Divorce Act changes, new family violence tort, highlight shifting legal landscape

Changes to the Divorce Act and a recent case where a woman was awarded $150,000 in damages for domestic violence signal that this type of abuse will be taken more seriously in the family law context.

Let’s begin with the legislative changes to the Divorce Act that were enacted in March of 2021. The Act now defines violence to include any behaviour that is:

  • violent
  • threatening
  • a pattern of coercive and controlling behaviour, or
  • conduct that causes a family member to fear for their own safety or the safety of another person.

Many types of abuse are criminal offences, but under the Divorce Act, the behaviour doesn’t have to be criminal to be considered family violence. For example, it is not a criminal offence if one party controls all the money in a relationship so that their partner is financially dependent on them, but it does meet the definition of family violence under the Divorce Act.

Courts consider impact of violence on parenting

The changes to the Act are also expected to impact decisions on parenting matters. The legislation stipulates that judges, in determining the best interests of a child, must take into account the impact of family violence when deciding on parenting arrangements. The law recognizes the impact domestic violence has on victims and on children.

The court must consider several factors when it comes to the impact of family violence, including:

  • the nature, seriousness and frequency of the family violence and when it occurred
  • whether there is a pattern of coercive and controlling behaviour toward a family member
  • whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence
  • the safety risk of the child or other family member
  • whether the family violence causes the child or other family members to fear for their own safety or that of another person
  • any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for the child.

It is hoped that these new provisions in the Divorce Act will bring positive changes for people who have experienced domestic violence, particularly when it comes to parenting issues. One of the biggest challenges for some parents following divorce is that they have co-parent with their abuser.

Landmark legal decision

Next, let’s turn to a 2022 decision that saw a judge award $150,000 in damages to a woman who endured a 16 “year pattern of coercion and control” during her marriage. The case is significant in that it established the tort of family violence and set out the legal requirements for liability.

This matter, Ahluwalia v. Ahluwalia, 2022 ONSC 1303 (CanLII), states that to establish liability on a civil standard, the plaintiff must show the conduct within the family relationship is:

  1. violent or threatening
  2. constitutes a pattern of coercive and controlling behaviour, or
  3. causes the plaintiff to fear for their own safety or that of another person.

The key difference between this new tort of domestic violence and others that already exist is it would allow survivors to bring evidence of emotional abuse from the entire courtship of their relationship — as opposed to a single event only.

“The tort of family violence will give survivors an avenue to pursue both accountability and financial independence … through a single, family law proceeding. The promise of significant financial compensation could make it more realistic for some women to leave violent relationships,” writes Judge Renu J. Mandhane.

One in four women experience partner violence

To provide some context around the incidence of domestic violence, it’s important to point to the statistics.

A recent worldwide analysis shows that one in four women (27 per cent) experience intimate partner violence before the age of 50. This analysis, led by researchers from McGill University and the World Health Organization, looked at 366 studies involving more than two million women in 161 countries. While this research found Canada to be among the top 30 countries with the lowest rates of intimate partner violence, the problem still affects one in 25 women.

For anyone experiencing domestic violence, there are legal actions you can take to protect yourself, including:

  1. restraining orders: These prohibit someone from contacting you directly or indirectly.  Breaking this type of order would have criminal consequences and can be enforced by the police.
  2. other court orders: Orders that limit your contact with your spouse. These are not as strong as a restraining order but aim to limit contact. Some examples:
    1. restrict communication to text only – the goal is to prevent harassing telephone calls
    2. parenting time exchanges could be supervised – so that the victim does not need to see the abuser at exchanges.
  3. exclusive possession of the matrimonial home: This allows one person to stay in the home. The person who leaves does not lose their financial right to the home — only their right to possession until their family law matter is resolved.

If you or someone you know is experiencing intimate partner violence, click here for more information about what to consider when leaving the relationship. If you or someone you know is in immediate danger, call 9-1-1 or your local police.

Forcing the sale of the matrimonial home

Holding on to the matrimonial home after separation is harder than it looks.

Apart from the emotional ties one or both parties may have to the home where they made many of their family memories, it is also typically the most valuable asset they own, especially if they happen to live in a property market as hot as the Greater Toronto Area.

Even in an otherwise amicable separation, these factors provide some of the key ingredients for a potential dispute. In this post, I will explore some of the scenarios that can arise with the matrimonial home and how the courts might resolve disagreements.

