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Family Law Myths and Reality Part 2

Missed the first part? Go back and read Part 1 of Family Law Myths and Reality to catch up on the earlier insights.

Family Law Myth and Reality 4:

A common myth is that it is necessary to remain in the matrimonial home or family residence in order to preserve your “rights” to the property. Property division for married parties, including the division of the value of the matrimonial home, is automatic as set out in Myths 2 and 3 above. For common law partners, property division is based on ownership rights and respective contributions. Therefore, married or unmarried partners cannot have their property rights taken away because of the “abandonment” of the home. There are a number of caveats to consider prior to a party making the decision to leave the home post separation:

  • Once a party leaves the home, it may be difficult for them to get back in so they must be sure to remove their own personal belongings, documents and technology. Joint contents and family pets should not be removed other than by agreement or court order.
  • If there are children involved, it may be best to stay in the home pending the creation of an interim parenting arrangement. Status quo is important when a court considers parenting time and parenting roles. It may become more difficult for that party to argue for a shared parenting arrangement or roughly equal parenting time down the road should a party vacate the home and leave the children in the care of the other party for an extended period.
  • In volatile situations where there is family violence or possible police involvement, it I best to leave the home as early as possible, and retain a lawyer to work out a suitable parenting plan on departure or bring an urgent motion to court. Too many family litigants have criminal charges levied against them or become victims of violence because of his or her reluctance to leave the home post separation. Safety is first.

Family Law Myth and Reality 5:

I will get a “fair” settlement if I take my matter all the way to trial is another common misconception. The Court takes into account legal principles and presumptions that some may consider fair and others may not when determining family law matters. Spousal support is an example. The recipient often wants more support for a longer period than the Court may award, and the Payor most likely wishes to pay less for a limited period. Fairness is in the eye or the beholder. Save for issues involving children, it is best to make business type decisions regarding support and property rights. For instance, how much will it cost to go trial? What has the other side offered? What are the ranges that the Court may order if the matter goes to trial? Is mediation a better option or mediation/arbitration?  Going to court and trial is expensive and there are never guarantees as to result. It is imperative to do a cost/benefit analysis to maximize your support and property benefits in deciding which legal route to pursue.

Family Law Myth and Reality 6:

The one who files in court first has the best chance of success.  Family Courts in Ontario are not looking for business. Courts are more than happy for the parties to work out some or all of their issues outside of Court on their own. It makes no difference to the Court as to who files their family law paper work first. Of course, in situations or urgency, such as family violence or issues regarding the immediate safety and security of a child, it is always best to call the police or children’s aid and file in court as soon as possible as time may be of essence.

It is also necessary to consider limitation periods that requires the filing of a court application within a certain time to preserve legal rights. For instance, a party who wishes to claim matrimonial property division must do so no later than six years post separation (or two years from the date of divorce, whichever is earlier).

Family Law Myth and Reality 7:

I do not need a lawyer to help me resolve my family law dispute. Parties are free to represent themselves in Ontario. Lawyers are expensive. This is reality. The question a party must ask themselves is whether a lawyer brings value to the family law process. An experienced family law lawyer and expert law advice should add value by:

  1. Focusing on the issues and resolution. Clients are often emotionally involved in the proceedings and wish to seek revenge or harm the other party, or are fixated as to the reasons why the relationship ended. A good lawyer should gently move the client away from this destructive thought process (or refer them to a qualified therapist) and objectively work out with the client possible methods of resolution to their family situation and advise them how the law applies to their particular situation.

Parties should work with a lawyer who provides them with the advice they need, as opposed to the lawyer/ cheerleader who provides the advice they may want.

  1. The dedicated family law lawyer knows the law and the procedural roads necessary to reach the best possible result for his and her client. The internet cannot replace an experienced family lawyer. For instance, the internet may provide all of the provisions of the child/spousal support guidelines. The internet will not advise (without much digging and knowledge of where to look) how courts apply the guidelines, exceptions, how income is determined for support, tax implications regarding the payment of support, number of years of retroactivity in support one may be entitled to, or the best procedural method to realize your rights. Self-represented litigants often have superficial knowledge of the law and procedure that harms their case rather than assisting it.

*The myths/realities above are provided for general information only. Readers are advised to consult with a family law professional with respect to their unique individual situations.

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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.