Thursday, September 4, 2014

"My spouse won't leave the house"......(Ontario)

In Ontario, if you are married to your spouse, you have the same rights as he/she does to "possess" the house, condo or apartment in which you reside during marriage, meaning, to live there.

These are called "possessory rights" and they are entirely separate from who actually owns the property (has title to it).

Common-law spouses do not have the same rights to possession.

On separation, who stays and who moves out often becomes a live issue. Separation often involves tears, disappointment, anger and sometimes, even a power struggle. When separated spouses continue to live together in the matrimonial home (which may include a condo, an apartment, a farm, etc.), the atmosphere is rarely pleasant. In some cases, it may become more than unpleasant: - arguments, efforts at control, invasion of privacy and power-struggle over possessions or even time with children are some examples of what separated spouses face. At the height of such difficulties we hear about domestic violence, abuse and intimidation.

We are often asked: "Can we not make her/him move?", "kick them out?",  "make them go elsewhere?"

There are two circumstances under which a spouse vacates a matrimonial home after separation:

1. they do so voluntarily OR

2. they move because they are ordered to so by Court Order - here, the Order amounts to depriving the moving spouse of their "possessory rights" and Courts are generally reluctant to make such "exclusive possession" Orders without very good reasons.

Here are some examples of what will not result in an Order for exclusive possession (and this list is not exhaustive):

a) it's not pleasant in the home
b) your spouse stares at you
c) your spouse reads your emails
d) your spouse has told the children of the separation without telling you in advance
e) you and your spouse argue from time to time
f) your spouse speaks loudly
g) your spouse hogs the TV and has not bought groceries in weeks (depending on the actual financial circumstances, this may have to be addressed by a request for support);
h) your spouse is out at all hours and barely home.

Here are some example of what will likely result in an Order for exclusive possession (again, the list is not exhaustive):

a) your spouse is extremely verbally abusive and there are independent witnesses to corroborate this;
b) your spouse is physically abusive;
c) your spouse stalks you and bullies you;
d) your spouse has thrown objects at you;
e) your spouse acts in a way which causes you to fear for your safety and/or the safety of your child/children.

If you want more information about this very important issue, please speak to a lawyer. Do not rely on the internet alone for legal advice. Seeking information is helpful but ultimately, you should have assistance from someone who is well-versed in the area and can provide real help.

Wednesday, September 3, 2014

Same Sex Law in Ontario - UK civil partnership like a marriage

In June, 2014, the Ontario Court of Appeal upheld the decision of The Honourable Madam Justice Mesbur, sitting as a motions judge, that a civil partnership entered into by two parties (men) in the UK, at a time same-sex marriage was not available in the jurisdiction, was like a marriage, according them the rights and obligations of married spouses in Ontario.

You will find the decision of the Court of Appeal, Hincks v. Gallardo, here:

On behalf of the panel, Justice Hourigan held as follows:

"[28] The interpretation by the motion judge of the terms "spouses" and "marriage" is entirely consistent with the modern approach mandated by the Supreme Court of Canada: Her interpretation achieves one of the fundamental purposes of the DA [Divorce Act] and the FLA [Family Law Act]: it provides the parties with an equitable and certain process for resolving their economic issue arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims."

Upward and onward, Ontario...definitely a step in the right direction, one of many still ahead of us....

Tuesday, February 11, 2014

What you tell your lawyer is confidential.....

A friend of mine recently told me that on an episode of Breaking Bad, someone mentioned that what you tell your lawyer is confidential - is this true? - she asked..


All communications between a solicitor and their client are privileged (confidential) - there are only rare circumstances in which the information can be revealed - likely as a result of a Court Order.

Here is another thing you may be interested to hear: this privilege applies to that lawyer forever. This means that even if a particular lawyer is no longer your lawyer (ie: you parted ways for some reason), that lawyer can never reveal the information you told him or her in confidence.

BUT here is a scenario you might consider: you bring your best friend into a meeting with your lawyer and she/he hears what you and your lawyer talk about. Two months later, that "best friend" is no longer a friend of yours.....the lawyer is still bound by privilege but he/she will have no control at all over what your former best friend may tell the world about your case - you "diluted" the privilege when you brought your friend into the meeting in the first place.....


Friday, September 13, 2013

"When do my child support payments end?" (2)

We have previously posted in response to this question, here:

The post generated many comments and questions so we decided to provide more guidance in the form of the following "flash cards" on this topic:

1. Contrary to a wide-held view, in Ontario child support does not end automatically when a young person turns 18. It also does not continue automatically until a young person is 18, without regard to what the young person is doing. For example, if a 16-year-old leaves school, begins working and moves in with friends, child support will end then and not continue for another two years until he/she turns 18.

