Temporary Exclusive Occupancy of Family Residence in Ontario

Koehler v. Koehler, 2015 ONSC 5777, addresses the issue of interim exclusive occupancy.

Husband sought an order for exclusive occupancy of the matrimonial home awaiting trial. Wife moved to sell the matrimonial home.

By way of background, husband lived in the matrimonial home with two daughters who attended university. The younger teenaged child resided with the wife. Husband earned $225,000 annually and wife earned $25,000. Wife lived in cooperative housing at a standard of living far below that which she was accustomed to during the marriage.

Section 24(1) of the Family Law Act, R.S.O. 1990, c. F.3, empowers the Court to grant an order for exclusive possession regardless of ownership of the matrimonial home. The order may be interim in nature under subsection (2).

The Court must consider the following criteria established by subsection (3):

  1. the best interests of the children affected;
  2. any existing family property and support orders;
  3. the financial positions of both spouses;
  4. any written agreements between the parties;
  5. the availability of other suitable and affordable accommodation; and
  6. any history of family violence.

With respect to the best interests of the child, the Court must consider:

  1. the possible disruptive effects on the child of a move to other accommodation; and
  2. the views of the child if they can reasonably be ascertained.

The sale of a matrimonial home is governed by the Partition Act, c. P.4, sections 2 and 3 in particular.

Under section 2, all joint tenants, tenants in common, etc may be compelled to make partition and sale.

Under section 3, any person interested in land in Ontario, etc, may apply to Court for partition or sale under the Court’s directions if the Court finds the order advantageous to the interested parties.

Some case law was cited.

Butler v. Butler (1998), 1998 CanLII 4726 (ON SC) specifies that a joint tenant has a prima facie right to sale prior to trial, and this right exists unless the other joint tenant has made claims that would be prejudiced if the property were sold.

Silva v. Silva (1990), 1990 CanLII 5400 (BC CA), a British Columbia case followed by Ontario courts, reaffirmed that a joint owner has a prima facie right to partition and sale but the order should not be made where it can be shown that it would prejudice the other spouse’s rights under the Family Law Act. In such a case, the issue should be saved for trial.

Lastly, Martin v. Martin (1990), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.) provides that the Court is not to “rubber stamp” a partition motion and these orders may rarely be made.

Here, Husband’s motion failed because he did not provide any evidence as to the views of the children. The Honourable Mr. Justice Harper explained “In considering the best interests of the children, I must, not may consider their views and preferences where they can be reasonably ascertained. That evidence was not put before me.”

Koehler is a reminder to lawyers to always be aware of evidentiary requirements. It is also a roadmap to exclusive occupancy motions and should be kept in mind for that purpose.

Jeffrey L. Hartman 

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Mobility Motions in Ontario

The Ontario Superior Court of Justice released Fifield v. Cochrane, 2015 ONSC 5363, on August 26, 2015, denying the mother’s mobility motion. This case is important to Ontario family lawyers because it affirms the analytical approach to mobility motions in Ontario.

Mom wanted to move the three young children an hour away to live with her mother. The separated parties lived in the same household, which the children grew up in, and this arrangement caused stress. The parties were roughly equal in parenting duties.

Mobility motions require an analysis of the children’s best interests as guided by the framework set out in Gordon v. Goertz [1996] 2 S.C.R. 27 at paragraph 49:

  • The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
  • The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
  • Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.
  • The focus is on the best interests of the child, not the interests and rights of the parents.
  • The judge should consider, among other things:
  1.  the existing custody arrangement and relationship between the child and the custodial parent;
  2. the existing access arrangement and the relationship between the child and the access parent;
  3. the views of the child;
  4. the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;
  5. disruption to the child consequent on removal from family schools, and the community he or she has come to know.
  • Ultimately, the importance of the child remaining with the custodial parent in a new location must be weighed against the continuance of full contact with the access parent, its extended family and community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new.

The Gordon v. Goertz framework led Mr. Justice Phillips to deny the mother’s motion. Although it made good sense for mother to bring the motion, ultimately granting the motion would cause too significant a disruption to the children. They were attached to their schools, friends, and community. Familiarity and stability was very important for the children in light of the disruption to their lives caused by their parents’ divorce. Also, the trial judge may re-assess the move and order the children to return to the original community. All told, it was in their best interest not to move.

Fifield v. Cochrane teaches Ontario family lawyers how to understand and approach mobility motions and evaluate the likely outcome of same with clients.