Both spouses have the right to possession

Regardless of who is listed on title, Ontario’s Family Law Act (FLA) grants both spouses the right to possession of their matrimonial home until they reach an agreement or a court rules otherwise. It’s for this reason that neither one is allowed to change the locks and force the other out, even after separation.

However, carrying on separately from a former partner under the same roof can make for uncomfortable living, which is why divorcing spouses tend to turn their minds quickly to the question of whether the matrimonial home should be sold and who — if anyone — gets to stay.

Because neither party can sell or mortgage the matrimonial home without the consent of the other spouse, those who make clear their desire to stay in place should not be surprised if their former partner tries to leverage that knowledge to gain other concessions in broader divorce negotiations.

Presumption in favour of selling home

Some splitting couples are able to reach an agreement for one party to buy the other out of the matrimonial home. It may be possible to set a fair price based on your own research or with the help of valuations from a real estate agent, but many find it tricky to come to an agreement without listing the property on the open market.

The FLA does not provide for any right of first refusal to either spouse, but when the matrimonial home is jointly owned by both spouses, the province’s Partition Act allows a judge to force the sale of the property when the parties are unable to come to an agreement between themselves.

Although the judge does not have to grant every request made under the Act, the court starts with a presumption in favour of the sale of the matrimonial home, which means the resisting spouse will need to come up with a good reason to prevent the property from being listed. For example, the judge may halt a proposed sale if they are convinced that the party seeking it is acting in a malicious or oppressive way, or if the sale would be damaging to any children involved.

The situation is slightly different when only one spouse is listed on title because the Partition Act does not apply in these instances. Unless they have an equitable trust claim over the property, the non-titled spouse has no ability to force a sale, although they remain entitled to a share in the equity from the matrimonial home via the FLA’s equalization process.

High bar for exclusive possession

In exceptional cases, a court may order “exclusive possession” of the matrimonial home in favour of one spouse over the other, regardless of who holds title to the property.

Because of the seriousness of the remedy — forcing a spouse to leave the matrimonial home — the law sets a high bar for granting exclusive possession. When an application is successful, it is often in a situation involving domestic violence, where it is in the children’s best interests for one spouse to vacate the home.

Inconvenience or irritation at living with a former partner will not be enough for judges, who are generally reluctant to make an order for exclusive possession unless claims are strongly backed by evidence.

If you and your spouse are in the process of separating but don’t agree on how to handle the matrimonial home, consider working with a family mediator. Mediation is an out-of-court process that can help couples effectively resolve their disputed issues.

Parenting after separation: there’s a course for that (in B.C.)

Ontario could learn a thing or two from British Columbia’s new mandatory parenting classes for families going through separation.

Since the start of the year, anyone wanting to appear in B.C’s Provincial Court for matters touching on guardianship, parenting arrangements or child support must first attend a Parenting After Separation course.

The free online program helps parents develop strategies for communicating with each other and their children about their split, as well as introducing the parties to alternative methods of dispute resolution, including mediation and counselling.

Parenting courses rarely ordered in Ontario

The province has also designed a separate course aimed specifically at family members who identify as Indigenous, and says that the purpose of both versions is to help people make informed choices about family separation that focus on the best interests of the children.

Something similar would be very welcome in Ontario, where sadly, the only time parenting courses ever seem to get mentioned are in high-conflict cases. Even then, they tend to be used as just another stick for warring parents to beat one another with, as each party claims the other needs help to get their inadequate parenting skills up to scratch.

While parenting courses are occasionally ordered as a condition of access, it’s a rare occurrence that usually requires some significant concerns about a parent’s ability to care for their children. The Office of the Children’s Lawyer may also recommend parenting or co-parenting courses, but they only get involved in a small minority of family law cases.

Helping parents focus on children’s best interests

One of the nice things about the way B.C. has designed this mandatory approach is that it prevents parenting classes from being weaponized by either side in a separation, clearing the way for them to focus on what’s best for their children.

Separating Ontarian parents would benefit from greater exposure to more substantial information about the legal process before embarking on their journey through the court. Currently, all family law litigants in this province must attend what’s known as a Mandatory Information Session. The first half of these two-hour seminars — typically hosted by a family lawyer along with a mental health professional — covers basic information about family law, the court process and alternative methods of dispute resolution.

