Our previous blog post on spousal support dealt with how spousal support is calculated, specifically the amount of spousal support and the duration of its payment. I also made mention to the Spousal Support Advisory Guidelines (“SSAG”) and how they influence the calculation of spousal support in Ontario.
In this post, we will be delving deeper into the different types of spousal support and how they are determined when parties separate. It will focus mostly on married spouses and on the legislation that guides how spousal support is determined. Two significant cases helped cement the two types of spousal support:
- The leading case on compensatory support: Moge v. Moge, 1992 CanLII 25,  S.C.J. No. 107, 1992 CarswellMan 143; and
- The leading case on non-compensatory support: Bracklow v. Bracklow, 1999 CanLII 715,  S.C.J. No. 14, 1999 CarswellBC 532.
S. 15.2 of the Divorce Act (“DA”), states the entitlement to spousal support.
S. 15.4 of the DA provides the factors to be considered:
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
And s. 15.6 of the DA provides the objectives of a spousal support order:
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time [Emphasis added].
This is all well and good for married couples, but does this apply to common law spouses as well? See our previous post regarding the difference between common law and married spouses for more information.
The Common Law Spouse
The Family Law Act (“FLA”) also has spousal support provisions. S. 30 of the FLA provides the eligibility for spousal support while s. 33(8) provide the purpose for spousal support, s. 33(9) provides us with the factors to determine support, and finally s. 33(10) provides us with how spousal misconduct is factored in regarding its relevance.
Under the FLA, need is a determinative factor for awarding spousal support. It also does not require proof of economic loss or disadvantage caused by the cohabitation.
The Case Law – Moge v. Moge – Compensatory Spousal Support
Courts recognized that divorce can have economic effects on the parties, especially against the wife. Looking at the DA, Justice L’Hereux-Dube found that entitlement to spousal support is based on compensation. The language of the DA as provided above indicates that a court should look at the economic disadvantages and advantages that resulted from the marriage or separation, consider economic disadvantages resulting from caring for children outside of child support, and to alleviate financial hardship resulting from the marriage.
Spouses are obligated to become self-sufficient, but this is only one factor a court will consider. Also, compensatory support is not appropriate in every case. To determine if spousal support should fall under this category, a court will look at whether a spouse suffered financial disadvantages during the marriage while the other spouse received economic benefits. Long term compensatory support would be appropriate in these instances where a former spouse would likely continue to suffer those economic disadvantages suffered during the marriage and its dissolution.
The Case Law – Bracklow v. Bracklow – Breaking down the three types of spousal support
Here, the court recognized that the DA provides for the three types of spousal support obligations:
A judge would need to consider all types, and an order may even include all three, if appropriate. They further recognized that, although compensation and encouraging self-sufficiency were important elements to consider on the breakdown of a marriage, if compensation was not described, and if self-sufficiency is not possible, a support obligation may arise from the marriage relationship itself. As such, need alone may be enough to warrant spousal support. Previous to Bracklow, support had been denied because the applicant did not suffer any economic disadvantage due to the marriage.
Essentially, what this means is that a spouse does not have to prove they suffered an economic disadvantage during the marriage, indicating they should be compensated for that disadvantage. Just simply showing they need assistance with monthly bill payments, etc., now that the relationship has ended could be enough.
No Spousal support until Equalization determined
It is important to note that spousal support has to be calculated after the parties have determined the Equalization payment as failure to do so would be an error (see previous blog post for more details on equalization and how it is calculated). Basically, if the equalization payment is sufficient to meet the recipient spouse’s needs, no spousal support should be awarded.
From this case law and the legislation, we can describe the types of spousal support as follows:
- What parties agree to in a contract, i.e. a separation agreement (see our previous blog post for more details on separation agreements).
- Based on an economic loss suffered by one spouse due to the roles each spouse played during the marriage so that the other spouse could receive an economic benefit;
- Common elements that could result in this type of spousal support include: staying at home with children on full- or part-time basis, being a secondary earner in the home, having primary care of children AFTER separation, moving for the other spouse’s career, supporting the payor’s education or training, or even working primarily in a family business.
- Mostly means an inability for a spouse to meet their basic needs (monthly bills, etc.), but it can also mean that a former spouse will need to be supported now that there is a decline in their standard of living from the marital standard;
- Common elements here that could result in this type of support are: length of the relationship, drop in standard of living after separation, and the economic hardship experienced by the former spouse
This blog is intended for legal information purposes only and is not to be construed as legal advice.
