Everyone welcome: Cultural sensitivity in mediation 

Cultural sensitivity is a prerequisite for mediators working in a diverse metropolis like Toronto, which has long claimed the title of the world’s most multicultural city.

There is plenty of evidence to back up that bold assertion. According to the 2016 Census, around 51 per cent of Torontonians were born outside the country, and a similar proportion in the Greater Toronto Census area identified as a member of a visible minority group, according to Statistics Canada.

That kind of diversity poses a challenge for mediators, since many of the couples they see will come from a different background than their own — assuming the parties themselves share roots in the same religious or cultural community. 

Mediator, educate thyself

To have any chance of reaching a successful settlement, the mediator must create an environment in which the parties feel comfortable expressing themselves freely, without worrying about whether their neutral will be culturally competent to handle their dispute.

Part of my job as a mediator is to educate myself about how my clients’ backgrounds may have affected their attitudes toward family, marriage, divorce and communication styles. That way, we can work together more effectively towards a resolution that works for everyone. 

At the same time, it’s important that mediators do not stray into the realm of stereotyping. Most religious and geographically based identities break down into much smaller groups. Even then, it would be a mistake to believe that each subculture is completely homogenous or that every member of the community will react in the same way when it comes to a family law dispute. My aim is to respect each of my clients as a unique member of their particular cultural group.

How cultural differences show up

Cultural differences can show up in all kinds of different and surprising ways during mediation. Certain hand gestures or body movements — including bowing — that are considered a sign of respect in some cultures may be offensive in others. 

Without proper care and attention to the backgrounds of the parties, the delicate relationship between the mediator and the parties can be undermined by small misunderstandings before we have even touched on the family law issues at the core of their matter. 

Couples in control of the process

Mediating for people from diverse backgrounds presents an opportunity for mediators to confront and address personal biases. Mediators can gain deeper insights and provide more effective support by considering whether behaviours such as frequent interruptions, avoidance of direct eye contact, or emotional expressions are influenced by cultural styles rather than the mediation process.

If cultural issues are identified as barriers to success during mediation, we can adapt the process accordingly. For instance, if one party has trouble opening up about their feelings in joint sessions, we can rely more on individual caucusing to effectively address and overcome these barriers.

This is where the inherent flexibility of mediation as a method of dispute resolution comes into its own. Because the couples involved control the process, they can customize the design of their own sessions — with the guidance of their mediator — in such a way that cultural concerns are addressed. 

In my practice, I know that my learning about different approaches to family, marriage and divorce has helped create opportunities for settlement that may have otherwise been missed. For that reason and many others, I intend to ensure that my journey towards cultural sensitivity will last for as long as my career as a mediator.

If you are looking for a family mediator who can design a culturally sensitive mediation process, schedule a consultation with me.

How to amend or terminate an order for spousal support

By Darlene Rites

When it comes to spousal support, indefinite is not the same as forever.

According to Spousal Support Advisory Guidelines, spouses coming out of longer marriages (lasting more than 20 years) can typically expect the spousal support obligation to last for an indefinite period. 

With no end date specified, my clients are often understandably alarmed (or comforted) by the prospect of spousal support payments, depending on whether they are the payor or the recipient.

However, it is crucial for both parties to understand that even these open-ended orders for spousal support can be — and usually are at some point — amended or terminated altogether.

In many ways, a judge’s order for spousal support represents a snapshot in time, whether it was arrived at following a contested trial or as a result of formalizing a separation agreement. As time passes, the parties’ lives will inevitably change, and the level of support may no longer match their updated situations. 

Material change in circumstance

In the interest of finality and efficiency, courts will only entertain a motion to change spousal support if there has been a “material change” in circumstances since the original order.

Either party can bring a motion to change spousal support, based on alterations to their own or their former spouse’s circumstances, with some of the more common reasons revolving around significant changes in income.

For example, a payor could argue for a reduction or termination after losing their job or because their ex has won the lottery — reducing their need for support. On the other hand, a support recipient could use their own layoff to justify a request for higher payments.

In many cases, the spur for a motion to change spousal support comes at the time of the payor’s retirement, which typically results in a sudden drop in income. 

Still, not every adjustment in former spouses’ lives will meet the relatively high threshold for an amended spousal support order. Unless they can agree between themselves, it will be up to a judge to decide whether a material change in circumstances has occurred, considering a variety of factors, including the parties’ current and past incomes, as well as their expectations at the time of the original order and the foreseeability of the change at that earlier date. 