2. A young person may continue to be considered "a child" for the purposes of child support even when they are 23-24.  Whether or not they remain eligible to receive support depends on the specific circumstances of each case but generally speaking, if a young person cannot become financially independent because they are still at school or unable to attend school or work for medical reasons, child support may continue to be payable.

3. Child support is the right of the child and not the right of the recipient parent. Parents do not have the right to bargain away, between themselves, the child's right to support.

4. There are different forms of child support contemplated by the Child Support Guidelines. The form and the amount of child support is likely to change when a young person enrolls in post-secondary education and in particular, if they live away from home for part of the year to attend school.

5. The overall means (ie: what is available in funds) of the parents and the child are always relevant to the issue of child support - particularly when post-secondary education is involved. This means, for example, that a parent earning $40,000 a year will not be expected to participate in covering any significant portion of a child's attendance at an Ivy League university in the US, at considerable cost. That parent will only be expected to contribute proportionately to their actual income.

6. The Courts do not simply accept line 150 of a payor's income tax return as an indication of their actual income for child support purposes. Self-employed individuals, in particular, will be subject to much closer scrutiny as to income and benefits available to them, pursuant to the Child Support Guidelines.

Making an important point once again - there are some general guidelines from the law on the issue of child support - there is no doubt about that  - BUT, each case also turns on its own facts and you should consider those specific facts with an actual lawyer to make sure that your particular circumstances are properly addressed.

Friday, June 28, 2013

Divorce in Canada

The word "divorce" is often used to describe the end of a marriage (separation) and all of the issues which result from that event.

In this post, however, we are addressing divorce as a separate claim in a court case - the official termination of the marriage by a divorce order.

Here are some facts about which you may not yet know:

1. in Canada, only a judge can grant a divorce. While a marriage can be performed by a variety of individuals, only judges are empowered to officially declare a marriage to be over (in Ontario, that would be a judge of the Superior Court of Justice). For this reason, if you want a divorce, sooner or later you will have to start a court case to address that issue (although, depending on the facts of your case, that may be your only claim before the court);

2. Canada is a "no fault" jurisdiction. This means that the spouse requesting the divorce does not have to prove uncomfortable facts as a basis for the divorce. For example, that spouse does not have to either allege or prove an affair by the other spouse, to allege or prove abuse or to cite "irreconcilable differences", which is a claim often heard from our neighbors to the south.  Many successful divorce applications do not even cite a reason for the separation. One can alleged adultery or cruelty but these are very rare claims these days, involving complex issues related to evidence. In my many years of practice, I can count on the fingers of one hand cases in which either adultery or cruelty were pleaded as the basis for a divorce request.

3. 99% of couples in Canada divorce on the basis of a one-year separation.

4. you CAN file with the Court your materials for a divorce before the first anniversary of your separation - the point is that unless there are very special circumstances to your case, the divorce is not going to be granted until the one-year is up;

5. most divorces in Ontario proceed "over-the-counter" - this means that no one appears to actually "argue" the divorce and there is no live hearing on the issue - the divorce is completed through paperwork filed with the court. The required materials are submitted at the court office and then reviewed by a judge who, if satisfied that all issues are in order, grants the divorce.

6. the divorce, once granted, becomes "effective" 30 days from the date of the divorce order itself - this "cooling period" can be set aside by the court in unique circumstances (on request) but generally speaking, you will not be able to apply for your marriage license until this period is over.

7. divorces are not automatic. The court has the right to decline a request for a divorce if the court is not satisfied, based on the materials filed, that reasonable arrangements are made for the support of children. This is a very important area to consider when filing your divorce materials, particularly your affidavit in support of your divorce request.

8. a divorce can be torn away ("severed") from the rest of the issues between the parties and proceed while those issues wait to be completed. Again, the considerations in 7. above apply. In other words, a separated couple can be divorced even before they are able to finalize property issues, for example, or issues related to spousal support.

Divorces in Canada are governed by technical procedure and the courts' expectations for materials filed are high. If in doubt while completing the paperwork, consult a lawyer......

Thursday, June 27, 2013

Child Support over 18

Many support payors and recipients in Canada think that child support is payable only until a child turns 18. In fact, that is not correct.

In Canada, child support is payable to young persons, even over the age of 18, who for good reason are not able to withdraw from their parents' financial assistance. What are such "good reasons"? There can be two (or a combination of them):

1. a child attends school (for example, university or college, but there may be other schools which would qualify) - depending on the financial resources of the parents, support may continue even after one degree is completed; or

2. for medical reasons, a young person over 18 cannot become financially independent (for example, the child has a long term disability or was involved in an accident and is recovering).

