Exclusive Possession of the Matrimonial Home

One of the more difficult choices to make when separating is deciding who will get to live in the matrimonial home, or what is otherwise known as exclusive possession.  Both parties have likely developed an attachment to the home, and uprooting your life to move somewhere else can be a daunting and stressful experience.

So what exactly is exclusive possession? Does this mean a spouse now has ownership, legally known as title, of the home?

No.

This is a common misconception regarding what exclusive possession actually is.  Exclusive possession is the right of a spouse to possession of the home.  In other words, the ability of a spouse to live in the home, while the other spouse has to live somewhere else.  This right of possession is as against the spouse and not the home itself.  This WILL NOT give you title or ownership of the home by itself.

It is important to note that Married spouses have a stronger claim than Common law spouses regarding exclusive possession of the home as a result of the provisions in the Family Law Act (“FLA”).  The relevant provisions are replicated below:

 

19.(1) Both spouses have an equal right to possession of a matrimonial home.

(2)  When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession,

(a) is personal as against the first spouse; and

(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise.

 

24.(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(2)  The court may, on motion, make a temporary or interim order under clause (1)(a), (b).

 

The court will of course have some considerations they will need to weigh when making the order for exclusive possession as per s. 24(1)(3) of the FLA:

(3)  In determining whether to make an order for exclusive possession, the court shall consider,

(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 both 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 the children.

 

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can be reasonably ascertained.

 

What kind of spouses are entitled to exclusive possession?

The FLA is clear that if a person is looking for an Order in Family Court for exclusive possession, they must fall within the meaning of spouse in s. 1(1) of the Family Law Act.  Basically, you need to be married. See our post on Common Law vs. Marriage for more details.

This also means that you have to currently be a spouse of the other party to claim this remedy.  Divorced parties are not entitled to this remedy as they are no longer a spouse, but a former spouse.  So if you are separated, you can claim this remedy, but if you have a divorce certificate and you are legally divorced, you cannot claim this remedy. See our blog regarding Separation and Divorce for more info.

Common Law Spouses are similarly limited in their ability to utilize this remedy as they do not fall under the meaning of spouse in s. 1(1) of the FLA as described above.  However, this does not mean common law spouses cannot claim exclusive possession at all.  Common law spouses may be able to rely on the following:

  1. The common law spouse may have a trust claim towards the property that could result in an injunction, effectively allowing the spouse to remain in the home until the issue is resolved.[1]
  2. Under s. 34(1)(d) of the FLA, possession of the home could act as a form of support payment.
  3. Under a restraining order under s. 46(1) of the FLA or s. 35(1) of the Children’s law Reform Act. In which case, the possession of the home would be an effect of the Order, rather that the purpose of the Order.[2]

 

Proving the need for exclusive possession

Under these provisions, the person claiming exclusive possession needs to show that the evidence weighs heavily in their favour for the granting of the Order.[3] In Chrobok v. Chrobok, 2006 CanLII 27308, [2006] O.J. No. 3243 (S.C.J.), the wife claimed that she needed to remain in the home as it would be too traumatic for her children to move, and they were undergoing counselling at the time.  Ultimately, the wife failed to prove her argument for exclusive possession as she did not provide any supporting evidence from her children’s counsellor to support her position.

 

Occupation Rent

As a warning, if you are actually granted exclusive possession, you may then have to pay rent towards your former spouse who had to move out of the home!  Check back for future blog posts where I will discuss how this legal remedy works.

Information provided is for legal information purposes only and is not to be construed as legal advice.

[1] Perks v. Lazaris, 2016 ONSC 1356

[2] Perks v. Lazaris, 2016 ONSC 1356, para 27.

[3] Berdun v. Berdun, 2008 CanLII 23945, [2008] O.J. No. 2016 (S.C.J.); McEachern v. McEachern, [1994] O.J. No. 1544 (Gen.Div .); Tweed v. Tweed, [1990] O.J. No. 1440 (H.C.).

10 Year Anniversary Skating Party

Rabideau Law is excited to announce that we will be hosting a Family Skating Party on Saturday, March 23rd, 2019 in celebration of our 10 year anniversary! This event will be held at Lions Arena located at 20 Rittenhouse Rd, Kitchener, from 12 pm to 3 pm, and is open to all family, friends, affiliates, and clients of Rabideau Law, as thanks for ten years of support.