Landmark ruling on spousal support

In Willick v. Willick, the Supreme Court of Canada’s landmark 1994 case on the issue of spousal support, the court’s majority expanded on the test, writing that for a variation to be warranted, the change must be one that “if known at the time, would likely have resulted in different terms.”   

For payors, any drop in income — no matter how large — cannot be self-inflicted if they hope to secure a change in their spousal support obligations. Judges may look at historic tax and financial records to assess allegations of intentional under-employment, and they will not look kindly on a party who has taken a lower-paying job or hidden their sources of income to secure a reduction in support. 

Review provisions in support agreements

In some cases, the parties to a spousal support agreement build in a review provision that will trigger an automatic assessment of the support level on a specified future date, or in the event of certain occurrences, such as the retirement of the payor or the remarriage of the recipient. Still, there are no guarantees that a judge will agree that any amendments are required in any specific case. 

If you think your spousal support order needs to be amended or terminated, it’s important to consult with an experienced family law lawyer who can help you assess whether the change in your circumstances rises to the level of “material,” before guiding you through the process in court, if necessary. 

Five ways to prioritize children’s interests in family mediation 

Your children may not be physically present during a family mediation session, but they should never be far from your mind or that of your former partner.

Amid the emotional turmoil that comes with every separation, it’s almost impossible to avoid getting caught up in conflict and point-scoring against your ex, even in the more cooperative environment of family mediation. 

Whether I’m acting as counsel to one of the parties or as the mediator myself, I aim to ensure that the proceedings remain child-centred by encouraging parents to think about how their decisions will affect their kids.

Here are five ways to help parents put their children first during the process. 

1. Discuss how to break the news

Sharing the news of your separation with your children is not a conversation many will relish, but it is necessary.

As painful as the discussion may be, it beats the most common alternatives pursued by parents through the ages: pretending that everything is fine or a sudden departure from the family home. 

The simple act of expressing your concerns to your former partner and a mediator often removes a lot of the dread surrounding the announcement. It also clears the way for everyone involved to start talking about which approach will work best for breaking the news to your children, depending on their age and maturity.

2. Smooth the transition

Change is inevitable following a separation, regardless of how amicable your relations are with your ex.

Anything parents can do to maintain some sense of continuity will help their children adjust to the reality of their new lives. For some, this might involve a nesting arrangement during the transition, where the children stay in the marital home, and their parents live elsewhere, cycling in and out during their parenting time.

For others, it could be as simple as ensuring their kids can continue participating in the same extra-curricular activities they enjoyed while their parents were still together.

If there is a plan to change schools, I encourage parents to work together and brainstorm solutions to minimize disruption. For example, they might consider modifying the parenting schedule temporarily to make it to the end of the school year.   

3. Set ground rules with your spouse

Putting your kids first involves laying ground rules with your former spouse. Sharing children gives former partners little choice but to maintain a connection to one another beyond separation.

You can set the tone for a respectful and functional relationship far into the future by agreeing not to speak negatively about each other or discuss any of the details of your divorce and the court process with — or even within earshot of — your children.

As tempting as it may be to vent about your ex, there’s no quicker way to escalate the conflict in a separation than by disparaging them to your child. 

In some cases, former spouses don’t need any spark to get into a fight, but they can still take steps to minimize the opportunities for flashpoints. For example, structuring exchanges around school pickups can reduce the need for face-to-face interactions.

4. Explore counselling

Many children need additional help during times of transition, and I am always happy to connect parents with counsellors or therapists who specialize in youth support.

Addressing mental health struggles is more important than ever for youngsters growing up in an era of unprecedented unrest. 

The Canadian Mental Health Association recently reported that three in four children with mental health issues cannot get the help they need as the stress of the COVID-19 pandemic compounded existential worries.

5. Give kids a voice

There is plenty of legal support for the idea that children should be allowed a voice in their parent’s separation. 

For example, Ontario’s Children’s Law Reform Act requires judges to take into consideration the preferences of children in certain situations, while the U.N. Convention on the Rights of the Child recognizes the right of a child to be heard in judicial and administrative proceedings affecting them.

Giving your children an opportunity to be heard is not the same as allowing them to decide what happens, and there are many ways to bring their views into proceedings. At the more formal end of the scale, social workers or other professionals could be called in to conduct an assessment or prepare a “Voice of the Children” report, similar to those used in court.  

If you have questions about family mediation and want to explore your options, please contact me.