 Greenglass v. Greenglass, 2010 ONCA 675,  O.J. No. 4409, 2010 CarswellOnt 7761, var’g 2009 CanLII 39995 (S.C.J.).
 Linton v. Linton, 1990 CanLII 2597,  O.J. No. 2267, 1990 CarswellOnt 316 (C.A.).
In my last blog post I discussed the concept of exclusive possession and how a spouse may be able to claim such a remedy.
S. 24(1)(b) of the Family Law Act (“FLA”) provides for the remedy of exclusive possession that applies to MARRIED SPOUSES. This section provides that:
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;
Once this order for exclusive possession has been granted by the court, the party who is not residing at the home may then be able to receive an order for Occupation rent. See s. 24(1)(c):
(c)[The Court may] direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
Now this is interesting. If a married spouse is granted exclusive possession of the home, they may then be required to pay occupation rent to the other spouse!
The order of events is important here. First there has to be the Order granting exclusive possession to one spouse, THEN there can be an Order requiring that person with possession to pay occupation rent to the other spouse.
Factors for determining occupation rent
Occupation rent is what is known as an equitable remedy. In order to determine if someone should be entitled to receiving occupation rent, the courts will want to evaluate if there is a justifiable reason to provide this remedy. The court will do this by looking at some factors as discussed by Osborne A.C.J.O. in Griffiths v. Zambusco, 2001 CanLII 24097, 54 O.R.(3d) 397 (C.A.) at para 49. Keep in mind that these factors can vary from case to case:
- The timing of the claim for occupation rent;
- The duration of the occupancy;
- The inability of the non-resident spouse to realize on her equity in the property;
- Any reasonable credits to be set off against occupation rent;
- Any other competing claims in the litigation.
Justice Quinn in Higgins v. Higgins, at para 53 provides us with an even more detailed list for evaluation:
From the cases I have reviewed, I note the following may be relevant considerations when determining the appropriateness of an order for occupation rent:
(a) the conduct of the non-occupying spouse, including the failure to pay support;
(b) the conduct of the occupying spouse, including the failure to pay support;
(c) delay in making the claim;
(d) the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;
(e) whether the non-occupying spouse moved for the sale of the home and, if not, why not;
(f) whether the occupying spouse paid the mortgage and other carrying charges of the home;
(g) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;
(h) whether the occupying spouse has increased the selling value of the property;
(i) ouster is not required, as once was thought in some early decisions.
Common law Spouses
In my exclusive possession blog post linked above, I discussed how Common Law spouses do not have the same protections that Married spouses do under the Family Law Act. This same principal is true regarding occupation rent.
Common law spouses must rely on the common law in order to claim exclusive possession or occupation rent. As stated above, married spouses first need an Order for exclusive possession before the other spouse can claim occupation rent.
There is no need to demonstrate co-tenancy for an ex-married spouse to claim exclusive possession or occupation rent; however, a common law spouse is required to demonstrate [co-tenancy]; i.e., that they are an owner of the property, OR that they have an equitable interest in the property.
What this means is that the common law spouse has to show they have an ownership interest in the property, or that they put some value towards the property that would entitle them to an ownership interest. Without this, the common law spouse is unlikely to have a claim for exclusive possession or occupation rent.
Also, in order to claim occupation rent, a common law spouse must show there was Ouster. This principal essentially means that a spouse has to be ejected from the property to claim occupation rent. See the following definition from Crawford v. Crawford,  O.W.N. 781 as follows (at 784):
… In the case of joint tenants or tenants in common the claim [for occupation rent] is founded on ouster or ejectment, for they stand in no contractual or landlord-and-tenant relationship to each other …. The right to recover for use and occupation is by way of damages, upon the case for ejectment and trespass. I hold that in the case of joint tenants the right to recover for use and occupation is on the same basis.
How do we calculate occupation rent?
The general approach taken by courts is to begin by assessing the appraised rental value for the property at the time that an individual has exclusive possession of the property. The courts will then consider the responsibility of the parties towards the upkeep of the home, which can include, taxes, utilitites and other carrying costs of the home.
This demonstrates that the occupation rent payable by one spouse to another can vary depending on the home, mortgage, and upkeep costs of the home itself. This will have to be assessed on a case by case basis.
Occupation Rent Awarded
Rogers v. Rogers, 2018 ONSC 2381
- couple married for seven years with two children
- children remained in matrimonial home with mother after separation
- children would live with father three days a week
- mother was contributing to taxes and routine maintenance only
- property value could attract rent of about $3-4 thousand
- divide by two and taking into account father’s responsibility for half of upkeek, court order mother to pay father $1000 a month
Hollaway v. Devenish, 2009 CanLII 64833,  O.J. No. 5008 (S.C.J.)
