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Family Law – Jennifer Black

Under section 24 of the Family Law Act, the court has the power to grant a married spouse exclusive possession of a matrimonial home regardless of which spouse has actual ownership of the home. This power is only available to a court where the parties are married. An unmarried spouse has no common law or statutory right to occupy his or her spouse’s property when the relationship ends.

Section 24 (3) of the Family Law Act, sets out the criteria that the court shall consider in deciding whether to make an order for exclusive possession:

a) the best interests of the children affected;
b)any existing orders under Part I (Family Property) and any existing support orders;
c) the financial position of the spouses;
d) any written agreement between the parties;
e) the availability of other suitable and affordable accommodation; and
f) any violence committed by a spouse against the other spouse or children

In determining the best interests of a child, section 24(4) of the Family Law Act, directs the court to consider:

a) the possible disruptive effects on the child of a move to other accommodation; and
b) the child’s view and preferences, if they can reasonably be ascertained.

A recent Ontario Superior Court decision of Justice Horkins, Leckman v. Ortaaslan [2013] O.J. No. 2606, examined the Family Law Act criteria in determining a Wife’s motion for interim exclusive possession of the matrimonial home. The Husband disputed the motion, seeking instead an order that the parties and the children remain together in the matrimonial home pending a final resolution of the court application.

In this case, the parties had been married in 1996 and were separated in 2012. They had two children, 16 year old Anna and 12 year old Garen. Both spouses were well educated and high income earners. The matrimonial home, worth an estimated 1.5 million, was in the Wife’s name alone and had no mortgage.

In this case Justice Horkins, analysed the applicable criteria set out in the Family Law Act. Justice Horkins acknowledged that both parties had sound financial positions and therefore rejected the Husband`s claim that he did not have the resources to afford alternate accommodations.

In assessing the issue of whether violence had been committed by a spouse, Justice Horkins confirmed that the violence referred to in s.24(3)(f) is not restricted to physical violence. Citing the court in Hill v. Hill [1987] O.J. No. 2297, Justice Horkins stated that, “violence includes a “psychological assault upon the sensibilities of (another) to a degree which renders continued sharing of the matrimonial dwelling impractical.” Where the conduct is calculated to produce and does produce an anxiety state which puts a person in fear of the other`s behaviour and impinges on that person`s mental and physical health, violence has been done to his or her emotion equilibrium as if he or she had been struck by a physical blow.

In the present case, Justice Horkins found that the situation in the matrimonial home was tense and that it was a difficult time for all and in particular for the children. The Wife described a home situation where the children felt like prisoners in their own home. She advised the court that when the Husband was home, he would give the children the silent treatment. This evidence was supported by a report from the oldest daughter’s psychotherapist which revealed that Anna constantly felt like she was “walking on egg shells” when her father was in the house. The Husband’s actions caused Anna stress, anxiety and depression.

Justice Horkin’s concluded that the Husband had verbally and emotionally abused both the Wife and Anna and that the Husband`s behaviour amounted to a psychological assault. Justice Horkins was not convinced that the children`s relationship would suffer if their father were to move out of the home.

Additionally, the court acknowledged that the children had lived in the matrimonial home for many years and that it was close to their school.

Noting the risks associated with the current living situation, Justice Horkins found that a decision regarding exclusive possession could not be adjourned or wait until trial as the situation was too dire. While the court generally prefers to make a final decision based on viva voce evidence that has been tested through cross-examination, in this case Justice Horkins found that it was in the best interest of the children to grant the Wife an interim order for exclusive possession of the home.

This case makes clear that although an order for interim exclusive possession of a matrimonial home should not be made lightly as it will have the effect of forcing one spouse out of the home, where evidence can be presented that there is much conflict in the home, a spouse with custody may receive an order for exclusive possession of the matrimonial home.

Article written by Jennifer Black, B.A. (Hons), LL.B. joined SorbaraLaw in July 2006. She practices in the area of family law in SorbaraLaw’s Waterloo and Guelph offices.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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Collaborative Family Law – Jennifer Black

A (relatively) new alternative dispute resolution process is gaining increased traction in the family law world. Collaborative Family Law (CFL) arose as a response to the difficulties of family litigation and the limitations of family mediation. CFL is an innovative approach to resolving issues in a separation, including issues of custody, access, support and property division. CFL is providing a new experience for people going through separations.

The traditional process of negotiation offered to couples going through a separation has been the adversarial legal model. In this model, the negotiations tend to be conducted under the implied or overt threat of litigation whether the parties are in court or not. In contrast, the CFL process is confined to settlement without the threat of court intervention.