The past ten years have meant tremendous growth at Rabideau Law, with positions within the firm evolving and multiple new positions being created to further assist in our goal of making the legal end of real estate transactions as worry-free and convenient for our clients as possible.

This event also marks the bet settlement of our food drive in support of The FoodBank of Waterloo Region which occurs every November. Last November, our office was divided into two teams and competed to see which team could collect the most non-perishable food donations. Lawyer Roger MacIntosh and his team, having lost to my Souper Stars and being a good sport and accepting his fate, will be performing a skating routine at our skating party in support of The FoodBank. We do ask that all attendees consider bringing a non-perishable food item for the FoodBank.

We are excited to offer:

Light snacks and refreshments
Door prizes (attendance at the draw just before 3 pm required to win)
Full access to the ice rink
Face painting
Children’s entertainment by Erick Traplin
A full service photobooth

If you are wanting to attend, please keep in mind:

We are asking attendees to please bring a non-perishable for donation to The Food Bank of Waterloo Region
The rink will be cold! If you are wanting to skate, be sure to dress for it
Skates and Helmets can not be rented at the rink–please be sure to bring your own
If you have skate supports, please feel free to bring them

For any questions please contact Kayla at kkompter@rabideaulaw.ca

Can I secretly record my ex-spouse?

Can I Secretly Record My Ex-Spouse?

Seems like something you should be able to do right? If an ex-spouse is talking to the children, or anyone else, some parents try to record those conversations to use against the other spouse later on in legal proceedings.  What parents will need to be mindful of is that this may actually trigger parts of the Criminal Code (“CC”) regarding the invasion of privacy.

The part of the CC that is important here is s. 184(1) which states that:

184.(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

This is further clarified by s. 184.5(1) which provides that s. 184(1) includes things such as cellphones:

184.5 (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication (emphasis ours), if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

If the ex-spouse were to consent to the recording, then there would be no issue with the recording as per s. 184(2)(a) of the CC:

(2) Subsection (1) does not apply to

(a)  a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.

Parents usually do not get the consent of the ex-spouse to actually record conversations their conversations, so they resort to recording them secretly in order to try and get some dirt on the other spouse.

 

How do courts handle secretly recorded evidence?

In general, courts do not appreciate it when parents secretly record each other, then try to use that evidence against the other spouse in court proceedings.

However, even though the courts do not like to see this kind of evidence, it does not mean that they would not use it if it was important enough.

Justice Spence in Scarlett v. Farrell  2014 ONCJ 517 at para 31 provides us with a metric to go by; it will have to be determined if “the probative value [of the secretly recorded evidence] outweighs the policy considerations against such recordings, then the courts will admit them into evidence.” This means that if the courts find that the contents of the recording are important enough, the recording may actually be admitted into evidence for use against the spouse who was recorded, despite the fact that the recording was obtained illegally.

So how do we determine when a recording will be admitted into evidence? There must be a way for us to know that we can record the other spouse based on what they’re saying, especially when the safety of the child is at stake?

To use a tried and true legal expression: it depends.

The case law is split on this issue and again, this boils down to the specific facts of each case.  Ultimately, the judges have to use their discretion when weighing all the evidence to make a determination.

There is a three-pronged test that we can use to help determine whether the evidence will be admitted as described in Matthews v. Matthews, 2007 BCSC 1825, [2007] B.C.J. No. 2747 at para 70:

(i) There is a limited discretion to exclude relevant evidence, regardless of how it was obtained;

(ii) The judicial exercise of that discretion involves a balancing of competing interests; and

(iii) The court should consider whether the probative value of the evidence outweighs the prejudicial effect on the party opposite and/or the reputation of the administration of justice.

This provides a good starting point to understand how the law works on this issue.  For more context, refer to the caselaw below regarding the admissibility of secretly recorded information:

 

Secretly recorded tapes admitted into evidence:

A.F. v. J.W. sub nom. Fiorito v. Wiggins, 2015 ONCA 729, var’g 2013 ONSC 4272.