One very common scenario we get questions about is the following:

Fictional Chloe attends Fictional University and is in her 3rd year. Early in the second term, she is in a car accident and is unable to finish the year. By the beginning of the 4th year, she is not able to return to school full-time and can only take a half-course load, for medical reasons. We get asked: is she still entitled to child support? - the answer is "yes" - that is because she is still "a child of the marriage", which is a phrase used to describe a young person who either for medical reasons or because she remains at school cannot become financially independent. In this scenario, it's a bit of both - she is not in school for medical reasons but would otherwise be - child support remains payable even when she is taking less than a full course load.

Tuesday, June 25, 2013

Child Support is the Right of a Child

We were recently involved in an arbitration which addressed the following question: "Can parents ever make final arrangements as to child support?" For example, can one spouse agree not to seek child support from the other or to accept less support that the law would provide?

I think that most people would be surprised by this question. They would respond: "Of course they can - only parents know what is best for their children and if they agree with each other what support, if any, should be paid, it's their business and no one else's".

The issue is not as simple as that. In fact, child support is the right of a child and not the right of either parent. Parents do not have the right to bargain with that support. This has been confirmed in a number of court decisions, the most notable one being that of the Supreme Court of Canada in Richardson v. Richardson.

Simply put, courts in Canada retain the right to interfere in "deals" made by parents where such deals do not provide for adequate child support. The measuring sticks are, firstly, the Child Support Guidelines (federal or provincial, as applicable). There are situations in which a parent can demonstrate that even where the terms of the deal are a departure from the Guidelines, the support is reasonable in the specific circumstances of the case.

Here is the issue: arrangements made between parents which do not consider, in advance, the courts' "big daddy" role when it comes to child support and the best interests of children may be vulnerable down the road so it's best to seek legal advice on this issue. Specific wording in a separation agreement, for example, can address this point to a great extent (and also deal with the expectations of the courts' when considering a request for a divorce...which is a subject we tackle in another post)......

Wednesday, January 9, 2013

Incomes over $350,000 and the Spousal Support Advisory Guidelines

You may have heard about Child Support Guidelines (both federal and provincial). They are mandatory in their application. On a daily basis, both before the Courts and in the context of out-of-court negotiations about child support, they are used to calculate amounts payable by parents, one to the other, based on their respective incomes for child support purposes, the children's residential arrangements, the children's activities and many other relevant factors. 

What about spousal support? How are those amounts calculated?

Setting aside for the moment the issue of entitlement to spousal support (being the preliminary issue which needs to be determined), we now have the Spousal Support Advisory Guidelines, which came about after years of government-sponsored studies on appropriate spousal support levels and fair methods of calculating them. The SSAGs, as they are known, are not mandatory in their application. Rather, they are a guideline. They remain "advisory" to the Court - hence the use of the word in the title.

The SSAGs have many very interesting features and deserve a lot of comment. There will be future postings in this blog about them. 

For the moment, I comment on whether or not they are applicable to incomes (in the payor's hands) of over $350,000. The Guidelines themselves say that they "may not apply" in such situations but increasingly, Courts have applied them, particularly to incomes materially in excess of $350,000. One of the arguments made is that if the parties were still together, all of the income available would be used for their benefit - there would be no artificial "cut-off" after $350,000. So why should the same scenario not apply once the parties are separated, assuming the spouse claiming spousal support is able to establish entitlement in the first place? 

For more information on this issue, and for a more in-depth discussion on how the law may apply to the specific circumstances of your case, speak to a family law lawyer.

Premium Dutch Hydrangea - photo by AJ

Thursday, November 29, 2012

What is ADR?

ADR stands for alternative dispute resolution (sometimes also referred to as external dispute resolution). This term describes collectively various approaches for resolving disputes between two (or more) parties without having to use the court system.

Alternative dispute resolution encompasses dispute resolution mechanisms such as mediation, arbitration, mediation/arbitration, negotiation, collaborative law and other subcategories of dispute resolution

ADR has become an increasingly viable and popular method of addressing disputes, including family law disputes, for a number of reasons. The administration of justice, including in Ontario, has faced increasing pressure from a number of fronts. Rapid urban expansion has meant that courts are facing more and more litigants every day. In the meantime, there is competition for financial resources, including from healthcare. As courts become busier and busier, alternative methods of addressing disputes become increasingly attractive. More and more litigants are turning to mediation and arbitration, for example, to sort out their family law problems.