In the second hour, which is only for parents, the focus turns to family law as it relates to children, touching on coping strategies for younger kids dealing with divorce and community resources for those requiring more help.

B.C. expands program province-wide

These information sessions are a good start for parties to family law litigation, but they barely scratch the surface of what parents can expect after separation, which is why I think a parenting course modelled on B.C.’s could be useful here.

When first introduced, B.C.’s parenting program was required in only 21 of the province’s 89 court locations. During the pandemic, the provincial government injected a dose of flexibility into the process, allowing parties to attend via telephone, video or other electronic means. Those remote-learning options have been made permanent as part of the expansion to roll out the mandatory courses across the province.

In a statement, the provincial government said that the updates are just one phase of a multi-year project designed to “help families experiencing separation and divorce reduce conflict and work toward earlier, more collaborative resolutions, keeping children’s best interests front and centre.”

This is an aim I can get behind, and hopefully, Ontario will follow suit.

Until then, there is family mediation. I have had great success helping separated parents work through a discrete issue or develop a parenting plan that works for their family’s unique circumstances. If you would like to learn how family mediation can help level up your co-parenting game, give me a call.

Family dispute resolution: a healthier, more cost-effective divorce path

Earlier this year, the federal government’s amendments to the Divorce Act came into effect. These substantive changes — the first in more than 20 years — signal a distinct shift away from the adversarial nature of litigation in an effort to make the family justice system more accessible and efficient.

As of March 2021, family lawyers have an obligation to encourage clients to solve issues through a family dispute resolution process unless it would be inappropriate. As a family law litigator and mediator, I frequently discuss alternative dispute resolution (ADR) with my clients because I know how well it works.

There are different approaches spouses can take to make decisions about issues related to separation or divorce, including mediation, negotiation, arbitration, collaborative law and parenting coordination. But, it can be intimidating to consider these alternatives if you’re not familiar with the family dispute resolution process.

What is the family dispute resolution process?

The amended Divorce Act introduces a new concept — the family dispute resolution process — an umbrella term to describe out-of-court methods spouses can use to solve parenting, support or property issues. These different approaches (mediation, negotiation, collaborative law and arbitration) are also known as alternative dispute resolution (ADR). 

One of the most popular approaches is mediation where a neutral third party, a mediator, helps parties identify and discuss parenting, separation, or divorce issues and resolve their differences. The goal here is to communicate effectively to try and reach an agreement both sides can accept. A mediator doesn’t make decisions for you but instead helps identify issues and possible solutions. 

Why avoid the courtroom?

Mediation has generally been a less expensive and faster way to reach an agreement or resolve a family law dispute. In light of the court closures, backlogs and delays caused by COVID-19, the time and cost savings associated with mediation are undeniable.

I recently scheduled a case conference on a non-urgent matter, and the next court date available was in August 2022. Most cases don’t involve an urgent matter, so waiting for 10 months or longer to get a child or spousal support order is not sustainable for most clients. 

It’s not only the time but there’s also the cost. For example, bringing a motion can start at $5,000 and run upwards of $20,000 — and that’s typically one day in court where a judge will decide on one issue temporarily. That’s a lot of money to determine if and how much child support someone should be paying or to decide an interim parenting arrangement that is likely to change as the children get older.

Even if litigation is ongoing, couples always have the opportunity to deal with some issues outside of court for a fraction of the cost. Clients sometimes think that once they start litigation, everything else is off the table. But it’s not an all-or-nothing proposition. If you’re in litigation and mediate even one issue, that’s one less issue for a judge to decide. Incorporating mediation into your litigation will have enormous time and cost savings. 

Another important benefit of mediation is that it can preserve relationships, which is particularly important when there are children involved. Affidavit and court applications lend themselves to listing negative things about the other person and make it harder to have an ongoing co-parenting relationship. 

Courts are not designed to deal with issues in the customized way mediation does. Generally, a court is meant to give broad orders — for example, what days of the week a child will stay with each parent. With mediation, there is a chance to be more specific and fine-tune the parenting plan, including setting clear boundaries around communication or the day-to-day care of your children. The more detail in the agreement, the less likely there will be conflicts in the future. 

Is mediation for everyone?

By legislating lawyers to discuss the family dispute resolution process, the federal government is signalling that court should be a last resort and only used when ADR isn’t appropriate.