- home purchased as joint tenants during common-law relationship
- she moved from home while he continued to occupy
- she agreed that he was entitled to reimbursement for expenses of home, but not utility expenses tenant would pay
- generally as common law, have to show there was ouster
- however, exception to that rule where requirement for ouster not needed for common law couple, where party who remains in possession claims for a reimbursement of expenses
- person remaining in home not allowed to claim reimbursement for expenses, but then not pay occupation rent
Occupation Rent Denied
Busko v. Israel, 2018 ONSC 5842,
- wife claimed occupation rent
- however, no claim for exclusive possession was made, nor was there an order for it
- wife voluntarily left home, title to home solely in name of husband
- no constructive trust or resulting trust claimed by wife
- no occupation rent awarded
Ombac v. George, 2015 ONSC 1938,
- common law wife awarded 50% beneficial interest in home,
- common law husband lived in home since separation
- wife left home voluntarily, had a key to the residence, and didn’t seek occupation rent until 7 years after leaving the home
- she was also violent towards the husband and made no financial contribution to the residence after leaving
- no occupation rent awarded
Information provided is for legal information purposes only and is not to be construed as legal advice.
 Higgins v. Higgins, 2001 CanLII 28223, 19 R.F.L.(5th) 300 (Ont.S.C.J.); Wimalaratnam v. Wimalartnam, 2010 ONSC 4491; Chowdhury v. Chowdhury, 2010 ONSC 781.
 Jones v. Jones, 2000 CanLII 22524, 8 R.F.L.(5th) 107 (Ont.S.C.J.); Cerenzia v. Cerenzia, 2015 ONSC 7305 (at para. 79).
 Ricciuto v. Lecuyer, 2011 ONSC 6070 (Div.Ct.).
 Khan v. Khan, 2015 ONSC 6780, 2015 CarswellOnt 16622
 Rogers v. Rogers, 2018 ONSC 2381
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?
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:
- 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.
- Under s. 34(1)(d) of the FLA, possession of the home could act as a form of support payment.
- 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.
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. In Chrobok v. Chrobok, 2006 CanLII 27308,  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.
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.
 Perks v. Lazaris, 2016 ONSC 1356
 Perks v. Lazaris, 2016 ONSC 1356, para 27.
 Berdun v. Berdun, 2008 CanLII 23945,  O.J. No. 2016 (S.C.J.); McEachern v. McEachern,  O.J. No. 1544 (Gen.Div .); Tweed v. Tweed,  O.J. No. 1440 (H.C.).
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,  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,  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.
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 unconscionable. S. 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:
(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.
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” (emphasis ours).
Further caselaw helps to clarify the point by stating the following:
- “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”
- “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”
- “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”
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.
 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):
 Cosentino v. Cosentino, 2015 ONSC 271 (at para. 46)
 Heal v. Heal, 1998 CanLII 14896, 43 R.F.L.(4th) 88 (Ont.Gen.Div.).
 N.R.I.H. v. M.G.S.H. sub nom. Hamdy v. Hamdy, 2015 ONSC 3277 (at para. 291).
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:
- Adultery; and
- 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:
- Might be most readily identifiable – bruise patterns, fractured bones;
- 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;
- Acts can include:
- pushing, pinching, slapping, hitting, punching, hair pulling, twisting limbs, restraint of movement and choking – this list is not exhaustive.
- 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;
- Can include:
- 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.
- Criminal code defines sexual assault and related offences in fairly specific terms;
- Possible to define certain acts as sexual abuse within confines of a relationship;
- Acts can include:
- 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;
- Sexual abuse may also be said to be emotionally abusive conduct.
- Can be defined as unwanted aggression, control and/or domination committed by one partner against another involving money or financial resources;
- If one partner controls all of the financial resources to exclusion of other against their will, then abusive element emerges;
- Acts can include:
- 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.
- 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.
Should you determine that your relationship is over and that you wish to get divorced, you will need to follow the process outlined below in order to officially terminate your marriage. If you are unsure about the nature of your relationship, take a look at our previous blog posts regarding Common law vs. Marriage and Separation and Divorce for a background regarding what is required in order to be eligible to get divorced.
