Family Law
Case Studies
Divorce and Equalization
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Section 8 of the Divorce Act (DA) states that marriage breakdown is the only grounds for divorce.
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Section 7(3) of the Family Law Act (FLA) governs the rules of equalization payment.
Background
Recently, a client contacted Carman to complete his divorce application. This client retained two lawyers over close to ten years but did not finalize his application for divorce. Carman's approachability and understanding made the client feel comfortable and confident to let Carman manage the case.
While this client wished to settle with his wife, she adopted a "take all" approach. The wife told our client that if he wanted to leave the marriage, he could do so, but he is to leave with nothing – no children, no money, no house, no assets – nothing! The following is a synopsis of the legal issues:
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​If you are married and you break up, you divide the family property equally unless either of you paid some down payment or mortgage from the money you had before you got together or from an inheritance or 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.
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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 with the proceeds of the sale to 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.
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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.
Issues
Result
While the wife rejected multiple offers to settle, on the morning before the trial was to commence, she recognized the husband's interest in the matrimonial home. She 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 years old, the parties agreed to leave matters to the wishes of the child.
How the Carman Feng Law Professional Corporation Assisted
The case study provided herein includes my opinions and does not constitute legal advice. For an analysis of your specific situation and advice, please contact our team.