  • father secretly recorded conversations between himself and the mother during access exchanges
  • recordings showed that mother was contraveining court order’s when she claimed she wasn’t
  • court considered these recordings to go to the root of issue of whether or not the mother was continuing her emotional abuse of the children
  • Justice Harper at para 56 said:
    • “However, in far too many cases, like the matter before me, the goal of building of trust became masked by one party saying one thing in public and doing something very different when she thought the she was safe from scrutiny.”

D.M. v. C.W., 2017 ONSC 7070

  • mother wanted to move to Pennsylvania,
  • father made recordings during access exchanges
  • father could not “cherry-pick” what court heard, court had to play entirety of all recordings
  • court at para 38 found that:
    • “audio recordings met the test for admissibility in that they were relevant to whether it would be in the best interests of the child to move with C.W. to Pennsylvania, more specifically, whether that proposed move would frustrate the positive access between the child and D.M.; that the probative value (or benefit) of the evidence outweighed its prejudicial effect (or cost)”

Secretly recorded tapes are NOT admitted as evidence:

Turk v. Turk, 2015 ONSC 3165,

  • The wife’s conversations with the children were recorded without her knowledge, on phones that were provided to the children by the husband.
  • The children were 21 and 17 years of age and neither were in need of protection from the court.
  • Court found that the recordings were prejudicial to the wife and her ability to have a fair trial.

S.C. v. J.C., 2009 SKQB 87, [2009] S.J. No. 121,

  • Text messages accessed between mother and child
  • Father had copied the text messages from his daughter’s phone while she was asleep.
  • Court found that manner of obtaining relevant evidence does not affect whether it will be admissible or not.
  • Court had difficulty determining reliability of evidence as there was no way of knowing whether messages represented the entirety of the communication between mother and child, or if they were taken out of context.
  • Would be significant prejudice to administration of justice in family law proceedings if evidence of this kind was admitted regularly.
  • Mother regularly texted daughter, admitting this evidence would hamper mother’s ability to text daughter and reduce daughter’s trust in Father.
  • Court found that this result could be different if the daughter was at risk in some way.

 

Unequal Division of Net Family Property

Unequal Division of Net Family Property

When married spouses separate, s.5(1) of the Family Law Act (“FLA”) provides that there will be an equalization payment made from the spouse with the greater net family property to the spouse with the lesser net family property (see our blog post here for an introduction to how net family property and equalization work).

To briefly recap, the value of this equalization payment under s. 5(1) of the FLA is described as “one-half [the] difference between [the spouses]”.  Meaning the spouse with the greater net family property pays 50% of the difference to the spouse with the lesser net family property.

However, this equalization payment can be varied should the court find that the payment would be unconscionableS. 5(6) of the FLA provides us with the following criteria that could result in a varied equalization payment amount:

 

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable (emphasis ours), having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

 

The purpose for why this is allowed is described in s. 5(7) of the FLA:

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

What we can see in the language in s. 5(7) is that an unequal equalization payment is not something to be granted easily.  This will really only apply rarely and then only after carefully assessing the specific circumstances of each party to see if an unequal equalization payment would be appropriate.

Unconscionable

So what does unconscionable actually mean here? The court in Serra v Serra evaluated this term and provides us with the following guidance:

[T]he threshold of “unconscionability” under s. 5(6) is exceptionally high (emphasis ours). The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court[1] (emphasis ours).

Further caselaw helps to clarify the point by stating the following:

  1. “It is the financial result, the result of the usual NFP equalization, that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else”[2]
  2. “The term “shocking” indicates a situation or circumstances such as to shock the conscience where the party seeking relief has been put in a position so unfair as to cry out for redress. Accordingly, the word “unconscionable” must mean more than a mere consideration of “fairness” or “reasonableness”[3]
  3. “The conduct must relate to the accumulation of the net family property in some way. Even if the evidence established that the husband sexually assaulted the wife on the day before they separated, as alleged, the court could not impose a financial punishment on him by varying his share of the net family property, as that conduct was not related in any way to the property that the parties had on the date of separation”[4]

This helps us to understand the extreme level the financial circumstances of a spouse must reach before the unequal equalization payment will be considered by courts.  As stated in the third bullet point above, if the conduct of a spouse does not affect the financial situation of a spouse, that alone cannot affect a variation of an equalization payment.

