the difference which can be many thousands of dollars. The judge may throw the dealer's case out as a scam on the public but he may decide you should have read the contract more carefully. At very least if faced with this senario don't go to court empty handed. You should be able to prove retail value. Take adds for similar cars in auto trader or whereever you can get them.

Once again this past week I was reminded about the confusion of Home inspection when purchasing a home. I quite often see court claims against inspectors for not catching some defect in the home. Seldom do puchasers succeed in this type of case. The reason for that is twofold, In the first place a Home Inspector cannot go ferriting out every defect. He can only report on that which is visible to the eye when going through the home. The second reason is the contract. Purchasers often sign these inspection conracts without having read the fine print. Most of them state that the inspector will not be liable even if he misses something. So my first advice is read it carefully and reword the contract if necessary to make sure he will stand behind his findings and non-findings. Actually I am somewhat in two minds as to whether a home inspector is worth the cost because from a legal liabilty question you can protect yourself by asking the Vendors the appropriate questions. You can ask about anything - furnace, roof, basement leaks, appliances working, plumbing or electrical problems. The list is endless. Do it in the presence of the agent and have that person record the questions and answers in writing or on tape. If defects are discovered later the vendors will be bound by their answers. On balance it may be wise to also have a home inspector because he will pick up on broken or rotting items such as tiles, gutters, window sills etc., and items you may not think to ask about. These items you can then list in your agreement of purchase & sale as items to be repaired by vendors before closing. Certainly in new homes a Home inspection is a good idea either before closing or shortly after closing. Too many buyers believe that just because it's a new home their are no deficiencies. Not so. A home imspectors report filed with Tarion before the end of one year from possession will be your proof that the builder has failed to rectify defects and that you advised the builder of them at the earliest opportunity.

BRIAN W. KING, Q.C. * 34-1515 Rebecca Street* Oakville * Ontario* L6L 5G8 Phone: (905) 827-0808 Fax: (905) 827-8380