Mediation can be a powerful process option for couples. However, in mediation, parties work with one neutral third party who acts as a facilitator for discussions between them. That approach is not always appropriate for everyone. In addition, some parties fail to obtain legal advice prior to or during the mediation process. If these parties later obtain legal advice, the settlement reached in mediation tends to be more likely to break down. In the CFL process, by contrast, couples have their lawyers with them at all times during the negotiation process.

The CFL process seeks to protect the intangible interests of the parties to preserve relationships with extended family and mutual friends, to co-parent amicably, to be treated with respect, and to control the process and the outcome. In traditional adversarial negotiation, these intangible interests are often ignored.

In Collaborative Family Law, couples agree to act in good faith, make full disclosure, put their children first, and consider each other’s perspectives and interests. Collaboratively trained lawyers act as negotiation coaches, information resources, and advocates for the interests of their clients and the integrity of the process. The underpinning of Collaborative Family Law is that it is conducted on a “without prejudice” basis, where the parties and their lawyers agree that the lawyers are retained solely to facilitate the negotiation of a mutually acceptable separation agreement. If either party decides they wish to end the CFL process and go to court, the lawyers are disqualified from further representation.

In the CFL process, parties and their respective lawyers get together in settlement meetings. In these meetings and throughout the CFL process, the lawyers encourage the clients to take control over the agenda for the meetings and for the ultimate outcome. The lawyers work with their clients, encouraging them to think and speak for themselves. They assist their clients in assembling and exchanging financial disclosure and illustrate to them how to use that information to generate options for settlement.

It sometimes becomes necessary to involve other “experts” in the CFL process. A child specialist may be engaged to work independently with the clients to develop a parenting plan, or a valuator may be jointly retained by the clients to appraise a property or to value a business. These experts are neutral in their relations with the clients as they are working for both spouses. This not only reduces conflict, but it saves the parties money as they share the cost of one expert rather than retaining separate experts to do battle in court.

CFL requires an honest commitment by both spouses and their lawyers to negotiate matters reasonably, respectfully and with full disclosure of information. While there is no guarantee that matters will be resolved, there is a high chance of success where participants are committed to these goals.

CFL is not for everyone; some cases involving extremely high conflict or a need for immediate court intervention may not be suitable for the collaborative approach.

For many people going through a separation, CFL is a welcome alternative to the adversarial approach. At SorbaraLaw, we have three family law lawyers trained in Collaborative Family Law: Grace Sun, Lynn Dramnitzki, and Jennifer Black. Feel free to contact any of them to discuss whether the CFL process is appropriate for you.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Author: Jennifer Black is a lawyer in the Family Law group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario.  Jennifer may be reached at (519) 836-1510 or <jblack@sorbaralaw.com>.   

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Family Law – Jennifer Black

Under Ontario law, when a couple separates, a claim may be made pursuant to the Family Law Act for an equalization of net family property. This equalization scheme, however, requires that the parties be “married spouses” as defined in the Marriage Act. Under the Marriage Act, no marriage may be solemnized except under the authority of a license issued in accordance with the Marriage Act or the publication of bans. Consequently, some have questioned the legitimacy under Ontario law of marriages entered into by way of wedding ceremonies conducted in accordance with Sharia law.

This concern was illustrated in the recent case of Isse v. Said, in which a couple had married in an Islamic wedding ceremony in accordance with Sharia law only; the couple did not obtain a marriage license under the Marriage Act and, therefore, the marriage was not registered in Ontario.

In determining whether the parties were “married spouses” as set out in the Marriage Act, thus permitting a claim for an equalization of net family property, the Court reviewed the limited exception to requiring a marriage licence and registration as set out in the Act. To qualify as a “marriage,” the following requirements must be met:

1) the marriage ceremony must have been solemnized in good faith;

2) the marriage must have been intended to be in compliance with the Marriage Act,

3) neither party may have been under a legal disqualification to contract marriage; and

4) the parties must have lived together and cohabitated as a married couple after the solemnization.

In the case of this couple, it had been the wife’s intention that the marriage be in compliance with the law. The Court thus deemed the couple to have a valid marriage permitting a claim for the equalization of net family property under the Family Law Act. This is an important case for the Islamic community in Ontario as it recognizes important property rights for couples who are married in religious ceremonies but, through inadvertence, do not register the marriage. So long as the spouses believe that they were married in accordance with the law, they should still have the right to property division under the Family Law Act.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Author: Jennifer Black is a lawyer in the Family Law group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario.  Jennifer may be reached at (519) 836-1510 or <jblack@sorbaralaw.com>.   

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