When I first meet with a client, I determine if there are any urgent issues, and then we explore if there’s an interest in mediation. As an experienced family mediator, I know first-hand how well the process works, but both parties must be willing to compromise.

Although it might not be appropriate in some family violence cases, mediation can work for high-conflict situations or relationships with a power imbalance. The process can work effectively and safely because of the ability to design a mediation that addresses the power dynamics. 

One way to do that is through shuttle mediation, where you and your former partner do not need to be in the same room or even on the same Zoom screen. Essentially the mediator shuttles back and forth between parties, so there’s no need to meet or discuss issues face-to-face. This method may even deescalate conflict because the louder person can’t dominate the conversation or bulldoze the quieter spouse. 

We’re about 7 months into the Divorce Act changes, so it will be interesting to see if more clients are open to mediating and settling their family law cases out of the courtroom. If you would like to schedule a consultation to discuss if an ADR approach suits your unique family circumstances, please contact me.

Parenting plans set families up for success after divorce

Sharing parenting time and decision-making responsibility for children can be incredibly challenging when a couple divorces. That’s why it’s so important to sit down with your lawyer or mediator and create a detailed parenting plan because it puts down on paper exactly what’s expected of each parent. It looks at the children’s current and future needs and provides ways to minimize potential conflict between parents.

The main points of a parenting plan involve the children’s health care, education, religion, and extracurricular activities. It can also cover daily routines, methods of discipline, childcare, potential changes to the schedule, and even travelling with the children outside the country.

The plan lays out the actual parenting schedule: where the children will reside, what their day-to-day schedule will be, and where they will be on holidays. A plan can be either fixed or flexible, depending on what will work best for the family. The advantage of a fixed schedule is that it minimizes conflict between the parents, but for those who have a good working relationship, a flexible schedule may be the better choice for the entire family.

A schedule includes a plan for long weekends and holidays, including the two weeks off at Christmas, the week of March Break, and summer vacation. In some calendar years, one parent can end up with most of the long weekends, so some parents like to specify which parent will get the children on each long weekend. There can be a different schedule for the summer months. From September to June the children are in school and have a stricter routine but in July and August, it may make sense to change the parenting schedule.

Reaching an impasse

I always tell clients that they are free to deviate from the parenting plan but if they reach an impasse and can’t agree on something, at least they have something to fall back on that’s as close to black and white as possible. If an issue crops up where one parent is looking to take the children for a long weekend, for example, and the other parent doesn’t agree, they can fall back on what’s written in the plan.

The overriding principle of a parenting plan is that it should be tailored to the best interests of the children. One standard rotation plan for parents with 50-50 arrangements is to have the children with one parent two days on, two days off, five days on, then five days off. Another that works better for some is one week on, one week off. But, for example, if a parent works the night shift, it doesn’t make sense for the children to be there overnight, so in that case, the parent must find other pockets of time to care for them.

The plan should also lay out how the parents will communicate with each other about various issues. Is it best to talk face-to-face, by video chat or by phone, use email, texts, or use a notebook that goes back and forth with the children? Is there a specific time to communicate with each other? How will they contact each other in case of an emergency?

Other issues to think about include dealing with pick-ups and drop-offs, how the children will be able to spend time with their friends, and how their clothing and other belongings will be arranged for and purchased. How will decisions about school be handled? Will both parents attend parent-teacher meetings? Who is the school’s emergency contact person?

Details matter

With such a wide variety of things to deal with, those who put a parenting plan in place on their own sometimes make the mistake of not making it detailed enough.

If issues aren’t clearly thought out in advance with the help of a lawyer or mediator, they can cause conflict later. Parents have the chance to tailor it to work for the entire family, which is not something you’re likely to get if you ask a judge to decide the issues for you. The court is not designed to provide the level of detail required in a comprehensive parenting plan.

Some clients insist that they’re getting along just fine with the other parent, who lets them see the children whenever they want. But I always stress that they should write out a plan anyway. They can put it in a drawer and not look at it if their relationship continues to be good, but if there’s a disagreement they can always revert to the plan.

It may not be possible to anticipate all the potential issues that may crop up, but a solid parenting plan can go a long way to minimize future problems and ensure that your children’s best interests are taken into account.

If you would like to schedule a consultation to discuss how a parenting plan can help your family move forward following separation or divorce, I would be happy to help you.