If you are going through a separation right now, or are looking for information regarding separation, contact the professionals at Rabideau Law to see how we may be able to assist you.

This information was provided for information purposes only and is not to be construed as legal advice.

 

 

[1] Serra v. Serra, 2009 ONCA 105, 61 R.F.L.(6th) 1, var’g. 2007 CanLII 2809, 36 R.F.L.(6th) 66 (S.C.J.), Blair J.A. stated (at para. 47):

[2] Cosentino v. Cosentino, 2015 ONSC 271 (at para. 46)

[3] Heal v. Heal, 1998 CanLII 14896, 43 R.F.L.(4th) 88 (Ont.Gen.Div.).

[4] N.R.I.H. v. M.G.S.H. sub nom. Hamdy v. Hamdy, 2015 ONSC 3277 (at para. 291).

Child Support - Undue Hardship

Child Support: Undue Hardship

As discussed in the previous blog on child support, child support is generally seen as a non-negotiable support payment in the eyes of the court.  However, there are ways to alter child support payments.  This can be done through either a shared custody arrangement (see our blog post here), or by proving undue hardship.

S. 10(1) of the Federal Child Support Guidelines (the “FCSG”) provides an outline for how to approach an argument for undue hardship and also provides that either spouse may apply for it.  Just remember that whoever makes the claim has the onus of proving the claim (see caselaw Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.)).

S. 10(2) of the FCSG provides the circumstances that courts will recognize as causing undue hardship:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

As can be seen, the language here demonstrates that there must be a SIGNIFICANT type of burden placed on the spouse advancing the argument for undue hardship.  Even if the court agrees that there is undue hardship, they must still factor that with s. 10(3) of the FCSG which provides that the application must be denied if the court is of the opinion that the household of the spouse claiming the undue hardship is of a higher standard of living than the household of the other spouse.  It is not just hardship that must be proved, but UNDUE hardship (see Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)).

This means that all persons who reside with the spouse would likely have to be involved in the investigation as to whether there is an undue hardship; meaning their financial information would likely have to be produced.

See below for examples from caselaw regarding undue hardship:

Undue Hardship established:

Trebilcock v. Trebilcock, 2012 ONCA 452

  • Father appealed an order for lump sum child support of $150,000 – this support was based on his income of $75,000 which the Father contested
  • Mother made a claim for undue hardship and was successful
    • Mother was disabled, raising the children, children were reaching post-secondary education age, and she was on social assistance
    • Mother also received no support from the father since 2001
    • Father had received a large inheritance and dissipated a portion of his assets

Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.),

  • split custody between the parents
  • mother made claim for undue hardship
    • she was unemployed, blind, and her expenses exceeded her income
    • additionally, it was expected that her rent would increase in the near future

Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),

  • father applied for variation of child support
  • each party had one child in their care
  • the Child Support Guidelines (“CSG”) indicated that the mother should receive $60 instead of the $200 she was receiving
  • mother claimed undue hardship for daughter who was living with her
  • father didn’t see daughter often, mother had to take unpaid time from work due to daughter’s health problems
  • court found that mother would suffer undue hardship if only paid the guideline amount as the standard of living in her household was lower than that of the father’s

 

Undue Hardship NOT established

Ignacy v. Ignacy, 2005 CanLII 44413, [2005] O.J. No. 5264 (S.C.J.)

  • mother had custody of both daughters
  • sought child support higher than CSG provided due to undue hardship or in alternative an order for spousal support
  • Her gross income was $66,640 and father’s was $127,286
  • Court rejected her claim arguing that CSG amounts were not to be lightly interfered with
  • No allegation that children were not properly clothed or fed, no physical or emotional problems requiring extra time and expense to mother
  • Disparity in household income existed, but it was not significant
  • Mother did receive spousal support

Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)

  • father applied to have child support varied on basis that bother children were no longer dependent
  • mother argued she would suffer undue hardship if order was varied
  • claimed she would have to sell home, her costs were increased due to father’s failure to exercise access and that children would suffer
  • court ruled that although there was hardship, it was not UNDUE hardship
  • ultimately the court reasoned that they would be awarding her spousal support instead of child support

Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)