How to prepare for divorce: tips from the ‘ex’ files

Divorce can be a difficult and emotional ordeal, but there are steps you can take to help make the process smoother and less stressful.

As I mentally browse through my former client files, I realize that many people separating from their spouses are confused about the legal process or simply don’t know what to expect.

Being well-informed is the key to empowering yourself during a divorce. In this post, I will explain the key aspects to be aware of that can make the divorce process more peaceful, fair and as drama-free as possible.

Your rights and responsibilities

You have rights as well as responsibilities and understanding them early on will help with the many decisions that follow separation.

I have seen people remain in abusive relationships because they didn’t know what they were entitled to. Understanding your legal rights may provide a level of confidence to help you end a bad relationship.

For example, people are sometimes surprised to learn that a spouse’s pension is considered an asset, and as such, is included in the equalization of net family property. Spousal support may also be an option, depending on the specifics of your situation.

Clarify your priorities

There are many things to consider when approaching divorce, and I always recommend clients ask themselves some clarifying questions at the outset:

  • How will you support yourself post-separation?
  • What are your family’s financial needs?
  • Do you want to remain in the family home and is that option feasible from a financial standpoint?
  • What parenting schedule will work best for your children?

Get organized

No matter how you get there you’ll need to assemble all your paperwork. The more work you do yourself, the less you’ll have to pay someone else to do it. Being organized and prepared can go a long way to reducing unnecessary legal fees.

You’ll likely need to complete a financial statement and will have to gather all your financial documents. That usually includes putting your hands on the last three years of income tax returns, the last three years of notices of assessment as well as recent pay stubs. It’s also a good idea to make a list of joint credit cards and credit lines along with their balances.

For those who are married, supporting documentation for all assets and debts existing on the date of marriage and the date of separation can be useful.

Being organized will also help in negotiations.

Common-law relationships

While common law spouses do not have the same property rights as married couples, there are remedies available, for example, if one party has made contributions to the home the couple lived in.

Common-law spouses should speak to a family law lawyer to help clarify their rights and responsibilities and obtain advice about their case.

Which process?

There is more than one path to divorce, and these days more couples are opting for family mediation to avoid the adversarial approach for which family courts are so well known.

Mediation is a voluntary process that tends to be a faster and more cost-effective way of dealing with issues ranging from parenting arrangements to spousal support and property division. Mediation can be done with or without lawyers and can be terminated at any time.

Arbitration is another option that involves each spouse telling their side of the story to a neutral party (the arbitrator) and asking the arbitrator to decide. If all else fails, there’s litigation.

Cultivate a support network

Divorce is a significant life change that is almost always accompanied by big emotions. Having a network of people who can support you can make a big difference in how you weather the experience.

An approach I’ve found useful is to treat divorce negotiations like a business transaction, but this can be difficult to achieve when you’re still processing the anger, sadness and fear that often comes with a split.

Working through the grief and loss aspects of a divorce with a counsellor or therapist can enable parties to make decisions that will set their families up for success going forward.

If you are going through a separation or divorce and would like legal advice on your situation, schedule a consultation with me. I would be happy to help.

Top Three Considerations in a High-Net-Worth Divorce

Money often complicates relationships, and the same can certainly be said of divorce.

Even the humblest set of shared property can generate hostility between separating spouses, so it can be a challenge for couples who have amassed a more complex and valuable collection of assets during their time together to keep relations cordial.

However, with the help of an experienced family lawyer who understands the unique nature of high-net-worth divorce, former spouses can set themselves up for a successful split.

In this blog, I will outline three important factors that I have found lawyers and their clients will benefit from considering during a high-net-worth divorce:

Financial experts

On the face of it, the division of a married couple’s property is a relatively straightforward affair: the province’s Family Law Act generally provides for an equal share for each spouse in the property accumulated during the marriage, subject to certain deductions and exceptions — with an equalization payment owing from one party to the other to make up any difference.

The bare bones of the formula are the same for high-net-worth couples, but getting the numbers to input into the equalization calculation can be more of a challenge when complex assets such as businesses, professional practices, pensions, investment property and stock options are involved.

The same difficulties often apply to the process of establishing an individual’s income for spousal or child support purposes when the person has multiple sources of income.

As a result, our firm will connect clients with a whole range of other financial experts as needed, including accountants and business or real estate valuators.

In addition, both parties may wish to call on the expertise of a tax professional to determine the most tax-efficient ways to divide property such as pensions or business interests.

On that note, if a couple can agree to jointly retain the services of any experts required in their matter, it can significantly reduce their costs. Not only does this avoid duplication of effort, it also increases the likelihood of settling without going to court.