Separating From a Spouse? 5 Things You Need to Know About the Matrimonial Home

For most couples, the matrimonial home represents their largest asset and it is a place of emotional significance – filled with both positive and negative memories.

A matrimonial home is not simply the house in which a married couple lives. In Ontario, it is afforded special treatment under the Family Law Act.

Let’s have look at why the matrimonial home is such a hot topic during a separation or divorce:

#1 Spousal Consent is Always Required

Neither spouse is permitted to sell, mortgage or otherwise, encumber the matrimonial home without the other spouse’s knowledge and consent – be it during a marriage or post-separation, even if only one spouse’s name is on the title. 

If you and your spouse cannot agree on what to do with the matrimonial home, one party may apply to the court and request an order for partition and sale.  

If your name is not on the title and you fear that your spouse will try to sell it without your consent, you can ask a lawyer to designate the home as your matrimonial home and register that designation with the land registry office. This will prevent the home from being sold unless both spouses consent to the sale.

#2 The Court Can’t Force You to Sell the House to Your Spouse

In a situation where the matrimonial home is owned jointly, neither spouse has to sell their share to the other.  Remember that at some point the court may get involved but the judge can only order that the house be sold. 

Hence, do not waste money and time looking for a lawyer to “force” your spouse to sell you their share. The money is better spent on the down payment for a new home.

#3 You May Not Get Access to Funds Even After the Home Is Sold

Remember that the proceeds from the sale of the matrimonial home will be held in trust unless you and your spouse agree on how these funds will be divided or until there is a final separation agreement or court order in place.  

The reality is that you may not have access to the funds from your home until months after it sells – plan for this and speak with your lawyer before purchasing a new property.  

#4 Your Spouse Can’t Change the Locks

Under the Family Law Act, the matrimonial home is afforded special status and both spouses are equally entitled to stay in the home, regardless of who owns it.

There are, however, exceptions to this rule and it may be worth speaking to a family law lawyer to find out if you qualify for an order requiring the other spouse to vacate the matrimonial home.

#5 Leaving the home is OK, but…

You do not lose your right to the matrimonial home even if you move out before the divorce is finalized. However, leaving before a separation agreement is in place may negatively impact parenting arrangements.  If you have kids, we suggest that you consider staying in the home until a temporary parenting arrangement is in place – provided it is safe to do so. 

Also, remember that even if you leave, you may still have to contribute towards the carrying costs such as mortgage payments, property tax and insurance.

The Role of the Real Estate Agent

Selling a home doesn’t have to be complicated. Consider getting in touch with a real estate agent who you and your spouse both trust.

An experienced real estate agent can act as a neutral facilitator and assist the parties with the amicable sale of their property and avoid unnecessary disputes and associated legal fees. Feuding couples often agree to follow the recommendations of their real estate agents in order to avoid arguing over issues such as listing prices, staging costs and repairs as fighting over these issues will only delay the process and cost you more money.    

FAQ Calculating Support Using My Support Calculator

Until recently, I thought MySupportCalculator.ca (“MSC”) was a government initiative designed to increase access to justice. In fact, this tool was developed by Divorcemate Software Inc. (“DivorceMate”) and is Canada’s only accurate online child & spousal support calculator.  It allows individuals to tap into a simplified version of the software relied on by lawyers and judges across the country. 

I recently approached MSC about a sponsorship for my podcast, Dealing with Divorce.  In speaking with one of the project managers, Faith Feldman, I learned that they receive a ton of enquiries not only about their software but family law in general.  We collaborated to answer some of MSC’s most frequently asked questions.

1. What if I have questions about my calculation or my case but I can’t afford a lawyer? 

Although the software is very user friendly and utilizes the same calculation engine relied on by lawyers and judges, it is still recommended that everyone obtain legal advice with respect to their family law situation.  

There are a number of ways to access free and/or affordable legal advice.  

Many family lawyers provide unbundled legal services where they can advise you on particular parts of your case for a flat fee. Don’t be afraid to ask. You can find a list of family law professionals on MySupportCalculator.ca, many of whom offer these types of unbundled services.

