Ontario Divorce Law

Allocating parenting time while dealing with family violence can be a difficult task. This blog will discuss how the Family Law Act deals with the rights a parent has to time with their child while at the same protecting the best interests of the child.

Please note that each province may have their own laws, so it is best to reach a lawyer in your area to discuss family law.

If you are interested in Ontario Divorce Law, our Toronto family lawyers offer flat fee billing options and 30 minute free consultations. Please call 1 844-618-8080 (toll free)

The default position with respect to guardianship is that while a child’s parents are living together and after they separate, each parent is the child’s guardian, unless and until the court otherwise orders of the parties otherwise agree.

Ontario Divorce Law

There is no presumption that guardians should share parenting time or parenting responsibilities equally.

The phrase family violence” is defined in s. 1 of the Family Law Act. The definition includes: physical abuse of a family member, attempts to physically abuse a family member, psychological and emotional abuse; and intentional damage to property.

Of course, with the new Family Law Act in place, the courts must only consider the best interests of the child when making an order dealing with parenting time and parenting responsibilities. Section 37 of the Family Law Act contains a non-exhaustive list of matters that may touch on the determination of a child’s best interests. Of note are subsections (g) and (h) which state that the court must consider the impact of any family violence on the child’s safety, security or well-being and whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child.

The Family Law Act states that an order that does not, to the greatest extent possible, protect the child’s physical, psychological, and emotional safety, security, and well-being is not in the best interests of that child. A parent’s conduct for consideration is limited to those matters that might substantially affect one of the factors that make up the child’s best interests.

If the court is satisfied that family violence is likely to occur and that the family member other than the one against whom the order is sought, is “an at-risk family member” the court may make an order for protection under s. 183 of the Family Law Act. An at-risk family member is one whose safety and security is or is likely at risk from “family violence carried out by a family member”.

In determining whether to make a protection order (using Ontario Divorce Law) the court must consider some factors such as:

a) any history of family violence by the family member against whom the order is to be made;
b) whether any family violence is repetitive or escalating;
c) whether there is evidence of a pattern of coercive and controlling behavior directed at the at-risk family member;
d) any circumstances that may increase the risk of family violence such as substance abuse, employment, financial problems or mental health problems;
e) the at-risk family member’s perception of risks to his or her own safety and security; and
f) and any circumstances that may increase the at-risk family member’s vulnerability including pregnancy, age, family circumstances, health or economic dependence.

If the court is satisfied that a protection order must be made, the court can make an order for restraining the family member from:

i) directly or indirectly communicating with or contacting the at-risk family member or a specified person,
ii) attending at, nearing or entering a place regularly attendant by the at-risk family member; or
iii) following the at-risk family member

The court can also limit the family member in communicating with or contacting the at-risk family member, including specifying the manner or means of communication or any order the court considers necessary to protect the safety and security of the at-risk family member.

If you are interested in Ontario Divorce Law, our Toronto family lawyers offer flat fee billing options and 30 minute free consultations. Please call 1 844-618-8080 (toll free)

When Johnston v Johnston Estate was first mentioned at the office, the facts appeared straightforward enough: David and Sharon married in 1968; they bought a house for $37,500.00; they separated in 1971; Sharon remained in the home; 40 years passed; Sharon died without a will; the house (now worth $1.2 million) passed to David.

Pardon me? If there is one thing I learned in law school it is that the law of succession does not allow an ex-spouse to inherit their former partner’s property. Under British Columbia’s Wills, Estates, and Succession Act (“WESA”), once a person ceases to be a spouse, that person no longer has a right to claim a spousal share of the estate if his or her former spouse died without a will. Though they never divorced, David and Sharon ceased to be spouses because, pursuant to s. 2(2) of WESA, they lived separate and apart for at least two years -in this case, nearly 40 years- and at least one of them had the intention to live separate and apart permanently.

At this point, you may be wondering how David could inherit his ex-wife’s home given that the law so clearly prohibits this outcome.

Thankfully for both of us, law school also taught me that when the law doesn’t make sense, it is probably because you are missing something crucial. (It is a humbling place, that law school.)

Let’s dig a little deeper, shall we?

The aforementioned facts are true, albeit incomplete. When David and Sharon purchased the property in 1968, they registered their names as tenants-in-common, each with an undivided one-half interest. They resided in the home together until they separated in 1971 at which time David moved out. David and Sharon never divorced.

If you are interested in Ontario Divorce Law, our Toronto family lawyers offer flat fee billing options and 30 minute free consultations. Please call 1 844-618-8080 (toll free)

More importantly, David and Sharon never resolved the matter of property division. Save for a short-lived attempt at divorce proceedings, the parties had virtually no contact after their separation in 1971. Sharon paid off the mortgage in 1974 and continued to live there with her common-law spouse and son. Until her death in 2009, Sharon was solely responsible for the maintenance and care of the property. Perhaps Sharon thought that as far as the property was concerned, David was but a name on the annual property tax notice.

But then Sharon would be mistaken.

Learn more about Ontario Divorce Law: Can My Spouse Make Me Pay for Extracurricular Activities?

Section 23(2) of the Land Title Act, R.S.B.C. 1996, c.250, creates a statutory presumption that persons registered on title to property are presumed to hold the legal and beneficial interest. It provides that an indefeasible title is “conclusive evidence at law and in equity … that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple…”.

In other words, David’s interest remained his interest, notwithstanding his lack of use. When it comes to land, there is no legal equivalent of “use or lose it.”

After Sharon passed away, her one-half interest in the property was transferred to her son. Sharon’s son and ex-husband now each held an undivided one half interest in the property as tenants-in-common.

The issue had finally come to a head. David wanted to sell the property and collect his half of the proceeds; the son didn’t think David should be entitled to the property at all.

As you can see, Ontario Divorce Law or the law of any Canadian province can be complicated.

The law is in favour of David and here’s why:

Section 6 of the Partition of Property Act provides that where a party has a one half interest in a property and where they request the court to direct a sale of the property, the court must do so “unless it sees good reason to the contrary.” As the presiding judge pointed out, the Court’s discretion to order otherwise is narrow and something in the order of significant hardship will have to be demonstrated to avoid a sale: Ryser v. Rawlings, 2008 BCSC 1050 at para 27.

For his part, the son made a strong argument that the parties actually had a Separation Agreement, evidenced by their conduct and their limited communications they had while considering a divorce.

The judge, however, did not accept this view. Instead, Madam Justice Warren found that the parties’ conduct and limited attempts were indicative of a couple who were avoiding their problem. David did not press his claim for an interest in the property because he knew that Sharon would likely respond by pursuing a claim for spousal support. Conversely, Sharon likely did not press her claim for spousal support because she knew that David would likely respond by claiming an interest in the property. A stalemate if I ever saw one.

Ontario Divorce Law

The result leads to an important lesson. Avoiding the issue did nothing to diminish the trouble for the parties involved in this matter; the problem simply transferred from Sharon to her offspring. Though we will never know Sharon’s final wishes, I cannot imagine it was for her son and ex-husband to spend time in court. Property division is rarely a pleasant task but it is possible. It needn’t take decades to tackle.

If you are interested in Ontario Divorce Law, our Toronto family lawyers offer flat fee billing options and 30 minute free consultations. Please call 1 844-618-8080 (toll free)

The judgment of Johnston v Johnston Estate, 2015 BCSC 1479 was released on August 21, 2015.


Comments : Off
About the Author

@Copyright 2016, HARTLegal | Disclaimer | HART Legal, A Professional Law Corporation as another name, in addition to Darren Hart Law Corporation.