Jeffrey L. Hartman

Bullying in Family Law

Bullying is a common theme in family law. Family lawyers and judges often see one party attempt to exact favourable settlement terms from the other through threats and coercion. One of the most common examples is the threat that one party will have to declare bankruptcy if the other holds them to account for their spousal and child support obligations, leaving no money for any support.

The Supreme Court of British Columbia confronted this exact threat in B.J. v. K.C.W.J., 2015 BCSC 1746. Father, the breadwinner, had been bullying mother and pressuring her into an unfair out of court settlement without the guidance of family lawyers. In her affidavit, mother stated:

At times [father] has told me that if he has to pay the Guideline [i.e. required] amount of child support and spousal support that he would have to go bankrupt. This would leave no support for me or the children. Because I was unemployed, going to school, and caring for our boys, and struggling financially, I felt I needed to settle for whatever he was willing to pay.

The court did not have much patience for father’s litigation tactics. He was ordered to pay $3,764.00 in monthly child support and $6,487.00 in monthly spousal support.

The take away point from B.J. v. K.C.W.J. is that family lawyers and judges are there to stand up to bullies and ensure that a just result prevails at the end of the day.

Jeffrey L. Hartman 

Forcing the Sale of the Family Home Before Trial? Easier said than done

Apart from children’s issues, one of the most contentious issues in family litigation is figuring out what to do with the family home. Someone has to move out, and debt and equity must be dealt with. Family litigants are often, quite understandably, eager to move on with life. Family lawyers are thus often asked about forcing the sale of the family home before trial.

The Ontario Superior Court of Justice just delivered a new decision on this issue in Mitchell v. Leach et al, 2015 ONSC 6041.

Husband and wife were both of advanced age. Husband purchased the home decades prior to marriage. The parties married, wife moved in, and moved her disabled daughter into the basement suite at heavily discounted rent. There were two marriage contracts; one would affirm wife had no interest in the home, the other granted her an interest and made her a joint tenant. The validity of both contracts was seriously disputed and required trial.

Husband moved for an order for a forced sale under the Partition Act. His motion was dismissed.

The Court’s analysis teaches Ontario family lawyers how to handle forced sale motions.

First, section 2 of the Partition Act provides that all joint tenants, tenants in common, etc may be compelled to make or suffer partition or sale of land regardless of whether the estate is legal and equitable, or equitable only.

Second, case law reins in section 2:

Silva v. Silva (1990) CanLII 5400 (BCCA)

  • A joint tenant has a prima facie right to partition and sale.
  • But, “an application under section 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the Family Law Act”.

Davis v. Davis 1953 CarswellOnt 108

  • “there is a prima facie right, which will not be denied unless there has been vexatiousness or oppressiveness, and that it is the conduct of the applicant for partition that must be considered in this connection”.

Greenbanktree Power Corporation v. Coinamatic Canada Inc 2004 CarswellOnt 5407

  • Oppressiveness includes hardship.
  • Partition and sale can be refused because hardship would be of such a nature as to amount to oppression.

Garfella Apartments Inc. v. Chouduri 2010 ONSC 3413

  • The party alleging oppression has the onus to prove it on a balance of probabilities.
  • Partition and sale can be refused in circumstances of malice, oppression, and vexatious intent.

In Davis, the sale caused inconvenience and financial difficulty, but not oppression. There was no vexatious intent. An order for partition and sale was made.

In Klakow v. Klakow 1972 CarswellOnt 150, an order for sale was not made because the party resisting the sale was blind, unemployable, and had nowhere else to live. This hardship amounted to oppression.

In Mitchell v. Leach, partition and sale was refused because of the uncertainty surrounding the marriage contracts. If wife was, in fact, a joint tenant, she could leverage her equity in the home to buy husband’s interest, thereby allowing her, and her disabled daughter, to remain in the home.

The take away point is that orders for sale and partition are not lightly granted and Ontario family lawyers must assess the situation very carefully before bringing the motion.

Jeffrey L. Hartman

Actions and Consequences in Family Court

Legally disentangling a family is an inherently emotional process. Tempers flare, tears flow, and we do things we ordinarily would not do. But actions have consequences and, in family litigation, sometimes we have to atone for those actions in front of a judge.

Husband learned this lesson the hard way in the recent Supreme Court of BC decision, H.S. v. R.S., 2015 BCSC 1856. As a Canadian citizen, Husband sponsored his Pakistani Wife’s application for Canadian citizenship. Wife became pregnant. Their relationship soured and they separated. Husband immediately –i.e. the same day as separation – withdrew sponsorship of his pregnant Wife.