  • Father sought a reduction in child support since he had just started on long-term disability benefits
  • Mother had no employment income
  • court ruled that since the CSG does not take into account the recipients income, that fact alone was not enough to create undue hardship
  • court found there were no circumstances that made the Mother’s situation exceptional in this case

 

Caselaw

  1. Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.).
  2. Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)
  3. Trebilcock v. Trebilcock, 2012 ONCA 452
  4. Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.),
  5. Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),
  6. Ignacy v. Ignacy, 2005 CanLII 44413, [2005] O.J. No. 5264 (S.C.J.)
  7. Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)
  8. Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

Breakdown of Marriage: Physical and Mental Cruelty

Separation alone is difficult to deal with.  When the issues concerning adultery, physical and mental cruelty become involved, it can make a difficult situation that much worse.  If these concerns are a part of the separation between two spouses, courts here in Canada will implement a “no fault” regime.  This means that when a person’s rights are being determined in regards to: the children, child or spousal support, and property division, the fault of one party causing the breakdown of the marriage is usually not taken into consideration.

Courts will approach divorce in an objective manner; this generally means they do not look at the reasons for separation, and they won’t punish a spouse for their role in the breakdown of the marriage.

There are three reasons why a divorce can be granted:

  1. Separation;
  2. Adultery; and
  3. Physical and Mental Cruelty.

This blog post will focus on the third ground for divorce: physical and mental cruelty.  See our previous blog post for more information on the first ground of separation.

One thing to note here is that when seeking a divorce under the ground of separation, you have to wait at least one year.  An advantage of claiming a divorce under physical and mental cruelty is that you do not have to wait one year post separation in order to get your divorce.

Physical or Mental cruelty

If a party is claiming one of these grounds for divorce, they will have the onus of proving it on a balance of probabilities.  Trying to prove domestic violence in this regard can be difficult, costly, time consuming, and can be very emotionally draining.

Catherine Christopher in The Law of Domestic Conflict in Canada, identifies 4 different types of domestic violence:

  1. Physical
    1. Might be most readily identifiable – bruise patterns, fractured bones;
    2. Might be defined as including any kind of unwanted application of force, the use of which is intended to harm, threaten, or intimidate by one partner against another partner in an intimate relationship;
    3. Acts can include:
      1. pushing, pinching, slapping, hitting, punching, hair pulling, twisting limbs, restraint of movement and choking – this list is not exhaustive.
  2. Emotional
    1. Understood to be an act of unkindness or cruelty by one person calculated to threaten, intimidate, diminish or belittle another person in an intimate relationship;
    2. Can include:
      1. name-calling, yelling, screaming, belittlement of one’s body and ability, threats to harm partner, children, friends, family members or pets; physical abuse of pets; destruction of property including items of clothing or precious gifts; threats of suicide; acts of attempted suicide, particularly in the presence of children or a partner.
  3. Sexual
    1. Criminal code defines sexual assault and related offences in fairly specific terms;
    2. Possible to define certain acts as sexual abuse within confines of a relationship;
    3. Acts can include:
      1. enforcing a dress code, bringing unwanted pornography into home, forcing an unwilling partner to watch pornography, forcing unwanted sexual acts, forcing unwanted sexual acts with others, belittling sexual performance and body type, withdrawing sexual involvement or affection, and making unwanted overtures in public;
    4. Sexual abuse may also be said to be emotionally abusive conduct.
  4. Financial
    1. Can be defined as unwanted aggression, control and/or domination committed by one partner against another involving money or financial resources;
    2. If one partner controls all of the financial resources to exclusion of other against their will, then abusive element emerges;
    3. Acts can include:
      1. failing to share money, purchasing all food and clothing, limiting or restricting entirely all access to financial resources or to information regarding financial resources, failing to provide essentials such as food, clothing and medical treatment.

In order for the physical and mental cruelty to be used as a reason for divorce, it must be “of such kind as to render intolerable the continued cohabitation of the spouses.”  See the language in s. 8(2)(b)(ii) of the Divorce Act.  This is a high bar to meet and will require diligent evidence production in order to satisfy the court that the abuse meets that bar.

Should the court find that the abuse does meet that high bar, the abuse does not impact the amount of money paid in spousal or child support.  However, this conduct by one spouse can affect custody and access arrangements as is discussed in our blog post here.