You can also try:

  • Legal Aid Ontario which provides legal assistance for low-income people
  • ASC Toronto provides family lawyers who can provide summary legal advice at a reduced rate
  • Justicenet is a not-for-profit service helping people in need of legal expertise, whose income is too high to access Legal Aid and too low to afford standard legal fees

2. Does this calculator work for all the provinces?

In Canada, the Federal Child Support Guidelines govern child support for married couples.  For non-married couples, every province and territory has either adopted the Child Support Guidelines or has a counterpart, which essentially mirrors this legislation.  

MSC works for all provinces and territories except for Quebec, and ensures that the support calculated is based on the guidelines applicable to your particular province and situation.  

3. Is child support based on last year’s income?

A person’s annual income for child support purposes, is determined using the income set out in Line 150 of the payor’s T1 General or Notice of Assessment.  Depending on the situation, child support is based on the payor’s last year’s income or his/her current income. In some cases, child support is based on the payor’s income over the last three years.  

4. When completing a calculation it gives 3 scenarios for the amount; low, mid and high. How do I know where I fall on that spectrum?

Before you can determine where you fall on the spectrum, you first need to determine whether there is entitlement to spousal support under the law.  There is no point in calculating spousal support amounts if there is no legal requirement to pay it.  It is highly recommended that you obtain independent legal advice at this stage of the analysis. 

MSC provides low, mid and high points for spousal support based on the Spousal Support Advisory Guidelines (SSAGs).  The SSAGs are guidelines, not law; however, they generally form the basis for judges’ decisions.  

Choosing a location within the range requires a thoughtful analysis and should be discussed with a lawyer.  Below is a non-exhaustive list of factors to assist in determining where you might fall within the range: 

  • Strength of any compensatory claim
  • Recipient’s needs
  • Age, number, needs and standard of living of children
  • Needs and ability of payor to pay
  • Work incentives for payor
  • Property division and debt
  • Incentive for self-sufficiency

5. How do I know how long I have to pay spousal support for?

MSC and the SSAGs use different formulas to provide a range for the duration of support. 

Using the “Without child support formula”, duration ranges from 0.5 to 1 year of support for each year of marriage.  However, support will be considered indefinite, meaning that no duration is specified, if the marriage is 20 years or longer. 

When using the “With child support formula”, there are two tests for duration – the length-of-marriage test and the age-of-children test.  The SSAGs apply the longer duration of the two tests.  

6. Does the calculator consider benefits and credits in the calculation?

MSC automatically considers the benefits and credits applicable to the specific situation. For example, the Canada Child Benefit will automatically be considered if you select children in your calculation. Certain benefits and credits will only be applicable in more complex situations handled by MSC Advantage, the enhanced version of MSC. 

7. Why do I get a different number when I calculate spousal support alone versus when I calculate spousal and child support together?

The “Without child support formula” applies in cases where there are no dependent children and therefore no child support obligations.  Practically speaking, if a payor is obligated to pay child support, they will likely have a reduced ability to pay spousal support.  The formula for spousal support therefore differs depending on whether there are children.  The formula must take into account the payment of child support as it is prioritized over spousal support.  When using the same income, the “With child support formula” will typically generate lower ranges for spousal support than the “Without child support formula”.  

8. I see you use DivorceMate software and I was wondering if MSC Advantage shows the same detailed calculations that DivorceMate does?

Since MSC uses the DivorceMate calculation engine, when you input the exact same information into both programs, they will provide the exact same child support and spousal support results. However, there are detailed results provided with DivorceMate Software that are only available to legal professionals. 

9. At what age does child support stop? My child is over 18 and attending university/college full time. 

Contrary to popular belief, child support does not automatically end at the age of 18.  Although 18 is the legal age of majority in most provinces, support can continue well beyond that age if a child is still a dependent.

Both the Divorce Act (which applies to married parents) and the Family Law Act (which applies to unmarried parents in Ontario) require payors to pay support for children that are under the age of majority or over the age of majority and enrolled in a full-time program of education.  Other reasons such as illness or disability may also entitle a child to receive child support over and above their 18th birthday.   

When Divorced Parents Disagree on the COVID-19 Vaccine

In 2020, the issue of whether children should attend in-person learning was likely one of the most litigated matters in family court. Many parents brought urgent motions dealing with this issue. Now that COVID-19 vaccines are available for children ages 12 and older, it is anticipated that separated parents will grapple with yet another critical issue: whether to vaccinate their children against COVID-19.