Generally, the reason a divorce is granted is because two married persons have been separated for a year. However, you do not need to actually wait for a year of being separate before you can begin the divorce process. You will just have to wait until the year is up before a judge can grant you a Divorce Order. Be aware that if you reconcile the relationship for more than 90 days you will have to start the year separation period over again- (see separation and divorce article for more information). If you are getting divorced as a result of adultery or physical or mental abuse, then you do not need to wait for a year for the Divorce Order to be granted. However, you will need to provide documentation or other evidence to support your claim for adultery, physical or mental abuse as a reason for breakdown of marriage.
Both spouses do not need to agree to the divorce, either spouse can apply for it. However, if one spouse brings the application for divorce, the other spouse has the ability to contest it, see s. 8(1) of the Divorce Act (“DA”) and Rules 8 and 10 of the Family Law Rules .
One final thing to be mindful of is that judges will not grant a divorce if they believe that no reasonable arrangements have been made to support the children of the marriage, see s. 11(1)(b) of the DA.
Can I get Divorced if I’m not a Canadian Citizen?
Yes. Canadian citizenship is not a requirement for divorce in Canada. However, it is required that you or your spouse have been living in a Canadian Province for at least 1 year preceding the divorce, see s. 3(1) of the DA.
Things to Consider when Getting Divorced
Before getting divorced, it’s important to think about the following family matters:
- Custody and Access for children;
- Child and Spousal support;
- Property Division including things such as:
- Who gets the matrimonial home?
- How to split pensions;
- What happens to bank accounts?
- Who pays off any existing debts?
These issues can be dealt with in a separation agreement instead of through court which can save a lot of time and money. Judges will take separation agreements seriously and are unlikely to overturn items in the agreement unless there are deficiencies with the agreement or information was not disclosed (see our previous post on separation agreements for more information). Judges also have the ability to make decisions on the above noted matters before a divorce is finalized through Endorsements and Orders. It is best to speak to a lawyer regarding your rights and obligations to ensure that you are properly protected during the divorce process.
3 Different ways to Approach a Divorce
Depending on your particular circumstances, you have three options available to you should you wish to proceed with a divorce:
- General Application;
- This approach is taken when the parties cannot agree on how family matters should be resolved;
- Simple Application;
- You make this application where the ONLY THING you are claiming is a divorce;
- Joint Application;
- You can take this approach when both you and your ex spouse consent to a divorce and bring the application together;
- You can also bring a joint application where you both agree on all family matters.
What will I need to begin the Divorce Process?
This will depend on what type of application you bring. Different applications require different forms depending on your particular circumstances and what issues are contested between you and your ex spouse. It is highly advised that you speak with a lawyer to determine which forms you will need to ensure you are properly protected. See this link for a list of Family court documents that you can review – http://ontariocourtforms.on.ca/en/family-law-rules-forms/.
One document that you will have to have is you marriage certificate. If your marriage certificate is in another language you will have to get it translated. If your spouse is deceased you will need proof of death.
Documents you generally need for a Divorce include:
- Form 8 Application;
- Form 6B Affidavit of Service;
- Form 36A Affidavit of Divorce;
- Form 25A Divorce Order.
If there are outstanding family matters that need to be deal with, you might also need the following:
- Form 13 or 13.1 Financial Statements if support or property are contested;
- Support Deduction Order;
- Form 35.1 Child Custody and Access.
Is there a time limit for me to apply for a Divorce?
There are no time limits (what are called limitation periods) to apply for a divorce. Nor are there limitation periods to apply for child or spousal support. However, spousal support is based heavily on need; if you do not apply for spousal support for several years a judge may be inclined to see that you do not need support and may not grant it. Child support is the right of the child and courts will uphold this very strictly. See our posts on spousal support and child support for more info.
Also, there is no limitation period on custody and access applications. You must be mindful of something called the status quo however. Judges do not want to disrupt a child’s stable home environment and are less likely to change it if their current situation has been in place for some time.
There are limitation periods for an equalization payment (see previous post for more information). These limits under s. 7(3) of the Family Law Act are as follows:
An application regarding an equalization payment cannot be brought after:
- 2 years after day of Divorce of annulment;
- 6 years after separation and there is not prospect they will resume cohabiting;
- 6 months after death of a spouse.
Do I need a Lawyer in order to get Divorced?
No. You can bring the application yourself, or jointly with your spouse without the aid of a lawyer. However, it is always best to seek the counsel of a lawyer specializing in family law to ensure all your rights are protected, ESPECIALLY when there are a lot of issues between you and your ex spouse that you do not agree on. Lawyers have the expertise with the law and court procedure to ensure that the divorce can move ahead as smoothly as possible.