Sources:

  1. Catherine Christopher, The Law of Domestic Conflict in Canada, vol. 1 (Toronto: Thomson, Carswell, looseleaf – updated to 2016, Release 2) (at 1-12.1).

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

LGBTQ Parents and Custody and Access

One fear that some parents may have is whether their LGBTQ status might affect their rights when it comes to Custody and Access.  Thankfully, this is not in and of itself a ground to refuse custody or access to a parent as the case law below will demonstrate.

Custody

As mentioned in our last post regarding conduct that can affect custody or access, what courts will want to see is whether the conduct of the parent impacts the best interest of the child.

What courts will do is consider a parent’s LGBTQ orientation among other factors to make a determination about a person’s ability to parent.  They will look at whether that orientation actually affects the healthy development of the child.  The Courts in Bezaire v Bezaire had the following to say at para 18 of the decision:

“In my view homosexuality, either as a tendency, a proclivity or a practised way of life is not in itself alone a ground for refusing custody to the parent with respect to whom such evidence is given. The question is and must always be what effect upon the welfare of the children that aspect of the parent’s make up and lifestyle has, and it will therefore be a question of evidence in that very case as to whether what has been shown to exist has or may tend to have effects adverse to the welfare of the children.”

In addition to this, the court in Re K states the following:

“There is, in short, no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than families with homosexual parents.”

What we can see from this is that courts are very clear in stating that sexual orientation alone is no ground in and of itself that negatively impacts on a person’s ability to parent their children, meaning that LGBTQ parents are recognized as equally capable as heterosexual parents when it comes to decisions regarding custody.

Access

The same principles apply when courts make decisions regarding access to children.  Again, the courts are going to make a determination on whether a parent’s LGBTQ orientation, as well as other facts, affects the child’s best interest.

For example, the courts in Templeman v Templeman found that an openly gay lifestyle was not a reason in and of itself to restrict access or require that it be supervised.  In Templeman, psychiatric evidence was produced that showed conclusively that the father had a strong loving bond with his children, and that his gay lifestyle posed no risks in harming his children.

Caselaw

  1. Bezaire Bezaire (1980), 20 R.F.L.(2d) 358 (Ont.C.A.);
  2. Re K (1995), 15 R.F.L. (4th) 129 (Prov.Div.):
  3. Templeman v. Templeman, [1986] W.D.F.L. 233, 2 A.C.W.S.(3d) 294 (B.C.S.C., Dec. 22, 1986).

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

Bill C-45 and Real Estate Presentation

In response to Bill C-45 recently taking effect, Geoff Rabideau has taken some time to put together a presentation outlining what we do currently know about the laws surrounding Cannabis in Ontario, and what some of the potential changes may be that we will notice in respect to real estate.

To view/download the PDF, please click below:

Bill C-45 and Real Estate_brokers

Please keep in mind that this is being provided for informational purposes only and is not to be taken as legal advice, and that the specifics of the Cannabis Act will continue to evolve in the coming months and years in response to the outcome the law has on Canada and Ontario.

 

Past Conduct of Parents in Determining Custody and Access

Can the Past Conduct of a Parent be Used to Determine Custody and Access?

I have had clients in the past come to me with this question wondering if they could use the behaviour of their former spouse as evidence that custody or access should be limited as a result of their actions. While this could be true, generally it will only matter where those actions have an effect on their ability to parent the child.

Let’s look a little closer at what this actually means.

First, we need to have a refresher on the “Best Interests of the Child” under s. 24(2) of the Children’s Law Reform Act (“CLRA”). From here, we can now look at how past conduct of a spouse may be factored into that list under s. 24(2).

24(3) of the CLRA shows us that past conduct can be considered but ONLY in relation to custody or access and ONLY THEN in accordance with s. 24(4) of the CLRA. The language in these sections identifies that the conduct will be considered only if the conduct is relevant to the person’s ability to act as a parent (s. 24(3)(b)), and also if there was violence or abuse against the spouse, parent of the child, member or persons’ household, or any child (s. 24(4)).

Keep in mind that anything done in self-defence or to protect another person does not fall under this category of violence or abuse mentioned above (see. S 24(5)).

The Divorce Act (“DA”) also makes mention of these issues under s. 16(9), where again they show that the past conduct is not relevant unless it affects the persons’ ability to act as a parent.