Whether or not to have your child vaccinated is usually up to the parents. When parents are together, they must make this decision together. When parents are separated, the hope is that they continue to make this decision together, but what if they cannot agree?

Whether or not to vaccinate a child can put a huge strain on a co-parenting relationship.

If one parent has sole decision-making responsibility, deciding whether to vaccinate the child is ultimately the decision of that parent. If the parents have joint decision-making responsibility, they will have to make those decisions together or start a court application so that a family court judge can decide.

Unlike the school issue, the issue of vaccines is not new to family law. The Court often encourages parents to seek the assistance of expert third parties when unable to agree on major medical decisions, including those regarding vaccinations. In reviewing the case law, I have found only one decision that ruled against vaccinating a child – this was an arbitration case where the mother argued that the children had underlying medical conditions that made them at risk for side effects from vaccines. The arbitrator ruled in favour of the mother and ordered that the children should not be vaccinated. The father then appealed the arbitrator’s decision and won his appeal.

Both the Canadian and Ontario Health Policies favor vaccinating children and youth. The Immunization of School Pupils Act requires children to be vaccinated, unless the parent has filed for an exemption claiming religious beliefs or as a matter of conscience. Even the exemption allowance can be overridden by a medical officer of health, if necessary. An override could occur if there are reasonable grounds that there is an outbreak, or an immediate outbreak risk of a designated disease, at the location the unvaccinated child attends.

It is important to note that parental views on vaccinations are not determinative of decision-making responsibility or parenting time with a child. The legal test for decision making responsibility and parenting time is always what is in the child’s best interest. In most cases, if there is a disagreement on the issue of vaccines, the parent who favors vaccinations will likely be given final decisions on medical issues but not necessarily sole decision-making responsibility on all issues.

Below are some tips for separated parents who disagree about the COVID-19 vaccine:

  • Consult with your child’s pediatrician and attempt to resolve the issue with their advice and guidance.
  • Consider working with an accredited mediator who can help you work out a solution without going to court.
  • Speak to your child about the issue and explore all options: what are the possible side effects? Does the child require the vaccine to attend school, sports, or other activities?
  • Consult with a family law lawyer who can provide advice on your likelihood of success if the matter is litigated.

Five Situations Where a Marriage Contract is a Good Idea

Many people think of marriage contracts – or prenuptial agreements – as juicy bits of gossip about the rich and famous.

In reality, though, the use of such agreements has risen dramatically in recent years by couples across the economic spectrum.

The increase in the use of prenups (marriage contracts) throughout North America was chronicled by a recent U.S. survey that showed a 62 percent jump in the number of marriage contracts. The trend is seen here in Canada as well.

Rather than sowing the seeds of doubt about the strength of a relationship, most couples who use a marriage contract say it provides them with a sense of security: a roadmap of sorts that leaves nothing to chance if the relationship sours or ends naturally.

When a Marriage Contract Makes Good Sense

Millennials lead the dramatic rise in the use of marriage contracts – those newlyweds between ages 18 to 35 – who are marrying later in life and want to protect their assets. There is, however, a host of other reasons for why a marriage contract makes perfect sense for couples of any age.

  1. You can ensure the concerns of your children from a previous marriage are protected. With a marriage contract, you can make sure that assets intended for your children are shielded in the event of a divorce.
  2. Your assets are protected if you’re remarrying. Your financial and legal situation is likely different than your first marriage. For example, you may have children; own a residence and other assets of significance. A marriage contract can ensure the distribution of assets as you wish if there’s a divorce or death of either spouse.
  3. Protection of property owned before the marriage. Things can get sticky when it comes to how the matrimonial home is divided after a separation. Without a marriage contract, you will have to share the value of the home with your spouse– even if the house or property is solely in your name and even if you owned it prior to the marriage. By having a marriage contract, you can establish how the value of the matrimonial home will be shared, if at all.
  4. Retirement planning. Even for the most frugal among us, divorce has the potential to be financially devastating. Remember, anything of value (stocks, property, etc.) you acquire during your marriage is subject to being distributed equally with your spouse if you divorce.With a marriage contract, though, you can specify which assets will be split and equalized in the event of a separation and which will be excluded. Remember, a marriage contract not only protects the assets an individual has going into a marriage, it can also protect assets a person might acquire during the marriage.  A marriage contract can also lay down the ground rules for concerns like spousal support, which is just one reason why many individuals are considering marriage contracts these days.