Section 7 expenses

Section 7 expenses, which take their name from the portion of the Federal Child support Guidelines dealing with “special or extraordinary expenses,” are among the most contested matters for high-net-worth couples with children.

These expenses cover a broad spectrum of significant expenditures that are often not an issue for less wealthy couples, including extra-curricular activities, private school tuition, post-secondary educational costs and healthcare spending not covered by insurance plans.  

In court, judges are typically inclined to share these kinds of expenses between parents in proportion to their income, but former partners who are willing to explore alternative dispute resolution methods may be able to come up with a more convenient arrangement that suits both sides.

Mediation

I recommend that all of my clients consider mediation for the resolution of their family law disputes, but high-net-worth couples may have more to gain from the process than most.

For example, the confidentiality of the process is a big attraction for former partners with significant assets or private business interests that they do not want to see laid out for public viewing as they would be in court documents associated with their case. In mediation, neither the parties nor the lawyers involved are able to share information about what was discussed

In addition, the flexibility of mediation allows the parties to tailor the process to match their individual needs. Former spouses may opt to have their sessions overseen by a mediator with expertise in financial matters, and are free to bring in outside experts to deal with matters of finance, tax, investment or business interests.

When it comes to settlements, parties to mediation are also free to explore solutions that work for both of them, despite departing from the strict letter of the law. The tax treatment of transactions in particular represents a potential source of mutual benefit for parties who are willing to get creative in the structure of payments, such that the amount of capital gains or income tax payable is reduced.

If you are in the process of separating from your spouse and would like to discuss your options, schedule a consultation with me. I would be happy to help.

Five Common Mediation Myths Debunked

When I speak with prospective family law clients, most know that mediation involves a negotiation between two individuals with the assistance of a third party. But beyond that basic concept, their understanding is limited.

I have found there are several misconceptions about how the process works, who it is suitable for and what the desired outcome should be. So, let’s highlight the reality of family mediation by exploring five common myths.

Myth #1: Mediation is not appropriate for high-conflict divorces

Some clients — as well as lawyers — question whether mediation is appropriate in a high-conflict divorce. For example, maybe there is a history of controlling behaviour, a power imbalance or domestic violence. While it is true that some of these situations may require resolution through a court order, I would argue that mediation can be structured to provide a protected environment to resolve issues.

You can set up your mediation to ensure a safe process. If your mediation is in person, it can be structured so you arrive separately and are never in the same room together. Known as a shuttle mediation, you and your former spouse will be in separate rooms and the mediator then “shuttles” between locations to facilitate settlement discussions.

Parties communicate directly through the mediator and don’t need to be in each other’s presence. If your mediation is via teleconference, it can be facilitated so you and your former spouse will not appear on the same screen. 

Unlike going to court, mediation allows you to tailor the process to make it a safer environment and address any power imbalances.

Myth #2: I don’t need a lawyer if I opt for mediation

While you and your former spouse can attend mediation without lawyers, a mediator will often instruct the parties to obtain independent legal advice before entering into a separation agreement.

It is important to note that a mediator does not take the place of a lawyer. A mediator is a neutral third party who will help you and your former spouse communicate with each other to reach an agreement. They do not take sides, make decisions on your behalf or provide you with legal advice. 

Because the process is so flexible, you can decide your lawyer’s level of participation. For example, you may want your lawyer sitting at the table with you throughout the meditation, or you can meet with them to review the separation agreement before signing. 

Myth #3: All mediators are created equal

In Ontario, mediators who provide court-connected services must meet minimum qualifications, including training, certification/accreditation and work experience. That means a mediator could be a lawyer with a background in family law or a social worker/psychologist with mediation experience. 

In my previous blog, I noted that depending on the issues you are looking to resolve, one type of mediator may be more suitable for your case than another. For example, a lawyer-mediator can explain how the law applies to your situation and provide insight into what would happen if your matter goes to court. That said, mediators with a background in social work or psychology serve an essential role, especially if there are mental health or parenting issues to resolve. 

When choosing a mediator, it is crucial to consider a mediator’s experience with family law issues and their training related to your issues. Another benefit of involving an experienced family law lawyer in your matter is that they can help advise you about selecting an appropriate mediator.

Myth #4: Mediation is not suitable for complex financial issues

Sometimes there is a misconception that mediation is inappropriate for dividing complex assets. Again, because the process is so flexible and adaptable, you can tailor it to match the issues. Couples can choose a skilled mediator with experience dealing with complex financial issues and bring in outside experts such as tax professionals, financial advisors, business valuators, and others. In short, anything that can be accomplished in court can be part of your mediation process.