Wife faced a deportation order. She challenged it, arguing that her life was in danger in Pakistan. Husband argued there was no danger. Immigration officials agreed with Husband and upheld the deportation order.

Wife applied to family court seeking a variety of relief, including custody of the 13 month old child and a relocation order permitting her to take the child to Pakistan. The orders were granted.

The lesson here is that actions have consequences. In retrospect, Husband probably regrets withdrawing sponsorship of Wife on the same day as separation. Often, especially in family litigation, it is wise to take a deep breath and very carefully consider the pros and cons of a course of action. Had Husband done that and decided not to withdraw his sponsorship, perhaps the child would remain in Canada.

Jeffrey L. Hartman 

How to Handle Allegations of Sexual Abuse Against a Child in Ontario Family Court

Allegations of sexual abuse against a child have a way of arising in the midst of custody and access litigation in Ontario. Sometimes those allegations are well founded. Other times they are tactical maneuvers to minimize the other parent’s role. This article teaches Ontario family lawyers how to handle such allegations in light of the recent Superior Court of Justice decision Daya v. Daya, 2015 ONSC 6240 (CanLII).

In Daya, Father sought access to the three and a half year old daughter. Mother resisted, alleging he sexually abused Daughter. She made the same allegation at least twice prior. Police and Children’s Aid Society investigations found no evidence of abuse. Mother independently retained a child therapist without notice to Father. The therapist did not inquire into the parties’ history of family conflict. Mother was present at the sessions and, on several occasions, told the therapist what Daughter “meant” to say. The Office of the Children’s Lawyer recommended sole custody to Mother and access to Father.

Justice Jarvis leaned on Bates v. Bates, 2011 ONSC 3027 (CanLII) for the analytical foundation to allegations of sexual abuse against a child. There are three approaches:

  • Balance of Probabilities: this approach is binary because it generates the conclusion that the child was or was not abused. The problem, then, is that a finding of no sexual abuse might be made despite a significant risk that the abuse did occur. Consequently, this standard does not help the court determine the degree of risk of harm and the best interests of the child.
  • Real or Substantial Risk of Harm: the court must determine whether there is a real or substantial risk of harm. The problem with this approach is that the words “real or substantial” establish a threshold and thereby distract from the task of assessing the risk of harm and determining the best interests of the child.
  • Risk of Harm: this approach flows from Young v. Young, 1993 CanLII 34 (SCC). Based on all the evidence, the court must ascertain the existence and extent of any risk of harm. The risk must be plotted on a continuum from no risk to certainty that risk will materialize. When there is any possibility of materialization, the court must consider the degree of potential harm. Where the risk falls on the continuum determines the amount of weight attributed to the risk. The risk then becomes one of many factors in determining the child’s best interests.

Justice Jarvis applied the Risk of Harm Analysis, finding that there was no risk of harm and that Mother simply does not accept the findings of the numerous agencies she involved.

Ontario family lawyers know that allegations of sexual abuse against a child arise all too frequently in family court. It is sad when the allegations are tactical and sadder when they are true. Whatever the situation, Daya teaches us how to handle these allegations.

Jeffrey L. Hartman

Communicating Effectively in High Conflict Family Litigation

Communicating effectively in high conflict parenting cases is a major issue in family litigation. Often, the child’s best interest takes a backseat to animosity between the parents. The Supreme Court of British Columbia recently addressed the issue in K.R.Y. v. P.J.P.T., 2015 BCSC 1903, a judgment providing good food for thought for family lawyers everywhere.

A section 211 report by Dr. England was tendered. In it, she cites the following excerpt of Justice Joyce in A.C.V. v. S.J.R., 2011 BCSC 1279:

“Texting is a modern means of communication that is great in many situations but not, in my view, in a situation such as this. It is too fast. It does not encourage calm reflection. A person can too easily make hurtful and unhelpful comments from a distance. In my view, email communication, while not as good as calm, courteous personal discourse, is the preferred option. It should be limited to matters concerning J.R. upon which it is truly necessary or helpful to communicate. I encourage the parents to compose when they are calm, always to re-read what they have written and, before hitting the send button, ask this question: Do I want this message being read in Court?”

Dr. England further recommended that parents communicate the bare minimum amount of information in order to minimize the potential for conflict.

Family lawyers everywhere should bear these tips in mind when advising clients in high conflict family cases.

Jeffrey L. Hartman