Let’s take adultery as an example.  Somerville v. Somerville is one such case where the extra-marital affair of the husband resulted in the end of the marriage.  What the court found was that the affair only spoke to the husband’s ability as a spouse, NOT his ability to act as a parent to his child.  Therefore it was not a relevant consideration when determining custody or access.


Relevant Parental Conduct

When determining custody or access, courts start with relevant parental conduct to determine who the custodial parent would be and who would be entitled to access.  These initial relevant considerations could include, but is not limited to:

  1. Who has been making the decisions for the child?
  2. How often does the child see each parent currently?
  3. Who prepares the food and clothing for the child?
  4. Who arranges after school activities etc?

Adjusting Terms of Access

After the initial assessment, courts will then see if the conduct of the parents should be considered to see how the terms of access might change such as: frequency, duration, supervision, overnight access, or even if access should be denied.

To support this analysis under s. 24 of the CLRA, Justice Dunn in T.(R.R.) v. T.(G.) considered the use of additional factors:

  1. the non-custodial parent’s acceptance of the custodial parent’s responsibility for the child’s discipline and conduct;
  2. the non-custodial parent’s punctuality, attendance and behaviour on access visits;
  3. the non-custodial parent’s attempts to keep informed of the child’s current events, health and achievements;
  4. the non-custodial parent’s attempts to help the child adjust to returning to the custodial parent; and
  5. the non-custodial parent’s sensitivity to time limitations on the visit.

Sample Case T.(R.R.) v. T.(G.)

In T.(R.R.) v. T.(G.),  the father was denied access because he:

  1. Repeatedly showed up for visits drunk;
  2. Left multiple threatening messages on the mother’s answering machine;
  3. Acted inappropriately during his access visits;
  4. The children didn’t want to visit with the father; and
  5. The children were in a better emotional state when they did not see the father.

Here we can clearly see that the conduct of the father was directly affecting his ability to parent the children.

As a final note, I would like to point out that no parent has an inherent right to access to the child simply because they are the biological parent, nor do they have any proprietary rights or even domain over their child.  See Montgomery v. Montgomery, where the court was clear in showing that no biological link should be permitted to surpass the best interests of the child.

 

Case Citations:

  1. Somerville v. Somerville, 2007 ONCA 210, [2007] O.J. No. 1079, 2007 CarswellOnt 1697, 36 R.F.L.(6th) 7
  2. (R.R.) v. T.(G.), [1994] O.J. No. 2453
  3. Montgomery v. Montgomery, [1992] O.J. No. 2299, 42 R.F.L.(3d) 349 (C.A.) (at 360 [R.F.L]

 

Legal Disclaimer that this is information only and not to be construed as legal advice.

Is Probate really necessary? Not if it is the “First Dealing” of the Property since Conversion

Several years ago the Province of Ontario changed from the Registry System to the Land Titles Conversion Qualified (LTCQ) system for the registration and searching of real estate title (ownership).  The Registry Systems was a paper system, whereas, the LTCQ system is an electronic system, which provides efficiency in searching and registering title and provides assurances that the title registered is valid title, due to the fact that there is no concern of duplicate entries, as was prevelant in the paper Registry System.

If a transfer or sale of a property is being completed and a deceased party is registered on title it is important to know whether or not probate is required to be completed, as the cost savings from not having to complete probate can be substantial.

It is important to know that probate does not have to be completed on a property where it is the first dealing of the property since it has been converted from the Registry System to LTCQ.

The First Dealings Exemption is available in instances where the deceased party on title acquired the property while it was registered under the Registry System and continued to be registered on title, uninterrupted, after it was converted to LTCQ. This First Dealings Exemption would continue to apply as long as the deceased did not transfer their ownship of the property, so the fact that they registerd and discharged mortgages after they acquired the property would have no effect.

The First Dealings Exemption would continue to apply in the instance that a joint tenant, who was registered on title previously with the recently deceased, passes away and a survivorship application was completed to transfer the title solely into the ownerhsip of the recently deceased. Lastly, transfers of title between spouses due to the breakdown of the marriage would not result in the First Dealings Exemption being lost. However, if there is no valid Will and Last Testament then such discrepancy will vitiate the usage of the First Dealings Exemption.