Introduction:
Building trust with clients is crucial, and our firm understands this. As lawyers, we enjoy conversing with clients in their native tongue, ensuring effective communication. Our legal training and life experiences let us quickly see things from the client's perspective. Before being retained, we discuss the challenge and recommend viable solutions.
The case study includes my opinions, which do not constitute legal advice. Please contact our office for an analysis of your specific situation and advice.
Background:
A client recently contacted me to assist with finalizing his divorce application. This client had hired two lawyers over nearly ten years but could not complete the application. I communicated with the client in his native language, Cantonese, and ensured he felt comfortable and confident in my ability to handle the case. Despite the client being fluent in English, we instantly connected after conversing in his first language.
Issues:
The client wanted to settle with his wife, but she demanded everything. She told him that if he wanted to leave the marriage, he could do so, but he must leave with nothing—no children, money, house, or assets. Not even his house plants! Essentially, she wanted him to just disappear and never come back. Resolving a broken relationship requires no magic. It must be done according to the Family Law Act (FLA).
The following is a synopsis of the legal issues:
1. If you are married and you break up, you divide the family property equally unless
either of you paid some of the down payment or mortgage from the money you had
before you got together, or from an inheritance of gift to one person. In this case, the
wife's position is not tenable as this couple is married; her position is even more
untenable as the couple's matrimonial home was jointly titled.
2. A joint title holder in Ontario has a prima facie right to partition. While the court
cannot force one party to sell to the other, the court can order the matrimonial
home to be sold and the sale proceeds will be paid to the title holders. If the children
are very young, and selling the matrimonial home may adversely impact the "best
interest of the child," the court may not order the home sale. As the child was 14, a
partition action would likely succeed in this case. In fact, in the final settlement
conference, the judge advised the parties that the court would order it to be sold if
they could not agree on the home sale.
3. The "best interest of the child" principle results in both a right of the child and an
obligation upon the parents. Section 16(3) of the Divorce Act states that the court
shall consider the child's physical, emotional and psychological safety, security, and
well-being. As a child matures, the court gives increasing weight to the child's
preferences. The child's view is canvassed by a child support specialist, whose report is
entered into court as evidence. In this case, as the child was 14 years old, his views
carried considerable weight.
Result:
While the wife rejected multiple offers to settle, the morning before the trial commenced, she recognized the husband's interest in the matrimonial home and agreed to buy the husband's interest. Unfortunately, the wife adopted such an untenable position for so long. Had she adopted a more reasonable position, both parties would have saved on legal fees. Nonetheless, the wife did align her position with one supported by law, and our client received payment for his share of the matrimonial home. As for parenting, since the son was 14, the parties agreed to leave matters to the child's wishes.
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