How about common-law spouses? How do Cohabitation Agreement Works?

Similar to a marriage contract, a cohabitation agreement spells out how common-law partners will treat issues like debts, property division and spousal support.

These agreements are automatically rolled over into a marriage contract if the couple later marry.

The Key Takeaway

The purpose of a marriage contract is not to court disaster for your marriage. Instead, it’s to give you and your spouse a sense of security in an uncertain world.

We realize that even broaching the subject of a marriage contract with your spouse or partner can be intimidating.  An accredited family law mediator is especially helpful during the negotiation and discussion phases. They can often resolve issues quickly and at reasonable cost.   A mediator is trained to help both parties reach an agreement without taking sides and can help both parties see things from the other’s viewpoint.

If you are unclear whether you need a marriage contract or for help with any questions relating to marriage contracts, get in touch with me, Darlene Rites, at Ferreira & Bettencourt, LLP. You can reach me by phone at (416) 536-4445 or via email darlene@bettencourtllp.com

Should You Be Allowed to Benefit from a Spouse’s Post-Separation Increase in Income?

Being legally required to provide spousal support is often one of the most contentious parts of a divorce or separation.

What happens, though, if your former spouse’s income changes significantly after your divorce or separation? Is your support based on the new income level or on the previous level?

First, let’s review how spousal support is calculated in Ontario.

How Spousal Support is Calculated in OntarioOnce the issue of entitlement has been addressed, the Spousal Support Advisory Guidelines serve as a starting point for determining the amount of spousal support to be paid by the payor. There are different calculations for couples or partners with children, and for those with no children.

Factors that are taken into consideration include:

  • Length of the relationship
  • Income and age of both partners
  • Current and potential earning power of both parties
  • Roles of each partner during the relationship (for example, whether one was the primary breadwinner or primary caregiver)
  • Whether either party is leaving the relationship in a worse financial situation than the other.

Again, the Guidelines serve as merely a guide to determine a fair support requirement based on the uniqueness of your relationship.

While there are online spousal and child support calculators available, they serve as only an estimate for how much you could expect to pay or receive. A judge ultimately has the authority to order more or less support than what the guidelines recommend.

Bear in mind that spousal support can be required permanently or for a limited amount of time until the spouse receiving it is in a better position to support themselves. You can expect support amounts to be higher and paid over a longer duration where there is a large difference between the spouse’s incomes, the spouses lived together for a long time and/or there are children from the relationship.

What if a Payor’s Income Increases after Separation?

If the person paying spousal support receives an income increase post-separation, it’s generally left to the court to decide whether spousal support will be based on the new income or on the payor’s income during the relationship and/or at the time of separation.

Listed below are general guidelines the court will follow in reaching a decision on whether to use the payor’s post-separation income.

  • Was it a lengthy relationship? The use of a payor’s post-separation increase in income is more likely in longer relationships where parties’ personal and financial affairs became completely integrated.
  • Were the skills and credentials that led to the post-separation income increased obtained and developed during the relationship?
  • Did the recipient contribute to the post-separation increase to the payor’s income? For example, did the person receiving the support put his or her career on hold, while the payor earned the skills and credentials to get the increase?

COVID-19 and Post-Separation Increases in Income

With over one million Canadians put out of work due to the COVID-19 pandemic, it’s expected that many will eventually see a rise in income. If you’re in the process of settling your divorce or separation and are basing it on today’s income levels, the steps you take now can prevent legal obstacles when income levels begin to rise.

Take into account the following strategies when settling issues of spousal support during the pandemic:

  • Consider a temporary agreement that will stay in place until both parties’ post- COVID-19 incomes can be accurately assessed.
  • Include language that calls for an automatic review of both parties’ income at a specified date in the future. This will protect both the payor and the recipient.
  • Come to a mutual agreement about what constitutes a “material change in circumstances.” In order to vary an existing spousal support order, the party seeking the change must prove that there has been a material change in circumstance, namely, a change that would likely have resulted in a different order. Typically, the change cannot have been something that was contemplated by the parties unless the spouses explicitly define that in the agreement, which can assist them in reaching a settlement during these trying times.

Since the issue of spousal support is one that has the potential of affecting many aspects of your life, you should seek the help of an Ontario family law lawyer who can guide you through the process. With the right representation, you’ll be legally protected on all fronts.