In summary terms, mediation is a process where spouses meet with a third party who is skilled at facilitating negotiation between them. Mediation may be open or closed. In closed mediation, nothing said in the context of the negotiations with the mediator can be repeated in either an existing or a later court proceeding.  In open mediation, the reverse is true and either party may request that the mediator issue a report summarizing the process and outcome of the mediation. Either party may then rely on this report before the court.

Arbitration is essentially "private court". The parties to an arbitration agree that a person selected by them (the arbitrator) will make a binding decision on the issue(s) put before him or her. In Ontario, the arbitrator is bound by the same law that a judge would be bound in making his or her decision for the parties.

Mediation/arbitration is a hybrid of the two processes described above. For a period of time, the parties attempt mediation. Based on specific, agreed-to terms, the mediation ends if the parties are unable to reach a resolution and the mediator then puts on an arbitrator's hat. This means that he/she then convenes a formal hearing of the outstanding issue(s) and after considering evidence and submissions, makes a binding decision for the parties.

For further information about how ADR may be of assistance to you in a family law dispute, speak to a family law lawyer.

Artwork: Kees Van Dongen

Wednesday, November 21, 2012

Christmas access tips....

With the holidays approaching, many parents are thinking of and planning for Christmas access. Here are some basic tips:

1. Plan and prepare early. Give yourself and the other parent a reasonable opportunity to propose a schedule to each other, discuss it and confirm it. Leave room and time for some negotiation.

2. Always think of your child/children first. This may sound like the most basic of concepts but, surprisingly, it gets lost in so many fights about access over the holidays. This is a special time for kids - yes, it's a special time for you as well but they, and not you, are waiting for presents and the smell of gingerbread. Make the holidays as stress-free for kids as possible - this includes not having to watch parents fight or to hear one parent making disparaging comments about the other.

3. If you plan on travelling with your child/children, advise the other parent as much in advance as possible. Draft, sign and have notarized a detailed Travel Consent so that you are less likely to be turned away at the border when travelling for your holiday. Give the other parent (and include in the Travel Consent) detailed information about your destination, method of travel and contact information.

4. If you and the other parent cannot agree on holiday access, one of you may have to ask the Court to assist. Family Courts are very, very busy before the holidays, precisely because of numerous requests for assistance with access. Try and not be the parent sitting in Court for hours, waiting to be heard by a stranger to your family, a Judge, to make a decision about your children over the holidays. Work with the other parent.

5. There are many different ways of handling the holiday access schedule. For example, you can divide the school holidays in half and alternate those two halves, year to year. Or, you can alternate just Christmas Eve and Christmas morning. Other alternatives are available. Speak to a family law lawyer to assist you and tell you about other choices.

Above all, have a safe and restful holiday season....

Wednesday, November 14, 2012

What is a "nesting arrangement"?

A nesting arrangement, also known as a "bird's nest arrangement" or "bird nesting arrangement" is one in which a child or children continue to live in the residence which was their home at the date of their parents' separation.  This, in and of itself, is not uncommon post-separation but here, the parents' time with the child/children is based on their moving in and out of the home for fixed periods of time. Just like birds taking turns to look after eggs or chicks in a nest, these parents return to the home based on a fixed schedule while the children continue to live in the home without interruption.

All residential arrangements for children have their unique pros and cons. Some argue that nesting arrangements are least disruptive to children's lives.  For example, they enable the child/children to continue to attend the same school and to maintain their peer relationships and activities. On the con side, the nesting arrangement means that the parents need to obtain their own accommodations for those periods of time when they are not residing in the home with the child/children. In other words, three separate residences are involved (one for the children and two for each of the parents). The reality is that a true nesting arrangement is possible only in cases where the parents' financial means permit it. It can be expensive.

Nesting arrangements can only work in situations in which the parents remain civil and cooperative with each other. There are many reasons for this.  By way of one example, if a nanny is involved, cooperating parents will continue to have the same nanny assist the children/parents when both parents are in the home. If parents are not cooperative with each other, one parent might, for example, insist on a care arrangement for the child/children which is different than what the other parent wants (e.g. not a nanny). This creates a logistically difficult situation, for all concerned including the nanny.

In our view, nesting arrangements are feasible only on a temporary basis. It is difficult to imagine two adults (the parents) continuing to reside in two residences on more than a temporary basis.

When it comes to children's residential arrangements, there is a number of reasonable alternatives which we discuss elsewhere in this blog. If you are interested in exploring these alternatives further, we suggest you speak to a lawyer who has experience in this area.

 Park of Schunbrunn ~ Gustav Klimt (1916)


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