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Family Law Myths and Reality Part 1

Learn more about family law myths and realities with Part 2 of Family Law Myths and Reality series.

Family Law Myth and Reality 1:

There is a legal presumption of shared parenting time and shared parenting decision-making post separation. The reality is there is no such presumption. While many parents opt for a shared parenting/decision making regime and courts encourage such arrangement where appropriate, neither the Children’s Law Reform Act nor the Divorce Act provide legal presumptions regarding parenting time and decision-making. According to the Divorce Act, the best interests of the children is paramount with respect to the creation of parenting arrangements, with primary consideration given to the child’s physical, emotional and psychological safety, security and well-being.

MYTH 2:

Another common myth is that there is no difference between being married and living in a common law relationship. While this may true in some provinces, it is not the case in Ontario. In Ontario, there is no support obligation for common law parties unless the parties have cohabited together for three years or, in the event the parties have cohabited for less than three years, if the parties are in a relationship of some permanence and have a child together. There is no equivalent support qualifier for married parties.

With respect to property division, there is no common law right to property division following the dissolution of the relationship. Rather, a common law partner must prove contribution (financial or otherwise) to the value of the property owned by the other that would lead to an inequitable situation if the value of that property is not shared.

Married parties are required by law to share equally in the value of property acquired during the marriage through the calculation and division of respective net family properties. This is automatic case unless the married parties enter into a Marriage Contract that specifies otherwise regarding the division of property. Alternatively, in very rare instances, the Court may deny the sharing of net family properties is such sharing leads to an unconscionable result.

Family Law Myth and Reality 3:

The matrimonial home is treated like all other property on separation of married parties. The matrimonial home is defined as “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home”

The matrimonial home has special status under the Family Law Act. Neither spouse may encumber the matrimonial home or sell the matrimonial home without the consent of the other regardless of which spouse owns the matrimonial home. Further, the party who comes into the marriage owning the matrimonial home is not permitted to deduct the value of the matrimonial home held on date of marriage when dividing property on separation. In other words, 100% of the value of the matrimonial home is subject to division, not only the portion of the value accumulated post marriage. This is regardless of which party is on title to the matrimonial home on the date of marriage and separation. This result may be avoided if the parties agree otherwise by way of a marriage contract.

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About the Author

Ken Nathens is the founding partner of Nathens Siegel and he was called to the Ontario Bar in 1994. Ken’s background is in all areas of Ontario family law and has written extensively on family law issues, including articles published in Divorce Magazine and interviewed by AdvocateDaily. He regularly contributes to the Lawyer’s Daily and has lectured on family law through Riverdale Mediation, and guest lectured to law students at the University of Windsor, Ottawa University and Osgoode Hall Law School.