What can bar (prevent) me from obtaining a divorce?

if the Court finds that reasonable arrangements for the support of children have not been made, it will not grant the divorce.

s. 11(1)(b) of the Divorce Act sets out that it is the duty of the Court to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made.

The case of Ninham and Ninham (2001) is an example where reasonable arrangements were not made.

Here, the non-custodial parent was paying the custodial parent less than half the amount that she was entitled to per month under the Child Support Guidelines. The Court stayed the divorce for this reason, until “further evidence is provided that satisfies the court’s obligation under s. 11(1)(b) of the Divorce Act.” (para. 19)

Parenting Coordinators

If you have children, your Separation Agreement will include a “Parenting Plan” that sets out details of the parenting schedule and parenting responsibilities. We make your Parenting Plan as detailed as possible, but sometimes, conflict may arise with the enforcement and/or interpretation of the terms of a Parenting Plan.  When faced with conflict, parents often bring the matter back to Court for resolution - but this process is time consuming and expensive.

Rather than running to Court to resolve the issue, there is another way to resolve parenting disputes: that is, retaining a “parenting coordinator'“.

Parenting coordinators cannot decide which parent will have decision-making responsibility (formerly “custody”) or primary residence of a child, or whether a child should be permitted to move to a different location.  These decisions rest with the Court.  Rather, the focus of a parenting coordinator is to help parents implement the terms of the parenting plan in a child-focused an expeditious manner.  That is, a parenting coordinator is a neutral third party to whom parents can turn when there is a dispute about the Parenting Plan.  A parenting coordinator may, for example, settle a dispute about a child’s birthday party or school play.  He or she may also temporarily change a parenting plan (for example in order to accommodate a parent’s work hours) and enforce parenting schedule orders.

 If the parenting coordinator cannot assist the parents in resolving their disagreement, he or she may be empowered to act as an arbitrator to impose a solution, and the parenting coordinator’s decision will be binding (subject to appeal).

There are functions of parenting coordination that are unique. The parenting coordinator provides education, guidance, and case management. 

Because litigation can be timing consuming and expensive, a parenting coordinator is an alternative way to resolve your dispute in a more expeditious manner.

Foreign Assets

Ontario courts do not have the jurisdiction to make orders against foreign immovable property[1]. This principle is often conflated with the obligation to include assets located outside of Ontario in the calculation of net family property, such that foreign assets are left out of the equation.

 Pursuant to the Family Law Act, property is broadly defined as “any interest, present or future, vested or contingent, in real or personal property.”  This definition easily captures assets outside of Ontario. 

Equalization does not call for assets themselves to be divided between spouses – only their value.  Accordingly, there is no jurisdictional obstacle insofar as including foreign assets in the calculation of one’s net family property.

[1] Jung v. Jung, 2016 ONSC 3020 (CanLII) at para. 18

Marriage Contracts - why you should consider one

Years ago, I had a consult with someone who was going through a separation, and I will always remember this person.

I went through the implications of the marriage and what entitlements and obligations arise from the marriage and the breakdown of marriage, and the various issues that would need to be resolved.

When I finished, I was met with a few seconds of silence; the wind was just taken from their sails.

They then looked at me and asked deflated, “why doesn’t anyone tell you any of this when you’re getting married?”

Well — the process of entering into a Marriage Contract is exactly this. It’s a process where you learn about all the implications of your marriage, and what happens if you one day separate, whether it be a year after, 5 years after, or 25 years after. It’s akin to getting a crash course in FamilyLaw101.

Previously, people commonly got married in their early 20s, straight out of school, and they would build their life together.

Nowadays, it’s more common for people to get married or find a life partner later in life; and when you get married or meet your life partner later in life, you may have already established a certain career, wealth + assets etc., all on your own before having even met that person - and this is why you should consider entering into a Marriage Contract.

A Marriage Contract helps to protect all you have accomplished before meeting your partner, in the event that your relationship ends one day. No one gets married with the intention of one day getting a divorce; but the fact is, a significant portion of marriages do end up in divorce at some point.

Entering into a Marriage Contract is akin to getting life insurance — no one plans to get divorced just like no one plans to have an untimely death; but anything can happen, so why not try to protect yourself?

Further, as I mentioned above, in going through this process, you will learn a lot about the implications of your marriage and what happens if there is a separation; if, at the end of the day, you choose not protect yourself, that’s your decision to make. But just like every other major life decision, you should educate yourself and be informed about what a ‘legal marriage’ actually means.

We appreciate that it may be an awkward subject to broach with your future partner, but during our consultation, we will also discuss with you how to best raise this issue with your partner in the most sensitive and constructive way.

The Matrimonial Home

The matrimonial home is an asset that clients are frequently confused about.  Most understand that it is special and treated differently from other assets but have a distorted sense of why, believing that:

 ●      Regardless of how title is held, they have an ownership interest in the matrimonial home and are automatically entitled to half the value of the property;

 ●      There can only be one matrimonial home;

 ●      The term matrimonial home and principal residence are interchangeable;

 ●      The date of marriage value of a matrimonial home can never be deducted;

 ●      They can force the sale of the matrimonial home simply because it is a matrimonial home.

 These misconceptions are, in some cases, perpetuated when half the value of the matrimonial home is included on the non-titled spouse’s financial statement absent any explanation as to why.

 In turn, the non-titled spouse assumes that he/she is entitled to the post-separation increase in value of the matrimonial home without putting forward the basis to establish an equitable ownership interest in the property. 

When considering these issues, it is important to remember that:

 (a)   To establish an interest in the matrimonial home by way of resulting trust, a financial contribution to the acquisition of the property by the non-titled spouse is required[1]; and

(b)  The Ontario Court of Appeal’s decision in Martin v. Sansome[2] has made it difficult for a married spouse to succeed with a constructive trust claim because “In the vast majority of cases any unjust enrichment that arises as a result of the marriage will be fully addressed through the operation of the equalization provisions of the Family Law Act.”

[1] Tadayon v. Mohtashami, 2015 ONCA 777 (CanLII) at para. 47

[2]2014 ONCA 14 (CanLII) at para. 64

Tips to prepare for an initial consultation with your lawyer.

Going through a separation/divorce can be a very stressful process that most people have never experienced before.

Your first initial consultation with a lawyer could be overwhelming, so here are a few tips to ensure that you have a productive meeting with the lawyer you meet with:

🔹 Write down specific questions you have for the lawyer.

🔹 Have a pen and paper (or Word document open) to take notes.

🔹Have some general knowledge of you and your spouse’s income, assets, and debts.

🔹 Consider when your “date of separation” is.

🔹If you have children, consider what type of parenting schedule you would like to implement.