Another advantage of mediation is that it can be a confidential process, which is a big plus when dealing with a high-net-worth divorce. A closed mediation is private and confidential, barring a few exceptions. Lawyers and parties involved can’t share the discussions from the mediation session, which means there is a greater chance of privacy when you choose family mediation.

Myth #5: Litigation and mediation are mutually exclusive

Last year, amendments to the Divorce Act signaled a distinct shift away from litigation to make the family justice system more accessible and efficient. Family lawyers must encourage clients to solve issues through out-of-court methods unless it would be inappropriate.

That said, you are not locked into your initial choice to litigate or mediate. Even if you and your former spouse agree on one issue to negotiate and litigate the rest, you will reduce the time and expense of your trial. In addition, you can choose to start mediation at any point in the litigation process.

Mediation can be an excellent place to start, part of a broader approach, or it can be the entire process. You can determine the best path forward by speaking with an experienced family lawyer to discuss your options.

If you would like to schedule a consultation to explore if family mediation is right for you, send me a message. I would be happy to help you.

Five Reasons to Work With a Family Lawyer as Your Mediator

Couples who decide to work through the issues of their separation in mediation rather than in court have options for the professional they choose as their family mediator.

First things first: Mediation is a voluntary, out-of-court process where a separating couple works with a family mediator who helps them negotiate a mutually acceptable agreement.

In Ontario, we have a wealth of family mediators with different styles and backgrounds: some are lawyers, but there are also social workers, psychologists and other professionals. Depending on the issues you are looking to resolve, one type of mediator may be more suitable for your case than another.

For example, if the only bone of contention between you and your former spouse is around how your children will split their time between homes, it might make sense to select a mediator who is also a social worker with extensive experience in parenting issues.

However, if your divorce involves complex financial issues, you would be wise to choose someone who has an extensive background in family law.

Cases involving spouses who don’t agree on how to split their property and money are some of the most complex and time-consuming to resolve. Working with a mediator who is skilled in this area will help ensure that any agreement you reach in mediation is both fair and legally binding.

In this column, I will highlight five main reasons couples should consider working with an accredited family mediator who is also a lawyer.

1. Knowledge of Judicial Process

There are many benefits to working with a lawyer as your mediator, including their knowledge and expertise of the law and the court processes. As a result, they can provide you with helpful information about what would happen if your matter goes to court.

When you’re negotiating, it’s also important to know the best alternative to a negotiated settlement. A mediator who is a lawyer can provide that information, which will help you make informed decisions about your case.

2. Cost-Effectiveness

It’s important to select a mediator who is the best fit for your specific situation. As a general guideline, the mediator should have experience with family law issues and training related to the issues in dispute. If the mediator doesn’t have the required experience, the process could take longer to resolve and cost more.

3. Faster Resolution in Complex Cases

Once a couple decides to move forward separately, they usually want to resolve their outstanding issues as quickly and efficiently as possible. When the issues in contention are more complex — let’s say one spouse wants to keep the marital home but the other wants to sell it and split the proceeds — it’s imperative to understand both what the law dictates and how similar types of cases have played out before the courts. A family lawyer can be extremely helpful in this situation, providing you with timely access to the legal information you need to make educated choices.

4. Training and Expertise

Family law is extremely complex and constantly evolving. Only a mediator who is a family lawyer can explain how the law applies to your situation. A family mediator who isn’t up to date with current legislation or case law may inadvertently include terms in the agreement that are not legally binding.  

Something else to ask a prospective mediator is how much of their practice is dedicated to family mediation. Ideally, you want a mediator who is entirely focused on family matters.

5. Understanding of Power Imbalances

Mediators are required to screen the parties for power imbalances or domestic violence issues that might enable one spouse to coerce the other. As professionals who work exclusively with couples, family lawyers know how to recognize some of the more subtle behaviours that might signal an abusive situation.

While mediation may not be appropriate when family violence is a factor, I have successfully mediated many high-conflict cases as well as ones involving power imbalances between the parties. The process can work effectively and safely if the mediator designs a mediation that addresses the power dynamics. 

If you have questions about your situation and are looking for information either before or during the mediation process, please contact me. As a family lawyer who is also an accredited mediator, I will ensure you have a clear understanding of your rights, obligations and the legal ramifications you might face during the course of your matter.

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.