Even if it is a simply divorce, having a lawyer support your through the process can greatly reduce stress and complications.
When does the Divorce actually take effect?
31 days after the date on which judgment granting the divorce is rendered, see s. 12(1) of the DA. Generally, this means you have to:
- Start the application by filing and issuing appropriate documents for divorce;
- Serve other party and wait to see if they respond (minimum of 30 days after serving your ex spouse);
- File the affidavit for Divorce and Divorce Order for the Judgment if no response from your ex spouse;
- Wait for Judge to provide the Judgment granting Divorce and to sign the Order;
- Wait 31 days after the date of the signed Order.
This process usually takes a few months but can be much longer depending on how litigious both parties are. If you are granted the Divorce, s. 13 of the DA states that it is effective across all of Canada.
Furthermore, s. 12(7) of the DA states that the court must provide you with a Divorce certificate if you request it that can be effective as of a specified date.
Can I change the Divorce Order?
Once that 31 day period after the Order is signed by the Judge passes the Divorce is final. However, this does not mean that you cannot revisit certain items such as custody, access, or support. These items can always be changed should both parties consent to any changes or the court deems it just. This is because income can change, spouses may want to move or any other material change that may require a change to the arrangements in place at the time of divorce.
Contact our knowledgeable staff here at Rabideau Law to see how we can assist with any divorce or family law issues you may have.
Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation.
On separation, parties often have to make hard decisions regarding how they will split assets, who will pay support, and how they will move on from the relationship. At this time, one of the most contentious and difficult items to deal with is the Matrimonial Home. Who gets to keep it? Will the kids remain there? Do we have to sell it? How much equity do we each get?
The matrimonial home is such a significant asset of the marriage that there is a whole section of the Family Law Act (FLA) devoted just to it (see part 2 of the Family Law Act)
Keep in mind that these provisions only apply to Married spouses (see CL vs. Married spouse post). Common law couples only have property rights as far as their title interest goes. If you are common law, and you are not on title to the property, you will have to consider other equitable remedies such as a constructive trust or resulting trust claim through litigation if you want a part of the home.
First, it’s a good idea to understand what the matrimonial home is. S.18(1) of the FLA defines a matrimonial home as:
Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
What’s interesting here is that more than one home can qualify as a matrimonial home. This means that if you own a cottage that the family uses regularly at the time of separation, this could be considered a matrimonial home as well.
So what if you moved into a home different from the one you lived in when you got married? Remember that this rule applies to properties that at the time of separation were ordinarily occupied by the person and their spouse. Any other property you owned during the marriage that you no longer live in ordinarily is treated differently.
What if you have property outside of Ontario? Do we apply the same “matrimonial rules”? Unfortunately no. This rule only applies to homes in Ontario as s. 28(1) of the FLA indicates.
What rights do I have to the Matrimonial Home?
Under the FLA s. 19(1) – both spouses have an equal right to possession of the matrimonial home, regardless of who is on title to the home (the owner). This is a right not against the home itself, but against the other spouse. This doesn’t mean that you have a right to take title to the home, but that you can enforce a right to live in the home through courts via an order for exclusive possession.
This remedy is provided under s. 24(1) of the FLA. This is an extreme measure. This is an order from the court saying one spouse has to leave their own home; a place where people build their lives and find security, which is a significant reason why the matrimonial home has its own section under the FLA.
- 24(3) of the FLA provides criteria the courts will consider when granting an order for exclusive possession:
- the best interest of the children affected;
- Any existing orders under Part 1 (family property) and any existing support orders;
- The financial position of both spouses;
- Any written agreement between the parties;
- The availability of other suitable and affordable accommodation; and
- Any violence committed by a spouse against the other spouse or the children.
You also have a say in how the matrimonial home is to be disposed of or encumbered under s. 21(1) of the FLA. Even if you are not on title, your ex spouse cannot sell the home, transfer it, or refinance it without your consent.
You are also entitled to the value of the home and how that is distributed. See our post on equalization to understand how the home and other assets are distributed on separation.
Equalization is a payment from one spouse to the other at the end of a marriage. This equalization payment ONLY applies to married spouses, not to common law spouses. S. 5(1) of the Family Law Act (“FLA“) provides for Equalization when:
- A divorce is granted;
- Marriage is declared a nullity;
- When (married) spouses are separated and there is no reasonable prospect they will resume cohabitation.
