Michael Ford (post until Oct. 31/19)
ADR, Mediation

Family feuds: property and finances

In the final instalment of a three-part series exploring the issues and dynamics of civil claims outside of the area of family law, Toronto mediator and settlement counsel Mitchell Rose examines financial and property issues.

Toronto mediator and settlement counsel Mitchell Rose says there are a number of civil claims outside of family law that relatives make against one another — but they generally share common factors like high emotions and unresolved issues.

An area of conflict where he acts as either settlement counsel or neutral mediator is family disputes involving money and/or property, he tells AdvocateDaily.com.

“A common situation — particularly in the current real estate market — is an elderly family member will give money to a child or grandchild to use as a down payment on a home with an agreement that they will be able to live there with them,” says Rose, a partner with Stancer Gossin Rose LLP.

If this type of arrangement is entered into without managing expectations and obtaining proper legal advice, things can get incredibly ugly and expensive later on, he says.

“If family members are considering making these gifts with an understanding that they’re going to be cared for and have a place to live, it’s imperative they get legal advice beforehand so that the arrangement can be structured in a mutually beneficial way.”

Otherwise, Rose says, this type of living arrangement can lead to some horrible results including allegations of elder abuse.

“While the elderly family member can seek legal advice and representation later on, it becomes more difficult, and the stakes are higher. It can be quite sad,” he says. “It’s not always malicious — sometimes the younger family member doesn’t realize what taking care of an older person entails. They might mean well initially, but soon become overwhelmed.”

The elder may also have legal claims to the property as a result of their contribution, Rose adds.

“Is it an unsecured loan, a gift or is it a purchase of an interest in a property? It’s important there are no misunderstandings,” he says.

Another scenario that frequently leads to family feuds is when two or more relatives own real estate together, either by way of joint tenancy or as tenants-in-common.

“Maybe something happened and they don’t get along anymore, they just have different views about what to do with the property, or one party is no longer contributing to expenses. This could lead to a partition and sale application, or seeking an order for exclusive possession,” he says. “This gives the court the authority to order a sale of the property or to change the title, which may be a worse outcome than if parties were to mediate.”

Rose says it’s important to get proper legal advice before entering into ownership with family members but in the event things go sideways, mediation can help avoid less than desirable outcomes and estrangement.

Because of the emotions involved, he says, a property can take on a value that goes far beyond its monetary worth.

“When you’re dealing with these kinds of family disputes, if you just focus on numbers, it’s going to be very difficult to reach a resolution. It’s important to address people’s underlying emotions,” Rose says.

Another growing area of family disputes is over the care of an aging or sick parent, he notes.

“There can be claims of mismanagement against a relative who is acting as an attorney for property for an elderly or disabled family member,” Rose says. “It’s almost like pre-estate litigation. Much like estate disputes, the sooner the issue can be resolved, the better.”

To read part one, click here.

To read part two, click here.

To Read More Mitchell Rose Posts Click Here
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