One thing I often hear clients ask is whether they have to split 50% of everything. While somewhat true, it is not entirely accurate. The real definition of division according to s. 5(1) of the FLA is as follows: “the spouse whose net family property is the lesser of the two net family properties is entitled to a one-half difference between them”.
In simpler terms, separated spouses are entitled to 50% of the value of the marriage. So how is that value determined?
Marriage and Valuation Date
First we need to understand what Net Family Property (“NFP”) is and how to calculate it. S. 4(1) of the Family Law Act defines NFP as all property that a spouse owns on the valuation date (i.e. separation date) after deducting:
- Debts and other liabilities; and
- Value of property OTHER THAN A MATRIMONIAL HOME owned on date of marriage.
Therefore we have two dates that are important in determining equalization:
- The valuation date; and
- The date of marriage.
The date of marriage is simply the date you got married and does not include any cohabitation before marriage. Spousal support may factor in cohabitation periods before marriage however. See our post on spousal support for more info by clicking here.
The Valuation date is essentially the date the marriage ended, or the date the parties separated. It is defined under s. 4(1) of the FLA as:
- The date you separate;
- Date the divorce is granted;
- Date marriage is a nullity;
- Date one of the spouses commences an application based on improvident depletion that is subsequently granted; or
- Date before the date on which one of the spouses dies leaving the other spouse surviving.
Once we have those two dates, we can begin figuring out how much your Net Family Property (“NFP”) is.
Calculating Net Family Property for Equalization
When determining the Net Family Property (“NFP”) of persons who are ending their marriage, we need to look at two important dates: the marriage date and the valuation date.
Let’s pick two dates to help figure out the NFP:
- Jane and John married on October 1, 2010;
- Separated on February 1, 2018.
That’s almost 8 years of marriage. You’ll see here that February 1, 2018 is the date of separation, which fits under the definition of Valuation date in s. 4(1) of the FLA.
Now, we take the value of all assets that both parties own on the valuation date, subtract their debts owned at valuation, and finally subtract the value of any property owned on the marriage date.
|John’s Assets on Valuation Date||Car – $25,000
Personal Bank Account – $3,000
$4,000 in Joint account with Jane (50%) – $2,000
Investment Account ending in 1010 – $170,000
Total = $200,000
|John’s Debts on Valuation Date||Loan from Friend – $50,000
Total = $50,000
|Property Owned at Marriage||Investment Account ending in 1010 – $100,000
Total = $100,000
|Calculate Final Total
– Property at marriage
|Jane’s Assets on Valuation Date||Car – $20,000
Personal Bank Account – $2,000
$4,000 in Joint account with John (50%) – $2,000
RRSP – $6,000
Matrimonial Home – $320,000
Total = $350,000
|Jane’s Debts on Valuation Date||Line of Credit – $50,000
Mortgage – $100,000
Total = $150,000
|Property Owned at Marriage||Matrimonial Home – $220,000
Total = $220,000
|Calculate final total:
– Property at marriage
can’t subtract Mat Home
So, something interesting happened here. Jane’s name is the only one on title to the home and it was valued at $220,000 when they got married. She should be able to deduct that home from the valuation date value right?
Remember, you subtract property owned at the date of marriage from your valuation date EXCEPT for the matrimonial home. So Jane has to include the entire value of the home regardless of how much it was worth at marriage.
We’re almost there. The language of the equalization rule is: “the spouse whose net family property is the lesser of the two net family properties is entitled to a one-half difference between them.”
– John’s NFP
|Difference divided by 2||$150,000/2|
|Equalization Payment or, the one half difference||$75,000|
In this instance John, who is the lesser of the two net family properties, is entitled to the one half difference between them, $75,000.
Therefore Jane makes an equalization payment of $75,000 to John. With that, John would have $125,000 and Jane would have $125,000. They are equalized.
You also have the ability to exclude other property on the valuation date other than just debts under S. 4(2) of the Family Law Act.
These include things such as:
- Property acquired by gift or inheritance after marriage date
- Income from property that was gifted or inherited if donor EXPRESSLY stated it is to be excluded from NFP
- Damages from a settlement resulting from personal injuries, nervous shock, mental distress, or loss of guidance care and companionship
- Proceeds or right to proceeds of life insurance policy payable on death of insured
- Property OTHER THAN MATRIMONIAL HOME into which property above can be traced
- Property both spouses agree not to include as a result of a domestic contract (see our post on separation agreements for more info)
- Unadjusted pensionable earnings under Canada Pension Plan
If you’re thinking of separating and want help to ensure you are properly protected, contact Rabideau Law to see how we may assist.
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